TBA to Introduce Legal Document Generation

The TBA will soon launch a new subscription-based product for Tennessee lawyers — automated legal forms. The initiative will use HotDocs, a custom documentation generator that creates form templates and speeds up the preparation process based on client and case data. In order to provide this valuable resource to our members, we hope to obtain your comments and ideas on forms you deem beneficial for replication. With across-the-board participation, we can comprise a substantive, comprehensive database where subscribers will have access to forms submitted by all TBA sections. Please send suggestions and comments to TBA Membership Director Mindy Fulks.

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Tennessee Supreme Court Oral Argument Videos Available Online

Video recordings from oral argument held before the Tennessee Supreme Court in February are available online. This is the second time oral arguments have been video recorded and made available to the public. The cases listed are available to view on the Oral Argument Video webpage.
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Applications Now Accepted for West Tennessee Court of Appeals Vacancy

The Governor’s Council for Judicial Appointments is now accepting applications for the Court of Appeals vacancy created by the appointment of Brandon O. Gibson as Senior Advisor in the Office of the Governor. Any interested applicant must be a licensed attorney who is at least 30 years of age, a resident of the state for five years, and a resident of the Western Tennessee Grand Division. Applicants must complete the designated application and submit it to the Administrative Office of the Courts by noon on Feb. 14. The application is available here. Candidates will be interviewed in the Western Tennessee Grand Division at a date, time, and location set by the Governor’s Council for Judicial Appointments in the future. 
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TBA Weekly Legislative Update

The Tennessee Senate and House of Representatives are back in session and are referring newly introduced bills to the appropriate committees, which are primarily holding organizational meetings this week. The deadline for filing all legislation is Feb. 6, so there will be a flood of bills introduced over the next two weeks. The TBA Governmental Affairs Team will be reviewing all bills and begin the process of forwarding the legislation affecting the practice of law to the appropriate Section Executive Councils for review and feedback. Stay tuned for more info.
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Justice Kavanaugh Issues First SCOTUS Opinion

Justice Brett M. Kavanaugh issued his first opinion for the U.S. Supreme Court yesterday, The ABA Journal reports. The unanimous opinion held that federal judges don’t have the authority to decide whether a dispute can be arbitrated when the contract gives the decision to the arbitrator. The Supreme Court ruled in a dispute between a dental equipment manufacturer and a distributor, Henry Schein Inc. v. Archer and White Sales Inc.
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TSC Holds Evidence Not Enough to Convict for Attempt to Sexually Exploit a Minor

In a divided opinion, the Tennessee Supreme Court has reversed and dismissed the conviction of a Davidson County man for attempted especially aggravated sexual exploitation of a minor — “attempted child sexual exploitation” — in a case in which he secretly videotaped a 13-year-old female relative while she was in her bedroom. Based on the language of Tennessee’s child sexual exploitation statutes, which were adopted to address the production of child pornography, the majority of the Court found that there was not enough evidence at trial to affirm the conviction. Justice Holly Kirby authored the majority opinion, and the dissent was authored by Justice Roger Page.
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SCOTUS to Consider Hot-Button Issues in 2019

The U.S. Supreme Court’s 2018-2019 term has had a quiet start with only three decisions issued; all unanimous. However, the court is likely to hear a number of high-profile cases that will be more divisive. Issues before the court may include separation of church and state, citizenship questions related to the 2020 Census, power of executive agencies, Deferred Action for Childhood Arrivals, the military ban against transgender individuals and partisan gerrymandering. The Hill and the Economist have more on the cases and possible outcomes.

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Judge Halts Ruling on Obamacare Pending Appeal

The Texas judge who this month ruled that core provisions of the Affordable Care Act were unconstitutional has decided to halt his decision pending an appeal, Bloomberg News reports. “Because many everyday Americans would otherwise face great uncertainty during the pendency of appeal, the court finds that the Dec. 14, 2018, order declaring the individual mandate unconstitutional and inseverable should be stayed,” U.S. District Judge Reed O’Connor said in a filing Sunday. Both the group of Republican states that sued to invalidate Obamacare and the Democrat-controlled states that defended the law urged the judge last week to allow his ruling to be appealed.

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Justice Ginsburg Undergoes Surgery for Early Stage Lung Cancer

U.S. Supreme Court Justice Ruth Bader Ginsburg underwent surgery Friday for early stage lung cancer, NPR reports. Doctors at Memorial Sloan Kettering hospital in New York performed a lobectomy, removing one of the five lobes of the lung. Prospects look good for a full recovery, and Ginsburg hopes to be back on the court for the start of the next argument session in early January.

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Tennessee Supreme Court Clarifies Law Regarding Releases From Liability

The Tennessee Supreme Court has revised the factors for courts to consider when deciding the enforceability of a release of liability signed by someone before participating in an activity or obtaining a service. In a case brought by Frederick Copeland against medical transport company MedicOne Medical Response Delta Region Inc., in which Copeland, after signing an agreement releasing MedicOne from liability, was injured while getting into one of the company's vans. Copeland sued, but a lower court and an appeals court both found the released enforceable. However, the Tennessee Supreme Court found that the release was not enforceable because Copeland did not have equal bargaining power with MedicOne when he signed the release, the language of the release was unclear and overly broad, and the release involved an activity with important public interest implications. Read Justice Sharon Lee's unanimous opinion.

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Join Us Today: LAW TECH

Today's the day! Discover the newest technology for your law practice and law office at this year's Law Tech Blast at the Tennessee Bar Center in Nashville!

The flexible open house format allows you to create your own schedule. You can attend CLE sessions, enter to win prizes, network with attendees, visit with sponsors and interact with speakers. Take as many or as few CLE hours as you need. Only those seeking to be awarded CLE Credit will be charged. The registration desk will be open all day, so you can come and go for the hours you need when it is convenient for you. Attendees can earn up to 6.5 hours of Dual CLE credit.

  • GDPR, Cloud and Technological Competency
  • The Bill and Phil Tech Show 2019: BEAT THE CLOCK
  • Best Practices: Information Security for Firms
  • Judicial Panel: Technology in the Courtroom
  • Know When to Hold 'Em
  • Digital Evidence – A Technical Life Raft for the Legal Mind
  • Make it Rain: Ethics Guidelines and Practice Essentials

ATTEND TO WIN: Attendees will have a chance to win prizes, including an iPad Pro. The tech prize drawing will be held at the 10:30 a.m. break. Must be present to win.

TAKE A LYFT: TBA has partnered with Lyft to offer attendees a discounted ride.

  • New to Lyft?: Get $5 off 2 rides at or download the app and enter code LAWTECH5
  • Already Have Lyft?: Save 10% off 2 rides to or from Law Tech Blast with code LAWTECH



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Nashville News Station Asks Supreme Court to Review Open Records Case

Attorneys for Nashville TV station NewsChannel5 have asked the Tennessee Supreme Court to take up the station’s appeal in a case that threatens to close some public records. The station had appealed a ruling by Davidson County Chancellor Anne C. Martin, who sided with arguments by state attorneys that records, such as travel expenditures, cease to be public once law enforcement officials develop a potential interest in them. Station lawyers argued in their motion that the state's highest court needs to "assume jurisdiction over this appeal and decide this important issue of public concern on an expedited basis."
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Give the Gift of TBA Membership

Give yourself (or a friend) the gift that keeps giving — one-year of unlimited access to professional development opportunities and a number of programs and services designed to help you become a better practitioner. Founded in 1881, the Tennessee Bar Association is dedicated to enhancing fellowship among members of the state's legal community. Oh, and did we mention some of the benefits? Earn three pre-paid credits to use on any live or online course featured in the 12-days of CLE. Join now!

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Pence Breaks Tie to Confirm Federal Judicial Nominee with ABA ‘Not Qualified’ Rating

Vice President Mike Pence cast a tiebreaking voting in the U.S. Senate this week to confirm a nominee who received a “not qualified” rating from the ABA Standing Committee on the Federal Judiciary, The ABA Journal reports. Jonathan Kobes will serve on the 8th U.S. Circuit Court of Appeals in St. Louis. The standing committee thought Kobes didn’t have the needed experience and did not show evidence of being able to fulfill the writing requirements required of a federal appeals judge, according to a Sept. 14 letter explaining the rating.
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Court Clarifies Standards for Trial Courts in Motions to Reduce Sentences Imposed on Guilty Please

The Tennessee Supreme Court today held that a defendant who pleads guilty is not required to present proof of post-sentencing changed circumstances to prevail on a motion for reduction of sentence under Rule 35 of the Tennessee Rules of Criminal Procedure, if the guilty plea did not include an agreement as to a specific sentence. The opinion came in a case that began in 2015, when the defendant, Jonathan David Patterson, broke into several cars and a building in Putnam County, stealing two vehicles and also stealing property from the vehicles and the building.

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Trump Appointments: Report Looks at Possible Judicial Openings in Coming Years

With a solid Republican majority in the Senate, President Trump will likely continue to be successful in winning approval of his appointments to federal district and appellate courts, a Brookings Institute report says, but it is less likely that he will see the high number of openings that he’s been presented with during the first two years of his term.

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Mississippi Justices Reject Challenge to Execution Drug

The Mississippi Supreme Court has denied appeals from two death row inmates over the state’s plans to execute them using a sedative called midazolam, the Associated Press reports. In a pair of 7-2 rulings Thursday, justices found that Thomas Edwin Loden Jr. and Richard Gerald Jordan hadn't presented enough scientific evidence about the drug to justify a hearing on whether inmates executed using it would feel pain.

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Justices Appear Reluctant to Stop State, Federal Prosecutions for Same Crime

A long-standing precedent that allows a state and the federal government to prosecute a person for the same crime — despite the constitutional ban on “double jeopardy” — will likely stay in place, the Associated Press reports in the Bristol Herald Courier. Both conservative and liberal Supreme Court justices hearing an appeal from an Alabama man who was prosecuted in both state and federal court for being a felon in possession of a gun, on Thursday seemed unwilling to make the change. “This is a 170-year-old rule,” said Justice Elena Kagan. It has been repeatedly upheld by more than 30 justices, and Kagan said she was “uncomfortable” in tossing it out now.

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December CLE in 6 Cities

TBA offers CLE in six locations during December. See offerings in Chattanooga, Knoxville, Memphis, Nashville, Johnson City and Jackson. Find last-minute by the hour through Dec. 31 or take any of the TBA's online CLE packages.
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Tennessee Board of Professional Responsibility Seeks Disciplinary Counsel – Litigation, Appeals

The Tennessee Board of Professional Responsibility is seeking a motivated attorney for the position of Disciplinary Counsel – Litigation Section, Appeals. The duties and responsibilities include: investigate and conduct discovery related to complaints of attorney misconduct; prepare pleadings and appear in disciplinary hearings before hearing panels; represent the Board in appellate proceedings before special judges in trial courts and before the Tennessee Supreme Court; prepare and present continuing legal education; and other duties as assigned.
Excellent written and oral communication required. Applicants must be licensed in Tennessee and have a minimum of seven (7) years experience in the practice of law. Must have significant experience in appellate advocacy. Practice before the Tennessee Supreme Court is preferred. You can find out more about the position including how to apply by using this link.
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Mark Your Calendars!

Court of Criminal Appeals Boot Camp 2018

The Tennessee Bar Association’s Appellate Practice Section held its annual boot camp this past Wednesday. Produced by Section Chair Kyle Wilson and Vice-chair Leslie Price, this year’s boot camp was focused on criminal appeals. Attendees viewed oral arguments at the Court of Criminal Appeals and enjoyed a Q&A with the presiding judges. Following court, boot camp participants moved to the Tennessee Bar Center for a networking lunch and oral advocacy panel with the attorneys who presented arguments that morning discussing briefs, argument preparation and providing practice tips. The TBA would like to thank Kyle, Leslie and the TBA Appellate Practice Section for another successful program!

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Court of Appeals Addresses Dissolution Provisions of Tennessee LLC Act

In FDA Properties v. Miller, the Court of Appeals (Gibson, J.) looked at the effect of a member’s bankruptcy on the dissolution of an LLC. The LLC in question was organized in 2005 under the Tennessee LLC Act (the Revised LLC Act was enacted in 2005, but is only effective for LLCs organized after Jan. 1, 2006, and those older LLCs choosing to be governed by the Revised Act). After one of the four members of the LLC declared bankruptcy, the other members expelled him through a written document, though no formal vote was taken. The Court of Appeals determined that Tenn. Code Ann. § 48-245-101(a)(5), which lists ten different events upon which dissolution occurs, applied to the LLC. One such event in the statutory list is the bankruptcy of any member, and the LLC did not include an exception to that rule in its operating agreement. However, because the trial court did not rule on whether the dissolution provisions in the LLC’s operating agreement modified the statutory bases for dissolution, the Court of Appeals remanded for further proceedings.

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Court Grants Stay on Formal Ethics Opinion 2017-F-163

The Tennessee Supreme Court has granted a request to stay the effectiveness of Formal Ethics Opinion 2017-F-163, which deals with a prosecutor’s ethical duties to disclose information. The request for the stay came from the Tennessee District Attorneys General Conference. Earlier this month, the Board of Professional Responsibility had responded to the stay request saying that it anticipates voting on reconsideration of Formal Ethics Opinion 2017-F-163 at its Dec. 14 meeting, and will “hold in abeyance any recommended disposition by a Hearing Committee Member or the Board of any disciplinary complaint filed against a prosecutor wherein Formal Ethics Opinion 2017-F-163 is referenced in the complaint.”

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9th Circuit Maintains Injunction on End to DACA Program

A 9th Circuit Court of Appeals panel on Thursday unanimously kept a preliminary injunction in place against President Donald Trump's decision to end the Deferred Action for Childhood Arrivals (DACA) program, reports. Earlier this week, the Trump administration took the unusual step of asking the Supreme Court to take up the case even before any federal appeals courts had weighed in. It was the second time the administration sought review of its DACA decision by the Supreme Court.

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