News

Judge Overturns $19 Million Award to Nashville-based Company

A Nashville-based physician services company will not receive $19 million in damages from a rival company after a Tennessee Court of Appeals judge overturned a 2016 ruling, The Nashville Post reports. Nashville's SpecialtyCare sued Pennsylvania-based Medsurant in 2015 over Medsurant's alleged interference in SpecialtyCare's takeover of a smaller company. Davidson County Chancellor Carol McCoy cited Medsurant repeatedly for not cooperating in the discovery process, and eventually ruled against them on the basis of intentionally destroying evidence to avoid liability. Medsurant's attorneys - Brant Phillips, Russell Stair and Matt Sinback of Bass Berry & Sims; Bob Mendes of Waypoint Law and Richard Simins of Montgomery McCracken Walker & Rhoads - appealed, arguing that the chancellor had made numerous mistakes, the punitive damages were excessive and their clients had overall not received a fair hearing. Judge Kenny Armstrong agreed. "From the totality of the circumstances, we conclude that the grant of default judgment as a sanction for discovery abuses was error," Armstrong wrote.

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Put TBA UPS to Work

Have you enrolled in TBA’s UPS account for members? Visit UPS's TBA page and save up to 34 percent on UPS’s broad portfolio. Shipping services include next day air, international, ground and express.
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Law Office Management Tips on Shipping

If your law office uses shipping services, your TBA membership team can help you compare those costs to TBA’s UPS member benefit. Your firm office manager can work directly with TBA staff and UPS services to enroll or transfer shipping accounts. Members can save up to 34 percent on UPS’s broad portfolio of shipping services, including next day air, international, ground and express.
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Court of Appeals Revises Rule 2

The Court of Appeals of Tennessee has issued an order revising Rule 2, Section (a), Rules of the Court of Appeals of Tennessee. The revised rule, which governs "organization and operation of the court," removes language governing which city judges in each grand division must sit.
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TSC, Haslam Refuse to Postpone Execution; Irick Appeals to SCOTUS

The Tennessee Supreme Court and Gov. Bill Haslam have refused to postpone the execution of Billy Ray Irick, and now his attorneys are asking the U.S. Supreme Court to step in and delay his death, The Tennessean reports. Irick’s lawyers argue that he should not be executed while the battle over Tennessee’s three-drug lethal injection cocktail is still under a challenge. "Denial of this motion will deny Mr. Irick his right to appeal,” his attorneys wrote. Justice Sharon Lee issued a dissent to the TSC’s ruling.  
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Destination CLE Survey

Let's take a trip! The TBA CLE Committee would like your feedback on destination CLE events. Taking a moment to complete this brief survey will greatly assist us in developing the best CLE experience for you. Please complete this survey by Aug. 10. We greatly appreciate your help with this endeavor.
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Witnesses, Circuits and Procrastination: TBJ Has It All

In this month's Tennessee Bar Journal, Knoxville lawyer Wade Davies writes about rules for non-sequestered witnesses. "I usually try to write this column about something to which I think I know the answer. I’m not sure about this one," he writes. "Is it still the law that if the prosecuting witness is not sequestered he or she has to testify first?" Read it and see. Chattanooga lawyer Russell Fowler looks at the history of the Circuit Court, starting with judges who rode their horses to make the rounds through the circuits. And we almost didn't get to this one ... bringing back the lost art of procrastination. Memphis lawyer Bill Haltom reminds us that the best counsel is not always the fastest answer. The July TBJ is here.

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Prior Crimes Not So Unique as to be Admissible Under TRE 404(b)

There are only so many ways that a particular crime can be committed, so how unique is a particular crime to another such that it is evidence of the identity of the perpetrator? TCCA ruled in State v. Peterson, Tenn. Crim. App. No. W2017-00308-CCA-R3-CD, Apr. 25, 2018, that the other crimes weren’t so distinctive or unique as to be admissible to prove identity in the case then-at-bar.
 
The court quoted several cases including State v. Roberson, 846 S.W.2d at 280 (Tenn. Crim. App. 1992).  “[M]ere similarity in the manner in which two crimes are committed does not produce the relevance necessary for admission — uniqueness does. For not only must the offenses have been committed similarly, but they must also have been committed in a unique and distinctive manner. Obviously, the more unique and distinctive the methods, the more appropriate is the inference. The converse also obtains that is, the less unique and distinctive the methods, the less appropriate the inference.”

Roger E. Nell serves as District Public Defender, 19th Judicial District and chairs the Tennessee Bar Association's Criminal Justice Section. 
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Trump Chooses Kavanaugh for Supreme Court

President Donald Trump announced the selection of federal appellate Judge Brett Kavanaugh to the U.S. Supreme Court to replace retiring Justice Anthony Kennedy, CBS News reports. Trump touted Kavanaugh’s “impeccable credentials” and called him a “judge’s judge.” Kavanaugh previously clerked for Kennedy and has served on the D.C. Appeals Court since 2006.
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Trump to Announce SCOTUS Pick Tonight

President Donald Trump will announce his choice for the U.S. Supreme Court tonight in a news conference at 9 p.m. EST. The four finalists are all federal appeals judges: Amy Coney Barrett of the Seventh Circuit, Brett M. Kavanaugh of the District of Columbia Circuit, Raymond M. Kethledge of the Sixth Circuit and Thomas M. Hardiman of the Third Circuit. The New York Times has live coverage.

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Federal Court: No Constitutional Right to Cash Bail

A federal appeals court today upheld the constitutionality of a New Jersey law that mostly ended the use of monetary bail, the ABA Journal reports. The law prioritized nonmonetary conditions of release over money bail and called for a risk-based assessment system to determine whether a defendant is a danger to the community. The case reviewed whether “there is a federal constitutional right to deposit money to ensure a criminal defendant’s future appearance in court as an equal alternative to non-monetary conditions.” The Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled that there was not.
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Trump Narrows Short List for SCOTUS Nominees to 3

President Trump has completed interviews with candidates for the upcoming nomination for the U.S. Supreme Court, and three have risen to the top of the list, Fox News reports. Brett Kavanaugh, Raymond Kethledge and Amy Coney Barrett, all federal appeals court judges, have been identified as frontrunners. Trump is expected to make an announcement about his selection on Monday.
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Potential Trump SCOTUS Pick a Rhodes College Graduate

Amy Coney Barrett, one of the potential replacements for retiring U.S. Supreme Court Justice Anthony Kennedy, has a Tennessee connection – she’s a Rhodes College graduate, The Commercial Appeal reports. Barrett is currently a judge on the U.S. Court of Appeals for the 7th Circuit, a seat she assumed after an appointment by Trump last October.
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Justice Kennedy to Retire from U.S. Supreme Court

U.S. Supreme Court Justice Anthony Kennedy announced today that he is retiring, The Hill reports. His retirement on July 31 will end a career of more than 30 years on the court. Kennedy is the court’s longest-serving member and its second-oldest justice after Ruth Bader Ginsburg. Nominated by President Ronald Reagan in 1988, he has served as a pivotal swing vote on some of the court’s most impactful decisions of the past 30 years, including LGBT marriage equality and Citizens United.
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Courts to Launch E-filing on July 9

The Appellate Court Clerk’s new electronic filing system will begin operation on July 9. A link on the Appellate Court Clerk’s webpage will provide access to the new system. Once the electronic filing system is in place, attorneys will be permitted to electronically file virtually all new filings in appellate courts. In addition to establishing a new, voluntary system for electronically filing documents, the Supreme Court has established a new fee structure for costs and fees assessed in the appellate courts. Beginning July 9, appellate litigants will be required to pay their fees when initiating a case in the appellate courts rather than waiting until the appellate process is complete. 

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Schedule Time to Read Email

A Tip from the TBA Attorney Well-Being Committee

Rather than checking on every e-mail as it arrives, schedule time in your calendar for reading and managing e-mail (and leave e-mail notifications silent during the other times of the day). This will enable you to have focused time for given tasks without constant interruption and distraction.

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Court Amends Rule 46 on E-filing

After review of public comments, the Tennessee Supreme Court has amended Revised Rule 46, which will be effective July 9. The rule refines certain aspects of the implementation of the e-filing system. Read the order as well as the changes to the rules here.
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6th Circuit Focuses on Conflicting Tennessee Laws in Brown Appeal

Attorneys in Cyntoia Brown's murder case appeared before a three-judge panel of the Sixth Circuit Court of Appeals in Cincinnati today, according to The Tennessean. During oral arguments this morning, the appeals judges repeatedly zeroed in on an apparent contradiction in Tennessee law. If Brown was serving a 51-year sentence, then a U.S. Supreme Court ruling forbidding life sentences for juveniles might not apply. The judges suggested that they might seek clarification from the Tennessee Supreme Court before moving forward. Her lawyers argue that Brown, of Nashville, was the victim of sex trafficking and shot Johnny Allen in self-defense. Mark Pickrell spoke for Brown's legal team today while Deputy Tennessee Attorney General John Bledsoe represented the state.

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Volunteers Needed for June 12 Legal Clinic in Nashville

Lipscomb University's Fred D. Gray Institute for Law, Justice & Society will host a free legal clinic in Nashville at 6:30 p.m. on June at Schrader Lane Church of Christ, located at 1234 Schrader Lane, Nashville, 37208. It will be an advice-only clinic with no expectation that volunteers take on continuing representation. For more information or to volunteer, contact Randy Spivey, 615-966-2503.
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Tennessee Supreme Court Gives OK to Modern Methods for Valuing Stock

In a case involving dissenting shareholders forced out of a closely held Nashville corporation, the Tennessee Supreme Court has overruled its prior case law and adopted a standard that allows trial courts to use modern methods to determine the “fair value” of the dissenting shareholders’ stock. The court overruled a 1983 case that required courts to only use the "Delaware Block" method of valuation and adopted a more open approach. However, in the case at hand, Athlon Sports Communications, Inc. v. Stephen C. Duggan et al., the Supreme Court remanded it back to the trial court, as the lower court and other parties may have been operating under the mistaken assumption that Delaware Block was the only valuation method that was available to them.

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New Video: Pera, Bivins Look at Next Steps in Indigent Representation

In a new video, TBA President Lucian Pera and Tennessee Supreme Court Chief Justice Jeff Bivins hold an informative and candid conversation about indigent representation reform. The pair talk about how the push for reform developed, the recent state budget approved by the General Assembly, and how the fight for reform will continue. Watch the conversation in full on the TBA’s YouTube channel. Those who have yet to fill out the TBA survey requesting comments on the issue have until midnight tonight to complete it.
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A Wellness Tip from the Attorney Well-Being Committee

Making an effort to notice the positive aspects of your life can have specific and beneficial results. Positive psychologists asked volunteers to each night write down three good things that happened that day and reflect for a few minutes on each one.  Benefits resulting from this exercise included increased happiness, increased moments of gratitude and other positive emotion, enhanced capacity for hope and optimism, improved physical health, and decreased depression.  Why not give this simple exercise a try? Think of three instances of something that went right during the past 24 hours, write them down, and spend a few minutes reflecting on them (i.e., cause of the good thing, my contribution to the good thing, similar good things can happen in the future if I do X, what this good thing means).  Do this for two weeks and see whether you notice a difference!

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Tennessee Supreme Court Hears DUI Case

The Tennessee Supreme Court heard a challenge to the state’s DUI fee system today, the Times Free Press reports. When convicted, defendants were made to pay $250 to the Tennessee Bureau of Investigation to cover the cost of a blood alcohol or drug concentration test fees. Rosemary Decosimo was convicted of driving under the influence in March 2017, and is challenging those fees, which her attorney argues encourages positive results in blood alcohol tests.
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Senate Judiciary Chair Urges Justices to Retire Now

Sen. Chuck Grassley is urging any Supreme Court justice considering retirement from the lifetime job to announce immediately so a successor can be confirmed before the November U.S. midterm election, Reuters reports. The Iowa Republican chairs the Senate Judiciary Committee. The most likely justice to retire would be Anthony Kennedy, who turns 82 in July and has served since 1988. One of the court’s five conservatives, Kennedy sometimes sides with the four liberal justices on major issues like gay rights and abortion.

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