COVER STORY: This Month’s Top Story

“… every man, for an injury done him in his lands, goods, person or reputation,
shall have remedy by due course of law ...”
 — Article I, Section 17 of the Tennessee Constitution

“Historically, damages have been regarded as the ordinary remedy for an
invasion of personal interest in liberty.”   
— Justice William Brennan[1]


More than 40 years ago, U.S. Supreme Court Justice William Brennan issued a clarion call about the importance of individual rights under state constitutions. Upset at the erosion of rights guaranteed by the United States Constitution, Brennan wrote that state constitutions were “font[s] of individual liberty” that often provide greater protection than the Supreme Court’s interpretation of federal law.[2] 

FEATURED: This Month’s Articles

Lawyers tend to take insurance companies for granted. They are there to pay defense costs and handle any judgments for plaintiffs. But what happens if an insurer fails?

In order to protect ourselves and our clients, it is necessary to understand the insurance liquidation process and know about the safety net provided by the Tennessee Insurance Guaranty Association (TIGA). If insurance companies did not exist, lawyers would have to invent them. Who else would collect money to be paid out to defense attorneys and plaintiff attorneys alike to satisfy judgments? Unfortunately, that well may unexpectedly run dry.

COLUMNS: Quick Reads on Timely Topics

President's Perspective

One must be a healthy lawyer in order to be a good lawyer. I do not mean just physical health but also mental health. Lamentably, our profession has significant shortcomings when it comes to mental health and well-being. Numerous studies have shown over and over again that too many lawyers experience high levels of depression, chronic stress and substance abuse. These findings are not sustainable for our profession. For a profession dedicated to client service and responsible for the public interest, well-being is of paramount importance.

History's Verdict

Nov. 11, 2018, marks the 100th anniversary of the end of the First World War, “the war to end all wars.” The colossal conflict began in 1914, yet the United States did not enter “the Great War” until 1917. When it was over, 11 million soldiers and around 7 million civilians were dead. 20 million soldiers were wounded. 116,708 American soldiers were killed and 204,002 were wounded. 130,915 Tennesseans were enlisted in the armed forces and 3,836 were killed.[1] Tennessee also proudly produced America’s greatest hero of the war: Alvin York.[2]

The terrors of trench and gas warfare were introduced and dynasties were toppled, including those in Germany, Austria and Russia. On a lesser scale, the war brought changes to America. And, like the Civil War, demonstrated the strength of our Constitution in times of crisis. 

Crime & Punishment

Social media provides a fertile source for evidence in criminal cases.  Suspects give prosecutors unbelievable gifts with incriminating, threatening and otherwise unbelievably stupid admissions posted online. On the other hand, defense counsel find impeachment gems on witnesses’ social media accounts — even the portions anyone can view.

Malik Farrad learned the hard way that posting on Facebook is a bad idea.[1] Although Mr. Farrad made significant mistakes that landed him back in prison, his mistakes can teach trial lawyers important lessons about getting social media postings into evidence (or keeping them out) through a study of the Sixth Circuit’s opinion.

But Seriously, Folks

It was a hot topic of debate by Tennessee lawyers for many months. Does the Volunteer State need another law school?

Tennessee now has six law schools, covering all three grand divisions of the Volunteer State. In Memphis, there is the Cecil C. Humphreys World’s Greatest Barbeque Law School at the University of Memphis. In Nashville, there is the Vanderbilt University Grand Ole Opry Law School, the Belmont University 95%ers Law School, and the Nashville GooGoo Clusters Law School. And in Knoxville there is the University of Tennessee Rocky Top College of Law and the John Duncan Donuts Law School.

YOU NEED TO KNOW: News, Success, Licensure & Discipline

The Tennessee Bar Association’s Public Service Academy met for the first time Oct.12-13, with a bipartisan coalition of 29 attorneys from across the state gathering to learn the basics of running for local elected office. Former state senator and current U.S. Attorney for the Eastern District of Tennessee Doug Overbey spoke about his experiences campaigning and holding elected office. Former Nashville Mayor Bill Purcell also spoke to the group about his life as a mayor and former legislator, as well as the importance of attorneys choosing a life of public service. The class heard further presentations about fundraising, building a campaign team, crafting their campaign message and more. They will reconvene again Nov. 9-10 in Nashville for another weekend training. The attorneys chosen for the class come from a variety of backgrounds and represent a diverse spectrum of political thought.

Knoxville lawyer Monica J. Franklin has stepped down as the Tennessee Bar Journal’s elder law columnist and from the practice of law, taking inactive status in October. She has written nearly 30 installments of “Senior Moments” regularly since 2009. The Tennessee Bar Association awarded her the Justice W. Henry Award for Outstanding Legal Writing for her 2006 article, “Securing Momma’s Home.” She is a former chair of the TBA’s Elder Law Section and a certified elder law attorney. She founded the Elder Law Practice of Monica Franklin, which is now Franklin & Kyle Elder Law. Franklin’s popular booklet, Saving Momma’s Home: 10 Frequently Asked Questions about Nursing Home Medicaid, remains available for download at www.franklinkyle.com/resources. A graduate of the University of Tennessee College of law, cum laude, she has practiced law for 18 years, developing “a team of attorneys, social workers and public benefits coordinators to provide a holistic, multidisciplinary approach to help families navigate the long-term care maze.”

Disability Inactive

The law license of Knoxville lawyer Monica Joy Franklin was transferred to disability inactive status on Oct. 8. She may not practice law while on inactive status. She may return to the practice of law after reinstatement by the Tennessee Supreme Court by showing by clear and convincing evidence that the disability has been removed and she is fit to resume the practice of law.

TBA CLE: Upcoming Programs from the Tennessee Bar

Beat the year-end rush for CLE by taking advantage of the top-level programming during the next month from the Tennessee Bar Association. One of the state's best real estate law programs -- produced jointly with the Tennessee Land Title Association -- will come to downtown Nashville on Nov. 9 at the AT&T Building. Also on tap is the Court of Criminal Appeals Boot Camp on Nov. 14, the annual Administrative Law Forum on Nov. 16, the TBA Leadership Academy on Nov. 19, the Criminal Law Forum on Dec. 7 and finally, the Ethics Roadshow, which will be stopping in Chattanooga on Dec. 4, Knoxville on Dec. 5, Nashville on Dec. 11 and Memphis on Dec. 12. Find out more or sign up now.