-
40th Annual
BENCH BAR
The Conference
SEPTEMBER 1-4, 2016TOPS'L BEACH RESORT
DESTIN, FLORIDA
the magazine of the Memphis Bar Association Vol. 33, Issue 3
TheHIPAApotamusin the Room
Whats Yours? Whats Mine? Deciphering Tax Implications
in Divorce
2016 Legislative
Recap
The 2015 Federal Rule Changes New Tweaks to Federal Trial
Practice
THIS ISSUE:
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3 Volume 33, Issue 3
FEATURES 8 Bench Bar: 40 Years and Counting
BY JUDGE CHILDERS AND KIRK CARAWAY
11 Portrait Unveiling: Judge Donald
12 The HIPAApotamus in the Room: When Lawyers and Law Firms are
Subject to HIPAA Enforcement, And How to Comply with the LawBY
LESLIE R. ISAACMAN
16 Whats Yours? Whats Mine? Deciphering Tax Implications in
Divorce BY SUSAN M. LATTIMORE
18 What?! I Didnt Write that Letter: Avoiding the stealing of
your letterhead and signature from emailed lettersBY SEAN HUNT
20 2016 Legislative RecapBY SENATOR MARK NORRIS
26 The 2015 Federal Rule Changes New Tweaks to Federal Trial
Practice BY RICHARD CARTER
28 Stevenson: Creating Our Own Identity BY GIGI MCGOWN
COLUMNS 6 Presidents Column
BY SHEA SISK WELLFORD
30 CLC Pro Se Divorce Clinic Provides Fresh Starts, Brighter
TomorrowsBY TINA PERRUSQUIA
32 My Journey and Winding Journey to MALSBY M. JEAN HOLBERT,
STAFF ATTORNEY
DEPARTMENTS 10 Memphis Bar Happenings
15 Circuit Court ReportBY STEPHEN LEFFLER
22 The Court ReportBY DEAN DECANDIA
34 People in the News
38 Classified Advertisements
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4MEMPHIS LAWYERthe magazine of the Memphis Bar Association
2016 MBA Officers
Shea Sisk WellfordPresident
Dean DeCandiaVice President
Earle SchwarzSecretary/Treasurer
Thomas L. ParkerPast President
2016 Board of DirectorsMike AdamsJeremy AlpertMegan ArthurLara
ButlerBetsy ChanceAnnie ChristoffJennifer HagermanDoug
HalijanJonathan HancockMaureen HollandEarl HoustonCarrie
KerleyAndre Mathis
Gigi Gaerig McGownAsia Diggs MeadorElijah Noel, Jr.Lisa
OverallJill Steinberg
Section RepresentativesImad AbdullahStuart CanaleMaggie
CooperAnne DavisSean HuntToni Parker
ABA DelgateDanny Van Horn
AWA RepresentativeJodi Runger
NBA RepresentativeFelisa Cox
Law School RepresentativeElizabeth Rudolph
YLD PresidentJonathan May
MBA Publications Committee Stephen R. Leffler, Chair
Karen CampbellDean DeCandia
Nicole GridaSean Hunt
Gigi Gaerig McGownHarrison McIver
Jared RenfroeEllen Vergos
Mary WagnerMason Wilson
The Memphis Bar Association145 Court Ave.
Suite 301Memphis, TN 38103
Phone: (901) 527-3573Fax: (901) 527-3582
www.memphisbar.org
The Memphis Lawyer is a publication of the Memphis Bar
Association, Inc. that publishes six times each year. The
publication has a circulation of 2,200. If you are interested in
submitting an article for publication or advertising in an upcoming
issue, contact Anne Fritz at 527.3575; [email protected]
The MBA reserves the right to reject any advertisement or
article submitted for publication.
MBA STAFF
Anne FritzExecutive Director
Lesia BeachCLE/Sections
Director
Charlotte GeanExecutive Assistant/
Membership Coordinator
Katherine NewsomCommunications and Membership
Director
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6COLUMNby SHEA SISK WELLFORD
PRESIDENT'S
During the Law Week naturalization ceremony, over two hundred
new citizens approached the microphone set before the stage at The
Cannon Center where the United States District Court for the
Western District of Tennessee was in session and stated their name
and country of origin. Afterwards, some proudly added, And now, a
U.S. citizen!
There was a lot of excitement surrounding their new status and
the rights and privileges that accompany citizenship. Two of the
privileges most often mentioned by the speakers at the ceremony
were voting and jury duty I am going to hazard a guess that those
would be unlikely candidates to top the list of privileges if a
poll was taken of citizens born in this country. For most of us,
our lives are distant from the troubles surrounding governments
where voting and jury duty are not rights or are, at most, a
sham.
My mother went through a ceremony very similar to the Law Week
ceremony a number of years ago. Her story is one that I treasure
and has undoubtedly shaped who I am. I will share a small part of
it:
My mothers family left Russia during World War II, trying to
make their way to France, but were captured by the Nazis and placed
in concentration camps my grandmother (pregnant with my mother) in
one and my grandfather and uncle in another. My mother was born in
the camp and, likely because it was near the end of the war, her
family survived. After liberation, the family was reunited. My
grandfather was adamant that the only country where he would
emigrate was the United States. His experience under Communist
rule, then under the Third Reich, made him steadfast in his resolve
to live in a country where the Rule of Law was paramount. I do not
know if my grandfather would have used the phrase
Rule of Law in expressing what he wanted for his family, but
what he saw in America was
A place where the government and individuals were accountable
under the law;
A country where laws were applied evenly and fairly, and
protected basic human rights; and
A place where justice was delivered timely and ethically.
In short, what he sought for his family was a place where the
Rule of Law was observed.
Opportunities to settle elsewhere came and went. With the help
of Eleanor Roosevelt, who tirelessly campaigned to open the country
to those who had no home, my family was finally accepted and
relocated to Snow Lake, Arkansas. It was not an easy transition,
but it was one my grandfather embraced.
Immediately following the naturalization ceremony, Bryan
Stevenson, the Executive Director of the Equal Justice Initiative
in Montgomery, Alabama and a professor of law at New York
University Law School, gave a moving speech at another Law Week
event about failures in the application of the Rule of Law in
America today. He implored us as citizens and attorneys to
recognize our history and make a difference by doing four things:
(1) getting proximate to problems of poverty and injustice so that
they can be fully understood; (2) changing the narrative around
issues of race and poverty; (3) having hope; and (4) engaging in
activities and dialogue that might make us a little uncomfortable.
I cannot begin to explore these points as eloquently as Mr.
Stevenson, so if you were not able to attend the luncheon, I highly
recommend listening to Mr. Stevensons talk about these four points
at a speech given at NYU at bit.ly/bstevenson.
-
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I am thankful that Eleanor Roosevelt got proximate to the
problems of bias, refugees, and immigration during and after World
War II. As attorneys, we are trained to get proximate to and solve
problems, especially when the Rule of Law is threatened. After Mr.
Stevensons speech, I asked myself, what problems can I, and the bar
association, get proximate to in our community? Our Access to
Justice Committee is one place to start (meetings of the committee
can be found at bit.ly/mbaaccesstojustice). I challenge each of us
to consider what problems can we, as Memphis attorneys, get
proximate to today? Where can we change the narrative and provide
hope?
In closing, I will leave you with the words of Mr. Stevenson:
The opposite of poverty is not wealth. The opposite of poverty is
justice. t
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8I did not attend the very first Bench Bar Conference held at
Pickwick Landing State Park in 1976. By all accounts it was a
memorable kick off event that resulted in the MBA being invited NOT
to return to Pickwick! The late Manuel Scarmoutsos told me about
attending the inaugural Bench Bar Conference and encouraged me to
attend the next Bench Bar, that it would be an excellent way for me
to get to know the judges and other attorneys. I did attend the
next Bench Bar held in Arkansas at the Red Apple Inn, and what I
discovered is that what was MORE important than my getting to know
the judges and other attorneys is that they got a chance to know
ME!
Being a judge for many years, I know how difficult it is for the
judges to get to know and remember all of the new attorneys who
start practicing each year. The judges got to know me on an
informal basis and that I did not have two heads (or other strange
features) and was doing my best to learn about how to practice law
and do a good job when appearing before them.
As I recall we met for at least two years at the Red Apple Inn.
(Sidenote: I participated in a program on DUIs and the use of the
Breathalyzer. I volunteered to have a few libations and was tested.
For those interested in the details I may be persuaded to disclose
them at this years conference.) We quickly outgrew the Red Apple
Inn and met the next year at Greers Ferry Lake also in Arkansas.
After that we settled into attending in Hot Springs, Arkansas,
mostly at the historic Arlington Hotel, but a couple of years at
hotels near the Arlington. Some years in Hot Springs the Bench Bar
was held as early as March to accommodate attendance at the horse
races at Oaklawn Park. Occasionally tales are still told of some of
the adventures (or misadventures) of some members of
the Bench and Bar at these gatherings. There have been
occasional tales regarding "The Worlds Largest Scotch and Water"
and "The Jungle Jim Award", but my memory has faded regarding the
actual events, (and the participants shall remain anonymous).
During the years we met in Arkansas a group of us would meet on
Friday afternoon after court in front of the old MPD Headquarters
at Second and Adams. We would all load up in Judge Ann Pughs van
(with a trailer behind for luggage) and drive to the conference for
the weekend. This group included, among others, Judge Pugh, Justice
Janice Holder, Kathryn Hooksanson, Randy Walker and A.V. McDowell.
I was always the designated driver. After a stop across the river
to stock the ice chest with beverages, we would proceed on the
nearly three hour trip to Hot Springs. Lots of great memories
created during those excursions!
Bench Bar then moved from Hot Springs to its current venue in
Sandestin, Florida, where attendance has continued to grow and
reached a record turnout of almost 350 attorneys and judges in
recent past. With the move to Sandestin the conference has become a
much more family oriented event. The younger (and some not so
young) lawyers bring spouses and children (and now grandchildren)
to enjoy the Bench Bar entertainment activities. Since moving the
venue to Sandestin, it has been held most years in May during
Mothers Day weekend. Many people have suggested moving to another
time of year to avoid the Mothers Day conflict. So this year the
Bench Bar will be held on Labor Day weekend. The committee
recognizes that this may create a conflict for some, but felt that
that weekend would allow families
Bench Bar:countingyears and40
by ROBERT L. CHILDERS, CIRCUIT COURT JUDGE
-
9to attend with their children, who would be out of school for
the holiday. And it is still warm enough to enjoy the beautiful
beaches. It will also give us the opportunity to have new fun
events, such as the football watch parties that are planned.
Since I started attending, I have given many young lawyers the
same advice that my friend Manuel Scarmoutsos gave to me. I love
the Bench Bar and Boardroom Conference. It has meant a great deal
to me over the years, I have attended approximately 35 of the 40
conferences. (I love it so much that I have agreed to Co-Chair the
committee three times now.) It is an excellent opportunity to get
to know and fellowship with the judges and fellow attorneys and
contribute to the improvement to the administration of justice in
our local court system. The members of the committee have worked
extremely diligently to put on another quality conference.
Do yourself, your career (and the profession) a favor and attend
this years Bench Bar and Boardroom Conference to be held in
Sandestin September 1 4, 2016.
My Bench Bar Experience: Kirk Caraway
Bench Bar, or as the Staff at my Firm calls it, Spring Break for
Lawyers, is an event I have attended fifteen of the last sixteen
years.
I first went to Bench Bar when I was still a Young Lawyer. My
new bosses mandated that I attend, and they attended as well. The
experiences and relationships from those fifteen Bench Bars have
advanced my career greatly.
I have gotten to know many lawyers in different practice areas
that I otherwise would not have met. The social interactions with
the judges outside of the courtroom resulted in me feeling more
comfortable approaching them in a professional setting. The ability
to network at Bench Bar cannot be overstated.
I have also attended many informative and interesting CLEs. I
watched Johnny Cochran in a mock trial, attended presentations
where judges gave advice regarding practicing in their courts and
participated in a voir dire.
I played in volleyball and golf tournaments, ate dinner with
many lawyers and judges and cheered for the Grizzlies in the
Hospitality Suite.
The personal interaction and camaraderie that is an integral
part of Bench Bar only underscores why the
practice of law should be treated as a profession, and not just
a business.
I strongly encourage all MBA members to consider attending this
years Bench Bar. Hopefully, I will see many of you poolside at
Topsl or playing in the Volleyball Tournament.
2016 MBA BENCH BAR CONFERENCE
REASONS TO ATTEND:
Come celebrate the 40th Anniversary of the Bench Bar Conference
at Tops'l Beach Resort
September 1-4! You can get an entire year of CLE credit - 15
hours including 3 hours of ethics and professionalism credit -
while interacting with
your colleagues at the beach or by the pool.
Meet and mingle with judges U.S. District Court Judge Sheryl
Lipman and Chief Magistrate Judge Diane Vescovo; Criminal Court
Judges Chris Craft, John Campbell & Mark Ward; General Sessions
Judges Gerald Skahan and Loyce Lambert Ryan; Circuit Court Judges
Robert Childers, Gina Higgins and Valerie Smith; Probate Court
Judge Kathy Gomes; and Juvenile Court Magistrate Sheldon McCall
Interesting CLE programs on legal issues in collegiate
athletics; the effect of Obergefell on family & employment
issues; communicating with the media; how the courts address mental
health issues; and gangs in our community
Fun social & sports events Kick-Off Reception, YLD Sunset
CLE, Football Watch Party, Beach Carnival for Kids, Fun Run/Walk,
Beach Volleyball Tournament
REGISTER NOW BY VISITING MEMPHISBAR.ORG OR CALLING US AT
901.527.3573
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10
Theres lots going on in the legal community. Be sure and check
our website, Facebook and Twitter, and Bar Bulletin to stay
up-to-date on all MBA Happenings.
Bar Meet: Stay Tuned Bar Meet has been held at Wiseacre in April
and Loflin Yard in May. It has been a great event with no agenda,
no items of business, just the Memphis legal community getting
together.
Check our website, social media and the Bar Bulletin for
information on the next Bar Meet.
YLD Habitat for Humanity/ Levitt Shell Night
Saturday, July 16 Be on the lookout for more details to
come.
Bar Feud (a Family Feud style event)
Thursday, July 215:00 6:00 pm Survey; 6:00 8:00 pm The Feud
Downtown Central BBQTeam Cost: $200 (includes admission for 5
people and
team participation) deadline for team submissions June 30
Individual Ticket: $30 in advance, $35 at door Admission
includes two drink (beer and wine) tickets
and BBQ dinner.For more information, contact
Jennifer Hagerman, [email protected], or Nicole Grida,
[email protected].
YLD Bowling Night: Motion to Strike
Fundraiser for MALSThursday, July 28 6:00 9:00 pmBilly
Hardwicks
$10 for your bowling, food, and drinks (until the tab runs
out)
40th Annual Bench Bar Conference
September 1-4Destin, FL
HAPPENINGS
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11
The Portrait Unveiling Ceremony for the Honorable Bernice Bouie
Donald, Judge of the United States Court of Appeals for the Sixth
Circuit was held April 22, 2016 in the Clifford Davis-Odell Horton
Federal Building.
There were many dignitaries present, mayors, other elected
officials, clergy, and Judge Donald's family. Many of Judge
Donald's present and former colleagues on the bench, from her
former and present law clerks, and the portraitist, Jamie Lee
McMahan, spoke and shared their memories. Perhaps most remarkable
was the pride of place given in the program to Judge Donald's law
clerks, all the clerks who have worked for and with her over the
years. Many are now in important positions in the legal profession,
across the country. One attendee said, In some ways, the ceremony
was a reunion of all the alumni, all the classes, of what could
fairly be called The Judge Bernice B. Donald Graduate School of
Law.
Judge Donald was nominated by President Barack Obama December 1,
2010 for a judgeship on the United States Court of Appeals for the
Sixth Circuit to replace Judge Ronald Lee Gilman. The full Senate
confirmed Judge Donald to the Sixth Circuit on September 6, 2011 in
a 962 vote and she received her commission on September 8,
2011.
Prior to the United States Court of Appeals, Judge Donald
received a Bachelor of the Arts degree from
Memphis State University (now University of Memphis) in 1974 and
a Juris Doctor degree from Memphis State University School of Law
(now University of Memphis Cecil C. Humphreys School of Law) in
1979. She was in private practice in from 1979 to 1980, and then
became a staff attorney of the Employment Law & Economic
Development Unit, Memphis Area Legal Services. Judge Donald went on
to become an assistant public defender in the Shelby County Public
Defender's Office from 1980-82.
Judge Donald was elected to Tennessee's General Sessions
Criminal Court from 1982 to 1988 while teaching as an adjunct
professor at Southwest Tennessee Community College from 1984 to
1989. From 1988-95, she was a U.S. Bankruptcy Judge in the Western
District of Tennessee.
On December 7, 1995, Donald was nominated by President Bill
Clinton to a seat on the United States District Court for the
Western District of Tennessee vacated by Odell Horton. She was
confirmed by the United States Senate on December 22, 1995, and
received her commission on December 26, 1995. t
Portrait Unveiling
DonaldJudge
Portrait by Jamie Lee McMahan
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12
by LESLIE R. ISAACMAN, J.D., M.B.A.
When Lawyers and Law Firms are Subject to HIPAA Enforcement, And
How to Comply with the Law
The HIPAApotamus in the Room
The Omnibus Final Rule1 of the Health Information Portability
and Accountability Act2 ("HIPAA") extended liability from covered
entities3 ("CEs") to business associates4 ("BAs") for failing to
safeguard protected health information5 ("PHI") pursuant to the
HIPAA Privacy, Security, and Breach Notification Rules.
This change imposed, for the first time ever, direct
accountability on business associates, with applicable civil and
criminal liability, to comply with HIPAA rules. As a result,
business associates are now required to protect PHI the same way
that covered entities do.
In addition, the Health Information Technology for Economic and
Clinical Health ("HITECH") Act6 regulations have expanded the
definition of business associates to include patient safety
organizations, health information organizations, and
subcontractors. Under HITECH's definition, attorneys who provide
services for covered entities (or other business associates) and
handle PHI are considered business associates.7 Legal services fall
squarely within the purview of HIPAA when a lawyer contracts
directly with a covered entity.
Further, HITECH extended compliance obligations indefinitely to
downstream subcontractors who provide services to business
associates of covered entities. As a result, these so-called
"subcontractor business associates" face the same obligations for
compliance as first-tier business associates who contract directly
with covered entities. Thus, even entities who may not realize it
could face legal and enforcement risks and obligations under HIPAA
and HITECH.8
Determining Whether You Are a Business Associate
Any person or entity, including any attorney or law firm, who
receives PHI for purposes of doing something
on behalf of a covered entity, business associate, or
subcontractor, such as providing legal advice, is a business
associate. Thus, even attorneys who dont technically practice in
the field of health care law may be subject to HIPAA obligations
when they receive PHI from their covered entity, business
associate, or subcontractor clients.9 Specifically, an attorney is
considered a business associate when he or she, for example:
Provides compliance support or defense to CEs, BAs,
or subcontractors (whether or not in response to an enforcement
action);
Represents a CE, BA, or subcontractor in audits or governmental
investigations;
Represents a CE, BA, or subcontractor in any case involving
individual patient diagnosis, treatment, or health benefits;
Represents a CE, BA, or subcontractor in transactional work of
any nature that involves access to any PHI (including, for
instance, accounts receivable or payable information);
Provides representation regarding health care professional
discipline, payment or billing disputes, compliance advice, peer
review, guardianships, informed consent, end-of-life issues,
accreditation, licensing, administrative matters, risk management
issues, or the like;
Represents a CE, BA, or subcontractor in matters seeking to
enforce restrictive covenants when PHI access is involved; and
Responds to a subpoena requesting PHI in any form.Notably, an
attorney may unwittingly become a
business associate by virtue of being hired by an existing
business associate of a covered entity. For example, if a
hospital's printing vendor, which receives and stores PHI, hires an
attorney to provide legal services and then provides the attorney
with access to the hospital's PHI, the attorney for the vendor
becomes a subcontractor business associate.
As an attorney or law firm, its your obligation to recognize
when you are or could be considered a business
-
13
associate and to then comply with the HIPAA Privacy and Security
Rule provisions applicable to business associates. Non-compliance
can lead to hefty fines and intrusive governmental investigations,
and it can also lead to additional liability by your covered entity
or business associate clients.
Complying with the Law as a Business Associate
Because of the HITECH Act, business associates are now directly
and specifically liable for complying with the HIPAA Privacy,10
Security,11 and Breach Notification12 Rules. To demonstrate
compliance, lawyers and law firms must take specific actions under
the law.
Lawyers must implement business associate agreements with their
CE or BA clients and with their subcontractor BAs. Law firms must
ensure that written policies and internal processes for compliance
are established and reviewed, and firms should designate privacy
and security officers who are responsible for compliance and
training. In addition, lawyers and law firms are charged with
actively protecting the confidentiality of any PHI they receive,
create, or maintain electronically via encryption, and they must
implement administrative, physical, and technical safeguards13 for
handling PHI. Further, law firms must conduct risk analyses, along
with follow-up implementation of policies and procedures, to ensure
compliance and detect potential vulnerabilities. Finally, lawyers
and law firms must comply with the requirements and procedures for
breach notification.
Business Associate AgreementsBusiness Associate Agreements
("BAAs") are contracts
that specifically define how business associates can use and
disclose PHI when performing services.14 In general, BAAs should,
at a minimum, include the following:
A designation of permitted and prohibited uses of PHI by the
BA;
A requirement for the BA to implement "appropriate safeguards"
to protect PHI;
A requirement for reporting "security incidents" to the CE and
for compliance with "breach notification" requirements;
An agreement for BAs to properly establish that any
subcontractor BAs are in compliance and report as required;15
Allowances for access, amendments, and accounting of disclosures
by the CE;
Assurances that a BA's "internal practices, books, and
records" are available for governmental review and audits;
A provision for the return or destruction of PHI upon
termination;
Assurances that any PHI used or disclosed meets the "minimum
necessary" standard of HITECH;16 and
An authorization for termination of the relationship upon any
material breach of the BAA.In addition, due to the potential
exposure for liability
under the Breach Notification Rule, CEs and BAs may want to
consider including an indemnification provision in their BAAs.
Business associates have long been required to enter into BAAs
with their covered entity clients. Under the law, covered entities
are not allowed to disclose PHI to their lawyer business associates
if there is no properly-executed BAA between them to ensure that
PHI is appropriately safeguarded. Thus, as an initial step,
attorneys and law firms representing covered entities must ensure
that a proper BAA has been implemented.
Engaging Subcontractor Business Associates
In carrying out his or her duties as a business associate, an
attorney may need to engage the services of a subcontractor
business associate, such as software vendors, copy and printing
services, document disposal services, expert witnesses, jury
consultants, or billing services. These subcontractor BAs are
equally subject to liability, and business associates should take
active steps to ensure their subcontractor BAs are in
compliance.
Under the HIPAA Omnibus Final Rule and the HITECH Act
regulations, business associates must obtain "satisfactory
assurances" that subcontractor BAs will safeguard any PHI in their
possession. To do so, business associates must enter into BAAs with
their downstream subcontractors to monitor compliance. Just as it
does with covered entities, the BAA provides the business associate
with "satisfactory assurances" that its subcontractors will
safeguard and protect any PHI in their possession.
Specific Privacy and Security Safeguards
Business associates are required by the HIPAA Privacy Rule to
establish written policies and procedures that address the
permitted uses and disclosures of PHI. BAs are also required to
designate a "privacy officer" who is responsible for compliance and
for training employees on HIPAA as well as internal privacy
policies.
Under the HIPAA Security Rule, business associates
-
14
must implement specific administrative, physical, and technical
safeguards to protect against real and potential threats of
disclosure or loss. BAs must also designate a "security officer"
who is responsible for compliance and for training employees on
HIPAA as well as the BAs internal security policies.
In addition, business associates must conduct an entity- and
system-wide "risk analysis" to determine potential vulnerabilities
to breaches, and they must effectuate policies to remediate risks.
The law requires covered entities and business associates to
conduct a risk analysis to assess "potential risks and
vulnerabilities to the confidentiality, integrity, and
availability" of electronic PHI ("ePHI").17 Risk analysis is the
first step in identifying and implementing safeguards for
compliance with applicable law. Notably, enforcement agencies look
first to risk analyses conducted by CEs and BAs, and the failure to
perform such risk analyses is the main reason that entities fail
governmental audits. Upon completion of a risk analysis, the CE or
BA must then put into effect policies and procedures to mitigate or
remediate any identified or potential risks or vulnerabilities.
Through the HIPAA Omnibus Final Rule and the HITECH Act
regulations, the government has provided a clear message to covered
entities and business associates that ePHI (i.e., any PHI that
exists or is stored in electronic media) should be encrypted.18
Encryption is "the use of an algorithmic process to transform data
into a form in which there is a low probability of assigning
meaning without use of a confidential process or key."19
While all privacy and security risks cannot ever be fully
eliminated, attorneys should take steps to determine how to ensure
that exposure is minimal and risks are reduced as much as possible.
Some key areas for concern for business associates to consider
include:
Encryption (or lack thereof); Unprotected internet, web
browsing, and cookies; Network firewall protections; Hackers,
phishing, ransomware, and other cybersecurity
risks and threats; Mobile devices and password protections; Data
sharing; Lack of physical security with files and documents
containing PHI; and Staff training and compliance.
Business associates should consider all potential risks and then
take steps to enact policies, procedures, and training with respect
to any prospective vulnerabilities. For
instance, a law firm that serves as a BA should maintain and
enforce a policy and procedure on password requirements for all
employees who have smartphones and other mobile devices that may
contain PHI.
Breach Notification RuleThe Breach Notification Rule requires
business
associates to notify their covered entities following the
discovery of any breach of unsecured PHI.20 When breaches occur,
business associates must perform additional risk assessments to
determine the probability of data compromise, the nature and extent
of PHI involved, details of the disclosure, and the extent to which
the risk has been mitigated.
"Unsecured PHI" is useable, readable, or decipherable to
unauthorized persons; in comparison, "secured PHI" is unusable,
unreadable, or undecipherable.21 PHI can become secured only
through encryption or destruction; firewalls and access controls
(such as passwords) are not sufficient for ensuring that PHI is
secured.22 A "breach" is defined as the unauthorized acquisition,
access, use, or disclosure of PHI that compromises the security and
privacy of the information (except where an unauthorized person to
whom the PHI is disclosed would not reasonably have been able to
retain such information).23 Pursuant to the HIPAA Omnibus Final
Rule, unauthorized disclosures are presumed to be a breach unless
the covered entity or the business associate can demonstrate,
through a risk assessment, that there is a "low probability that
the PHI has been compromised."24
A covered entity must provide notification of any breach within
60 days of discovery (i.e., when the breach was discovered or
reasonably should have been discovered). Notably, a covered entity
or a business associate is presumed to have knowledge on the day
that any employee or agent has knowledge of the breach.
Penalties Applicable to Business Associates for Violations of
HIPAA
HIPAA, through the Omnibus Final Rule, adopted significant civil
and criminal penalties for enforcement. Following HITECH, there has
been an increased emphasis on enforcement and an increase in fines
and penalties issued by the U.S. Department of Health and Human
Services ("HHS") Office of Civil Rights ("OCR"). Based
TO CONTINUE THIS ARTICLE VISIT
memphisbar.org/news-publications/memphis-lawyer-magazine
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15
CIRCUIT COURT REPORTby STEPHEN LEFFLER
CIRCUIT, DIVISION I CORBIN-JOHNSONCT-001325-14, 3-29-16, 240
Poplar Avenue General Partnership v. Cheryl Gray d/b/a Gray Bail
Bond Company and ASAP Bail Bond, Inc., Breach of Contract
Landlord/Tenant, Non-Jury, Roger A. Stone for Plaintiff, Tim J.
Thompson for ASAP Bail Bond, Inc. and Addie M. Burks for Gray Bail
Bond Company, Plaintiff Verdict $28,556.17.
CT-004147-12, 4-14-16, Dees Oil Company v. Magness Oil Company
v. Mutuhar Sharhan, Hasan Abdo Ali, Negi Express, Inc., d/b/a
County Line Express a/k/a Sheba, Inc. d/b/a Getwell Express.,
Inducement of Breach of Contract, Jury, Melissa A. Harrison and
Taylor A. Cates for Plaintiff, Samuel M. Fargotstein for Defendant,
Magness Oil Company, Defense Verdict.
CT-000950-15, 3-21-16, Delilah F. Dabney v. Jonathan B.
Strausser., Auto Accident Trial on Damages Only, Jury, Adam Johnson
for Plaintiff, Nicholas J. Owens, Jr., for Defendant, Plaintiff
Verdict for $11,464.31.
CIRCUIT, DIVISION II RUSSELLNo contested cases tried to verdict
in this reporting period.
CIRCUIT, DIVISION III SMITHNo contested cases tried to verdict
in this reporting period.
CIRCUIT, DIVISION IV HIGGINSCT-004031-13, 3-3-16, Antoinette Lee
v. Memphis-Shelby County Airport Authority, GTLA Slip and Fall
Trial on Liability Only, Non-Jury, Kenneth M. Margolis for
Plaintiff, Hope Calabro for Defendant, Defense Verdict
CT-001050-15, 3-31-16, Alfonzia and Tonya Biles. v. Tiffany
Roby., Breach of Contract Foreclosure, Non-Jury, Drayton Berkley
for Homeowners, Brandon McNary for Mortgage Holder, Verdict for
Mortgage Holder for $24,700.00.
CT-001561-15, 2-18-16, Commodore Realty, LLC v. Omar Al Rahmani
d/b/a Big Daddys Meat Market and Produce, Breach of Contract
Landlord/Tenant, Non-Jury, Bruce A. Feldbaum for Plaintiff, Kevin
A. Snider for Defendant, Plaintiff Verdict for $24,999.99.
CT-000110-15, 3-3-16, Meagan Cross v. City of Memphis, GTLA Auto
Accident Non-Jury, Peter Gee, Jr., for Plaintiff, Foster B. Freeman
for Defendant, Plaintiff Verdict for $9,621.70.
CT-001171-16, 4-28-16, Marathon Management, LLC v. Lawrence King
FED, Non-Jury, for Plaintiff, Lisa Zacharias, Defendant Pro Se,
Plaintiff Verdict for possession only.
CT-002420-13, 2-22-16, Donna Powell, Individually and As Next
Friend of Ashley Marie Powell, a Minor v. Charles
Murphy, Beverly Murphy and Hillary Hinkle Recreational Vehicle
Accident, Jury, Danny Richardson for Plaintiff, Thomas D. Yeaglin
for Defendant, Defense Verdict Charles Murphy: 0% Fault; Hillary
Hinkle: 60% Fault; Ashley Powell: 40% fault. Damages for
$17,500.00.
CIRCUIT, DIVISION V HURDCT-000295-15, 3-24-16, Poplar Crest
Investment Company v. Marvell Williamson and Alishua Chapman Breach
of Contract General Sessions Appeal, Non-Jury, T. Tarry Beasley for
Plaintiff, Michael R. Working for Defendant, Plaintiff Verdict for
$232.65.
CT-006113-10, 4-15-16, Marvin and Patricia Bernatsky v. Designer
Baths and Kitchens, LLC. Breach of Contract Construction, Non-Jury,
John P. Wade for Plaintiff, Robert A. Wampler for Defendant,
Plaintiff Verdict for $6,455.00.
CT-002977-13, 2-25-16, Christy L. Bradley and J. Anthony Bradley
v. Laura Bishop, M.D. and Ruch Clininc, PLLC. Med Mal, Jury,
Richard Glassman and Lauran Stimac for Plaintiff, William H.
Haltom, Jr., and Margaret F. Cooper for Defendant, Defense
Verdict.
CIRCUIT, DIVISION VI STOKESCT-002503-14, 4-12-16, Angela Neeley
v. Peter Ballenger, M.D., Memphis Obstetrics and Gynecological
Association, P.C. and Methodist LeBonheur Healthcare d/b/a
Methodist Germantown Med Mal, Jury, Louis P. Chiozza, Jr., for
Plaintiff, Craig Conley for Defendant, Methodist LeBonheur
Healthcare d/b/a Methodist Germantown, William H. Haltom, Jr.,
Marcy D. Magee and Naalie Bursi for Defendant, Peter Ballenger,
M.D., and Memphis Obstetrics and Gynecological Association, P.C.,
Defense Verdict.
CIRCUIT, DIVISION VII FIELDSCT-002904-12, 2-22-16, Carol
Williamson v. Stephen Pendley Landlord/Tenant, Non-Jury, Catherine
Costict for Plaintiff, Paul J. Springer for Defendant, Defense
Verdict.
CIRCUIT, DIVISION VIII WEISSNo contested cases tried to verdict
in this reporting period.
CIRCUIT, DIVISION IX CHILDERSCT-000577-15, 3-1-16, EZR
Management, LLC v. Paul J. Springer d/b/a Springer and Associates
Breach of Contract Landlord/Tenant, Non-Jury, Derek E. Whitlock for
Plaintiff, Paul Springer, pro se, Plaintiff Verdict for
$23,077.81.
CT-002303-14, 12-16-15, Isaiah Hopps, Jr. v. Jacqueline F.
Stinnes Med Mal, Jury, Bill M. Wade for Plaintiff, William H.
Haltom, Jr., for Defendant, Defense Verdict.
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16
As a financial and tax professional, I have a lot of respect for
the attorneys who choose to practice in the area of family law. In
an area of law so fraught and riddled with intense emotion, Im
pleased to lend my services which are predominantly objective,
quantifiable and definitive. Numbers and calculations are empirical
and factual (although the assumptions for the numbers may not be).
Therefore, with knowledge of the financial components and their
corresponding tax effects, I endeavor to help assuage the fears
that divorcing couples feel about the uncertainty of their
respective financial futures. It can also help the attorneys manage
the expectations of clients when you can present them with numbers,
calculations and tax law.
Family law attorneys are well versed in the marital balance
sheet used for determining the division of property between the
spouses. In addition to splitting the assets (and liabilities)
equitably, its also important to recognize the types of assets that
produce income versus those that dont. This can be particularly
important as it relates to each spouses current earnings, future
potential earnings and then declining earnings (retirement). Types
of assets that produce income are: investment accounts, rental real
estate and cash (if there is sufficient cash to earn interest).
Since each of these types of assets produce income, its necessary
to understand the tax consequences of each.
Investment accounts typically generate capital gains from the
sales of stocks and bonds, as well as dividend and interest income.
Capital gains and qualified dividends are generally both taxed at
15%. However, if the couple is wealthy enough, the earnings on
these investments could
subject one or both of them to the additional net investment tax
of 3.8%. If adjusted gross income (AGI) is over a certain amount
(depending on filing status), the capital gain tax rate could be
20%, plus the 3.8%, placing the overall tax rate at almost 24%
(instead of 15%). For Tennessee residents, there could be an
additional 5% tax on the dividends, capital gain distributions and
interest earned on investments. The income produced by rental real
estate is also included in the definition of investment income for
the purposes of the 3.8% net investment tax.
Income-producing assets and the potential tax consequences are
important because post-divorce tax filing status and dependent
exemptions are not nearly as tax-favorable as they are for a
married couple filing a joint tax return. The adjusted tax
brackets, thresholds and limitations for filing single or head of
household can have a significant adverse tax impact depending on
the circumstances. The simple chart below illustrates how filing
status and number of dependents affect tax rates and liability:
To further this discussion, couples may have a significant
amount of wealth allocated
to non-income producing assets, including retirement accounts, a
primary residence, vacation home(s) and vacant land. While
retirement accounts grow tax-deferred, they are not considered to
be liquid assets during pre-retirement age (before age 59 ) since
early distributions are subject to a 10% penalty. After age 59 ,
the retirement accounts are available for distribution, but all
distributions on these tax-deferred accounts (not including Roth
IRAs) are taxed at ordinary income tax rates. Many people monitor
the assets in their retirement accounts since the accounts are
invested
Whats Yours? Whats Mine?Deciphering Tax Implications in
Divorce
by SUSAN M. LATTIMORE, EA, CFP, The Marston Group, PLC
2015Filing Status
SingleMFJMFJMFSHOHSingle
Number ofDependents
124333
AGI
$150,000 $150,000 $150,000 $150,000 $150,000 $150,000
StandardDeduction
6,300 12,600 12,600 6,300 9,250 6,300
Exemption Deduction
4,000 8,000 16,000 12,000 12,000 12,000
Eective Tax Rate
23%18%18%25%21%23%
Tax Liability
$32,187 $23,938 $21,938 $33,409 $27,066 $29,947
DierenceYear over Year
$(8,249) $(2,000) $11,471 $(6,343) $2,881
-
17
in the stock market. However, even though the securities in the
accounts are increasing or decreasing in value through capital
gains or losses (whether realized or unrealized), there is no
capital gain tax effect with respect to these accounts.
With all of this data compiled from the couples earnings, income
producing assets, non-income producing assets, filing status,
exemptions and tax rates, the financial and tax advisors can step
in and run financial models for divorcing couples to more
accurately project how the combination of assets and income
(including alimony, whether received or paid) will sustain them for
the remainder of their lives. The amount and term of alimony can be
easily changed, prompting the model to re-calculate a new scenario.
This process can also be applied to other items including living
expenses, the onset of social security benefits and required
minimum distributions from retirement accounts. All of these
factors affect the couple over time and can be far more
illuminating than focusing only on the near term and current
economic position. Stated another way, a comprehensive financial
analysis can provide some much needed perspective during a changing
financial landscape.
Additionally, there is the matter of responsibility for a
couples tax liability. As a rule, the IRS expects that if couples
are filing a joint return, as certified by their signatures and
joint filing status, then to the best of their knowledge they
are aware of what is being reported and that it is correct.
Note: Preparation of a return by a qualified tax professional does
not relieve the taxpayer of responsibility. Therefore, the IRS
holds a couple jointly and severally responsible for the content
and the tax liability, meaning that one spouse may be held liable
for all of the tax even if all of the income was earned by the
other spouse. There are options for abating or shifting liability
as well as other possible methods of relief, depending upon the
circumstances. If a spouse has any reason to believe the other
spouse is being dishonest with their joint return filings, it would
be prudent for the suspecting spouse to consider filing as married
filing separately until the divorce is final. Filing this way
generally satisfies the IRS that the individuals are reporting
their separate income, deductions and tax liability, much the same
way they would as if they were single.
When a couples world is turned upside-down during the process of
divorce, it is reassuring to have a level of certainty with respect
to each ones financial security for the foreseeable future, when so
many other factors in their lives are vague and unknown. Attorneys
armed with knowledge of the couples financial landscape and tax
implications can make a big difference in facilitating the process
to a reasonable conclusion. t
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18
If you are one of the attorneys who still send out letters via
email by attaching the document in Word, let this be a warning to
you. Stop! There are many reasons why you should never send out
Word document. Sending out a document in a word processor format
not only gives access to metadata, which by now you might know, but
it also gives access to your letterhead and signature.
Weve all heard about the concept of using the fact that Word
keeps all of the changes to a document with the document, if you
havent, then research metadata from Word and see all of the things
that you are giving away when you send a letter via email. But,
even if you dont have the metadata in your document, you do have
two things that are very important to hackers, spammers and people
who might spoof your name and information. In the background, a lot
of us have our letterhead with logo and other information. But,
when you send out this information in a Word document, it is easily
lifted in native format from the document. Its as simple as opening
up the header and copying it. The same is true for your signature.
Many of us use a graphic image as our signature. But that, too, can
be easily lifted from the document simply by copying the image or
saving the image.
Instead, the best alternative is provided right in Word. Just
click on the File menu and choose Email from the menu. Most of us
are using that anyway to send the document via Word. But instead
you should choose Send As Adobe PDF if you have Adobe Acrobat
Standard on your computer or Send As PDF if you dont have Adobe
Acrobat Standard on your computer. It is as simple as that.
Word will then convert the document into PDF format and attach
it to an email. If you dont have email native on your computerfor
example, you use an online email server such as Gmail, Yahoo,
etc.you can still use this to create the PDF for you. When the
email opens, you can simply save the PDF document to your computer
for uploading to your email account (assuming you dont use Outlook
or one of the other MAPI compliant email programs).
Now, you might indicate that you can still copy your signature
and your letterhead, but it is not that easy in PDF. First, as the
image is sent out it begins to degrade and it becomes easier to see
that it is a copy rather than the original. PDFs can be
specifically locked so that copying and editing cannot be
accomplished. Also, you can easily remove all metadata and prevent
any and all changes. Finally, PDFs are universal and therefore it
is unlikely that the person or persons you send this document to
will not be able to open it. Instead, it will look exactly like the
version you have on your screen and can be opened by a host of free
programs including Dropbox, Google Drive, iCloud and more. t
by SEAN ANTONE HUNT
Avoiding the stealing of your letterhead and signature from
emailed letters
What?! I Didnt Write that Letter!
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experience Rated A+ by the Better Business Bureau Confidential and
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6260 Poplar Avenue | (901) 683-8766 Memphis, TN 38119 |
[email protected]
www.jerryhschwartz.com
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the FORTUNE 100, more than $250 million on their matt ers.
We are a proud supporter of the Memphis legal community.
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The two-year 109th General Assembly adjourned sine die on April
22. Despite Twains foreboding, with 2535 bills filed during the
2016 session alone (5,363 over both years), and the fewest
legislative days ever used in any two-year session, much was
accomplished.
Job 1 is balancing the $35 billion annual budget. This was done
while increasing reserves, cutting the Hall tax, providing more
property tax relief for veterans and the elderly, and issuing no
new debt.
Funding included 9 new drug courts and 2 new Veterans
courts.
We increased funding for education by record amounts, increased
funding for law enforcement including additional state troopers,
forensic scientists at the TBI, and staff for District
Attorneys.
The FOCUS Act restructured higher education including
independent boards for the University of Memphis and five other
state universities, and we enacted the Rural Economic Opportunity
Act to spur economic development in Tennessees most economically
distressed counties.
Transportation received increased funding of $142 million.
Public Chapter 528 codifies the new judicial confirmation plan
for appellate courts. Roger A. Page
was confirmed as the first Supreme Court Justice to undergo
confirmation by the General Assembly, and J. Ross Dyer was
similarly confirmed to the Court of Criminal Appeals. The Senate
Judiciary Committee and its House counterpart each meet to publicly
interview appointees for approval to the full Senate and House.
Then the two Chambers meet in Joint Session to either confirm or
reject. If both Chambers vote to confirm, the appointee is
confirmed. If both chambers vote to reject, the appointee is
rejected. If one Chamber votes to reject by two-thirds, the
appointee is rejected. In developing this system, we took great
care to respect the doctrine of separation of powers, not only
between the branches of government but also of the two Chambers of
the General Assembly. Also included in the legislation was the
establishment of a Trial Court Vacancy Commission for the purpose
of recommending persons to fill trial court vacancies to the
Governor.
The Public Safety Act of 2016, Public Chapter 906, came from the
Governors Taskforce on Sentencing and Recidivism seeking to reduce
crime and stem prison and jail population growth. The Act addresses
the most serious offenses driving Tennessees violent crime rate by
establishing mandatory minimum sentences for those convicted of
three or more charges of aggravated burglary, especially aggravated
burglary, or drug trafficking.
It also addresses domestic violence by allowing law enforcement
to seek an order of protection on behalf of a domestic abuse
victim. Additionally, if a law enforcement officer makes an arrest
involving domestic abuse, then an automatic order of protection
will be issued when there is probable cause to believe that the
alleged assailant used or attempted to use deadly force against a
domestic violence victim. A third and subsequent domestic violence
conviction becomes a Class E felony under the new law. Third and
subsequent domestic
violence convictions were previously a misdemeanor. This change
maintains the current minimum 90-day sentence for a domestic
violence conviction.
In addition, the measure retools community supervision to reduce
the number of people returning
No man's life, liberty, or property (is) safe while the
legislature is in session. -- Mark Twain
Recapby SENATOR MARK NORRIS
Legislative2016
-
21
to prison for probation and parole violations when their
noncompliance does not rise to the level of a new criminal offense.
The move is expected to save the state $80 million. Of the 12,588
people entering state prison last year, 5,061, or 40 percent, were
probationers or parolees sent to prison because they violated
supervision conditions. This legislation authorizes the department
to utilize a robust, structured matrix of both sanctions and
incentives to facilitate compliance with the conditions of
supervision by the more than 71,000 state probationers and
parolees.
There were several updates to both the content and execution of
wills and other testamentary documents. The Revised Uniform
Fiduciary Access to Digital Assets Act, Public Chapter 570,
provides protection to the majority of Tennesseans who store
property or communications as data on a computer server and access
it through the Internet, or as it is know more commonly the cloud.
The Act, which has now been introduced or enacted in at least 30
states, allows individuals to designate a fiduciary to exercise
control over their digital assets upon death in the same way a
traditional fiduciary manages tangible property. As more people
store pictures, financial records and other information solely
online, a uniform, national system brings certainty both to those
using photo storage sites, social media, on line banking and email
accounts but also to the providers of those services.
Public Chapter 843, revises requirements for valid execution of
wills. For wills executed prior to July 1, 2016, signatures affixed
to the self-proving affidavit shall be considered signatures for
the will if they were made at the same time the testator signs the
will and the affidavit meets the other requirements for
acknowledgement under the traditional requirements. Importantly,
however, if the signatures of the affidavit are treated as
signatures on the will, they will not also serve as a self-proving
affidavit under present law.
Public Chapter 1034 was enacted late in the session in response
to a Court of Appeals decision striking down a conviction under the
gang enhancement law for lack of nexus. By requiring that, except
in cases where there is already proof that the criminal act was
committed in order to join a gang, the criminal offense must be
committed at the direction of, in association with, or for the
benefit of the defendant's gang or a member of
the defendant's gang.
Miscellaneous bills of interest include Public Chapter 329
allowing the state to make a timely objection, for good cause
shown, to the defendants waiver of preliminary hearing. Public
Chapter 755 allows the Supreme Court, upon its own motion, to
assume jurisdiction over an undecided case when there has been
notice of an appeal or application for interlocutory appeal. The
Court must find a compelling public interest in order to assume
jurisdiction. Public Chapter 582 allows sheriffs to collect the
same full payment for unsuccessful service of process as they would
for successful service if that service is attempted in accordance
with current law.
Former Senator, now Chancellor, Jim Kyle used to say, If you
dont have a special interest, you dont have an interest. Lawyers
should be especially interested in the enactment of, or failure to
enact, laws affecting our communities. When the 110th General
Assembly convenes in January, I encourage you to take time out of
your practice for engagement and advocacy in Nashville. t
An Off-Site Supervised Visitation Service
dedicated to safely connecting children and parents
at home and in public settings
______________________________________________________
www.AFamilyConnectionInc.com
Contact: Shari Myers at 901.737.3337
[email protected]
5390 Estate Office Drive - Suite 2 Memphis, Tennessee 38119
-
22
THECOURT REPORT
CRIMINAL COURTCovers the weeks of March 21, 2015 to May 9,
2016
COURT JUDGE VERDICT
DIV. I SKAHAN 1. STATE V. DARIN WOODS: Trial from Mar 28 to 31.
Indicted for Criminal Attempt: 1st Degree Murder, Aggravated
Robbery, Criminal Attempt: Aggravated Robbery, Employment of a
Firearm During the Commission of a Dangerous Felony. Verdict:
Guilty of Criminal Attempt: 2d Degree Murder and remainder of
counts as indicted. Prosecution: Pam Stark, Sam Winnig. Defense:
Billy Gilchrist.
2. STATE V. DAVID BLACK: Trial from Apr 19 to 22. Indicted for
Criminal Attempt: Rape of a Child, Aggravated Sexual Battery.
Verdict: Guilty as indicted. Prosecution: Abby Wallace. Defense:
Nick Cloud.
3. STATE V. DEANDRY PETERSON: Trial from May 9 to 13. Indicted
for Aggravated Rape, Aggravated Robbery, Aggravated Burglary,
Possession of a Firearm During the Commission of a Dangerous
Felony. Verdict: Guilty as indicted. Prosecution: Carrie Shelton,
Abby Wallace. Defense: Billy Gilchrist.
DIV. II WRIGHT 1. STATE V. SHANERICK ABRAHAM: Trial from Mar 21
to 22. Indicted for Aggravated Robbery. Verdict: Guilty as
indicted. Prosecution: Austin Scofield. Defense: John Scott.
2. STATE V. DEON ARNOLD, GENNAREO ODOM: Trial from Apr 11 to 13.
Both defendants indicted for Aggravated Robbery; Odom indicted for
additional count of Possession of Marijuana. Verdict: Arnold found
guilty of Assault; Odom found guilty of Possession of Marijuana.
Prosecution: Austin Scofield. Defense: Charles Mitchell for Arnold;
Juni Ganguli for Odom.
3. STATE V. JULIUS HULL: Trial from May 9 to 11. Indicted for
Possession of Marijuana with Intent to Sell, Possession of
Marijuana with Intent to Deliver, Possession of Firearm During the
Commission of a Dangerous Felony. Verdict: Not guilty. Prosecution:
Bo Summers. Defense: Jeff Woods.
DIV. III CARTER 1. STATE V. RHONDA WARNER: Trial from Apr 4 to
7. Indicted for DUI, Reckless Driving. Verdict: Guilty as indicted.
Prosecution: Billy Bond. Defense: Vicki Green.
2. STATE V. LATOYA BROWN: Trial from Apr 11 to 13. Indicted for
2 alternative counts of DUI, Reckless Driving, 3 counts of Leaving
Scene of an Accident involving Bodily Injury, 1 count of Leaving
Scene of an Accident Involving Property Damage. Verdict: Guilty of
Reckless Driving, Leaving the Scene of an Accident Involving
Property Damage. Prosecution: Billy Bond. Defense: Blake
Ballin.
3. STATE V. TERRIOUS CRAFT: Trial from Apr 28 to 29. Indicted
for Aggravated Robbery. Jury hung, then guilty plea to Theft of
Property $501 to $999. Prosecution: Bridgett Stigger. Defense:
Katherine Oberembt, Jim Hale.
4. STATE V. SEAN FARRIS, DARRYL GOODMAN: Trial from May 2 to 5.
Both defendants indicted for Aggravated Robbery. Verdict: Farris
found guilty as indicted; Goodman found guilty of Facilitation:
Aggravated Robbery. Prosecution: Dru Carpenter, Gavin Smith.
Defense: John Dolan for Farris; John Holton for Goodman.
DIV. IV BLACKETT NO JURY TRIALS TO COMPLETION THIS PERIOD.
DIV. V LAMMEY 1. STATE V. ROBERT PERKINS, MONTERRIO PIPKINS:
Trial from Mar 28 to Apr 1. Both defendants indicted for 3 counts
of Criminal Attempt: 2nd Degree Murder, 3 counts of Employment of a
Firearm During the Commission of a Dangerous Felony, 3 counts of
Aggravated Assault. Verdict: Both defendants found not guilty.
Prosecution: Tyler Parks, Gavin Smith. Defendants: Charles Waldman
for Perkins; Coleman Garrett for Pipkins.
2. STATE V. SHANIQUA ATKINS: Trial from Apr 11 to 13. Indicted
for Vandalism $1,000 to $9,999. Verdict: Not guilty. Prosecution:
Tyler Parks. Defense: Glover Wright.
3. STATE V. WILLIE MORGAN, ASHLEY PROCTOR: Trial from Apr 18 to
21. Both defendants indicted for Aggravated Robbery. Verdict: Both
defendants found guilty as indicted. Prosecution: Tyler Parks,
Gavin Smith. Defense: John Zastrow, John Stanton for Morgan; John
Dolan for Proctor.
4. STATE V. QUANTEZ PERSON: Trial from May 2 to 5. Indicted for
Aggravated Rape, Criminal Exposure to HIV. Verdict: Guilty of
Criminal Exposure to HIV. Prosecution: Abby Wallace, Cavett Ostner.
Defense: Claiborne Ferguson.
5. STATE V. DONNA BURNS: Trial from May 9 to 11. Indicted for
Aggravated Robbery. Verdict: Guilty of Theft of Property $500.
Prosecution: Gavin Smith. Defense: Coleman Garrett.
DIV. VI CAMPBELL 1. STATE V. KERRY GRANDERSON: Trial from Apr 4
to 8. Indicted for Aggravated Robbery. Verdict: Guilty as indicted.
Prosecution: Bridgett Stigger. Defense: Mark Mesler.
2. STATE V. MARCELLUS WOODS: Trial from Apr 18 to 20. Indicted
for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution:
Leslie Fouche, Olivia Brame. Defense: Genna Lutz.
by DEAN DECANDIA
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23
CRIMINAL COURTCovers the weeks of March 21, 2015 to May 9,
2016
COURT JUDGE VERDICT
DIV. VII COFFEE 1. STATE V. MANDRELL SANDERS: Trial from Mar 21
to 23. Indicted for Aggravated Burglary. Verdict: Guilty as
indicted. Prosecution: Stacy McEndree, Austin Nichols. Defense: Pro
se (elbow counsel Mike Gatlin).
2. STATE V. JESSEE HUDSPETH: Trial from Mar 28 to 31. Indicted
for Aggravated Robbery. Verdict: Not guilty. Prosecution: Jose
Leon. Defense: Robert Amann.
3. STATE V. MARQUEL STEWART: Trial from May 9 to 12. Indicted
for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution:
Steve Ragland. Defense: Hayden Lawyer.
DIV. VIII CRAFT 1. STATE V. BRYANT WILLIAMSON: Trial from Mar 21
to 26. Indicted for 1st Degree Premeditated Murder, Criminal
Attempt: 1st Degree Murder, Employment of a Firearm During the
Commission of a Dangerous Felony. Verdict: Guilty as indicted.
Prosecution: Carla Taylor, Reggie Henderson. Defense: Charles
Waldman.
2. STATE V. MARIO HUBBARD: Trial from Mar 28 to 29. Indicted for
Burglary of a Motor Vehicle. Verdict: Guilty as indicted.
Prosecution: Carla Taylor. Defense: John Holton.
3. STATE V. CORNELIUS PERRY, DANTRELL PICKETT: Trial from Apr 19
to 22. Both defendants indicted for 2 counts of Especially
Aggravated Kidnapping, Aggravated Robbery, Aggravated Burgaryacting
in concert, Employment of a Firearm During the Commission of a
Dangerous Felony; Perry indicted for additional count of Felon in
Possession of a Firearm. Hung Jury. Prosecution: Chris Lareau.
Defense: Randall Rhea for Perry; Larry Sims for Pickett.
4. STATE V. MICHAEL RIMMER: Trial from Apr 25 to May 7. Indicted
for 1st Degree Premeditated MurderCapital. Verdict: Guilty as
indicted. Sentence: Death. Prosecution: Pam Anderson, Rachel
Sobrero. Defense: Paul Bruno, Robert Parris.
DIV. IX WARD 1. STATE V. CEDRIC HENDERSON: Trial from Apr 4 to
6. Indicted for 2 counts of Domestic Assault. Verdict: Not guilty.
Prosecution: Greg Gilbert, Sarah Poe. Defense: Andre Mathis.
2. STATE V. DANYELLE MCCULLOUGH: Trial from Apr 18 to 21.
Indicted for Theft of Property $1,000 to $9,999, Forgery $1,000 to
$9,999. Verdict: Guilty as indicted. Prosecution: Byron Winsett.
Defense: John Scott.
DIV. X BEASLEY 1. STATE V. MAURICE BAXTER: Trial from Mar 28 to
31. Indicted for Aggravated Rape, Aggravated Burglary, Employment
of a Firearm During the Commission of a Dangerous Felony, Theft of
Property $1,000 to $9,999. Verdict: Guilty of Aggravated Rape,
Aggravated Burglary, Theft of Property $1,000 to $9,999.
Prosecution: Josh Corman. Defense: Eugene Belenitsky.
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24
ALTERNATIVE SPRING BREAK
This year, the Public Action Law Societys Alternative Spring
Break (ASB) program theme focused on a core principal of the ASB
Program: help make Memphis a better place for all. This years
program, Building Community: Removing Blight, Restoring Hope saw
sixty-three law students from five different law schools assist
over 150 clients needing legal services. Two new service tracks
were introduced as well Veterans Benefits and Juvenile Law.
Both tracks saw heavy workloads. The Veterans Benefits track
spent the week working with Support Services for Veterans Families
project at Memphis Area Legal Services. Students on the Veterans
Benefit Track assisted veterans by performing screenings, assisting
with benefit claims and status changes, and helping low income
Shelby County residents apply for low interest mortgages and avoid
eviction. Concurrently, the Juvenile Law track students were
working at the Shelby County Juvenile Court to clear a backlog of
Foster Care Review hearings. Over the course of ASB, the two teams
of the Juvenile Law track sat on review boards and saw 34 children
for review hearings. During the hearings, the students spoke with
Department of Children Services (DCS) workers, foster children, and
any interested party.
Students also participated in our Civil Rights Restoration,
Family Law, Immigration, Elder Law, and Research and Writing
tracks. The Civil Rights Restoration track screened thirteen
clients for eligibility and spoke with Just City about their work
in Memphis and Shelby County. The Family Law track worked as a
hybrid service track by focusing on pro-se divorces and assisting
victims of domestic violence, in conjunction with MALS and the
Family Safety Center. The Immigration track, under the supervision
of attorneys from the Community Legal Center and Latino Memphis,
completed sixteen Deferred Action for Childhood Arrival (DACA)
applications.
The Elder law track worked under the supervision of David Cook
of the Hardison Law Firm and Kerry Krauch of the Community Legal
Center to assist sixty-nine senior
Memphis Bar Foundation
In Practice:by TUCKER K. MARSHBURN, President, Public Action Law
Society
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254 COURT AVE OFFICES FOR RENTJoin eleven of your colleagues at
254 Court Ave. Month to Month Leases Private Parking Walking
Distance to the Court House
For more information, contact Sam Mitchell901.569.2307
citizens of Memphis with notarized advance directives, notarized
medical power of attorney, and general legal questions. Under the
supervision of Environmental Court Referee John Cameron, the
Research and Writing track produced an Action Plan form to assist
defendants sued under the Neighborhood Preservation Act. The
students also drafted two city ordinances. One
ordinance, if adopted, will establish a local rental property
and owner registry, to assist Code Enforcement locate neglectful
property owners. The second ordinance drafted by the students will
modify the language in the current housing code to allow the city
to recoup the cost of multiple inspections by code enforcement due
to noncompliance.
It is my hope, and that of PALS, that the services these
dedicated law students, attorneys, and legal
service providers completed for the underserved and
underrepresented members of the Memphis community will improve
lives and assist in building a stronger Memphis. On behalf of PALS
and everyone involved in bringing Alternative Spring Break to life
each year, thank you for your support. t
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26
On December 1, 2015, after more than five years of discussion,
debate and hearings, several changes were made to the Federal Rules
of Civil Procedure (Federal Rules). The changes are designed to
reduce costs, prevent delay, promote cooperation among the parties,
clarify the scope/breadth of discovery and encourage early and
active judicial management. This discussion isnt an in depth
analysis of the amendments, but an overview of only the changes to
Rules 1, 4, 16, 26, 34, 37 and 84.[1]
RULE 1 The Scope and Purpose of the Federal Rules was changed to
state [The Federal Rules] should be construed, administered, and
employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and proceeding. Rule
1 (emphasis added to new wording). Rule 1 is very important but
often overlooked. The change was made so the parties share the
responsibility to employ the rules in the same way [as the court].
Rule 1, Advisory Committee Notes 2015 (Committee Notes). The
Committee Notes go on to state that [e]ffective advocacy is
consistent with and indeed depends upon cooperative and
proportional use of procedure. Id. (emphasis added). Litigants
should consider invoking Rule 1 for example, when their opponent in
discovery is trying to kill a gnat with a bazooka. Also consider
Rule 1 and its specific scope when requesting a limitation or
procedure that would streamline the litigation process.
RULE 4 Changes to Rule 4 help to speed cases along by reducing
from 120 days to 90 days, the time after filing a complaint by
which a plaintiff must serve the defendant. Rule 4(m). If the
service isnt timely made, the court must dismiss the action without
prejudice against that defendant or order that service be made
within a specified time. Id. Importantly, by shortening the time to
serve a complaint under Rule 4(m), this also shortens the time for
relation back. Committee Notes.
RULE 16 Four amendments were made to Rule 16. The first deletes
the provision that allowed scheduling conferences to be conducted
by telephone, mail, or other
means. Rule 16(b)(1)(B). The Committee Notes state that the
deletion was made because direct and simultaneous communication
with judges is most effective. This fosters early and active court
participation in each case.
The second amendment requires the judge, absent a finding of
good cause for delay, to issue a scheduling order within 90 days
after a defendant has been served or 60 days after a defendant has
appeared whichever comes first. Rule 16(b)(2). This is another
effort to speed cases along.
The third change to Rule 16 adds that the scheduling order may
also include, agreements reached under Federal Rule of Evidence
502. Rule 16(b)(3)(B)(iv). Rule 502 of the Federal Rules of
Evidence describes the evidentiary treatment of privileges and work
product material and the impact of waiver. Litigants could greatly
simplify disputes in the event of subsequent, unintended disclosure
of privileged material by making their agreements a part of their
scheduling orders.
Fourth, Rule 16 now permits scheduling orders to include
language that direct[s] that before moving for an order relating to
discovery, the movant must request a conference with the court.
Rule 16(b)(3)(B)(v). The Committee Notes observe that many courts
that hold pre-motion conferences find them to be an efficient way
to resolve most discovery disputes without the delay and burdens
attending a formal motion[.] Id. Litigants should carefully
consider requesting such conferences as part of scheduling orders
to reduce litigation costs. Note, however, that this rule is
permissive, not mandatory; courts are not obligated to adopt this
procedure even if the parties request it.
RULE 26 The most significant changes made in 2015 are to the
scope and standard for discovery. Anyone who has practiced in
federal court for very long knows the phrase reasonably calculated
to lead to the discovery of admissible evidence. Indeed, many
litigants have made this their mantra when they object to
production requests. These words have been removed from the scope
and limits of discovery under Rule 26(b)(1). Now discovery is
allowed regarding: any nonprivileged matter that is relevant . . .
and proportional to the needs of the case, considering the
importance of the issues at stake in the actions, the amount in
controversy, the parties relative access to information, the
parties resources, the importance of discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of
discovery need not be admissible to be discoverable.
Rule 26(b)(1). The Committee Notes stress that this is not a
change, but rather a rephrasing of what the Federal Rules have
always stated. The present amendment restores the proportionality
factors to their original place in defining the scope of discovery.
Committee Notes. Also,
by RICHARD CARTER
The 2015 Federal Rule Changes
New Tweaks to Federal Trial
Practice
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by reference to relative access to information, which the
Committee refers to as asymmetric information, the court may give
deference to the party that has far less access to information.
These changes likely will alter the way litigants view the scope of
discovery. When the claim is small but the costs of discovery are
large, a litigant may argue that the discovery needs to be
simplified and streamlined to make it proportional to the claim. On
the other hand, if the social issue is substantial but the cost of
discovery would be large, a litigant may argue that justice will be
served by a quest for the truth whatever the cost.
Rule 26(c)(1) has been changed to add that protective orders may
allocate the expenses for certain discovery. For example, if a
party seeks a protective order because of the cost of e-discovery,
the court is expressly allowed to permit the request, but allocate
who pays the expense of that discovery.
Rule 26(d)(2) and Rule 34(b)(2) have been changed to permit
early service of document requests rather than having to wait until
the Rule 26(f ) conference. A party may serve Rule 34 requests for
documents more than 21 days after service of the summons and
complaint. The Responses, however, arent due until 30 days after
the parties first Rule 26(f ) conference. Rule 34(b)(2)(A). By
serving Rule 34 discovery requests early, youd give your opposition
more time to respond, which should result in fewer requests for
extension. Moreover, early Rule 34 requests will allow parties to
meaningfully discuss any objections or concerns during the Rule
26(f ) conference.
Under new amendments to Rule 26(f ), the discovery plan
submitted to the court must include the parties views on
preservation of electronically stored information. Rule 26(f
)(3)(C). Therefore, if you have any specific concerns about
preservation of e-discovery, you should discuss them in the Rule
26(f ) conference and present them to the court as part of the
discovery plan.
RULE 34 Rule 34, in addition to the change previously noted, has
been amended to require a responding party to state that it will
produce copies of documents or of electronically stored information
instead of permitting inspection. The production must then be
completed no later than the time for inspection specified in the
request or another reasonable time specified in the response. Rule
34(b)(2)(B). This change seeks to stop the practice by some
litigants of responding to discovery and then delaying the
production itself. Now documents must be produced by the date set
in the request or a reasonable time specified in the response. And,
under the amendment of Rule 37(a)(3)(B), if a party fails to
produce documents in accordance with Rule 34, the requesting party
can move to compel discovery.
A very significant change has been made to Rule 34(b)(2)(C) that
increases the burden placed on a party that objects to document
requests. Now [a]n objection must state whether any responsive
materials are being withheld on the basis of that objection. Rule
34(b)(2)(C). This should stop parties who object to every request
and force the requesting party to ferret out whether any responsive
documents have been withheld. This will force attorneys to more
carefully review their documents and to make more informed
decisions before lodging objections.
RULE 37 One of the most difficult areas of modern litigation
practice is e-discovery. The advent of computers, cell phones,
iPods, personal digital assistants, thumb drives, portable hard
drives and the like have created an almost infinite number of
places to look for data. With those devices also come a
multiplicity of ways data can be lost or corrupted. Rule 37(e) now
provides guidance about what happens when electronically stored
information that should have been preserved in the anticipation or
conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or
replaced through additional discovery. The added language
establishes several conditions: in the anticipation or conduct of
litigation; lost because a party failed to take reasonable steps to
preserve it,; and cannot be restored or replaced through additional
discovery. If those conditions exist, and the court finds prejudice
to the other party, the court may only order measures no greater
than necessary to cure the prejudice[,] unless the court finds that
the party acted with the intent to deprive another party of the
informations use in the litigation[.] Rule 37(e)(1) & (2). If
such intent is found, the court may presume that the lost
information was unfavorable to the party, give an adverse jury
instruction, or dismiss the action or enter a default judgment. Id.
These changes provide the court and the parties with greater
clarity about what may or must happen if data is lost.
RULE 84 This rule and the many forms that were included in the
Appendix to the Federal Rules have all been removed. Parties no
longer can argue that their complaint should not be dismissed
simply because it was patterned after one of the form complaints.
Rather, precedent contained in Iqbal and Twombly and other cases
will control.
Anyone practicing in federal court should know that these
amendments have been adopted and should carefully consider how
these amendments and the Federal Rules themselves affect his or her
matter.
[1] Rules 30, 31 and 33 were only changed to make reference of
the new Rule 26 provisions.
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On Monday, May 2 attorneys and friends of the Memphis Bar
Association gathered at the Peabody Hotel for the Memphis Bar
Foundations annual Law Week Luncheon honoring the luncheons keynote
speaker, renowned public interest attorney Bryan Stevenson.
Paul Tuberville, President of the Memphis Bar Foundation,
provided a welcome to attendees, who filled the ballroom at the
sold-out event. Tuberville was followed by greetings from City of
Memphis Mayor Jim Strickland and Congressman Steve Cohen. Honorary
Luncheon Chairperson Judge Bernice Donalds then presented Bryan
Stevenson with the Benjamin L. Hooks Award for his significant
contributions to social justice.
Stevensons accomplishments in the public interest sphere are
numerous and varied. Hes the founder and Executive Director of the
Equal Justice Initiative (EJI) in Montgomery, Alabama. As an
acclaimed public interest lawyer, Stevenson has dedicated his
career to helping the poor, the incarcerated and the condemned.
Under his leadership, EJI has won major legal challenges
eliminating excessive and unfair sentencing, exonerating innocent
death row prisoners, confronting abuse of the incarcerated and the
mentally ill, and aiding children prosecuted as adults. Stevensons
work fighting poverty and challenging racial discrimination in the
criminal justice system has won him numerous awards including the
MacArthur Foundation Genius Prize, the National Medal of Liberty
from the ACLU and the Olaf Prame Prize in Stockholm, Sweden for
international human rights. He is also the author of the New York
Times bestseller Just Mercy. A 1985 graduate of Harvard, with both
a Masters in Public Policy from the Kennedy School of Government
and a J.D. from the School of Law, Stevenson is also a Professor of
Law at the New York University School of Law.
Following an introduction by Connie Lensing, Senior Vice
President, Legal of FedEx Express, Stevenson began his address
acknowledging what a transformative time it is in Memphis. He
discussed the importance of identity our identities as Memphians,
Americans and as Southerners. Stevenson noted that there is a power
in identity, and we have the choice to create identity in something
stronger and more durable then the identities of the past. Although
as a society we have challenges of poverty and high incarceration
rates, there are many things Memphians can do to create our own
identity. One is to be proximate to the things that challenge us.
Instead of avoiding areas known for poverty or crime or drug abuse,
we can choose to get closer to these communities. Another is to
change the narrative. Were still burdened with the history of
racial inequality and racial terrorism that occurred at the end of
the 19th and beginning of the 20th centuries; however, Stevenson
praised Memphiss ongoing project to identify and mark the sites of
lynchings that occurred here. He stated the only way to treat the
disease of slavery and racial inequality is to acknowledge it.
Stevenson discussed the importance of staying hopeful that we will
get to the place we want to be as a society, because hopelessness
is the enemy of justice. Finally, Stevenson suggested that we
commit to doing some things that are uncomfortable. When we do
uncomfortable things, we are beating the drum for justice.
Stevenson concluded his speech noting that hes excited and hopeful
about whats happening in Memphis.
Proceeds from the luncheon went to the MBAs Summer Law Intern
Program which places minority high school students with law firms,
corporate legal departments and governmental agencies. t
by GIGI MCGOWN
Stevenson:Creating Our Own Identity
-
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To schedule a mediation with Jimmy Lawson or Frank Hamlin,visit
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30
The last year has been one of change for the Community Legal
Center and for me. While Ive been working as a substitute attorney
for the CLC since 2010, I formally came aboard as a staff attorney
in November 2015 to transition and, ultimately, oversee the Pro Se
Clinic.
On March 31, Irene Hallett, the staff attorney who managed the
Pro Se Clinic for more than a decade, retired. She largely shaped
its current incarnation, developing standard operating procedures
and extending its presence by serving on a committee of the TN
Supreme Courts Access to Justice Commission which developed
standard forms for use by pro se litigants. Irene ran the clinic
with efficiency and compassion, doing everything she could to get
positive outcomes for her clients.
Irenes shoes are big ones to fill, but Im looking forward to
continuing the Clinics work and exploring ways to increase the
impact we can have on our clients lives.
The Pro Se Clinics primary function is to assist parents with
minor children file uncontested divorces, with the goal to increase
parenting time for, and support provided by, the non-primary
residential parent. Although some potential pro se litigants become
discouraged at first by a process that they find daunting, many are
determined and successful in obtaining a final decree of divorce
for the cost of the filing fee.
This year, through the end of April, of the 348 people who
contacted the Pro Se Clinic, 27 were found to be qualified
applicants; of those, with our assistance, 16 litigants filed for
divorce and obtained a total of $48,946.68 annually in child
support. Most of the remainder who
didnt qualify for the Pro Se Clinic program were referred
elsewhere.
Potential pro se litigants start the process with an intake
interview to determine eligibility for the Pro Se Clinics services
based upon a households financial resources. Those who qualify must
then attend three appointments at the clinic, during which they are
assisted with drafting a Permanent Parenting Plan, Complaint for
Divorce, Marital Dissolution Agreement and Final Decree. The pro se
litigant must also contact the Court to set a date for the final
hearing.
Establishing child support is an obstacle for many pro se
litigants and assisting them with it is key to increasing those who
are able to obtain a divorce. In the past, our clients were
instructed to contact Shelby County Child Support Services to
establish child support before being able to proceed through the
clinic. Going forward, we hope to enlist pro bono attorneys to
assist pro se litigants in obtaining child support orders and,
under some circumstances, assist them with calculating their child
support
obligation. Establishing child support more quickly will allow
more pro se litigants to benefit from the help we offer at the Pro
Se Clinic.
The goal of each of our Pro Se Clinic clients seeking a divorce
is the same, to get a fresh start. Even with all the online
assistance now available, those unfamiliar with legal process
sometimes need hands-on help such as that provided by the Pro Se
Clinic. Know that we are there, continuing the work that has been
done for so long, but looking for ways to improve outcomes. t
by TINA PERRUSQUIA, CLC Staff Attorney
CLC Pro Se Divorce Clinic
Fresh Starts, Brighter TomorrowsProvides
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Receive up to 1/