CLE Webcast: Learn to speak so people listen

If you need help learning how to engage your audience, structure your presentations in a clear and concise manner, and develop examples to make legal information relevant to your clients, tune in to the upcoming "Speak So People Listen" webcast from the Tennessee Bar Association's TennBarU. Veteran journalist and public relations consultant Mimi Bliss will teach you how to use Power Point as a visual aid and not a crutch, and teach you how to speak with confidence using eye contact, voice, and body language. The session will be an interactive presentation using a volunteer to help demonstrate these key points.

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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
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00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

CAROL E. MILLER v. JOEL S. BIRDWELL, M.D., ET AL.

Court: TCA

Attorneys:

Laura Beth Rufolo and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellants, Joel S. Birdwell, M.D., and Medical Imaging Consultants, P.C.

Stephen W. Elliott and Fetlework Balite-Panelo, Nashville, Tennessee, for the appellants, Neil E. Christopher, Jr., M.D., individually and d/b/a Emergency Medicine and George P. Knox, III, M.D.

Hugh P. Garner, Chattanooga, Tennessee, for the appellee, Mark Miller.

Judge: STAFFORD

This appeal involves claims for medical malpractice against three doctors. The doctors each filed a motion for summary judgment. The trial court denied all three motions. After reviewing the record, we find that there are no material issues of fact in dispute. The defendant-doctors affirmatively negated an essential element of the Plaintiff's claim - causation. Plaintiff failed to come forward with expert proof to demonstrate that there was a material issue of fact in dispute. Accordingly, the doctors are entitled to summary judgment. Consequently, this Court finds that the trial court erred in denying the motions for summary judgment. Reversed and remanded.

http://www.tba2.org/tba_files/TCA/2010/millerc_062310.pdf


DARA DEMETRA OWENS v. DANIEL LEE OWENS

Court: TCA

Attorneys:

Glen A. Isbell, Winchester, Tennessee, for the appellant, Daniel Lee Owens.

Dara Demetra Owens (Currie), Decherd, Tennessee, pro se.

Judge: HIGHERS

Husband seeks to set aside a divorce decree and permanent parenting plan entered by default on the ground that the provisions of such differed significantly from the relief sought in Wife's complaint for divorce and proposed parenting plan. We reverse the trial court's decision insofar as it failed to grant Husband the relief sought.

http://www.tba2.org/tba_files/TCA/2010/owensd_062310.pdf


DANIEL C. WICKER, II, ET AL. v. COMMISSIONER, TENNESSEE DEPARTMENT OF REVENUE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Brad H. Buchanan, Assistant Attorney General, Nashville, Tennessee, for the appellant, Commissioner of Revenue, State of Tennessee.

John S. Colley, III, Columbia, Tennessee, for the appellees, Daniel C. Wicker, II and Joseph D. Williams.

Judge: HIGHERS

Plaintiffs were assessed, and paid taxes under the Drug Tax, which was later declared unconstitutional. Plaintiffs sought refunds individually, and on behalf of all others similarly situated. The trial court certified the class, and the Department filed this interlocutory appeal challenging certification. Because the Taxpayer Remedies Statute, which must be strictly construed as a derogation of sovereign immunity, does not contemplate the maintenance of a class action, we reverse the trial court's grant of class certification.

http://www.tba2.org/tba_files/TCA/2010/wickerd_062310.pdf


STATE OF TENNESSEE v. ROBERT THOMAS REED

Court: TCCA

Attorneys:

Edward Cantrell Miller, District Public Defender; and Amber D. Hass, Assistant Public Defender, attorneys for appellant, Robert Thomas Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. Dunn, District Attorney General; George C. Ioannides, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Robert Thomas Reed, was convicted of driving under the influence (DUI) (first offense), a Class A misdemeanor, and driving after having been declared a motor vehicle habitual offender (MVHO), a Class E felony. Following a sentencing hearing, the Defendant was sentenced as a Range I offender to two years with service of six months in the county jail and the balance to be served on probation for the MVHO conviction and a concurrent sentence of eleven months, twenty-nine days suspended to six months for the DUI conviction. On appeal, the Defendant challenges the sufficiency of the evidence that formed the basis of both convictions. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/reedr_062310.pdf


STATE OF TENNESSEE v. ELIZABETH GAY TINDELL

Court: TCCA

Attorneys:

Jerry H. Summers and Marya L. Schalk, Chattanooga, Tennessee, for the appellant, Elizabeth Gay Tindell.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William H. Cox, District Attorney; and James A. Woods, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

Appellant Elizabeth Gay Tindell was arrested for driving under the influence (DUI) when, after a night out with friends, she stopped on the side of the road to call for a ride home. A sheriff's deputy saw her pull over and, concerned that she might be in distress, approached her car. During his stop, the deputy concluded Appellant was intoxicated, and a subsequent breathalyzer test revealed her blood alcohol content was .20 percent. A Hamilton County Grand Jury indicted her for DUI and DUI per se, and she was convicted after a bench trial. She appeals, contending that the trial court erred in: (1) denying her motion to suppress evidence from the deputy's stop; (2) admitting evidence of the breathalyzer test results; (3) denying, in an issue of first impression, her motion to compel discovery of the source code for the breathalyzer device used to test her blood alcohol content; (4) finding sufficient evidence to convict her of DUI per se; and (5) finding sufficient evidence to justify the court's conclusion that Appellant was subject to the enhanced seven-day incarceration minimum. We affirm.

http://www.tba2.org/tba_files/TCCA/2010/tindelle_062310.pdf


STATE OF TENNESSEE v. ALFRED TURNER
With Dissenting Opinion


Court: TCCA

Attorneys:

Lance Chism (on appeal), and Gerald Skahan and Juni Ganguli (at trial), Memphis, Tennessee, for the appellant, Alfred Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas D. Henderson and Reginald Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Alfred Turner, was found guilty by a jury of the lesser included offenses of facilitation of felony murder, a Class A felony, and facilitation of second degree murder. After merging the convictions, the trial court sentenced the defendant to twenty-five years of incarceration as a Range I, standard offender. On appeal, he argues that: insufficient evidence exists to support his conviction; a proper chain of custody for the introduction of DNA evidence was not established; the trial court erred in allowing into evidence that two other individuals had been acquitted of this murder; and the trial court erred in both jury instructions and sentencing. After careful review, we conclude that even though sufficient evidence existed to support the defendant's convictions, the defendant's sentence ran afoul of Blakely and the prior acquittals of two other individuals deprived the defendant of a fair trial. Therefore, the error requires a remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2010/turnera_062310.pdf

MCMULLEN dissenting
http://www.tba2.org/tba_files/TCCA/2010/turnera_DIS_062310.pdf


STATE OF TENNESSEE v. DEVON O'NEAL WIGGINS

Court: TCCA

Attorneys:

James E. Lanier, District Public Defender; H. Tod Taylor, Assistant Public Defender, Dyersburg, Tennessee, for the Defendant-Appellant, Devon O'Neal Wiggins.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Devon O'Neal Wiggins, was convicted by a Dyer County jury of sale of cocaine over 0.5 grams, a Class B felony; possession of cocaine under 0.5 grams with intent to sell or deliver, a Class C felony; possession of marijuana under 0.5 ounce, a Class A misdemeanor; and evading arrest, a Class E felony. He was sentenced as a Range III, persistent offender, to thirty years for the sale of cocaine over 0.5 grams, fifteen years for the possession of cocaine under 0.5 grams, eleven months and twenty-nine days for the possession of marijuana, and six years for the evading arrest conviction. He was ordered to serve the above sentences concurrently to each other, but consecutively to another unrelated case. On appeal, Wiggins argues: (1) the evidence was insufficient to support his convictions for sale and possession of cocaine; (2) the testimony of a State's expert witness concerning an exemplar graph violated his right of confrontation; (3) the trial court erred by not charging the jury on the offense of sale of a counterfeit controlled substance; (4) Wiggins' prosecution for possession of marijuana was not commenced within the one-year statute of limitations; (5) the trial court improperly commented upon the evidence; (6) the State committed prosecutorial misconduct in its closing argument; (7) the sentence imposed by the trial court for sale of cocaine was excessive; and (8) cumulative error necessitates reversal of Wiggins' convictions. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/wigginsd_062310.pdf


Authority of County Mayor to Block Soil Conservation District Board's Appointment to Coordinating Committee

TN Attorney General Opinions

Date: 2010-06-23

Opinion Number: 10-83

http://www.tba2.org/tba_files/AG/2010/ag_10_83.pdf

TODAY'S NEWS

Legal News
Supreme Court Report
Upcoming
TBA Member Services

Legal News
Grades going up as law schools try to boost job prospects
A report in this week's New York Times finds that law schools are finding creative ways to give their graduates a leg up in today's tough economy. A number of law schools are arbitrarily raising grades or doing away with grades altogether in favor of a pass-fail system. In addition, many top schools have moved on-campus interviews to August to give students an advantage in the market. And finally, some schools such as Duke, Southern Methodist University and the University of Texas are offering to pay law firms to hire students for public interest internships or just to "try them out" as employees.
Read the Times article here
Lewis talks about court's access-to-justice plan
The Tennessee Supreme Court announced several initiatives yesterday as part of its effort to improve access to civil legal aid for low-income individuals. Former TBA president George T. "Buck" Lewis, who is co-chair of the court's Access to Justice Commission, said the effort is a "multi-phased strategic plan" that was "distilled from a list of about 175 ideas," and that the commission picked ideas that would have "the most impact the quickest." Read his comments in the Commercial Appeal.
See photos from the event on TBAConnect
Chattanooga firm expands to West Virginia
Chattanooga-based Allen, Kopet & Associates has acquired the Charleston, W.Va., law firm of Francis, Nelson & Brison. Allen Kopet's chief financial officer, speaking about the decision, said "West Virginia seemed like a logical place for us to move next." The West Virginia firm has seven lawyers, all of whom have been kept on. Several support staff were let go, though, as Allen Kopet relies on a centralized dictation system rather than local typists.
The Charleston Daily Mail reports
Vandy law grad named one of 13 White House fellows
Samar Ali, originally of Waverly, Tenn., and a 2006 graduate of the Vanderbilt University Law School, has been named a White House Fellow. Ali is an associate in the Abu Dhabi office of Hogan Lovells US LLP where she handles mergers & acquisitions; cross-border and Shari'a compliant transactions; infrastructure and project finance; and other international business matters. Prior to joining the firm, she clerked for Sixth Circuit U.S. Court of Appeals Judge Gilbert S. Merritt. While at Vanderbilt, she served as the first Arab-Muslim student body president.
Read more about Ali and the fellows program
Online small business LLM program launched
Kaplan University's Concord Law School has launched a web-based small business practice LLM program. The online degree is touted as the first in the country to focus solely on small business law, which includes issues such as renting shopping mall space, e-business on the web, business franchising, and succession planning for family businesses. Though the program isn't accredited by the ABA, the inaugural class is set to begin Aug. 30 with 30 students.
Learn more from the school
New site pairs nonprofits with pro bono lawyers
The Thomson Reuters Foundation this week launched TrustLaw Connect, a global service that connects organizations in need of free legal assistance with those able to provide it. Through the site's online marketplace, social entrepreneurs, NGOs and government agencies will be able to access pro bono legal support from lawyers anywhere in the world. Over 190 organizations and 60 law firms have joined the effort so far. In addition, the service aims to become an international hub on anti-corruption and governance issues by offering a database of related legislation, law review articles, news, country profiles and international conventions.
Learn more on FinChannel.com
Online lawyer procurement system unveiled
Nashville-based entrepreneur Joe Freedman has launched his latest legal-industry venture, an online procurement system that promises to trim companies' spending on attorneys. RFx Legal, which combines consulting services with a clearinghouse of outside counsel, is being touted as the "first online procurement application tailored by lawyers for the legal industry." The Nashville Post announced the news.
Read more here (subscription required)
Supreme Court Report
Terrorism ruling gets mixed reviews from lawyers
Attorneys in Middle Tennessee offered mixed opinions on how the U.S. Supreme Court's most recent terrorism ruling might affect local organizations or individuals who offer advice to groups with terrorist ties. On Monday, the high court ruled that legal and political advice to a terrorist group could amount to "material support" of terrorist activities and be prosecuted as a federal crime. Nashville criminal defense attorney David Raybin said the opinion made sense while Nashville criminal defense attorney Jennifer Thompson said its reach could be "scary."
The Tennessean looks at the issue
Upcoming
Songwriting contracts seminar on tap for Friday
The Volunteer Lawyers and Professionals for the Arts will host an event this Friday that will explain the types of agreements songwriters use to protect copyrighted works, the difference between exclusive and non-exclusive agreements, and the division of royalties between songwriters and publishers. The seminar will run from 12 to 1:30 p.m. at the Nashville Songwriters Association office at 1710 Roy Acuff Place. The cost for members is $10 while nonmembers may attend for $15. Attendees are encouraged to bring a bag lunch. RSVP to VLPA@abcnashville.org or (615) 743-3055.

TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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