2007 Law Day Winners Announced

3691 users shared this document! click

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 T E N N E S S E E B A R A S S O C I A T I O N Y O U N G L A W Y E R S D I V I S I O N Presidents Corner . . . . . . . . . . . . . . . . 2 Spotlight on Tennessee Law Schools . . . . . 3 Face of the Young Lawyer . . . . . . . . . . . 6 Practice Tips . . . . . . . . . . . . . . . . . . . . . 8 YLD in the Community . . . . . . . . . . . 10 Public Service Day . . . . . . . . . . . . . . . 10 Barely Legal . . . . . . . . . . . . . . . . . . . . 12 YLD Unveils Disaster Relief Manual . . . 13 Think Management Training is Optional? . 14 CLE for Young Lawyers . . . . . . . . . . . 15 INSIDE V O L U M E 2 I S S U E 4 SUMMER 2007 2007 Law Day
Winners
Announced T he Law Day Art and Essay Con-
test, sponsored by the TBA Young
Lawyers Division each year, gives students across the state the opportu-
nity to creatively express their ideas
about living in a society governed by
the rule of law. This years theme, Liberty Under Law: Empowering Youth, Assuring
Democracy, emphasized the important
role young people play in society, as well
the important role society plays in mak-
ing sure that youth understand their
rights and responsibilities under the law.
The theme was designed to spur discus-
sion of how the law can better serve the
needs and interests of young people and W hen the championship round of the
2007 Tennessee High School Mock
Trial Competition began in the A.A. Birch Courthouse in Nashville on
March 24, six young women from St. Marys
Episcopal School in Memphis already knew
what it felt like to come in second. They
were ready for more. Mock trial, a competition in which high school students play the roles of attorneys
and witnesses in a case developed by the
TBA Young Lawyers Division, is not just a
dramatic interpretation of a pre-written
script. The students are given little more than a factual scenario, lists of witnesses and
affidavits and a slightly modified version of
the real rules of evidence. From these meager
case materials they must prepare for trial
and represent both parties! The teams usually
have a faculty advisor and an attorney coach,
but most coaches are quick to say that the
students are the driving force behind trial
performances that rival those presented in
many real-life courtrooms. St. Marys, an all-girls preparatory school, is a team with a solid history of mock trial
performances. Each year since 1999, it has continued on page 4 continued on page 5 Third Times the Charm for
St. Marys Mock Trial Team By Candi Henry St. Marys accepts the state championship trophy. The team represented Tennessee at the national
competition in May. THE PRESIDENTS CORNER A Few Final Words By Lisa Sherrill Richter N ewly installed YLD President Jason
Long has been gracious enough to
allow me one last column in this publication. But in the next edition, this
space will be in his capable hands and I
look forward to that! I want to take this
last column and let you know how proud I
am to be a member of the TBA Young
Lawyers Division and to encourage you as
we move toward the future. Each quarter, the YLD president sub- mits a report on the divisions activities to
the TBA Board of Governors. In my final
report to that body I summarized what
young lawyers had accomplished between
April 21 and June 12, and I was amazed
and impressed how many of us worked on
CLE projects and helped members of our
community through the Statewide Public
Service Day. And those are just the attorneys I know about. I have no doubt that every day
young lawyers across Tennessee do things
to improve the profession and help their
neighbors. Some may provide informal pro
bono assistance they never report. Others
may work with their churches, synagogues
or mosques to help the needy. Almost all
of us serve our profession by doing our best
to represent clients and deal fairly with
courts and opposing counsel. This happens
in big firms in big cities and one-person
offices in rural counties. Our state, our
judicial system and our profession are bet-
ter because of these efforts. Being a young lawyer isnt always so uplifting. It is easy to become discouraged when you practice law, and
even more so when you are in
your first ten or so years. There
is pressure to please clients,
partners, judges and co-work-
ers. There is pressure to bill
hours, pay the bills and be
right all the time. Some-
times, as the Robertson County
saying goes, you are up to your
eyeballs in alligators and it is
hard to figure out which one
has the worst bite. What is a young
attorney to do? Here are my five favorite
phrases to help maintain sanity: 1. Dont panic. I learned this one from a law school classmate of mine
during first semester finals. In a previ-
ous lifetime he jumped out of planes
with a gun. His jump sergeant had told
him the first rule was to not panic and
after that everything else would fall
into place. Smart man, that jump ser-
geant. This advice works particularly
well when you are in the middle of a
trial and your client remembers
something he forgot to tell you in
spite of multiple trial preparation con-
ferences and phone calls. 2. Tomorrow is another day. Scar- lett also had the right idea with this
one. Sure, the Yankees may burn down
your home, your dress may be made out
of the dining room curtains, your child
may jump off the balcony and your
third marriage may be coming apart at
the seams, but tomorrow you get a fresh
start. This is helpful when you have had
a day where nothing seems to go right
and the only thing that hasnt hap-
pened yet is the arrival of a cheerful
little envelope from the Board of Pro-
fessional Responsibility stamped
Confidential in red ink. 3. You are good enough, you are smart enough and, doggone it, people
like you. It is true. You know it and your mama knows it. Just call her and
ask. When your moms not available
though, it can help to talk to another
attorney who has been there before. I
also keep a file that has every single
thank you note or card I receive from a
client. On particularly grim days I look
though that file and think about the
things Ive done that helped others. 4. Never be backwards in coming forwards. It is like ripping off the
band-aid instead of pulling it off by
degrees. Even though this is one of
the hardest things you will ever do,
being able to come forward and admit
to your client, partner, judge or adver-
sary that you have made a mistake
and are wrong about something will
improve your outlook and likely
strengthen the relationship. 5. Sometimes youre the wind- shield, sometimes youre the bug.
This bit of wisdom comes from Mary
Chapin Carpenter. Some days you are
on top of the world and everything is
going great, then the wheel o karma
spins and you have those alligators
attached to you like Velcro. Hang in
there, it will get better. On that note, I want to thank you all very much for everything you have done
for the practice of law in Tennessee this
year and for the people you have helped.
You did a great job and should be proud. Lisa Sherrill Richter was the 2006 2007 YLD president. She practices law in Springfield with the Law Offices of Larry D. Wilks and can be reached at lrichter@larrywilks.com. Staff L ISA S HERRILL R ICHTER , P RESIDENT A PRIL B ERMAN , E DITOR R AE O LIVER , A SSISTANT E DITOR S TACEY S HRADER , YLD D IRECTOR L ANDRY B UTLER , D ESIGN & P RODUCTION TENNESSEE BAR A S S O C I A T I O N T E N N E S S E E Y O U N G L A W Y E R 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 page 2 T E N N E S S E E Y O U N G L A W Y E R O n May 11, the University of Ten-
nessee College of Law celebrated
the hooding of 146 graduates in the Class of 2007. Interim Dean John Sobieski
set the tone for the ceremony by remind-
ing graduates to take time to reflect on
their accomplishments and the grand
institution to which they now belong. Dean Sobieski noted that each year the bittersweet departure of a graduating
class is followed by the excitement of a
new classs arrival. He then expressed
special thanks to the faculty for their
devotion to students and legal education,
followed by an announcement of the
departure of two faculty mem-
bers: Deseriee Kennedy
and Fran Ansley. Pro-
fessor Kennedy, who
taught civil proce-
dure, family law,
women and the
law, family vio-
lence and
business torts, and
has served as a dedicated mentor to stu-
dents in the domestic violence clinic,
will begin a new teaching position this
fall with the Jacob D. Fuchsberg Law
Center of Touro College in Long Island.
Kennedy also has been extremely active
in Knoxville non-profit agencies and will
be sorely missed. Professor Ansley, who
graduated first in her class from UT Col-
lege of Law in 1979, plans to retire. She
has been a professor at the College of
Law since 1988 and has been active in
scholarship on the effects of global-
ization, social justice and equality.
More importantly, she has been an
inspiration and mentor to service-
minded students. The
announcement of her departure
was coupled with news of her
selection as the 2007 recipient of
the prestigious Society of Ameri-
can Law Teachers (SALT) Award. Each year, commencement speakers are chosen by a student selection committee, while the class
speaker is chosen popular vote. This year
the selection committee chose Tennessee
Supreme Court Justice Cornelia Connie
Clark and Fox News anchor and attorney
Megyn Kelly to address the graduating
class. Daniel Headrick, National Moot
Court team member and recipient of every
advocacy award given by the law school,
was elected class speaker. Reflecting on
their own lives in the law, each speaker
gave rousing speeches derived from their
diverse experiences. Justice Clark congratulated graduates on the attainment of their dream and
reminded them that being a steward of the law is a high privilege. She noted that this privilege gives gradu- ates the p o w e r t o choose
a journey
with the law
that will be fulfill-
ing and she reminded each of them that
for centuries countries in strife and those in need have turned to those who under- stand the law for guidance. She enthu- siastically reminded everyone that the law is still one of the most respected professions in the world, and that through the law, the downtrodden can be assisted, art can be preserved and justice secured. Next, Kelly reflected on her legal journey with equal enthusiasm, but with sage words of caution for the
next generation. Kelly began by recount-
ing her journey as a new associate in a
large corporate law firm and her subse-
quent ascension to professional success. She revealed that while she was dubbed a killer and her briefs and
motions were expertly written, for nearly
eight years she did not attend the wed-
dings of close friends, nor the funerals of
others. She recalled finding herself at the
top of professional success with her mar-
riage in trouble and her once powerful
love of the law dissipated. Kelly power-
fully reminded graduates that they must
balance the professional with the per-
sonal and that they must put as much
work into their lives as they do their
careers. She concluded by sharing her
belief that one can be an excellent attor-
ney and be proud of how life is lived. Then it was time for Headrick to give the final word. He reflected with his usual humor on how the impressive class of financial advisors, public relations executives and various military captains had come to law school to share three won- derful and challenging years together. He noted that his fellow
graduates would practice and serve in
Tennessee, New York, Iraq and the court-
houses and chambers of a dozen states
courts. In closing and on behalf of the
class, Daniel thanked the family, friends
and faculty who mentored and supported
them through their law school experi-
ence. And, for the first time that
afternoon, the tumultuous applause was
not for the class, but for those who helped
them complete their long journey. Jamie will graduate from the UT College of
Law in 2008 and will chair the Moot Court
Board this coming year. This summer she is
clerking in the Knoxville law firm of London
& Amburn PC. She can be reached at
jballing@utk.edu. SPOTLIGHT ON TENNESSEE LAW SCHOOLS UT College Of Law Commencement:
A moment to reflect on life in the law By Jamie Ballinger Holden w w w. t b a . o r g / y l d page 3 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 page 4 represented its advanced from its district
toat the state tournament. In 2005, the
team made it to the state finals, but lost to
Nashvilles Hume-Fogg Academic High
School. The next year also saw St. Marys
advanced to the championship round
again, only to be defeated by West High
School from Knoxville. When the young
women found themselves in the finals
again this year, they brought with them
two years worth of deferred celebration. They may have been teenagers, but they were a veteran crew. Seniors Kate
Foster, Martha Gillon, Maddy Pryor, Kat
Morisy and Zina Kumok, along with jun-
iors Jenny Guyton (named the teams most
valuable player), Morgan Jordan and
Divya Moolchandani, had all been com-
peting since they were first eligible in the
ninth grade. First-year member Caroline
Fentress rounded out St. Marys A Team.
Their faculty sponsor was Pam Guinn. Parke Morris of the Cochran Law Firm in Memphis coached St. Marys to the
finals in 2006. During his tenure with the
team, he built upon the foundation laid by
former coach Tim Smith. Morris developed
lectures on the rules of procedure and evi-
dence to help the young women prepare for
the trial experience. Practices focused on
cross-examinationthe portion of the competition in which the teams attorneys
are required to interact with witnesses from
other teams. As Morris phrases it, [C]ross
is where championships are won. This year, Morris handed the reins to Jennifer S. Nichols, an attorney for the U.S
Postal Service in Memphis, who helped the
team polish their style. But Nichols is quick
to credit Morriss contribution. The girls
had the tools, so we worked on building a
good case, covered evidentiary issues and
worked on delivery. Both Nichols and
Morris praise the teams collective work
ethic. According to Morris, the girls simply outwork any other team. There is really no
secret to their success. They all have loads
of intellectual horsepower but more impor-
tantly, they are simply not afraid of hard
work, instead they embrace it. After a hard-fought battle against perennial powerhouse Family Christian
Academy, St. Marys emerged victorious
and won the opportunity to represent Ten-
nessee at the National Mock Trial
Championships in Dallas May 10-12. After returning to Memphis, the team began its preparations for the national tour-
nament. They had a few short weeks to learn
an entirely new case and to switch gears from
the criminal problem at state to a civil prob-
lem for Dallas. Ms. Nichols explains: The problem [at state] was very interesting. It had something for every-
one Assistant DA charged with the
murder of a defense attorney a
motive of either jealousy and rage over a
court loss or because the ADA believed
the victim molested his daughter. There
was a mental defense to contend with,
questionable expert witnesses, a biased
detective as a former assistant DA
myself, I loved the case! The problem
[at nationals] involv[ed] an explosion
on board a ship carrying highly volatile
magnesium. The ship was docked in a harbor and the
question to be
determined was
whose negli-
gence caused the
explosion that
killed over 1,000
people. According to Nichols, some of the com- petition rules were different at nationals,
but the most challenging aspect was the
time crunch involved. The team had to
schedule practice sessions around the flurry
of activities that accompanieshigh school
students find comes with the end of the
school year. Between Advanced Placement
exams, college visits and school projects,
free time for practice was scarce the
month between state and nationals was
hectic, to say the least. However, the team
was accustomed to making mock trial prac-
tice a priority and Saturday had long been the teams favorite practice day. The team traveled to Dallas for the national competition during the second
weekend in May. Nichols calls the experi-
ence both nerve-wracking and fun. The
women from St. Marys performed well,
winning two of four rounds and earning
seven perfect scores along the way. At the
close of competition, St. Marys was ranked
19th out of 40 teams, and senior Kate Fos-
ter was honored as one of the top 12 best
witnesses in the competition. A balloting
error discovered after the competition
bumped the team to 18th place overall. In
true St. Marys mock trial fashion, the team
is already looking forward to next year. Says
Nichols, We learned a lot [at nationals]
and hope to make it back there. Candi served on the YLDs 2007 Mock Trial
Committee, which was responsible for plan-
ning and hosting the Tennessee State High
School Mock Trial Competition. She works
for Tennessees newest Supreme Court justice,
William C. Koch Jr., and can be reached at
candi.henry@gmail.com. Third Times the Charm continued from page 1 St. Marys lead attorney presents their
arguments to the jury. Congratulations to the winning team: Caroline Fentress, Kate Foster, Martha Gillon,
Jenny Guyton (named the teams most valuable player),
Morgan Jordan, Zina Kumok, Divya Moolchandani, Kat
Morisy, Maddy Pryor and faculty sponsor Pam Guinn. 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 how communities can ensure that youth
are equipped with the knowledge and skills
needed to be effective citizens. Students in elementary and middle school were invited to capture the theme
through artwork, while high school stu-
dents submitted essays on the topic. The winners are Art Contest First Place Justin Carrasco, Cedar Bluff Intermediate School,
Knoxville Second Place Molly Rogers, Grahamwood Elementary, Memphis Third Place Hannah Kurtz, Jo Byrns Middle School, Cedar Hill Honorable Mention Shoshana Jaffa, Bellevue Middle School, Nashville Essay Contest First Place Dinah Webster, Hendersonville Christian Academy,
Gallatin Second Place Taylor Dickinson, Girls Preparatory School,
Chattanooga Third Place Christopher Barber, Waverly Central High School,
Waverly Special thanks to Memphis lawyer and YLD board member Mason Wilson who
coordinated the competition. To see work
from all the winners visit: http://www.tba.
org/Journal_Current/200706/TBJ-200706-
contestWinners.html First Place Essay
Excerpt By Dinah Webster T odays youth are tomorrows lead-
ers. In order for youth to be
effective in society, they must be educated, encouraged and enabled ... The first step toward becoming an effective citizen is a childs education.
Youth must understand the democratic
process and their role in society. If they
are not taught at school or in their
homes about the country in which they
live and [its] political system, they will
not understand why they should obey
its laws The second step for equipping youth for leadership is to encourage
them. Young people making a positive
influence on society should be encour-
aged to continue doing well The third and final step for engaging youth in democracy is to
enable them to take part in the political
process of the country. When youth are
involved in the political process, they
are more likely to go out to the [polls]
and take advantage of the opportunity
to elect their leaders Youth must be taught at home and in the schools how to be [virtuous],
rather than what will get them ahead in
life. Society is very influential on youth;
therefore, it should tell teens what they
need to hear, rather than what they
want to hear. 2007 Law Day Winners continued from page 1 First Place Justin Carrasco,
Cedar Bluff Intermediate School,
Knoxville T here arent many of us who can trace
our decision to become attorneys
directly to the Tennessee Bar Associ- ation, but Jason Long, the 67th president
of the TBA Young Lawyers Division, can.
If it werent for the TBA YLD, there would
be no high school mock trial competition,
and thanks to his participation on the
Knoxville Catholic High School mock
trial team some 20 years ago, Jason made
the all-important decision to pursue a
career in law and he never looked back. Jason was born and raised in Knoxville, Tennessee, the son of the late Jim, a long-
time circulation director of the Knoxville
News Sentinel, and Kay, a homemaker, and
he is truly proud of his hometown. His
older sister, Janus, was born in Florida, but
thankfully, his parents had the good sense
to return to Knoxville before Jason was
born so that there wouldnt be a trace of
Gator blood in him. Jason spent most of
his early youth in the swimming pool, an
avid and successful member of the Holston
Hills swim team. But alas, an ill-timed case
of the chicken pox kept him out of the
pool one summer for most of the season.
Since he was unable to swim for several
weeks, a friend introduced him to the
game of golf, which quickly became his
new passion. He abandoned the pool for
the links and spent the next eight years
either playing or caddying. While he would never be confused with Tiger Woods, Jasons golf game was
good enough to earn him a spot on his
high school team as an incoming fresh-
man much to the chagrin of the
football coach, who was salivating to see a
6'2" potential offensive lineman walk
through the door. Football wasnt Jasons
game; golf was, and he excelled through-
out his high school career. While at
Catholic, Jason was also an exceptional
student, finishing third in his class and
receiving the Monsignor Francis D. Grady
medal, an honor bestowed by the faculty
on the graduating senior who best epito-
mizes the spirit of community,
responsibility and leadership in church
and community affairs. Interestingly, it
was also the first time the award had ever been presented to a Protestant student. After graduating, Jason decided it was time to get out of town for a few years,
since he planned to return to law school
and ultimately practice law in Knoxville.
He took the opportunity to head south to
Emory University in Atlanta. While a
freshman at Emory, Jason briefly toyed
with the idea of being a physics major, but
eventually abandoned that major for one
closer to his heart: political science. As an
aside, an easy way to distract Jason is to
engage him in a conversation about his
political hero, President Lyndon Baines
Johnson. Im fairly certain he has a copy of
every book ever written about LBJ and
hes read them all several times. Jason
also managed to minor in religion. One of
the highlights of his college career was the
summer he spent in Washington, D.C.,
interning for Congressman John Duncan
Jr. (for those of you who know him well,
its clear that Jason has come a long way
from the Alex P. Keaton days of working
for a staunch Republican. And to think
that he turned down an opportunity to
work on President Clintons first presiden-
tial campaign. But I digress ). When he
wasnt studying, working as a resident
advisor or serving in campus government,
Jason could be found at the Sigma Chi fra-
ternity house, where he served as president
during his senior year. True to his plan, Jason returned to Knoxville after graduating from Emory in
1993 and entered the University of Ten-
nessee College of Law. In law school, Jason
was chosen as a member of the prestigious
National Moot Court Team. During his
second year, the UT team advanced from
the regional competition to the nationals
in New York, where the team tied for fifth.
Jason also served as president of the Moot
Court Board and was awarded the
McClung Medal for outstanding achieve-
ment in advocacy while in law school. Jason enjoyed law school so much it was easy to lure him back as an adjunct profes-
sor in 2000. For the next seven years, Jason
taught first-year law students everything
he knew about legal writing and/or oral
advocacy. Much to his surprise, not one of his students has been sued for malpractice
or received a board complaint, but he con-
tinues to monitor the disciplinary actions
in the Tennessee Bar Journal. While its true that Jason is a joiner and likely would have joined the TBA fol-
lowing law school graduation, there is a
possibility he would have gotten side-
tracked and become involved in other
organizations. However, as fate would have
it, his first job out of law school was with
the firm of Sheppeard & Swanson PLLC.
With Charles Swanson as his boss, and
Pam Reeves as the wife of his boss, it was a
fait accompli that he not only was going to
be a member of the TBA, but an active
member. So it was that, after practicing for
less than two years, Jason attended his first
YLD meeting in Chattanooga and began
serving as the membership chair, a position
he held for the next three years. Jason can even trace his marriage to the TBA YLD. Jason and this author began
dating as a result of a conversation at a
Knoxville Barristers meeting (the KBA
equivalent of the YLD), and without the
YLD, there would be no Barristers (do you
see a pattern developing here?). We mar-
ried in 2003, and in June 2005, we
welcomed our first child, James Robert.
Our doctor actually suggested inducing
labor on June 17, the day of the TBA YLD
meeting and Fellows dinner in Knoxville. FACE OF THE YOUNG LAWYER Jason H. Long: YLDs new president embodies volunteer spirit By Carol Anne Long 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 page 6 Long with wife and fellow attorney Carol
Anne, and son James Robert 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 We told her that if it was all the same to
her, we would prefer to wait until the fol-
lowing week so as not to miss out on those
events. Fortunately for us, our son has yet
to show any resentment over that decision. After spending six years as a domestic relations lawyer with the firm of Shep-
peard & Swanson, Jason decided it was
time to try his hand at a different kind of
law. In November 2002, he accepted a
position with the firm of London &
Amburn PC, and began a career in med-
ical malpractice defense. Despite this
radical change in practice, Jason has man-
aged to continue his thriving adoption
practice, making him, we believe, the
states preeminent medical malpractice/
adoption attorney. In January 2007, Jason
became a shareholder in the firm. When Jason isnt serving his clients or the bar association, he enjoys playing golf;
watching (and re-watching) movies,
including his all-time favorites The God-
father and The Godfather II; watching
lots of really bad reality television (not
that Im judging Im watching right
along with him); traveling (mostly to Las
Vegas); and cheering on the UT mens bas-
ketball team. Now, dont get me wrong. Jason, like most of the rest of Knoxville
and much of the state, loves UT football,
but his real passion is UT basketball. For
years, hes been a very frustrated fan
watching UT never quite live up to its
potential. The past two seasons under
Coach Bruce Pearl, however, have
undoubtedly provided Jason with some of
the happiest moments of his life, second
I hope only to the birth of his child and
his marriage to me. As much as he enjoys these hobbies and pastimes, Jason recognizes that most of
them will be put on hold over the course of
this bar year while he serves as president of
the YLD. Jason says that he wants the YLD
to continue operating under Immediate
Past President Lisa Richters motto of
work hard, play hard and do good things.
In addition, Jason hopes the division will
be ever mindful of the volunteer spirit for
which our state is known. Jason certainly
will be a president who leads by example.
In the seven years Ive known him, Ive
never seen him turn down a request, no
matter how overworked he is, and Ive wit-
nessed him volunteer for countless
activities that benefit our profession. I am
sure that his spirit of volunteerism will be infectious. Whether it be through CLE
programming, membership events, support
for CASA programs or participation in
mock trial (just to name a few of the YLDs
many activities), we can all expect that
2007-2008 will be an active and produc-
tive year under Jasons leadership. Speaking of mock trial, Im sad to note that Jasons high school team didnt win
the local Knox County competition, so he
never got the opportunity to compete at
the state level in Nashville. Little did he
know way back then, however, that he
would receive numerous opportunities to
participate in the state competition later
in life as a coach, bailiff, scorer and
judge. In fact, at last count, Jason estimates
that he has sat through almost 100 mock
trial rounds at both the state and local lev-
els. Before he graduated from high school
and left the Knoxville Catholic mock trial
team behind, his coach Mrs. Ryan encour-
aged team members to remember what the
mock trial program had done for them, and
advised them that someday they should all
try to give back to the program. Well,
Mrs. Ryan, I would say that Jason has done
that. In spades. Jason and James Robert escape the practice at the beach this summer. 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 page 8 W e all have seen the emails. The
ones from upper management
politely announcing, We are sorry to inform you that (insert lawyers name
here) has decided to pursue a new opportu-
nity. We appreciate her contributions to the
firm and wish her the best of luck with this
new endeavor. While news that an attorney
was changing jobs was shocking just a few
years ago, it is now commonplace in most
offices and rarely gets much notice. Quite
simply, the days of spending 50 years at a job
and retiring with a gold watch and cake to
commemorate faithful service, have gone the
way of legal secretaries who know short-hand
and paper filing. The Bureau of Labor Statistics esti- mates that the average American will
work for 10 employers and change careers
three times before retiring. 1 Lawyers are no exception to this trend, as mobility
within the legal profession has increased
in recent decades. The National Associa-
tion for Law Placement (NALP) recently
conducted a survey of more than 5,000
law school graduates. Although the
majority of respondents were only three
years (or less) out of law school, more
than a third of them had already changed
jobs at least once and 18 percent of
respondents had changed jobs two or
more times since beginning their legal
careers. 2 Among those attorneys sur- veyed, 44 percent announced their
intentions to change jobs within two
years, and 22 percent planned to change
jobs within one year. 3 If you are one of the two-thirds of lawyers contemplating a job change within
the next two years, you may want to con-
sider the following questions (and be sure
that you know the answers to them) prior to
turning in your two-weeks notice. Reflect-
ing on these questions in the initial stages of
your job search is likely to focus your search
and to increase the likelihood that you will
be content in your new position. Why are you considering a job change? There are a number of reasons why attor-
neys choose to change jobs. Some desire higher compensation, better mentoring or
a more flexible schedule. Others are simply
bored or crave a new challenge. What is
your reason for leaving? Law firm associates regularly come to me and say, I want to go in-house. My
first response is always, Why do you think
you want to go in-house? In many cases,
an associate will say that he is tired of the
unpredictable and hectic schedule of
working in a law firm and that by moving
in-house, he hopes to achieve a better bal-
ance between work and home. However, a
lot of in-house counsels work just as many
hours as their law firm counterparts and
often struggle with the same work-life bal-
ance that law firm associates do. Bottom
line: going in-house is not always the
answer. In the initial stages of your job
search, it is more helpful to determine
what you are seeking to achieve with your
move and then look for positions that will
get you want you what. So, if your primary goal in changing jobs is to work
less, then perhaps you
should consider focusing
your search on jobs that
will allow you to set your
own schedule or cap the
number of hours you work
each week, such as working in
a contract capacity or job-share
arrangement. You may not even need
to change jobs at all. Perhaps your
current employer would allow
you to work a reduced-hour
schedule. Similarly, if you
are a relatively new lawyer
who desires to learn from
more experienced attor-
neys, perhaps you should
focus your job search on
employers that offer formal
mentoring programs. And if
you are bored with your current
job, seek out positions that will
provide you with greater
responsibilities and new
challenges (not just the
same challenges in a
different office). What do you like and dislike about your current position? Most often, a job change is precipitated by
a desire to fix something perceived to be
broken in the current position. However, if
you have not identified what you dislike
about your current job, you may be likely
to experience the same problems else-
where. On the flip side, only considering
what you dislike about your current posi-
tion may not lead you to the job of dreams
only a job you may be able to tolerate
better than your existing one. So be sure to
note the good things as well. For example, I recently met with a liti- gation associate who told me that she
hated her job and was considering quitting
(without yet having another job offer on
the table). She was clearly at the end of
her rope and admitted that she was even
considering leaving the practice of law altogether. As I began asking her questions, it became evident to both of us that while she dis- liked many aspects of her job, there were also parts of it that she enjoyed. While the stress of staying up all night preparing for depositions and appearing in court two or three times a week was wearing her down, she actually enjoyed the researching and writing that sometimes kept her behind her desk all day.
She explained that she
really enjoyed being pre- sented with a legal problem, researching it thoroughly and writing a brief in which she advo- cated her clients position. The more we talked, the more we both realized that this associate really enjoyed parts of her job, but the parts that PRACTICE TIPS Moving Into Your Dream Job By Candice L. Reed 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 she disliked had practically pushed her out
of the profession. With a clearer understanding of her likes and dislikes, this attorney was able to
focus her job search and look for a position
that would allow her to concentrate on
researching and writing. She is now prac-
ticing with a firm that allows her to do this
behind the scenes work, while her col-
leagues handle the other aspects of
litigation like depositions and trials. What are your personal strengths and weaknesses? Most of us enjoy doing what we do well.
Unfortunately, many people often find
themselves in jobs that do not allow
them to capitalize and utilize their
strengths. In a recent Gallup survey of
more than 10 million people worldwide,
only one-third of workers said their jobs
give them the opportunity to do what
they do best every day. 4 However, those people who do have the opportunity to
utilize their strengths in the workplace
are six times as likely to be engaged in
their jobs and more than three times as
likely to report having an excellent qual-
ity of life than their co-workers. 5 One of the most important tasks in planning for a job transition is to identify
your strengths and weaknesses. There are
a number of resources and exercises that
help with this type of self-assessment. 6 For example, you may want to identify
the key events of your life and not just
those that have occurred since graduat-
ing from law school to identify those
times when you felt a great deal of
accomplishment or happiness. Be sure to
include events in the areas of education,
career and family. From that comprehen-
sive list, identify your top seven
achievements and note which skills you
used to accomplish each one. Make a list
of the community activities or organiza-
tions in which you participate on a
volunteer basis. What causes do you feel
passionately about? What do you enjoy
doing when you are not working? By
engaging in these types of exercises and writing your answers to these questions
on paper, you should start to see a pattern
emerging, which should help you identify
your strengths. I also often suggest that job seekers ask family members and friends the people
who know them best what they see as
personal strengths and weaknesses. Often
friends and family will identify skills that
you may not have considered. How do YOU define success? Although success is often generally
defined as making a lot of money and hold-
ing a position of power (particularly in the
legal profession), each of us must deter-
mine what success truly means to us as
individuals and work toward our personal
goals not someone elses. Although everyone tends to view suc- cess differently, there are four generally
accepted common elements included in
any interpretation of success: 1. Being content about ones life
2. Achieving measurable accomplish- ments that compare favorably to
others with similar goals 3. Believing that one has a positive impact on those one cares about
most 4. Leaving a legacy to help others experience future success 7 But as Kathleen Brady points out in her article, Navigating Detours on the
Road to Success, while each of these ele-
ments contributes to the way we
experience success, ultimately success is a
subjective perception based on what
YOU value (and more specifically, what
you value most). 8 She suggests that lawyers often rely on societal expecta-
tions and external definitions of success
rather than their own ideals to
define personal success. This inevitably
leads to unhappiness. Similarly, famed
author and columnist Anna Quindlen
warns of the perfection trap and sug-
gests that when your success looks good
to the world but doesnt feel good in your
heart, it isnt success at all. 9 Spending the time to do a little bit of soul-searching before you dust off your
resume and start knocking on doors may
actually be the most important part of your
next job search. As Richard Nelson Bolles,
author of the popular What Color is Your
Parachute?, explains, Most job-hunters
who fail to find their dream job, fail not
because they lack information about the
job market, but because they lack informa-
tion about themselves. 10 Candice is executive director of the Nashville
office of Counsel On Call, a company that
places attorneys in flexible work positions with
law firms and corporate legal departments.
She can be reached at candice.reed@coun-
seloncall.com. Notes 1. Kathleen Brady, Navigating Detours on the Road to Success, Law Practice Today (Mar.
2005) http://www.abanet.org/lpm/lpt/articles/
mgt03058.html 2. After the JD: First Results of a National Study of Legal Careers (NALP Foundation for
Law Career Research and Education and Amer-
ican Bar Foundation, 2004) http://www.
abf-sociolegal.org/afterjd.html 3. Id.
4. Tom Rath, StrengthsFinder 2.0: A New and Upgraded Edition of the Online Test from
Gallups Now, Discover Your Strengths (2007) 5. Id. at iii
6. Changing Jobs: A Handbook for Lawyers in the New Millennium (Heidi McNeil Stauden-
maier ed., 3d ed. 1999) at 9-15 7. Supra note 1
8. Id.
9. Anna Quindlen, Being Perfect (2005)
10. Richard Nelson Bolles, What Color Is Your Parachute? (2007) at 209 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 page 10 T hroughout the months of April and
May, young lawyers across the state
gathered together to perform service projects, raise money for worthy causes
and have a lot of fun doing so. The follow-
ing district representatives reported on the
success of their projects: District 1 (Carter, Greene, Hamblen, Hancock, Hawkins, Johnson, Sullivan,
Unicoi and Washington counties) Myers Massengill cosponsored a pan- cake breakfast fundraiser to benefit CASA
for Kids Inc. in Kingsport. The event
raised $2,100. District 2 (Anderson, Campbell, Clai- borne, Cocke, Fentress, Grainger, Jefferson,
Scott, Sevier and Union counties) Katrina Atchley sponsored a fundraiser and open house to benefit Safe
Harbor, a new child advocacy center in
Sevierville. The event, Arts in the Gar-
den, raised $22,000. District 3 (Knox County)
Michael Brezina joined forces with the Knoxville Barristers and hosted a
charity bartending event at Preservation
Pub to benefit CASA of East Tennessee.
The event raised over $400 for the child
advocacy agency. District 5 (Hamilton County)
David McDowell joined forces with the Chattanooga Bar Association Young
Lawyers Division to relocate a community
garden to Calvin Donaldson Elementary
School as part of the United Ways Day of
Service. The group moved railroad ties and
created two frames for the gardens. The
school hopes to use the gardens to
enhance their science classes and hope-
fully obtain certification and funding as an
environmental school. Districts 6 & 7 (Clay, Cumberland, DeKalb, Jackson, Overton, Pickett, Putnam,
Van Buren, Warren and White counties;
Cannon, Coffee, Franklin, Grundy, Marion,
Rutherford and Sequatchie counties) Representatives Rachel Moses and Amelia Luna combined their efforts, hold- ing an items drive to benefit Families in
Crisis, a domestic violence shelter that
serves Warren, Grundy and Sequatchie
counties. Lawyers donated clothes, diapers,
cleaning supplies, makeup and toiletries. District 8 (Macon, Smith, Sumner, Trousdale and Wilson counties) David Veile coordinated a free legal clinic for low income and elderly citizens
at Hearthside at Castle Heights, a non-
profit assisted living center in Lebanon. District 10 (Cheatham, Dickson, Houston, Humphreys, Montgomery,
Robertson and Stewart counties) Ray Runyon joined forces with local bar associations to raise funds for children in
foster care. The effort netted $2,600,
which was used to purchase 144 backpacks
and gift cards. The fundraiser also included an items drive for which local attorneys
donated school supplies and toiletries. District 13 (Chester, Decatur, Fayette, Hardeman, Hardin, Haywood, Henderson,
Lauderdale, McNairy, Madison and Tipton
counties) Anna Banks joined forces with the local bar association to host a 5K run ben-
efiting CASA of Madison County. The
event raised $2,500.00, which will be used
to train new volunteers for CASAs expan-
sion into Henderson County. District 14 (Shelby County)
Brian Faughnan organized a service day at the Porter-Leath Childrens Center in
Memphis working with children in the
morning and completing a physical project
in the afternoon. District 6 Representative Rachel Moses and District 7 Representative Amelia Luna combined their
efforts to hold an items drive to benefit Families in Crisis, a domestic violence shelter that serves
Warren, Grundy and Sequatchie counties. Lawyers donated clothes, diapers, cleaning supplies,
makeup and toiletries. Pictured from left to right is Amelia Luna; Rachel Moses; Cheryl Lee, exec-
utive director of Families In Crisis; and Jessica Johnson, board secretary of the organization. YLD IN THE COMMUNITY Public Service Day 2007 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 The TBAs 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. Learn more about the TBA To learn more about the Tennessee Bar Associations
Complete Membership, contact TBA Membership Direc-
tor Sarah Stair at sstair@tnbar.org or by phone
at 800-899-6993, in Nashville 615-383-7421. THE MEMBERSHIP COMPLETE Real services for real savings Take advantage of just a few of these services and the value is evident. Well 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 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 page 12 R oy L. Pearson, an ALJ in Washing-
ton, DC, who sued his dry cleaner
for $54 million because they lost his pants, recently had his day in court. Imag-
ine you are a humor writer with a pending
deadline for your next column. How do
you resist the urge do you not decide to
write something funny about that? Heres
how: courageously, you position your
hands in the appropriate location on the
keyboard and just keep typing about some-
thing else, one letter after another. Come on. Anybody can make fun of Judge Pearsons lawsuit. However, I did not
assume responsibility of authoring this col-
umn to take the path of
least-laugh-resistance. I want to work to
make you laugh, but not too hard work-
ing, not laughing, that is since this is
not a paying gig. Because I am unwilling to
take the easy way out, I also cannot dedi-
cate this column to a discussion of the
drama of the Paris Hilton incarceration
interruptus saga. And that is really too bad
because Tart Reform would have made a
perfect column title. Anyway, as the actual
column title indicates, this column is
either going to have something to do with
The Swedish Chef or Judge Robert Bork.
Given that The Swedish Chef was not in
the news at the time of my deadline,
Robert Bork it is. Some of you may remember Judge Bork from his role in the Saturday Night Mas-
sacre, when he agreed to do what two
honorable lawyers before him refused to
do: fire Archibald Cox, the Watergate spe-
cial prosecutor. It is more likely, though,
that you remember Judge Bork from his
second brush with notoriety when he was
President Reagans controversial, and ulti-
mately unsuccessful, nominee to the U.S.
Supreme Court. The scuttling of Judge
Borks nomination led to the addition of
the verb Bork to the American lexicon.
As with all verbs, Bork is a verb that is
more fun when you add other letters to it,
like ed or ing. For example, I am so
glad they Borked that guys nomination; he
was Borking insane. (For a pedantic
explanation of why Borking is used
incorrectly in that sentence, soak this page in a bowl full of Malbec Argentinean
not French and hold up to a fluorescent
light.) I remember that guy, but where he is now? is something you might hypotheti-
cally be saying as you read this. Bork, a
former fellow of the Hoover Institution
and a former fellow of the American
Enterprise Institute, is now a fellow at the
Hudson Institute and a professor at the
Ave Maria Law School in Michigan. After
failing in his bid for judicial supremacy,
Judge Bork resigned from his seat on the
D.C. Circuit Court of Appeals and dedi-
cated much of his spare time to publicly
lamenting American culture. He has done
this through books such as Slouching
Towards Gomorrah: Modern Liberalism and
American Decline and A Country I Do Not
Recognize: The Legal Assault on American
Values, and through articles and op-eds,
such as one in The Wall Street Journal that
helped to Bork the recent nomination of
Harriet Miers to the U.S. Supreme Court.
(Et tu, Brute? Et tu.) And that just about brings us to June 2007. The week of June 4 was a busy one
for Judge Bork. On June 7, he was one of a
dozen law professors who filed an amicus
brief on behalf of Scooter Libby (who hap-
pens to also be a member of The Hudson
Institute). The ostensible purpose of the
brief was to argue that Libby should be per-
mitted to be out on bail pending appeal of
his conviction because the constitutional-
ity of Special Prosecutor Patrick Fitzgeralds
appointment remains a close question. Judge Reggie Walton, the presiding judge in the Libby case, apparently
unaware of Judge Borks tireless commit-
ment to protecting the constitutional
rights of criminal defendants, suspected an
ulterior motive on the part of the briefs
authors, stating in response: With all due
respect, these are intelligent people, but I
would not accept this brief from a first year
law student. I believe this was put out to
put pressure on this court in the public
sphere to rule as you wish. An interesting
theory, but it seems hard to believe that the
man who pulled the trigger in the Saturday
Night Massacre would be a party to any
efforts at coercion. I think there must be a
much simpler explanation for why Judge
Bork signed on to such a poorly reasoned
legal argument. And, I think the answer
can be found by examining what else Judge
Bork did during the week of June 4. The day before Judge Bork filed that inimicus curiae brief, he filed a lawsuit
against The Yale Club over injuries he sus-
tained at a public speaking engagement a
year ago. According to the complaint,
when it was his turn to speak at a club
event on June 6, 2006, he fell backwards
when he attempted to mount the dais,
striking his left leg on the side of the dais
and striking his head on a heat register.
Judge Bork alleges that The Yale Club
failed to provide a safe dais and stairs
between the floor and the dais, a support-
ing handrail, or any other reasonable
support feature to protect its guest
attempting to mount that dais. Judge
Borks suit seeks $1 million in actual dam-
ages, an unspecified amount of punitive BARELY LEGAL Bork, Bork, Bork By Brian S. Faughnan w w w. t b a . o r g / y l d T E N N E S S E E Y O U N G L A W Y E R page 13 damages, pre- and post-judgment interest
and attorney fees, and alleges that: The
long-term effects of his injuries continue
to manifest themselves. See, I told you there was a simpler explanation for that Scooter Libby brief.
Judge Bork wasnt making a spurious argu-
ment in an attempt to strong-arm Judge
Walton. Thanks to conking his noggin on
that heat register, Judge Bork just didnt
know any better. Filing that poorly rea-
soned brief for Scooter is just one example
of those pernicious injuries continuing to
manifest themselves. Before the fall, Bork
said this in an op-ed in The Washington
Times: Courts are now meccas for every
conceivable unanswered grievance or per-
ceived injury. Juries dispense lottery-like
windfalls, attracting and rewarding imagi- native claims and far-fetched legal theo-
ries. After the fall, Bork is willing to sign
on to far-fetched legal theories on behalf of
convicted criminals and is willing to be an
active participant in the litigation lot-
tery. At one level, the mere filing of the
lawsuit itself is proof of just how seriously
Judge Bork was injured by his fall. Either
that or he is just a tort reform for thee but
not for me hypocrite. Explaining the dangers that state tort law poses to interstate commerce, Judge
Bork once wrote that the harm each State
can do with its tort laws to benefit its own
citizens can affect the flow of goods in all
States, possibly making some goods disap-
pear from the market altogether. Thus,
following Judge Borks logic, if his suit
against The Yale Club is successful, it could mean that venues like The Yale Club will
just avoid inviting people like Judge Bork
to give speeches about how there should be
no constitutional right to privacy, how
Americans enjoy too much freedom and
how modern liberalism is the enemy of
American society in the first place. Hey,
wait just a minute. Anybody know how I
can reach Judge Bork about submitting an
amicus brief on his behalf? Brian is a partner with Adams and Reese LLP
in Memphis. You can contact him at
brian.faughnan@arlaw.com, but you may not
get an immediate response. Hes out taking
each pair of his pants to a different dry cleaner. A mong the many accomplishments of
the YLD in the 2006-2007 year was
completion and publication of a comprehensive guide for lawyers seeking to
assist those displaced by natural disasters.
The Disaster Assistance Manual: A Guide for
Volunteer Attorneys Providing Legal Assis-
tance to Victims of Disasters is a unique
resource that provides Tennessee-specific
answers to the challenges disaster victims
face, and is now available at no charge. Specifically, the manual addresses issues ranging from frequently asked questions
relating to landlord-tenant law and unem-
ployment benefits to more specialized
questions regarding Tennessees immigrant
population. In addition, the manual
includes contact information for state and
federal agencies prepared to offer assis-
tance after a disaster. The information may
be passed on directly to a client or be uti-
lized by an attorney looking for more
information about a particular issue. The
manual also represents the first compre-
hensive collection of disaster relief
information specific to the laws and prac-
tice of the state of Tennessee. The manual was produced by the YLD Disaster Assistance Committee under the
direction of committee Chair Jay (Mas-
ter of Disaster) Johnson of Springfield
and Vice Chair Ray Runyon of Clarksville. David Changas and this
author, both of Nashville, also served on the committee and contributed to com-
pletion of the manual. In conjunction with the manuals publi- cation, the YLD sponsored a CLE at the
2007 Tennessee Bar Association Annual
Meeting. Panelists Jay Johnson, Andrew
Sellers of the Jackson law firm Waldrop &
Hall PA and Linda Warren Seely of Mem-
phis Area Legal Services spoke about the
process for providing legal services follow-
ing a disaster, as well as their experiences
handling pro bono cases. If you missed this
session, materials are available by contact-
ing TBA staff member Stacey Shrader at
(615) 383-7421 or sshrader@tnbar.org. The manual is available for download in pdf format for lawyers and the public at
large at http://www.tba.org/YLD/disaster
_manual.pdf Tara practices at the Nashville law firm of
Stites & Harbison PLLC, where she focuses
on copyright and trademark law. She served
on the YLDs 2006-2007 Disaster Relief
Committee and contributed to the Disaster
Assistance Manual. She can be reached at
tara.aaron@stites.com. TENNESSEE BAR ASSOCIATION YOUNG LAWYERS DIVISION DISASTER ASSISTANCE MANUAL A guide for volunteer attorneys providing legal assistance to victims of disasters Produced by the Disaster Relief Committee April 2007 The manual is available for download in pdf
format for lawyers and the public at large at
http://www.tba.org/YLD/disaster_manual.pdf YLD Unveils Disaster Relief Manual By Tara Aaron 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 page 14 Think Management Training is Optional? Think Again. By M. Kim Vance I n 1998 and 1999, the U.S. Supreme
Court handed down three decisions
that effectively mandate employment law training for managers and supervisors.
Prior to that time, training was optional
and was rarely an issue in litigation. But
for the last several years this has no longer
been the case. Whether an employer
trains, how often the employer trains and
how effectively the employer trains are
now key issues in discrimination and
harassment lawsuits. In addition, several
states have passed laws requiring employ-
ment law training. Whether an attorney
represent plaintiffs or defendants in dis-
crimination and harassment cases, it pays
to keep up to date on the law in the area of
management training. In 1998, the Supreme Court ruled that in cases where a supervisor commits
harassment and there is no tangible
adverse job action taken against the vic-
tim, the company can raise an affirmative
defense to the lawsuit. 1 The defense requires proof that the employer exercised
reasonable care to prevent and promptly
correct any harassing behavior, and that
the employee unreasonably failed to take
advantage of any preventive or corrective
opportunities provided by the employer or
to avoid harm otherwise. Proof of employ-
ment law management training can be
important in establishing the first ele-
ment: that the employer exercised
reasonable care to prevent harassment
from occurring in the workplace. In addition to shielding the employer from liability, training also can reduce
exposure to punitive damages. The
Supreme Court held in 1999 that employ-
ers can be protected against an award of
punitive damages if they make good faith
efforts to comply with employment laws. 2 Unfortunately, the court provided no
specifics on these good faith efforts. We
have, however, a litany of subsequent state
and federal court decisions that shine light
on what will and what will not put
employers in the best position to reduce
the risk of a punitive damage award. There is no question that simply having written policies prohibiting discrimination
and harassment falls short of a good faith effort at compliance. Courts are looking
for more than just words on a page or
posters on the wall. Examples of such rul-
ings include the following: the placement of the EEOC poster regarding discrimination in the dis-
patch trailer simply does not constitute
a good faith effort to forestall potential
discrimination or to remedy any that
might occur. 3 Wal-Mart certainly had a written policy against discrimination, but that
alone is not enough. Our review of the
record leaves us unconvinced that
Wal-Mart made a good faith effort to
educate its employees about the ADAs
prohibitions. 4 Those employers having a system for routinely training managers on employ-
ment laws receive credit and lots of it from
the courts. For example, in Hatley v. Hilton
Hotels Corp., the court found that no puni-
tive damages were available because the
employer distributed a harassment policy,
trained employees on the policy, estab-
lished a grievance procedure for
complaints and investigated the plaintiffs
complaint. 5 In Idusuyi v. Tenn. Dept of Childrens Services, the employer was not
liable for harassment as it had a well-dis-
seminated sexual harassment policy, multi-level grievance procedure and on-
going sexual harassment training. 6 On the other hand, employers who choose to forego training do not fare as
well and sometimes are regarded as having
a cavalier attitude toward the protections
offered by employment laws. A case in
point is Mathis v. Phillips Chevrolet, Inc. 7 , where a disappointed applicant for a job as
a car salesman brought suit against the car
dealer for age and race discrimination. The
jury awarded the applicant $50,000.00
after finding that he was not hired because
of his age. Under the Age Discrimination
in Employment Act (ADEA), damages
can be doubled if there is a finding that the
employers violation of the law was will-
ful. 8 A violation is considered to be willful if the employer knew or showed
reckless disregard for the matter of
whether its conduct was prohibited by the
ADEA. 9 In the Mathis case, the court looked at the car dealerships failure to
provide management training efforts in
assessing the issue of reckless disregard for
the law. The court stated that leaving
managers with hiring authority in igno-
rance of the basic features of the
discrimination laws is an extraordinary
mistake for a company to make, and a jury
can find that such an extraordinary mis-
take amounts to reckless indifference. 10 w w w. t b a . o r g / y l d page 15 T E N N E S S E E Y O U N G L A W Y E R Although the employer pointed out that
its employment applications contained
language noting the prohibition against
age discrimination, the court found that, this evidence appears more harmful to [the employer] than help-
ful, because the jury could easily have
concluded that printing this statement
on the application but making no
effort to train hiring managers about
the ADEA shows that [the employer]
knew what the law required but was
indifferent to whether its managers fol-
lowed the law. 11 Needless to say, the court doubled the amount of damages owed to the applicant. The question most frequently asked is, How often does a company need to hold
a management training session on employ-
ment law issues? Absent a state law
requiring training at specific intervals,
there is no legally mandated time frame for
training. Typically, the following are times
when employers would want to provide employment law management training: 1. When a new manager or supervisor joins the company 2. When a current employee is pro- moted to management 3. Annually for all managers and supervisors 4. As part of the resolution of a complaint 5. When concerns are observed about employment law compliance A word of caution about the length of time between training sessions also is war-
ranted based on Greene v. Coach, Inc. 12 In trying to determine whether punitive
damages would be available, the court dis-
cussed the frequency and content of
Coachs training sessions: In support of this position, Coach offers the affidavit of its Human
Resources Director attesting to its
good faith efforts to comply with
antidiscrimination laws, as well as
copies of its Employee Guide, non-dis- crimination literature, and attendee
lists at seven different employee
harassment and discrimination train-
ing programs held from November of
1996 to December of 2000. However,
despite this evidence, we find that
material issues of fact exist as to
whether Coach has made a showing
sufficient to insulate it from punitive
damages liability. The literature sub-
mitted by Coach describing its
antidiscrimination policy reveals little
about the manner and extent to which
Coach retail managers were exposed to
these principles. Further, as plaintiff
points out, none of the harassment
and antidiscrimination training pro-
grams for which Coach submitted
attendee lists occurred during the two-
year period during which [plaintiff]
worked at the company. As [plaintiff]
points out, a dearth of antidiscrimination
training during the time period at issue in
this lawsuit could actually lead a jury to T he Tennessee Bar Association Young
Lawyers Division has an active sched-
ule of CLE programming planned for the new bar year. Under the leadership of
Committee Chair Candice Reed, the YLD
will present its traditional programs Trial
Practice, Transactional Practice and
Demystifying the Ethics Process but
whenever possible, offer new delivery
mechanisms for a web- and tech-savvy gen-
eration. Look for opportunities to access
CLE content through web casting, video
casting and new online courses. For lawyers just starting their careers, the YLD will offer a daylong program
designed to bridge the gap between prepa-
ration and practice. With an emphasis on
skills development, the program will fea-
ture sessions on litigating a case, building a
transactional law practice, handling con-
flicts and maintaining confidentiality.
Interactive components will include a
peer-to-peer panel with senior-level asso-
ciates sharing their experiences about
working with administrative staff, keeping
and billing time, managing networking
expectations and pleasing multiple part- ners. In the afternoon, participants will
select a corporate or litigation track for a
more in-depth look at their chosen field.
The day will end with a session on achiev-
ing professional and personal success in
the practice of law. Whether you have just
joined the law profession, need a refresher
or are a senior partner responsible for edu-
cating associates, make plans now to be
part of this unique program. Trial Practice December 14
This six-hour seminar provides new prac-
tioners with the basics of preparing for and
conducting a trial. Topics include making
effective opening statements, questioning
and choosing a jury, conducting direct-
and cross-examination and making persua-
sive closing arguments. The New Lawyer Experience: Bridging The Gap Between
Preparation And Practice Feb. 15, 2008
This daylong program introduces new
attorneys to the nuts and bolts of practic- ing law; provides opportunities to interact
with senior associates, partners and judges;
includes in-depth break out sessions for
both litigating and transactional lawyers;
and offers solutions for balancing life and
work, avoiding burn out and achieving
success in the practice of law. Transactional Practice April 25, 2008
This six-hour seminar provides basic infor-
mation and resources to non-litigating
attorneys. Topics include contract drafting,
estate planning, mediation, intellectual
property, real estate transactions and busi-
ness entity formation. Ethics Forum May 16, 2008
This three-hour seminar focuses on demys-
tifying the state disciplinary process.
Participants will hear from attorneys rep-
resenting the Board of Professional
Responsibility the state entity that
investigates allegations of attorney mis-
conduct as well as attorneys who
represent those accused of wrongdoing. CLE for Young Lawyers continued on page 16 PRESORTED STANDARD US POSTAGE PAID Nashville, TN Permit No. 929 The Tennessee Bar Association
221 Fourth Avenue North, Suite 400
Nashville, TN 37219 Tennessee Young Lawyer Think Management Training is Optional? continued from page 15 infer that Coach did not, in fact, make a
good faith effort to enforce such policies.
Because at this stage of the litigation,
Coach has not definitively established
that it had an antidiscrimination pol-
icy and that it made a good faith effort
to enforce it, the motion to dismiss
[plaintiffs] claims for punitive
damages is denied. 13 The bottom line is that attorneys on both sides of employment litigation will
benefit from an assessment of how the
issue of employment law training will
impact the prosecution and defense of dis-
crimination and harassment lawsuits.
Attorneys who disregard the training issue
or think it is optional and therefore will have no impact on pending litigation
would be well advised to think again. Kim is a shareholder in the Labor and
Employment Group at Baker, Donelson,
Bearman, Caldwell & Berkowitz PC in
Nashville. She can be reached at
kvance@bakerdonelson.com. Notes 1. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998) and Faragher
v. City of Boca Raton, 524 U.S. 775, 118 S. Ct.
2275 (1998) 2. Kolstad v. American Dental Association, 527 U.S. 526, 119 S.Ct. 2118 (1999) 3. Anderson v. G.D.C. Inc., 281 F. 3d 452, 461 (4th Cir. 2002) 4. EEOC v. Wal-Mart Stores Inc., 187 F. 3d 1241 (10th Cir. 1999) 5. Hatley v. Hilton Hotels Corp., 308 F.3d 473 (5th Cir. 2002) 6. Idusuyi v. Tenn. Dept of Childrens Ser- vices, 2002 WL 220640 (6th Cir. 2002) 7. Mathis v. Phillips Chevrolet Inc., 269 F.3d 771 (7th Cir. 2001) 8. 29 U.S.C.

Comments