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Nashville Bar Journal
DEC 14 / JAN 15- VOL 14, NO. 11
Obama’s Executive Actions on Immigration –
What Do They Include and What Is the
Source of the President’s Authority?
Yvette K. Sebelist
NBA Annual Meeting & Banquet
Damages Caps in Injury Litigation
Taylor Sutherland
Stories Mediators Tell
John C. Duval
Congratulations
Edward Lanquist, Jr.
2015 Nashville Bar Association President
Ryan Levy
2015 NBA Young Lawyers Division President
PRE-ORDER YOUR 2015
NBA DIRECTORY
ON YOUR DUES FORM
OR ONLINE
TODAY
@ WWW.NASHVILLEBAR.ORG
Articles
6 Obama’s
Executive Actions on Immigration –
What Do They Include and What Is the Source .
Departments
2
4
of the President’s Authority?
Yvette K. Sebelist
8
NBA Annual Meeting & Banquet
From the President
Communique
• NBF Grant
• NSL Library
• YLD Directory
• Golden Oldie Reveal
• Upcoming Events
10 Damages Caps in Injury Litigation
CONTINUING LEGAL EDUCATION
16 Stories Mediators Tell
22
Columns
24
CENTER SECTION
Taylor Sutherland
John C. Duval
12
Disclosure - Announcements • Kudos •
People on the Move • Firm News •
In Memory
Classified Listings
Golden Oldie
Gadget of the Month
Bill Ramsey, Neal & Harwell, PLC
Phillip Hampton, LogicForce Consulting
We have a big
one for you this
month! Identify the
individuals in the
photo. Be the first
to email the correct
answer to nikki.
gray@nashvillebar.
org and your name
(along with your
correct entry) will
appear in next
month’s issue.
NBA Calendar of Events
DECEMBER 24th - JANUARY 1st
NBA CLOSED FOR HOLIDAYS
JANUARY 15th
NBA Happy Hour
@ Bradley Arant Boult Cummings
JANUARY 30th and 31st
NBA Diversity Committee
1L Job Fair
@ Bradley Arant Boult Cummings
FEBRUARY 28th
NBF Fellows Dinner
@ The Hutton Hotel
MAY 14th
NBA Golf Tournament
@ Legends Golf Course
FEBRUARY 27th and 28th
NBA YLD Mock Trial Competition
@ The Metro Courthouse
Committee Meetings are held at the NBA Offices unless otherwise noted l o= Special Event l Full Calendar online at www.nashvillebar.org
'
A Monthly Publication of the Nashville Bar Association
Edward D. Lanquist, Jr., Publisher
William T. Ramsey, Editor-in-Chief
[email protected]
Eleanor Wetzel, Managing Editor
[email protected]
Journal Staff:
Nikki Gray, Director of Communications
[email protected]
Tina Ashford, Communications Coordinator
[email protected]
Editorial Committee:
Kelly L. Frey
Kathleen Pohlid
Tim Ishii
Tracy Kane
Everette Parrish
Bill Ramsey
Rita Roberts-Turner
Eleanor Wetzel
David Winters
Victoria Webb
Nashville Bar Association Staff
Gigi Woodruff
Executive Director
----------Tina R. Ashford
Communications Coordinator
Susan W. Blair
Director, Continuing Legal Education
Shirley Clay
Finance Coordinator
Wendy K. Cozby
Lawyer Referral Service Coordinator
Nikki R. Gray
Director of Communications
Traci L. Hollandsworth
Programs & Events Coordinator
Malinda Moseley
CLE Coordinator
Judy Phillips
CLE Coordinator
Vicki Shoulders
Membership Coordinator/Office Manager
The Nashville Bar Journal, ISSN 1548-7113, is
published monthly by the Nashville Bar Association
at 150 Fourth Avenue North, Suite 1050, Nashville,
TN 37219, (615) 242-9272. Periodicals Postage Paid,
Nashville, TN (USPS 021-962). Subscription price: $25
per year. Individual issues: $5 per copy.
POSTMASTER: Send address corrections to Nashville
Bar Journal, 150 Fourth Avenue North, Suite 1050,
Nashville, TN 37219
No part of this publication may be reprinted
without written permission of the Nashville Bar
Journal Editorial Committee. The Nashville Bar
Journal is not responsible for the return or loss
of unsolicited manuscripts or for any damage or
other injury to unsolicited manuscripts or artwork.
All Articles and Letters contained in this publication represent the views of the authors and do not
necessarily reflect the opinions of the Nashville
Bar Association.
Nashville Bar Association
150 Fourth Avenue North
Suite 1050
Nashville, TN 37219
615-242-9272 Fax 615-255-3026
www.nashvillebar.org
2
From the President
My Name is Ed Lanquist
and I am a Member of the Nashville Bar
by:
Edward D. Lanquist, Jr.
May it please the Court, my name is Ed Lanquist and I am a member of the Nashville
Bar.
As a younger lawyer that is what I was taught to say in my introduction to any court
across the country. That is the way that I continue to introduce myself because of the
pride that I have being a Nashville Bar member. Likewise, I am very proud to serve as
President of the Nashville Bar Association.
The Nashville Bar is at a crossroads. While bar admissions rise, our membership has
remained flat. Younger lawyers are not automatically joining the NBA as they once did.
This is in part due to changes in economics. In addition, some of our larger firms are no
longer paying bar dues for their members. Because younger lawyers are not joining, we
are becoming an old association.
Those of you here tonight understand the importance of the Nashville Bar to you and
your practice. We have an obligation to make sure that membership in the Nashville Bar
benefits all.
So while the new bar president usually stands before you and issues mandates about new
programs, I will not. Instead, I want the NBA to continue the focus on membership
started by Tom Sherrard and intensified by Charles Grant. In order to do that, the NBA
must make sure that its primary reason for being is member benefits.
We are in the process of searching for a new executive director. I hope and believe that
this new director will ensure that the NBA is here for its members. The new director, the
officers, the staff and the board will be looking at all our existing programs to determine
if they benefit members. Personally, I will be looking at each program, the number of
members benefitted, and the cost.
As Judge Thomas Aquinas Higgins says, “The problem with lawyers nowadays is that they
don’t drink enough whiskey together.” This last year we started a monthly happy hour.
That is a program we will definitely continue. We all recognize that civility within the
bar is not what it once was. I hope that by getting lawyers and judges together we can
create a community of friends-- or at the very least peers who are engaged as advocates to
fight for our clients, but who enjoy the collegiality of the bar when the game is not afoot.
There is nothing wrong with respecting your adversaries, admiring their skills and having
fun together at the end for the day. Additionally, given the current business climate and
the trend toward more specialization, these get-togethers provide members with networking opportunities.
While we are talking business, we need to remember the practice of law is a business,
a great way to make a living and a sacred profession. Even though you may be drafting
your one-hundredth set of interrogatories in a car wreck case, preparing another title policy, or negotiating yet another plea bargain, we all need to remember that what is rote for
us is not for our clients. In most cases, we may be representing a client in his or her only
encounter with the law. Therefore, we need to make sure that we take the time necessary
with each client to provide the best possible representation. We cannot let what managed
care has done to the medical profession do the same to the legal profession.
Most of us will never be involved in a high profile, game changing case of national significance, but we as members of the NBA should be proud of the accomplishments of our
fellow members who have had that opportunity and have risen to the occasion. We need
Nashville Bar Journal - December 2014 / January 2015
2015 NBA BOARD OF DIRECTORS
to know our history. We need to take pride in a very young Harris Gilbert working with a rising star Tommy Osborne before the U.S. Supreme Court in Baker v.
Carr, the one man, one vote case. We need to remember it was all started by Maclin
Davis and that Davidson County Chancellor Thomas Wardlaw Steele got it right at
the trial court level. We should take pride in NBA members like Cecil Branstetter,
George Cate, Beverly Briley, and Charlie Warfield who were leaders in the creation
of Metropolitan Nashville, a system of governance admired by cities large and small
around our nation. We need to be proud of those NBA members involved in the
Nashville and Chattanooga Hoffa prosecutions on both sides including a young Jim
Neal, Cecil Branstetter and John J. Hooker Sr.
George “Citizen” Barrett’s career was devoted to protecting the civil rights of the
common man. In the seventies, NBA members Howard Baker, Jr., Jim Neal, and
Fred Thompson were key players in the Watergate hearings and subsequent prosecutions. Also in the seventies NBA members Hal Hardin, Bill Koch, and Bill Leach
made sure that we had an early but peaceful transition of power from Governor
Ray Blanton to Governor Lamar Alexander, an NBA member. We should also be
proud of the Nashville mayors who have been and are NBA members, including Bill
Purcell and Karl Dean.
And that history continues. NBA members take unpopular stands and advocate for
those who cannot afford representation. Michelle Johnson and Gordon Bonnyman are making sure infants are not being denied care by TennCare. Likewise, Bill
Harbison and Abby Reubenfeld are seeking to ensure marriage equality. I could go
on and I apologize to the NBA members who have made and are making history
but cannot be mentioned tonight because of time limitations.
We need to make sure that the past, present and future accomplishments of members of the bar are recognized and recorded. The Historical Committee does yeoman’s work in documenting much of this history but we need to do more. A couple
of years ago we produced a first rate program on Baker v. Carr. We are presently
planning a program on the Nashville portion of the Hoffa trials. We should produce
a program like these every year.
Edward D. Lanquist, Jr., President
Jocelyn A. Stevenson, President-Elect
Dewey Branstetter, First Vice President
John C. McLemore, Second Vice President
Charles K. Grant, Immediate Past President
Ryan D. Levy, Young Lawyers Division President
Whitney Haley, Secretary
Hon. Joe B. Brown, Treasurer
Eric W. Smith, Assistant Treasurer
Lela Hollabaugh, General Counsel
Robert C. Bigelow
Hon. Joe P. Binkley, Jr.
Hon. Sheila D. Calloway
Kathryn S. Caudle
Margaret M. Huff
Hon. William C. Koch, Jr.
Irwin J. Kuhn
Claudia Levy
Hon. Randal S. Mashburn
Jeffrey Mobley
Andrea P. Perry
Erin Palmer Polly
Matt Potempa
David L. Raybin
Sara F. Reynolds
Nathan H. Ridley
Maria M. Salas
Saul Solomon
Overton Thompson, III
M. Bernadette Welch
NASHVILLE BAR ASSOCIATION
The NBA is made of hundreds of leaders within our community. Yet somewhere
we as a bar stopped leading our community. We lost our institutional voice. Going
forward, we need to recapture that relevance. We will be hosting a Mayoral Forum
in the coming months with other bars. Likewise, I hope to start a legislative breakfast to host members of our legislature so that we can better view them and they can
hear our views. While I cannot envision a return to our past lobbying efforts, I hope
that we evaluate issues relevant to the profession and provide information to assist
our legislators in making informed decisions.
Each day, we work hard to help
people and businesses in our community. The NBA has a wide variety of services and programs that
can help lawyers work smarter,
stay informed and keep connected
with fellow attorneys. From sole
practitioners to the largest firms,
from legal aid attorneys to those in
private practice, the NBA supports
all of us so we can better serve our
clients and the justice system.
Again, our membership is aging. If we continue status quo, we will end up like
the Elks Lodge or similar social group whose relevance long ago passed. Instead of
remaining flat, our membership will taper.
Our Bar Association is much more
than just a collection of services.
The power of our membership lies
in the power of the people.
We have tremendous potential. By providing service to our members, we can grow,
thrive and make Nashville Bar Association membership an essential part of practicing law in our city. n
WE are the Bar. And together,
we shape the future of the legal
profession.
Got an Idea for an NBJ Article?
We want to hear about the topics
and issues readers think should
be covered in the magazine.
Send it to
[email protected]
Nashville Bar Journal - December 2014 / January 2015
3
communiqué
Nashville Bar Foundation Grant
The Nashville Bar Foundation is now accepting grant applications. The
deadline for submitting a grant request is January 15, 2015. If you know of
any 501(c)(3) organizations that may be eligible for a Foundation Grant,
please let them know. Requests must be submitted no later than 4:00 p.m.,
January 15, 2015, in accordance with the grant guidelines. View grant eligibility and application guidelines available online at http://nashvillebar.org/
NBF/GrantAppAndGuidelines.pdf.
https://www.facebook.com
/NashvilleBarAssociation
@theNashvilleBar
Legal Aid Society Awarded $78,862 Grant for Videoconferencing Technology
Legal Aid Society of Middle Tennessee and the Cumberlands, Tennessee’s largest non-profit law firm, announced it has received a
$78,862 Technology Initiative Grant from Legal Services Corporation (LSC).
The grant will be used to support videoconferencing technology for the non-profit law firm, expanding its reach to potential clients
across its service area. The technology will also allow Legal Aid Society’s staff and volunteer attorneys to connect with each other and
other attorneys across the state.
“We serve low-income clients in 48 counties across more than 20,000 square miles – from just eight offices – which can create problems logistically,” said Gary Housepian, executive director of Legal Aid Society. “This video technology will help us overcome these
geographical challenges, especially in rural areas. For example, we can now easily connect a senior citizen in Union County with a
volunteer lawyer in Nashville who is experienced in elder law. The two can converse privately and securely as if they were in the same
conference room.”
NSL LIBRARY OPEN TO ALL
The Nashville School of Law library is a resource available to the
entire legal community. It is located near 100 Oaks Mall at 4013
Armory Oaks Drive. The library open from 8:30 a.m. to 10:30
p.m. on Mondays through Thursdays, and from 8:30 a.m. to 6 p.m.
on Fridays through Sundays. Ample, convenient, and free parking is available.
In addition to its collection of federal and state reporters, the library provides
free access to WestlawNext. Limited copying services are also available for a
modest fee.
-Golden Oldies
Allen Lentz correctly
identified the individuals in the
November 2014 Golden Oldies photo.
Pictured are:
Mike Philbin and Mike Mondelli
4
Nashville Bar Journal - December 2014 / January 2015
Nashville Bar Association Young Lawyers Division
Board Directory
EXECUTIVE BOARD
President
Ryan Levy
President Elect
Justin McNaughton
Treasurer
Jeff Gibson
Membership Director
Mattew Kroplin
Public Service Director
Tera Rica Murdock
PROFESSIONAL DEVELOPMENT
CLE
Ben Goldammer
Taylor Sutherland
OYEZ
Wade Sims
Scott Douglass
Immediate Past President
Erin Palmer Polly
PUBLIC SERVICE
Mock Trial
Rob Laser
Jessica Jernigan-Johnson
Secretary
Lauren Paxton Roberts
Events Director
Will Hicky
Law Week
Beau Creson
Gil Schuette
Professional Development Director
Rachel Ross Rosenblatt
MEMBERSHIP
Homeless
Mollie Gass
Peter Robison
Recruitment
Russell Belk
Joseph Hubbard
Community Outreach
Peter Malanchuk
Jessica Van Dyke
ABA Liason
Tiffany Palmer
EVENT COMMITTEES
Social
Bahar Azhdari
Burke Keaty
TBA Liason
Lauren Kilgore
Napier-Looby Bar Association Liason
Christopher Bellamy
Career Placement
Hunter Kitchens
John Rader
Carbolic Smoke Ball
Jeremy Oliver
Hunter Kitchens
Race Judicata
Blake Bernard
Emily Mack
Arts Immersion
Lauren Spahn
Kelly Donley
NBA Calendar of Events
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
JANUARY 15th
NBA Happy Hour
@ Bradley Arant Boult Cummings
JANUARY 30th and 31st –
NBA Diversity Committee
1L Job Fair
@ Bradley Arant Boult Cummings
------------------------------------------------------------
FEBRUARY 28th
NBF Fellows Dinner
@ The Hutton Hotel
MAY 14th
NBA Golf Tournament
@ Legends Golf Course
------------------------------------------------------------
FEBRUARY 27th and 28th
NBA YLD Mock Trial Competition
@ The Metro Courthouse
-----------------------------------------------------------Nashville Bar Journal - December 2014 / January 2015
5
Feature
Obama’s Executive Actions on Immigration –
What Do They Include and What Is the Source of the President’s Authority?
by:
Yvette K. Sebelist
On November 20, 2014, President Obama announced sweeping
changes to immigration policy which will allow up to 5 million
undocumented workers to obtain work authorization cards for three
years and not be subject to deportation (also called removal) during
this same three-year period. In addition, President Obama’s Immigration Actions will expand the “provisional waiver” program, clarify
the meaning of “extreme hardship” in provisional waiver cases, and
take actions to better enable U.S. businesses to hire and retain highly
skilled foreign-born workers, expand opportunities for students to
gain Occupational Practical Training (OPT), and set new removal
priorities. This article will analyze the President’s executive powers and
detail many areas of the Immigration Actions.1
Sources of Executive Power
The Immigration and Nationality Act (INA) expressly grants the
executive branch the authority to provide various forms of relief
and benefits to foreign-born individuals who may be in the United
States without lawful status. These benefits may include relief such as
asylum, temporary protected status (TPS), cancellation of removal, or
some other means—rather than being removed.2
There are other cases where unauthorized aliens may be permitted
to stay, and in some cases, legalize their status through the executive
branch’s ability to use discretion in enforcing the law. This is commonly referred to as prosecutorial discretion. In addition, the executive branch may grant work authorization for various categories of
aliens so they may obtain lawful employment under INA § 274A and
as defined through regulation and case law.3
The INA also grants the authority for immigration officials to waive
statutory requirements that would render an alien ineligible for certain
benefits. The executive branch has the ability to use its discretionary
6
Nashville Bar Journal - December 2014 / January 2015
waiver authority to the grounds of inadmissibility listed
in INA §212. In general, an alien who has not been
lawfully admitted into the United States is subject to
exclusion or (if the alien is found at a U.S. port of entry
or within the United States) removal from the country if
the alien is inadmissible under INA §212. In most cases,
the alien must establish that their inadmissibility must
present a hardship to a U.S. Citizen or Lawful Permanent Resident (LPR) immediate relative.
INA § 212(d)(5) also provides for the broad authority
of immigration officials to parole aliens into the United
States for urgent humanitarian reasons or significant
public benefit, including “advance parole”, which allows aliens to travel abroad and reenter the US without
obtaining a visa. In addition, paroled aliens may then
have the ability to adjust status in the United States to
be lawful permanent residents.4 This power has been
expanded to include “parole-in-place” for certain foreign
nationals currently residing in the United States.
Finally, the executive branch has independent power to
assess whether, when, against whom and how to prosecute immigration violations. It can determine whether
to commence removal proceedings against an alien and
whether it will defer action against an otherwise removal
person.5
The President’s executive actions incorporate the broad
statutory and discretionary authority provided in the
INA.
Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents
The largest groups of individuals that
will benefit from Obama’s Immigration
Actions are parents of U.S. citizens and
lawful permanent residents. It is estimated
that approximately 4.4 million people
will be eligible for this benefit. One of the
purposes of this Action is to keep families
together.
Individuals meeting the following criteria
will be eligible for deferred action: (1)
have been in this country at least 5 years
and present on November 20, 2014; (2)
have children who on the date of the announcement are U.S. citizens or lawful
permanent residents; (3) are not removal
priorities under the new policy; and (4)
present no other factors that would make
a grant of deferred action inappropriate. These individuals may apply for Deferred Action for Parental Accountability
(DAPA), pay a filing fee and biometrics
fee, and undergo a background check of
all relevant national security and criminal databases, including DHS and FBI
databases. Applications for DAPA will not
be accepted until approximately May 20,
2015.
Concerning the removal priorities, the
Department of Homeland Security (DHS)
will implement a new enforcement and
removal policy that places the following as
the three top priorities: (1) national security threats, convicted felons of “aggravated
felony”, convicted gang members, and
illegal entrants apprehended at the border;
(2) those individuals convicted of significant or three or more misdemeanors, other
than minor traffic offenses, those who are
not apprehended at the border, but who
entered or reentered this country unlawfully after January 1, 2014, and those who
have “significantly” abused the visa or visa
waiver programs; and (3) those individuals, who are non-criminals, but who have
failed to abide by a final order of removal
issued on or after January 1, 2014.
The above criteria and removal priorities
are to be considered for all individuals
encountered by Immigration and Customs
Enforcement (ICE), Customs and Border
Protection (CBP) or USCIS, whether or
not the individual is already in removal
proceedings or subject to a final order of
removal. Thus, ICE, CBP, and USCIS
were instructed to immediately identify
those individuals meeting the criteria to
determine whether they will continue in
the removal process.
Expand Deferred Action for Childhood
Arrivals (DACA)
DACA will be expanded to include encompass a broader class of people. DACA
eligibility was limited to those who were
under 31 years of age on June 15, 2012,
who entered the U.S. before June 15,
2007, and who were under 16 years old
when they entered. DACA eligibility will
be expanded to cover all undocumented
immigrants who entered the U.S. before
the age of 16, and not just those born after
June 15, 1981. The entry date will be
adjusted from June 15, 2007 to January 1,
2010. The remaining prior requirements
of DACA will continue. These individuals
will be able to obtain work authorization
cards for three years and not be subject to
deportation for three years.
Applications for expanded DACA will not
be accepted until approximately February
20, 2015. It is expected 270,000 individuals will be eligible for this benefit.
Current recipients of DACA may be
extended an additional year. The USCIS is
exploring means of this extension.
Expand Provisional Waivers to Spouses
and Children of Lawful Permanent
Residents
The provisional waiver program, implemented in 2013 for undocumented
spouses and minor children of U.S.
citizens, is expanded to include the spouses
and children of LPRs, as well as the adult
children of U.S. citizens and LPRs. The
USCIS will provide additional guidance
on the definition of “extreme hardship” in
the near future.
Modernize and Improve Immigrant and
Nonimmigrant Programs to Grow the
Economy and Create Jobs
The USCIS will take a number of administrative actions to better enable U.S.
businesses to hire and retain highly skilled
foreign national workers. Specifically,
some of these actions are:
• Issuance of a policy memo that
provides additional guidance in
green card adjustment of status
portability cases (A21) where
workers are moving to new jobs
within the same company or to
new employers they claim are in
the “same or similar” occupations.
The intent is to remove unnecessary restrictions to natural career
progression and give workers
increased flexibility and stability;
•
Clarify the standard by which a
national interest waiver may be
granted to foreign inventors, researchers and founders of start-up
enterprises;
•
Authorize parole, on a case-bycase basis, to eligible inventors,
researchers and founders of
start-up enterprises who may not
yet qualify for a national interest
waiver, but who: (a) have been
awarded substantial U.S. investor
financing; or (b) otherwise hold
the promise of innovation and
Continued on Page 13 
Nashville Bar Journal - December 2014 / January 2015
7
On December 4, 2014, at the Wildhorse Saloon in downtown Nashville, there was more than enough collegiality to go around at the
Annual Meeting & Banquet of the Nashville Bar Association. With the evening underway, NBA President Charles Grant welcomed
all in attendance thanking especially the major sponsors —year-round Title Sponsors First Tennessee Bank (Herman Hicks, Lori
Carver and Olivia Ruiz) and IPSCO (Pam McGrath) as well as the Banquet Sponsor, Thomson Reuters (David Martin and Jennifer
McWilliams). The NBA Staff was thanked for their hard work throughout the year, and the officers and board members were thanked
for their efforts and sacrifices throughout the year. Treasurer Nicole James succinctly stated what all wanted to hear; we made more
money than we spent.
Retiring board members were recognized and thanked
including Immediate Past President Tom Sherrard,
Treasurer Nicole James, and
Secretary Stacey Billingsley Cason.
The awards were then presented.
YLD Enterprise Award
Peter Malanchuk and Jessica Van Dyke
YLD President’s Award
Will Hicky & Lindsay Schenk
Ryan Levy also award YLD
Past President Erin Palmer Polly with a trophy for
her excellent leadership this past year.
2014 Emeritus Award Winners
(presented to attorneys who have participated
as members of the Nashville Bar Association for 50 years)
Jonathan Harwell
Paul Jennings
Charles Trost
8
Nashville Bar Journal - December 2014 / January 2015
Nashville Bar Journal Awards
Contributor of the Year: Eleanor Wetzel
Article of the Year: Jerry Taylor
CLE Award
Donald Capparella
Legal Aid Society/Volunteer Lawyers
Program Pro Bono Leadership Award
NBA YLD for its work in staffing the Casa
Azafran Legal Clinics
President’s Awards
Presented by outgoing President Charles
Grant to:
Saul Solomon
Joycelyn Stevenson
John McLemore
John C. Tune Community Service Award (recognizing the highest degree of dedication as lawyer and for the betterment of the
community:
George Barrett
Dewey Branstetter presented the posthumous award to Barrett’s family, which was
accepted by his daughters, Mary Barrett
Brewer and Lori Cain. A tribute song was
performed by Barrett’s granddaughter, Betsy
Lane.
As his final act as president, Charles Grant
introduced Ed Lanquist as the next president of the Nashville Bar Association.
Lanquist then recognized the newly elected
2015 board members and officers.
2015 Board
Robb Bigelow, Hon. Sheila Calloway, Marnie Huff, Hon. Bill Koch, Erin Palmer Polly,
and David Raybin
2015 Officers
General Counsel Lela Hollabaugh, Secretary
Whitney Haley, Treasurer Hon. Joe Brown,
2nd VP/Membership John McLemore, 1st
VP/Governance Dewey Branstetter, and
President-Elect Joycelyn Stevenson
The evening concluded with prizes from our
generous sponsors.
May 2015 be the year for competency and
collegiality from every member of the Nashville Bar Association next year! 
More photos online:
www.nashvillebar.org
Nashville Bar Journal - December 2014 / January 2015
9
Feature
Damages Caps in Injury Litigation
by:
Taylor Sutherland
October 1, 2011, was a brave new day for injury lawyers on both
sides of the “v” in Tennessee. On that day, the Tennessee Civil
Justice Act of 2011 (TCJA) went into effect for all injury actions
accrued on or after that date. Though the Act tweaked various
aspects of personal injury litigation, its biggest innovation for
Tennessee cases was caps on compensatory damages. After almost
three years, we have started seeing the ripple effects on injured
parties, those of us involved in litigating these claims and the
processes whereby serious injury cases are litigated and/or settled.
This article details exactly how the caps on compensatory damages work under the TCJA, and the four major effects the caps
have had on personal injury litigation.
How the caps on compensatory damages work
The TCJA splits compensatory damages in an injury case into two
subcategories: economic damages and non-economic damages.
Tenn. Code Ann. § 29 – 39 – 101, et seq. “Economic damages”
are statutorily defined as follows:
damages, to the extent they are provided by
applicable law, for: objectively verifiable pecuniary damages arising from medical expenses and
medical care, rehabilitation services, mental
health treatment, custodial care, loss of earnings and earning capacity, loss of income, burial
costs, loss of use of property, repair or replacement of property, obtaining substitute domestic
services, loss of employment, loss of business or
employment opportunities, and other objectively verifiable monetary losses. Id.
In other words, these are the “hard dollar” damages
suffered by a plaintiff that we can present to the jury
with a specific number through tax records, paid medical bills, expert analysis, etc. After providing this definition, the Legislature does not cap economic damages.
Noneconomic damages are the “squishy” damages
related to the emotional stress and trauma associated with injuries and/or death. Specifically, they are
defined by statute as:
damages, to the extent they are provided by applicable law, for: physical and emotional pain; suffering;
inconvenience; physical impairment;
disfigurement; mental anguish; emotional distress; loss of society, companionship, and consortium; injury
to reputation; humiliation; noneconomic effects of disability, including
loss of enjoyment of normal activities, benefits and pleasures of life and
loss of mental or physical health,
well-being or bodily functions; and
all other nonpecuniary losses of any
kind or nature. Id.
Calculation of noneconomic damages tends to resemble art rather than science. Recognizing this, the
law does not provide a “definite standard or method
of calculation… by which to fix reasonable compensation” for these damages. T.P.I.—Civil14.01. Instead,
the jury is instructed that “you shall exercise your
authority with calm and reasonable judgment and the
Continued on Page 14 
10
Nashville Bar Journal - December 2014 / January 2015
Nashville Bar Journal - December 2014 / January 2015
11
BIL
L
G A & PH
DG
ET O IL'S
F THE
MONTH
Moto 360 Smartwatch
By: Bill Ramsey, Neal & Harwell, PLC and Phillip Hampton, LogicForce Consulting
We have been touting “wearable tech” way before “wearable tech” was cool. But, guess what, the coolness factor has finally caught
up with our hype (or maybe our “uncoolness”). We say that because we recently purchased the long-awaited Moto 360, Motorola’s
entry into the Android Wear smartwatch swarm. We were sold on the technology behind smartwatches a couple of years ago, but
now our non-tech friends don’t make fun of us when we show off our new Moto 360 to the annual office holiday soiree. The distinguishing characteristic about the Moto 360 is its stylish round face, as opposed to the rectangular, geeky looking, watchface of some
of the other smartwatches that we have acquired and abandoned. The black leather band also helps disguise this smartwatch as just
another layman’s watch.
But don’t let the stylish appearance of the Moto 360 trick you into thinking it is just a timepiece. Indeed, you can customize how
the current time displays -- from a traditional long and short-hand dial to an ultra-sleek, modern numeric readout. But you can
do so much more with the Moto. As with all Android Wear-based smartwatches, you can view this watch as an extension of your
Android-based cell phone. (Alert: there is no need to get this or any other Android Wear-based smartwatch if you don’t have the
requisite Android-based smartphone). You get notifications of texts, emails, and phone calls on the watch without pulling your
phone out of your pocket or purse. The integrated mic allows you to issue voice commands with the familiar “Ok Google” wakeup call. We have been able to “ask the watch” for navigational directions and then get the turn-by-turn steps on the watch. Of
course, this is all powered by the nearby Android phone, but all of the interaction is on the watch. For the health conscious, there is
a constant heart-rate monitor along with a step counter app integrated with the phone. There are other environmental monitoring
notifications that you can receive on the watch, such as temperature and weather info. Of course, one can download other special
apps that are being developed for the Android Wear platform for a myriad of functions.
The downside of the Moto 360 is that it, being electronic, requires a battery. With active use (defined as constantly accessing your
watch for notifications, voice commands, etc.) the battery drains pretty quickly. There are ways to conserve battery life, like have
the display on the watch face only illuminate when you tap the screen or bring the watch up to your face; but, we have found this
particular feature to be annoying. We prefer to have the watch face illuminated at all times (at the expense of battery life). The good
news is that the charging cradle is incredibly easy to use and does not require you to plug anything into the watch. Just simply lay
the watch into the charging cradle at the end of the day, and it doubles as a bedside alarm clock while charging.
We have been on the smartwatch train for quite some time, but this technology is still pretty new. We expect future versions of these
devices will get even better and more user friendly. Everyone in the industry is holding his or her breath, waiting to see what the
long awaited iWatch from Apple is going to look like (and, more important, what features it will have. It is scheduled to appear on
store shelves sometime in early 2015. The iWatch will likely be a no-brainer choice for those who already have an iPhone. However,
for those of us who use Android-based phones, the Moto 360 is one of the best and most stylish options available. We just wish
people would like us for who we are not just what we wear.
See you next month,
—Bill & Phil
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Nashville Bar Journal - December 2014 / January 2015
Obama’s Executive Actions on Immigration
– What do they include and What Is the Source of the President’s Authority?
Continued from page 7
job creation through the development of new technologies or the
pursuit of cutting-edge research;
•
•
Finalize a rule to provide work
authorization to the spouses of
certain H-1B visa holders who are
on the path to lawful permanent
resident status; and
Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater
clarity and integrity to the L-1B
program and improve consistency
in adjudications.
The USCIS will also work with ICE to develop regulations for notice and comment
to expand and extend the use of OPT for
foreign students.
Revise Parole-in-Place Rules
The USCIS will support the military and
its recruitment efforts by working with
the Department of Defense to address the
availability of parole-in-place and deferred
action to spouses, parents, and children of
U.S. citizens or lawful permanent residents
those serving, or who previously served, on
active duty in the U.S. Armed Forces or
the Selected Reserve of the Ready Reserve
and to who are seeking to enlist in the
U.S. Armed Forces. Previously, parole-inplace was only available for current U.S.
military service members and veterans.
Provide Consistency Regarding Advance
Parole and a “Departure”
The USCIS will also issue guidance to
clarify that when anyone is given “advance
parole” to leave the country – including those who obtain deferred action
- they will not be considered to have
departed. Thus, this directive will ensure
the consistent application of the Matter of
Arrabelly, 25 I. &N. Dec. 771 (BIA 2012)
decision.
Conclusion
Overall, this is a significant change in a
number of immigration policies, all of
which the President has the legal authority to do without Congressional approval.
Many other prior Presidents have taken
Executive Actions related to immigration.
In 1956, President Dwight Eisenhower
took executive action to allow hundreds of
foreign-born orphans to come to the U.S.
with their adoptive parents, and measures
for Hungarian and Cuban refugees. In
1985, Congress passed an immigration
reform bill that shielded some 3 million
immigrants from deportation. The bill did
not include family members and President
Ronald Reagan responded by stopping
the deportation of their children without
waiting for Congress to act. Reagan's
Republican successor, George H. W. Bush,
also acted with his executive power to
protect over 1.5 million family members
from separation through deportation.
Democratic President Bill Clinton and
Republican President George W. Bush
have also used presidential powers to make
policy on immigration. Thus, President
Obama stands on firm footing with these
actions and follows in the footsteps of his
predecessors. 
(Endnotes)
1
Additionally, the Immigration Actions will involve
other actions, such as strengthening border security,
increasing the pay of Immigration and Customs
Enforcement (ICE) Enforcement and Removal officers (ERO), and ending the “Secure Communities”
program and replacing it with “Priority Enforcement
Program”, which are not covered in this article.
See Arizona v. United States, 567 U.S.—, 132 S.
Ct. 2492, 2499 (2012) (“A principal feature of the
removal system is the broad discretion exercised by
immigration officials. ... Federal officials, as an initial
matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence,
aliens may seek asylum and other discretionary relief
allowing them to remain in the country or at least to
leave without formal removal.”).
2
INA § 274A, 8 U.S.C. § 1324a. Case law has generally affirmed that immigration officials have broad
discretion in determining whether to deny or revoke
work authorizations to persons granted deferred action. See, e.g., Perales v. Casillas, 903 F.2d 1043, 1045
(5th Cir. 1990); Chan v. Lothridge, No. 94-16936, 1996
U.S. App. LEXIS 8491 (9th Cir. 1996). These cases
suggest that immigration officials have similarly broad
discretion to grant work authorization, provided any
requisite regulatory criteria, such as economic necessity, and are met.
3
4
INA § 245(a), 8 U.S.C. §1255(a).
Yvette Sebelist is the managing attorney at Siskind Susser PC Nashville.
She is the current co-chair of the NBA
Immigration Committee and sits on
the Board of Sister Cities of Nashville. Sebelist is
an active member of the American Immigration
Lawyers Association (AILA), having served on
the national Board of Governors and as past chair
for the Midsouth Chapter. She is past chair of the
Nashville Task Force on Refugees and Immigrants
and served as board president of the Global Education Center of Nashville. Sebelist may be reached
at [email protected] or (615) 345-0266.
Nashville Bar Journal - December 2014 / January 2015
13
Damages Caps in Injury Litigation
Continued from page 10
damages you fix shall be just and reasonable in light of the evidence.” Id.
In an effort to reign in the risk of a jury
failing to use “calm and reasonable judgment… in light of the evidence” to award
full, fair and just compensation for the
harms and losses an injured person has
suffered, the TJCA caps noneconomic
damages.
The TJCA does recognize four circumstances under which a defendant does not
get the protection of the caps. Specifically,
the TJCA explains that defendants who
engage in the following egregious conduct
are not protected:
1) The defendant specifically intended to cause serious personal
injury and did so;
2) The defendant intentionally destroyed or concealed evidence of
wrongdoing in an effort to avoid
liability in the case at issue;
3) The defendant was high or drunk
to the point of impairment and
caused injuries or death; or
4) The defendant’s conduct that gave
rise to the injury also led to the
defendant being convicted of a
felony.
In capping noneconomic damages, the
TJCA recognizes two types: catastrophic
and regular. “Catastrophic” injuries have a
noneconomic damages cap of $1,000,000
Tenn. Code Ann. § 29-39-102(c).
“Catastrophic” injuries are:
(1) Spinal cord injury
resulting in paraplegia or
quadriplegia;
(2) Amputation of two
(2) hands, two (2) feet or
one (1) of each;
(3) Third degree burns
over forty percent (40%)
or more of the body as
a whole or third degree
burns up to forty percent
(40%) percent or more
of the face; or
(4) Wrongful death of a
parent leaving a surviving minor child or
children for whom the
deceased parent had lawful rights of custody or
visitation. Id.
“Regular” injury claims encompass every
type of injury that does not fit the statutory definition of “catastrophic.” Therefore,
“regular” injuries would include death of
anyone without minor children, amputation of an entire leg, permanent loss
of sight in both eyes, permanent loss of
hearing in both ears and permanent brain
damage of all types. Regular injury cases
have noneconomic caps of $750,000.00.
Tenn. Code Ann. § 29-39-102(b).
14
Tenn. Code Ann. § 29-39-102(h).
In summary, the Civil Justice Act of 2011
did two critical things with compensatory
damages. First, it found that hard dollar
damages are not capped. Second, it classified noneconomic damages into regular
and catastrophic and placed and then
placed caps on those damages of $750,000
and $1,000,000, respectively.
Major Effect of the Caps #1:
Anticlimax as the Number of Cases
Actually Impacted is Miniscule.
The value of personal injury cases is
typically thought of as a function of the
economic damages and the permanency of
any injuries suffered. In the vast majority
of cases, the economic damages are medical bills totaling less than $25,000 and
a limited amount of lost income, if any.
Likewise, most injury cases do not have
permanent injuries. With economic losses
below $25,000 and no permanent injuries,
the overwhelming majority of personal
injury cases resolve well below $100,000
total.
Nashville Bar Journal - December 2014 / January 2015
Given this reality, cases where noneconomic damages are going to reach even the
$750,000 cap are extremely rare. To reach
that level, the injuries have to be either
permanent and life changing or a death.
As a practical matter, the average lawyer
who handles personal injury cases on either the plaintiff or defense side may never
work on a case where either of the noneconomic damages caps comes into play.
Major Effect of the Caps #2:
Collectability Makes Pleading and/or
Proving One of the Four Exceptions
Very Risky
The four exceptions to noneconomic caps
for intentional conduct, destruction of
evidence, intoxication and felonious conduct make sense from a logical and justice
standpoint. The real world problem with
these four exceptions is that each of them
has the very real potential to void the bad
actor’s insurance coverage.
Liability insurance policies typically only
cover damages caused as a result of the insured’s negligence. They often have specific
language identifying intentional, reckless
and/or criminal conduct as not covered.
They also have provisions requiring the
insured to participate and cooperate in the
defense of the claim (actively destroying
evidence would likely run contrary to this
provision).
As soon as a plaintiff starts alleging and
proving that a defendant’s conduct fell
into one of the four exceptions, the
defendant’s insurance company is going
to send a reservation of rights letter to
the defendant explaining why the claim
is not covered. The carrier may also file
a declaratory judgment action asking the
court to find that the claim is not covered
because of these policy carve outs.
Stated differently, alleging and proving
that one of the exceptions applies very
well may lead to the plaintiff alleging and
pleading his or her way out of coverage for
the defendant’s bad conduct. When dealing with either a large corporate defendant
or an independently wealthy individual
defendant, this is not an issue. Given
the comparative rarity of these types of
defendants, however, collectability is a very
real issue. A smaller collectable judgment
is always better for the client than a much
larger, non-collectable judgment.
Major Effect of the Caps #3:
Fewer cases are pursued because the
juice is no longer worth the squeeze
Plaintiff’s attorney handling the types of
cases that would run up against the caps
work on a contingency fee basis, i.e. our
fee is some percentage of the recovery for
the client, typically somewhere between
1/3 and 40% depending on the type of
case. In addition to fronting our time on
cases, we also typically front the expenses.
As a result, plaintiff’s attorneys have to analyze every potential new case as an investment opportunity: what are the chances
of winning, the amount of work required
to get there, the amount of expenses to get
there and the range of likely outcomes.
Cases with straightforward liability and
very high damages make the best investments. Cases with questionable liability
and low damages make the worst. The
hard calls are cases with questionable or
expensive to prove liability but huge damages. Historically, these hard call cases
were pursued because the potential pay off
of the investment made the risk worth it.
The caps changed that analysis.
For example, medical malpractice and
products liability cases are often close calls
because they are fought tooth and nail on
liability but often have the most serious
types of injuries (death, paralysis, etc.).
Pre-caps, the non-economic damages provided the home run upside in these cases
making risking six figures in expenses, not
to mention thousands of hours of time,
worthwhile. Post caps, once you have your
economic damages expert reports back,
you know exactly what the maximum
you can recover in a case will be. That
maximum will necessarily be lower than it
would have been in the pre-caps era. As a
result, the plaintiff attorney’s willingness to
risk massive amounts of time and money
will necessarily be lower because the payoff
is lower.
Stated differently, the caps make the high
risk/high reward of certain types of personal injury cases high risk/lower reward
propositions. The smart investors in the
injury lawyer bar turn these opportunities
down meaning fewer cases are filed and
litigated and fewer defense lawyers are
working and getting paid.
Even when cases do get filed, the lower
return on investment has a direct effect on
how the cases resolve. Because the worst
day possible at trial is that the caps get hit
as opposed to tens of millions of dollars
being at stake, defendants are less willing
to resolve claims early on in litigation, if
it all. When they are interested in settling,
they make offers which are smaller than
they would have been pre-caps.
Major Effect of the Caps #4:
Economic Damages Proof and Experts
Become Even More Important
In cases with extremely severe injuries, we
know that the amount of noneconomic
damages to be awarded is relatively locked
in.1 The fight then moves to economic
damages.
In most cases, the big categories of
economic damages are medical expenses
(past and future) and lost wages (past and
future). Proving past expenses and lost
wages is typically a straightforward matter
of showing what the incurred medical bills
are and what the person was making at
the time of the injury versus how much
they have made since the injury. With
not much to argue about in past medical
expenses and lost wages, the fight focuses
on what necessary future care the injured
party will need and what the future lost
wages will be. Before you can understand
how the litigation of future medical needs
and lost wages has been changed by the
caps, you need to understand how we
prove these types of claims.
Proving future medicals usually requires
at least two experts. First, you need a
healthcare provider to supply an opinion
on what the injured party’s future medical care needs will be. Then you will need
a life care planner to price the costs of
those medical needs over the course of the
injured person’s life.
For example, in a case with an infant who
has suffered a brain injury, a doctor will
need to testify to a reasonable degree of
professional certainty as to both the medical treatment the child will more likely
than not require over the course of his or
her life to continue to treat the injury as
well as the types of cognitive and physical deficits that the child will more likely
than not experience. The life care planner will then take the doctor’s testimony
and price out the costs of all of the care as
well as the accommodations that will have
to be made for the child. Life care plans
can include everything from the cost of
yearly appointments with a neurologist,
to the cost of annual CT scans, specialized
glasses for vision problems caused by a
brain injury, wheel chairs, home modifications to accommodate wheel chairs or lifts,
in-home nursing care, both prescription
and over the counter medications, diapers,
etc. Even when discounted to present cash
value, life care plans can easily reach into
seven and eight figures.
In wrongful death and other cases where
the injured person’s ability to work cannot really be contested, the only expert
required is an economist. The economist
will take the information about the client’s
work history and earnings up to the time
of injury and/or death and calculate out
the amount of money the person would
have made if they had not been injured or
Continued on Page 18 
Nashville Bar Journal - December 2014 / January 2015
15
Feature
Stories Mediators Tell
by:
John C. Duval
In a conference room overlooking Music City, a skilled attorney gets
up from the oblong mahogany table shaking his head and muttering
words under his breath. He looks across the room and begins rolling
his eyes, expressing great disapproval for the man they fall upon. The
man with a calm demeanor looks at the attorney squarely in the eyes
and responds, “Let’s take it outside." Once outside the man with the
calm demeanor says “What’s the issue? Isn’t this the outcome that you
and your client desired? The other attorney and their client are at
great peace with the outcome.” The attorney, still feeling tense, let out
a string of words best untold. Then he looks at the man with the clam
demeanor and says, “How did you do it? How did you resolve this
case in five short hours? I have worked long hours for five years with
my client to no avail and here you walk in and get the parties to come
to a full signed agreement within five hours.” The man with the calm
demeanor is a Tennessee Supreme Court Rule 31 mediator. He is fully
trained and qualified to reach an agreement in the most varied cases.
The NBA Alternative Dispute Resolution (ADR) Committee followed suit with the American Bar Association (ABA) in
recognition of the national Mediation Week initiative, which is
a celebration of the strides that have been made in institutionalizing mediation as one of several appropriate dispute resolution
16
Nashville Bar Journal - December 2014 / January 2015
processes. Mediation Week was recognized during the
week of October 12-18, 2014. The theme for this year’s
ABA Mediation Week was “Stories Mediators Tell—From
Rookie to Veteran, Exploring the Spectrum of Mediation.” As lawyers and mediators, we understand both
the challenges and rewards of helping parties in conflict
reach an agreement through understanding each other’s
perspectives better, getting past differences in positions,
and by finding ways to get their important interests met
while staying true to their values and belief systems. In
Nashville, great strides have taken place in the area of
Alternative Dispute Resolution (ADR) since the Tennessee Supreme Court (TSC) enactment of Supreme Court
Rule 31 in January 1996. The TSC and the NBA ADR
Committee recognize mediation as a way to reduce delay,
reduce cost and increase satisfaction in the outcome
of their disputes. Mediation is a well-accepted means
of dispute resolution and an alternative to litigation in
Nashville. Fortunately for Nashville, our legal system
embraces mediation.
A recent perusing of social media and an
online search showcases the broad scope
of cases in mediation from across the
nation. They include a major airline and
their machinists, public school educators
and their board of education, and the
Metropolitan Opera and their unions.
parties tend to harden and dig in their
heels. Most of us have a stubborn streak
that can lead to our downfall if gone unchecked. I like to work with parties sooner
than later if possible because they show
a greater willingness to participate and
compromise with an open mind.
It’s hard to believe but some still push
against the process of a tool that can be
easily tailored to the needs of the parties.
Mediation allows for flexibility and an
agreeable time table to resolve disputes. In
the last 25 years there has been a purposeful move to use the varied options offered
through mediation, because of the limited
number of options afforded by the courts.
The use of mediation is seen across all
industries and in every kind of commercial
dispute because of the advantages it brings
to the parties involved.
One of our trained and equipped rookie
mediators told me of a conversation she
had with a friend at Harper’s over lunch
recently. The conversation centered on
questions about what mediation would
look like for a colleague who was seeking
a divorce. In simple terms she shared with
him about the alternative dispute process. Later that afternoon the friend shared the
following with his colleague:
One of our seasoned mediators observed
that as corporate counsel have sought to
gain greater control over escalating costs,
scheduling, duration, confidentiality and
public perception, mediation is seen as the
best option for his clients. He explained
that the perception and reality of social
media in the Digital Age has made many
of his clients value both the personal interaction and confidentiality of mediation.
We are entering a period, the experience
age, where our culture desires to come to
a resolution in a style that displays greater
relational interaction. By seeking a less
confrontational method the parties reduce
the possibility of social media backlash.
I am often asked when someone should
look to mediation as a viable resource. My
response is that if the parties are unable to
resolve the conflict themselves, then seek
out the services of a trained mediator as
soon as it is feasible. For all cases (corporate, civil, or family) it is important to not
delay because if too much time passes the
I am convinced this is the absolute best path
forward. The mediator explained to me the
process and steps she goes through in detail.
She can take your situation on and prepare
everything needed to move through the
process in the most efficient and least contentious manner available. You envisioned your
divorce to be war, but I see the possibility for
peace. You need to call her today.
to litigation. In mediation I often hear
counsel say, "We are working in good faith
to achieve an agreement." Time after time
I have seen parties achieve success because
they did work in good faith and trust the
process of alternative dispute resolution.
The man with the calm demeanor was
reviewing a case when his phone rang; it
was the skilled attorney he had worked
with previously. The attorney said, "I am
in need of your services. I have another
case ready for mediation. This one will test
you for all your worth because it involves
a healthcare company, a country music
personality, and a car dealership." 
John C. Duval is the Managing Partner of the
Tennessee Council of Conflict Mediation, LLC.
He is Tennessee Supreme Court Rule 31 Listed
Family & General Civil Mediator serving all counties within the state of Tennessee, and he is trained
to mediate cases involving domestic violence. Duval
has more than 20 years of conflict resolution experience. He may be reached at [email protected].
The colleague did call and they were able
to come to a signed mediated agreement
working with both sides. The rookie mediator said: "As we left the office that day
both parties thanked each attorney and me
for allowing them to work out an agreement that exceed their expectations." The
next day I noticed the rookie's enthusiasm
as she posted "I Love Mediation" on her
Facebook wall.
Seek out a story this month from a rookie
or veteran mediator because I know there
are many stories that are ready to be told.
New stories are being written daily as mediation achieves acceptance as a primary
means to resolve conflicted disputes prior
Nashville Bar Journal - December 2014 / January 2015
17
Damages Caps in Injury Litigation
Continued from page 15
died and continued working up to the age
of retirement. (For children with no earnings history, the economist will typically
look to a combination of factors including the child’s educational performance if
there is one and the child’s parents’ level of
educational and occupational attainment
to make a reasonable projection as to the
type of earnings the child could expect
to have.) For a young person with high
earnings, the lost wages are very high. For
an older person with low earnings the lost
wages will be lower.
Cases where questions exist about the
injured party’s ability to work will require
a second expert working in concert with
the economist: a vocational expert. These
experts look at the information about
the injured party’s injury and limitations
and offer testimony about what kinds of
jobs the person will be able to perform.
The economist then takes the vocational
expert’s opinions about what jobs are
available to the injured party and provides
testimony about the difference in income
available to the injured party between the
type of job they could have had and the
types of job they will now be able to have.
For example, a healthcare provider opines
that a thirty year old lawyer suffered a
brain injury that has made the lawyer’s
ability to engage in complex mental tasks
impossible, but the lawyer can follow
basic instructions and engage in base level
tasks. A vocational expert would take this
testimony and identify certain entry level
office or retail jobs as the “ceiling” for the
injured person’s career prospects. The
economist then calculates the difference
between what the lawyer would have made
practicing law over the course of his or her
life and the amount of money the lawyer
can expect to make at the types of job for
which he or she is now qualified.
With economic damages as the new battleground, litigation focuses more acutely
on every aspect of the experts’ opinions.
18
Defendants are calling their own damages
experts. Healthcare provider testimony on
the severity of injures, the long term nature of deficits and the need for follow up
care comes under intense scrutiny. Even
when a plaintiff has a treating provider offering this testimony, i.e. not a hired gun,
defendants will hire their own doctors to
examine the plaintiff and offer opinions.
Economists are more readily attacked on
their methodology including whether they
are using local or national average wage
statistics, the appropriateness of projecting
losses through life expectancy versus projected retirement age, etc. In other words,
in the caps world, every aspect of economic damages proof comes under an intensity
of fire that it did not before the caps.
As a result of the increased fire being
directed at these experts and this proof, all
attorneys in injury cases must learn the science and math behind all of the opinions
and calculations. Both sides must know
the minutiae of life expectancy tables,
medical innovations, vocational opportunity statistics and whether a 401(k) contribution is considered income for purposes
of an economist’s report because both sides
must be able to prepare their own experts
on theses points and effectively attack the
other side’s experts. Precaps, this level of
precision and insight was typically reserved
for the details and ins and outs of liability
experts only.
The Responses to the Caps are a Microcosm of What All Lawyers Have to do in
the Face of Change
The changes to how we litigate personal
injury cases outlined above should not
come as a surprise. All we are doing is
responding to the changes in the rules of
the game brought on by the Legislature
in what we believe to be the best interests
of our clients. We are using the same legal
reasoning, creativity and exploration that
our fellow members of the bar in other
practice areas have to use when the IRS
changes a regulation, the Supreme Court
Nashville Bar Journal - December 2014 / January 2015
changes the rules on search and seizure or
the EPA changes regulatory definitions.
For all lawyers, these types of changes keep
us on our toes, force us to be creative and
challenge our very concept of what matters, and what doesn’t, for every client we
represent. We do not necessarily welcome,
agree with or invite these types of changes.
But they do make us better lawyers.
Taylor Sutherland is one of the
founding partners of Sutherland &
Belk, a firm focused on helping accident and injury victims in Middle Tennessee.
He is a member of the Nashville Bar Association
Young Lawyers Division Board and continues to
serve as the chairman of the YLD CLE committee.
He is also a member of the inaugural class of the
Nashville Bar Foundation’s Leadership Forum.
He can be reached at 615-846-6200 or taylor@
sbinjurylaw.com.
(Endnotes)
1
I recognize it is a simplification to say that the
noneconomic damages are a given to hit the cap.
They are still certainly fought because persuading a
jury to award $750,000 in compensatory damages in
any kind of case is still an uphill battle for a plaintiff.
The chances of doing that, however, are much better
than trying to convince them to award ten times that
amount in compensatory damages. Stated differently,
with a ceiling on noneconomic damages, you train
your fire elsewhere.
Nashville Bar Journal - December 2014 / January 2015
19
NASHVILLE BAR ASSOCIATION
Benefits of Membership
The Nashville Bar Association helps build a sense of community and camaraderie among our members and comes with
tangible and intangible benefits for your career, profession, and community. Our members come from the public and private
sectors, from large multi-state firms to solo practices; they are judges, in-house counsel, law students, paralegals, educators,
and everything in between.
Here are a few of the many reasons to belong to the NBA…
• Connect with Your Local Legal Community
The NBA provides numerous opportunities to meet and connect with other Nashville-area attorneys. Through networking, social events, continuing education, committee work,
and other career and personal development opportunities, we
help bring our profession together.
• Expand Your Business and Client Base
Build relationships, network, and gain referrals through
activities and programs, CLEs, committee work, volunteer
projects, or by joining the NBA Lawyer Referral and Information Service at the member rate.
• Be a Better Lawyer
Learn from fellow lawyers and judges at NBA events. Enhance your professional development through high-quality
CLE programs and committee in-service meetings, and stay
informed with insightful and timely articles in the Nashville
Bar Journal.
• Sharpen Your Practice Skills with CLE
Attend our innovative, and engaging CLE courses featuring
local, regional, and national presenters. Our skilled faculty
will keep you current on the nuts and bolts of the law, local rules and customs, ethics and professionalism, winning
practice strategies, and key practice procedures—all at special
NBA member rates.
• Give Back to the Community
Serve the public and help improve the image of lawyers by
participating in community service projects offered by the
Young Lawyers Division and the NBA throughout the year,
volunteer for Dial-A-Lawyer—a free call-in service where
members provide general legal information to the public,
or help with one of the many projects offered through the
Minority Opportunities Program.
• Meet New People
Don’t just hang out with familiar faces. Use social gatherings,
NBA CLE’s, committee work, and Young Lawyer Division
events and community projects to build your network of
contacts throughout Nashville and surrounding counties.
20
Nashville Bar Journal - December 2014 / January 2015
• Learn from the Experts
Attend NBA CLEs to hear from law practice leaders
who will share their expertise and practical experience.
Be educated, enlightened, and even entertained by
keynote speakers and other special guests from the legal
community—local, regional, and national.
• Be a Leader
Set the pace in the legal community by serving on
committees, publishing Nashville Bar Journal articles,
helping produce or present CLE seminars, joining the
Young Lawyers Division, participating on the NBA
Board, or working with the Nashville Bar Foundation.
• Refresh and Renew Yourself
Take time out from your daily routine to attend a Bar
event or activity—such as the annual Golf Tournament,
Free Member Picnic or one of our many Happy Hour
gatherings—and catch up with old friends or unwind
with new ones.
And more…
• Use the NBA Center—to hosts meetings, arbitrations,
depositions, and other events. Members may also use the
NBA’s Guest Attorney Office when they need an “office
away from the office” with internet and phone access.
• Visit the NBA’s Online Career Center—where you can
post your resume, search job postings, and access the career
resources library.
• Receive Announcement Emails—covering timely
events, membership news, spotlighted events, and CLE
announcements.
• Participate in the NBA’s Lawyer2Lawyer Mentoring program—a web-based resource designed to connect
experienced attorneys with newer attorneys who desire
assistance with substantive legal issues or the personal and
professional demands of practicing law.
• Use the NBA Attorney Directory—to find names, photos, and contact information for Davidson County lawyers
and judges, firm listings, court information, and areas of
practice of local attorneys.
YOU CHOOSE
THE CHECKING
WE’LL PAY
YOUR NBA DUES
Open a First Tennessee checking account with direct deposit, and we’ll pay
your Nashville Bar Association membership dues (currently a $245 value) for one
year. We have several great checking options you can choose – each available
with the convenience of free Banking Online and Mobile Banking.
Learn more at FTB.com/checking or present this ad at any financial center
in Middle Tennessee. See terms and conditions below for offer details.*
*
Terms and Conditions: Offer valid for enrollment of Nashville Bar Association membership year beginning November 1, 2014. Offer expires December 31, 2014. You must present this printed
offer at a financial center in Middle Tennessee when you open your checking account. Minimum opening deposit is $100, and cannot be transferred from an existing First Tennessee account.
Cannot be combined with other checking offers or promotions. Accounts opened online are not eligible . You must be a new checking household, which means that no member of your immediate
household has had an open First Tennessee consumer checking account in the previous 12 months. A direct deposit must post to this account within 60 days. You agree to maintain the account
in good standing for at least 6 months. If you meet the conditions of this offer, you will receive a voucher in the mail within 6 weeks of your first direct deposit. You will be able to present this
voucher to the Nashville Bar Association. The Association will then return it to us, and we will pay to them your dues for your one year of NBA membership. Upon delivery of the voucher to you,
First Tennessee is required to report the $245 value as interest income on Form 1099-INT. This voucher is non-transferable, cannot be redeemed for cash or any alternative bonus, and must be
presented by you to the Association by March 31, 2015.
FSR: Use promo code NBADUE.
©2014 First Tennessee Bank National Association. Member FDIC.
Nashville Bar Journal - December 2014 / January 2015
21
Disclosure
Dale Allen, partner with Adams
and Reese, has elected Board
Chairman of the Tennessee Performing Arts Center, the nonprofit responsible for the operation of the performance
facility and its comprehensive education
program. The Tennessee Performing Arts
Center Management Corporation is governed by a 27-member Board of Director.
At Adams and Reese, Allen is a corporate
lawyer who concentrates his practice in
transportation, government relations and
regulatory law. He is a Partner on the
Governmental Relations team and serves
as legislative counsel to a number of businesses, trade associations and nonprofit
organizations with interests before the
Tennessee General Assembly.
Timothy L. Takacs was inducted into the Mental Health
America of Middle Tennessee
(MHAMT) President’s Cabinet on November 13, 2014. The President’s Cabinet
is composed of Nashville-area leaders in
business, healthcare, policy and government who work together to identify gaps in
mental health services and define the largest
behavioral health factors that drive healthcare and business costs in Tennessee. Takacs
is the only elder law attorney to be named
to the President’s Cabinet.
Sam H. Edwards, Executive Director and Chief Legal
Counsel of the Greater Nashville Legal Council (GNRC) was recently
awarded the prestigious Joseph I. Mulligan Distinguished Public Service Award
by the International Municipal Lawyers
Association (IMLA). IMLA, a nonprofit, professional organization has been
an advocate and resource for local government attorneys across the United States
and Canada since 1935.
22
\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to
light relevant information concerning NBA Members & Staff.
n Announcements n Kudos n People on the Move n Firm News
Nicholas Barry has joined the
Creditors’ Rights & Bankruptcy
service group at Stites & Harbison. He earned his J.D. and Business
Certificate from Vanderbilt University Law
School, where he was note editor of the
Journal of Entertainment and Technology
Law. Prior to joining Stites & Harbison,
Barry was a law clerk for the Honorable
William O. Bertelsman, U.S. District
Court for the Eastern District of Kentucky. He also served as an Armorer and
Security Forces Leader with the United
States Air Force. Barry is admitted to
practice in Tennessee. J. Anne Tipps has joined the
Business Litigation and Torts
& Insurance Practice service
groups at Stites & Harbison. A Nashville
native, Tipps earned her J.D. from the
University of Tennessee College of Law,
where she was executive editor of the Tennessee Law Review. She joined Stites &
Harbison after serving as a summer associate for the firm in 2013. Prior to that, she
was a legal intern for the Honorable U.S.
Magistrate Judge John S. Bryant and also
interned in the legal department at a large
telecommunications corporation. She is
admitted to practice in Tennessee.
John A. Day, Law Offices of
John Day, P.C., has been elected
a Fellow of the International
Society of Barristers. The International Society of Barristers, established in 1965 and
with a membership of approximately 700
trial lawyers nationally and internationally, is dedicated to excellence in advocacy,
the preservation of the adversary system,
defending the right to trial by jury, and
encouraging young lawyers to enter the
field of trial practice. Membership is by
invitation only.
Nashville Bar Journal - December 2014 / January 2015
n
David Houston IV, partner
with Burr & Forman LLP,
has been named as PresidentElect for the Tennessee Chapter of the
Turnaround Management Association.
He will serve as the chapter’s VP from
January 2015 through the end of 2016,
at which point he will serve as the organization’s president through December
2018. At Burr & Forman, Houston is a
partner in the firm’s Creditors’ Rights &
Bankruptcy practice group. He focuses on
business bankruptcy, representing secured
creditors and other lenders in commercial bankruptcy proceedings. He has also
represented corporate debtors, creditors’
committees, trustees and numerous other
constituencies in all aspects of bankruptcy
cases.
Mary Novak has joined Legal
Aid Society of Middle Tennessee and the Cumberlands as
bilingual intake specialist. Novak is fluent
in Spanish and her competency includes
various dialects. She brings over 40 years
of experience in customer service to Legal
Aid Society after most recently working
at Maximus, Inc. in Nashville, Tennessee. In past positions, Novak has gained
experience interpreting in court settings,
translating for walk-in clients and interpreting incoming phone calls. In her new
position, Novak will gather information
from potential clients and help Legal Aid
Society family law attorneys with case
handling and management.
Clark Milner has joined Bass,
Berry & Sims PLC. Milner is
a litigator representing clients
in breach of contract disputes and business torts and fraud. Before joining the
firm, Clark served as a judicial clerk for
the Honorable Thomas A. Varlan of the
United States District Court for the Eastern District of Tennessee. Clark received
his law degree from the University of Tennessee and a B.B.A. from the University of
Georgia.
Welcome New
NBA Members!
Sean Aiello Elisabeth Bellinger Jonathan Clark Bowman Bowman Law Offices LLC
Louise Brock Bridgestone Americas, Inc.
Tiffany Burba Kamron Cox Erica Eberle Cordell & Cordell, P.C.
Thomas Roe Frazer III
Bone McAllester Norton PLLC
John Crockett Hailey III
Waddey & Patterson, P.C.
Michelle Josephine Handelsman Law Office of John Cobb Rochford, PLLC
Elise Hofer Wyatt, Tarrant & Combs, LLP
William Jakes Howell & Fisher, PLLC
William B. Jakes III
Howell & Fisher, PLLC
Hank Johnson Ellison Johnstone Austin Jones Aarthi Krishnamurthy David Leffard Edward Leonard Michael Devaney Lewis Dickinson Wright PLLC*
Adriana Madrazo Jessica McDuffie-Massey Massey & Bhela, PLC
Amelia Montgomery Kelcy Morris Schaffer Law Firm PLLC
Russell A. Newman Jason Palmer Tiffany Nicole Palmer Waddey & Patterson, P.C.*
Patricia Patino Benjamin Petitto Sasha Qualkenbush Sharon Maria Ramos Tressler & Associates, PLLC
Erin Marie Robinson Juvenile Justice Center
Matt San Roman Wyatt, Tarrant & Combs, LLP
Susanna Rychlak Summers Smith Benjamin Southard Nelson Mullins Riley & Scarborough*
Keith West * 100% Club
2015 NBA Premier Members:
Elizabeth A. Alexander
Gail Vaughn Ashworth
Joe P. Binkley Jr.
Charles Robert Bone
Charles W. Bone
Leilani Boulware
Jay S. Bowen
C. Dewey Branstetter Jr.
Joe B. Brown
Kenneth Sherman Byrd
Kathryn Caudle
Mark P. Chalos
William T. Cheek III
John Ray Clemmons
Michael Clemons
Dixie W. Cooper
Patricia J. Cottrell
Virginia Chase Crocker
John A. Day
Joy Day
John Franklin Floyd
Charles K. Grant
John J. Griffin Jr.
William L. Harbison
Marian F. Harrison
Aubrey B. Harwell Jr.
Trey Harwell
G. Miller Hogan II
Paul T. Housch
Margaret M. Huff
Michael F. Jameson
R. Jan Jennings
Jordan S. Keller
John D. Kitch
William C. Koch Jr.
Irwin J. Kuhn
Edward Dodson Lanquist Jr.
Thomas W. Lawless
Claudia Vettel Levy
Randal S. Mashburn
Carol L. McCoy
Robert G. McDowell
Jeffrey Mobley
Marlene Eskind Moses
Patricia Head Moskal
Michael I. Mossman
Mattison C. Painter
Gregory J. Pease
Tracy A. Powell
David L. Raybin
Jonathan E. Richardson
Edgar M. Rothschild III
Maria M. Salas
Carolyn W. Schott
Thomas J. Sherrard III
Emily A. Shouse
Saul A. Solomon
John T. Spragens
Michael G. Stewart
James Gerard Stranch IV
James G. Stranch III
Hon. Aleta Arthur Trauger
Irwin Bruce Venick
Howard H. Vogel
Michael J. Wall
James L. Weatherly Jr.
Peter Weiss
Thomas V. White
Larry R. Williams
Dial-A-Lawyer is held the first
Tuesday of each month. The public
is invited to call in with basic legal
questions.
To volunteer your time, please contact Wendy Cozby, LRIS Coordinator
at [email protected]
or 242-9272. Pro Bono credit does
apply and dinner will be provided.
December Volunteers:
David Cooper
Gina Crawley
Christopher Hugan
Tom Lawless
Doug Pierce
Nashville Bar Association members may
send Disclosure announcements
via email to
[email protected]
Submissions are
subject to editing.
NBA Premier Membership is a special category that recognizes our members who desire to
demonstrate the utmost in commitment and support to the NBA Programs & Services.
Contact Vicki Shoulders (615.242.9272, [email protected]) for details.
Nashville Bar Journal - December 2014 / January 2015
23
Classifieds
office space
Office Space
Office sharing
Office sharing opportunity for attorney with
small group of attorneys located at 305 14th
Avenue North in Nashville. Convenient to
courthouses with free on-site parking. Includes private office, reception area, conference room, library, kitchen, phone/ internet
service and administrative support staff.
Contact [email protected]
Germantown
Office space for rent. Family association of
attorneys in general practice. Restored historic
house near Bicentennial Mall and the new Sounds
stadium in Sulphur Dell. Large office available,
and virtual office offered. Shared conference
room, kitchen with free onsite parking. Call 615256-6681, ext 3
Vacation Retals
Downtown
Office condos for Lease or Sale. 500 to 2500 sq.
feet. 501 Union Street, 5th floor. Near Legislative
Plaza. Call Lynne at (615) 259-1550.
Golf Getaway:
The Cottages at Olde Stone
Bowling Green, Kentucky
Arthur Hills Signature Course
3 BR – 3 ½ baths – Full kitchen – Grill
Screened porch on 9th Fairway
Dining – Tennis – Resort Pool/
Hot Tub – Fitness Center
Contact Amy Gilmet: (502)357-1901
For Sale or Lease
Historic Office Bldg. For Sale or Lease:
.8 Acres, corner lot with traffic light. 3400 sq. ft.
12 minutes from Courthouse, ample parking and
ample on-site storage. Quick access to Opryland,
Airport, hospital, and all interstates. 1215 Gallatin Rd. S. Contact Steve North, 615-860-7644;
[email protected]
Would You Put That In Writing?
Certified Forensic Document Examiner
Handwriting Identification & Analysis
Expert Witness – 30 Years of Experience
Qualified in Federal, State and Local Courts
High Level of Professionalism
Strict Rules on Client Confidentiality
Delivery Deadline Observed
Marty Pearce, CDE, CGA
E-mail: [email protected]
615-884-0363 or 888-640-1001
APPELLATE BRIEFS and ARGUMENT
THOMAS F. BLOOM, J.D. (Emory 1977)
(615) 260-5952; www.bloomappeals.com
Retained by attorneys throughout the State for 29 years to draft briefs and/or argue
cases in over 400 appeals, State and Federal. Research assistance also available.
Quality Guaranteed at reasonable cost. References available upon request.
Visit the NBA's Career Center & Get Started Today:
http://jobs.nashvillebar.org/home
Employers:
Job Seekers:
- Place your job in front of our highly
qualified members
- Search for & quickly apply to great, relevant jobs
- Set up Job Alerts so you are immediately notified any time a job is posted that matches your skills or interests
- Manage jobs and applicant activity right on - Create an anonymous job seeker profile our site
or upload your anonymous resume so
- Limit applicants only to those who are qualified employers can find you
- Access job searching tools and tips
- Fill your jobs more quickly with great talent
24
Nashville Bar Journal - December 2014 / January 2015
Elder Law Practice of Timothy L. Takacs
.................................................... Back Cover
IPSCO ............................. Inside Back Cover
Thomson Reuters ...............Inside Front Cover
NADN................................................11
First Tennessee Bank ................................. 21
NBA Career Center .................................. 24
Thomas F. Bloom, JD ............................... 24
Would You Put That
In Writing? ©
2 Blocks from courthouse
Class A office space for rent in trendy residential
area 2 blocks from courthouse. Three attorney
offices. Traditional style with hardwood floors
throughout, wide molding, exotic granite countertops & elegant alabaster sconce lights. Includes
lobby, conference room, work room, two large
secretarial stations, kitchinette and telephone
system. Free parking. Covered parking available.
Contact Carl Neuhoff, HND Realty LLC.
297-7711 / 390-6186 / c.neuhoff @hndllc.com
- Search our resume database of qualified
candidates
Advertiser Index
Should You Join the NBA LRIS?
LRIS Markets & Advertises Your
Services When you join the NBA LRIS,
your practice benefits from the LRIS’ marketing and advertising programs. Currently, LRIS
reaches potential clients through advertising in
the Yellow Pages in various telephone directories
throughout the state. Clients are referred to us
through a variety of sources including the courts,
Office of the Attorney General, employee assistance programs, other Bar Associations and the
Social Security Administration. Also, our on-line
presence attracts clients nationwide.
JOIN NOW
Contact: Wendy Cozby, LRIS Coordinator
(615) 242-9272 | [email protected]
The NBA Lawyer Referral & Information Service is the Exclusive Referral Service for the Nashville Bar Association.
Advertising:
Contact Tina Ashford at
(615) 242-9272 or
[email protected]
Classified Advertising: Rates: $75 for the first
50 words and $1 for each additional word.
Available Sections: Expert Witness, For Sale, Forensic Document Examiner, Technical Support
Services, Office Space, Litigation Services, Office
Sharing, Vacation Rentals and Accounting.
Display Advertising: Full and Half Page color
and black & white advertisements. Quarter
and Eighth Page black & white advertisements. Please contact Tina Ashford for a
display advertising quote.
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Elder Law Practice of Timothy L. Takacs
Aging is inevitable
The nursing home crisis is optional.
All it takes is a Life Care Plan.
A Life Care Plan helps protect family assets, get the best
possible care and create a plan of action for the future.
Our skilled, experienced and compassionate
professionals will empower your clients to protect
elderly loved ones’ financial rights, legal rights,
eligibility for public benefits, quality of life
and more —now and in the future.
Help your clients avoid the crisis. Refer them to Elder Law
Practice of Timothy L. Takacs. For two decades, improving
quality of life for elders and the families who love and care
for them has been our primary focus.
We can help your clients, too.
Middle Tennessee: (615) 824-2571
Toll-Free: (866) 222-3127
Family Website: www.tn-elderlaw.com
Professional Education Website: www.elderlaweducation.com
Life Care Planning Elder Law
Estate Planning Care Coordination