Tennessee Courts embrace Google Maps, AG sues Apple, and other technology updates

Some quick hits on this quiet Wednesday before Thanksgiving…

Tennessee Court of Appeals takes judicial notice of Google Maps. Yesterday, the Tennessee Court of Appeals expressly approved a trial court’s taking “judicial notice” of Google Maps to prove distance in trial proceedings.

(Note: Judicial notice is an evidentiary concept that means, basically, when a fact that is so well known and accepted that the court to accept the evidence as true without a full demonstration of proof of the underlying facts.)

The Court wrote: “Google Maps reflects the efforts by Google employees to provide an accurate representation of geography. The company’s business incentive to produce accurate maps is obvious. Furthermore, it is not as though Google Maps is a dubious new novelty. Google Maps has been relied upon by courts across jurisdictions for a number of years now, to say nothing of the general population.” The Total Garage Store, LLC v. Nicholas C. Moody, 2020 WL 6892012, at *11 (Tenn.Ct.App., 2020).

Some people claim that Tennessee Courts are, generally, reluctant to embrace new technology. Reasonable minds can differ, but this shows that courts will embrace technology when it makes obvious common sense.

It also doesn’t hurt that the opinion originated from one of the State’s “younger” and tech-savvy Chancellors…

Now, how are we doing with Zoom hearings?

I remain a little torn on this, and I’ll say that it depends on the Judge. With an active, engaged judge, you get 100% of the same focus, attention, and competency via a telephonic or video hearing. I’ll do a hearing via Zoom with those judges every time.

But, with a judge who is checked out and not paying attention, it’s easier for that judge to coast through, and it’s harder to get their focus and attention when you’re not personally in the same room. More judges than you’d think fall into this category.

Like so many other things in the law, the judge’s demeanor and interest (in the case, in the law, in where the lawyer is from, etc.) are the ultimate wild-card as to whether a client is going to get justice.

Tennessee sues Apple, Inc. over unfair and misleading information about iPhone updates and battery life. Last Friday, the Tennessee Attorney General filed a Complaint against Apple, Inc., alleging a violation of the Tennessee Consumer Protection Act over the iPhone’s “unexpected shutdowns” and “throttling” issues occurring in 2016 and 2017.

From the Complaint, it’s unclear how many Tennessee users are impacted and how much in damages are being sought. The full Complaint can be found here:

You’ll note that the final line of the Complaint contains a reference to “Ethicon’s unlawful trade practices,” which suggests that Attorney Generals are just like the rest of us, when it comes to recycling form pleadings.

Are lawyers more effective working from home?

Lots of parents (especially mothers) have talked about the struggle to effectively practice law from home with kids in the house. In my house, I spend the five minutes before a call or a Zoom hearing telling, bribing, begging my children to be quiet, stay in their room, etc.

But, who knew that the real time-wasters were our law partners?

If this report is to be believed, maybe the “heightened productivity” lawyers enjoy at home results from an unhealthy lack of separation between work and home…

The state of the Nashville legal world, 8 months Into COVID

Today marks the 8 month mark of when, basically, people started taking COVID seriously.

On March 10, 2020, I had travelled to Louisville and was staying at the gorgeous and totally empty Omni Hotel, to interview for the open Louisville Bankruptcy Judgeship. That was on a Tuesday, and, on Saturday, my family was scheduled to depart for a spring break Disney Cruise.

(Spoiler-alert: Neither the job nor the cruise happened.)

My view entering the Louisville Omni.

While sitting in the Omni’s gorgeous and empty food hall, I read an article in the local paper about how Washington DC’s first known COVID patient had stayed at the Omni the week before. I realized the magnitude quickly (as well as why I was the only guest at the hotel).

In fact, on the drive back to Nashville, I coordinated my wife buying $400 of frozen pizzas and toilet paper, and I pondered stopping at Gander Mountain in Bowling Green to buy pre-apocalypse weapons and ammo.

(Spoiler-alert: The pizzas and toilet paper did happen, but the Anthony armory remains stocked only with hand-to-hand combat accessories.)

Continue reading “The state of the Nashville legal world, 8 months Into COVID”

341 Stories: Law Firm Pay-Cut Shaming; I bought a boat; Wear Pants to your Zoom Hearings

I wanted to get a blog post out before everybody went home for the long weekend, but then I remembered that everybody is already at home…

My beef with the TBA Today’s COVID Coverage. I love the Tennessee Bar Association and the TBA Today daily email. You know this, because I talked about it 7 years ago. This email is an awesome resource that provides daily updates about legal news, career moves, awards, events, and new and notable Tennessee and Sixth Circuit appellate opinions.

But, early in the COVID crisis, the email started running stories about law firm pay cuts in Tennessee, with mentions of specific law firms. Yeah, it’s legal news, but it also felt like it was none of my business.

Plus, it led to two things: (1) Local lawyers started gossiping about other law firms’ financial stability (which was a terrible look, considering people lost jobs); and (2) Other law firms who really, really needed to take a hard look at their financial decisions and consider smart cuts may have elected to do nothing, in order to stay out of the news. Lose / Lose, right?

This is probably the Bankruptcy Lawyer in me talking, but a few financial adjustments made on the precipice of the biggest economic crisis of our era shouldn’t be considered a bad thing. Trust me, the law firms I’d be most worried about right now are the ones who haven’t changed their financial model at all.

But, as Kermit the Frog likes to say, that’s really none of my business either, and I’d rather it all be left out of my daily news. Especially as more layoffs, hiring freezes, and pay cuts are on the horizon.

In other questionable financial planning news… During the COVID crisis, I bought a boat.

My debtor bankruptcy lawyer friends tell me that an ill-advised boat purchase is Step 3 in a five-step process for a potential bankruptcy filing. Great news for the Anthony household, right?

Well, it made national news, when a reporter from USA Today called to talk about my purchase for his story, “Everyone is buying boats” during the pandemic, and it’s causing a short supply.

It was a funny, half-hour long conversation about boat ownership, with the final article coming across a bit more complain-ey than I actually feel.

“I absolutely regret purchasing it.”

In truth, I am merely luke-warm about boat ownership. See you out on the water this Labor Day weekend!

Zoom Hearing Advice. In actual legal news, here’s a great twitter thread with tips and advice from a Judge for your Zoom video court hearings.

All of these are spot on. In the past month, I’ve participated in 2 – 3 video hearings, and I’ve seen pant-less people and also background art that I would describe as “tasteful nude ballerina” art.

Don’t do any of that, say the Judges.

341: Judicial Retirements, Vacancies, and What we need to do to support diversity in the judiciary

Memphis Bankruptcy Judge David Kennedy is retiring after nearly 40 years on the bench. Yes, 40 years.

Way back in 2010, I wrote about Judge Kennedy as he approached his 30th anniversary on the bench, telling the story about how he graciously hosted me in his Court when I was a 1L law student and, in a way, set me on a course that has led to my 20 years (and counting) in bankruptcy law.

It’s a great reminder: Sometimes the smallest kindness and gift of your time and encouragement can make a meaningful impact on somebody.

In related news, there’s a Judicial Vacancy for a Bankruptcy Judge in Memphis! Yes, I know this, and I’ve had at least 5 people email me this United States Bankruptcy Judgeship Notice of Vacancy.

Yes, I dreamed of being a judge. Yes, I’m from Memphis and love Memphis. Yes, I’m an award winning Best of Bar, Super Lawyer, Best Lawyers in America Bankruptcy Lawyer.

That would be an awesome job, in a community that has an incredibly large volume of financially distressed consumer debtors who really, really need a smart, progressive, creative judge. Talk about a place where a civic- and policy-minded judge can really make a difference and change lives…

But, it’s not going to be me.

Some of you may know this, but I was invited to interview in December 2019 with the Merit Selection Panel in Memphis for Judge Paulette Delk’s recent bankruptcy judgeship vacancy. The interview–to put it lightly–discouraged me from submitting my name for another vacancy so soon. (And, side note, I’ve already switched jobs recently.)

Judicial Diversity Matters. There were probably dozens and dozens of reasons I didn’t make the final round (and the ultimate pick was an absolute home run). But, based on the content and vigor of the questions to me, I discerned that, maybe, a white male (and, also, from Nashville) wasn’t their first choice (or choices 2 through 5, either, for that matter).

And, if true, they were absolutely correct (though I still question the “vigor” with which the questions were presented to me–yikes). Long before my interview, I’d been talking about the lack of judicial diversity.

We live in a time of monumental awareness of these issues, but our judiciary doesn’t always reflect the diversity of the communities that it serves. If we’re going to seize this moment and truly work for equality and true representation, isn’t this something that we should always factor into decisions?

When people have the power to hire, grant partnership, or appoint to a position, isn’t that a better consideration than “His dad is friends with _______” or “He goes to the same church that I do” or “He is an ‘opportunistic’ hire”? That’s called “affinity” hiring. Don’t do that.

Clients, we need your help. I put the call out, last year, to clients as well. I said:

I’ll go one step further: I think law firm clients need to think about this as well. When a client hires a law firm, are clients asking about diversity? Are clients challenging law firms to take a hard look at their internal policies?  Do clients care about diversity and, if so, how are they expressing that to law firms?

I don’t perceive this to be a trend in our local legal community. Don’t get me wrong; everybody talks about diversity, but, in the end, lawyers and law firms focus mostly on the bottom line, traditional ways of doing things/hiring, and a social/cultural network that tends to promote the status quo. How can we change this?

Real change in the legal profession will not happen until clients start pushing these issues as well.  Clients can vote with their dollars. If these issues are important to clients–and they should be–clients can force this discussion and impact the profession. If you’re a potential client and you care about this, ask prospective law firms what they do to promote diversity, whether in hiring or in the community.

This is a way to get more people of color into judicial spots. Clients, demand diversity in staffing your work. Make it a priority. Law firms will listen. With more opportunities for meaningful legal work and assignments, lawyers from under-represented backgrounds will gain experience that will change the trajectory of their career. Law firms are full of talk when it comes to diversity; real change requires that clients make it a priority.

To quote a tweet from Tiffany Graves:

341: Bar Exams, Change of Plans, Buy a Bankruptcy Code

The Bar Exam has been canceled (sort of). July is usually bar exam time in Tennessee (as well as all over the country). Like nearly everything else about our lives, the bar exam is going to be drastically different in Tennessee in 2020.

As a result of this Order, Tennessee bar applicants now–for the first time ever–have the option of taking a private, online exam. As you can see from the responses to the Tennessee Supreme Court Justice’s tweet (really, people?), no decision is going to please everybody.

It’s either too much of a departure from tradition (for the older crowd) or too little of a change to the status quo (for the progressives).

Twitter can be pretty awful.

Speaking of how it’s impossible to make everybody happy. As law firms are trying new models as they pivot into the new world, this tweet spoke to me on a DNA level:

This is absolutely true. A law firm is generally full of highly critical (in a good way), smart, risk-adverse know-it-alls (in a bad way). I’ve seen hotly contested arguments about what soda to stock in the law firm kitchen. Good luck with your nimble pivots, managing partners.

Diversity Matters. The past few months have provided eye-opening lessons about privilege and opportunity for so many of us. Especially those in leadership positions at law firms.

In early June, I started to receive all the Black Lives Matters marketing e-blasts, so I know that many law firms recognize the PR benefit of supporting this movement.

But, I also know these law firms and judge them on their actions (as well as their words).

Law firms, what are you doing about diversity? And not just the 2020 associate class. I’m talking about the future years’ classes too. What support are you providing to nurture and provide opportunities to current law students? What about college students from non-privileged backgrounds who want to be lawyers? What about your staff (both present and future)? What educational or institutional policies are you introducing to your practices in response? What are you doing to support the movement in your community?

Separately, am I–personally–doing everything that I can? Are you?

Bankruptcy, Bankruptcy, Bankruptcy. I posted last week about the starring role that bankruptcy lawyers will play in the coming months. Others agree:

Bankruptcies are heating up in the Middle District of Tennessee. Every day, I’m getting calls for representation on a new creditor bankruptcy case filed in Nashville.

Buy a Bankruptcy Code book, young lawyers.

COVID forces old-school lawyers to embrace new technology

Tennessee Courts get yanked into the 21st Century. This week, I’ve had two telephonic court hearings.  They’ve both been a little strange.

On one, I called the Clerk’s office, who then gave me the Judge’s cell phone number. When I called the Judge on her cell phone, she was pretty clearly on a walk outside.

On the other, the court set up a call-in line for the docket call, with about 25 attorneys waiting for their specific matter to be called. When my matter was called, about 6 attorneys all spoke at once.

When my matter was over, I stayed on the line and listened to the next argument (on mute) to see how it flows and to plan for when I have to conduct my own complicated hearing. I learned that there is definitely an art to effective presentation via a phone call.  Also, it was weird, just silently lurking. A Bloomberg news reporter listened in on a similar court hearing, and she described it as “uncomfortable and oddly voyeuristic.”

I think all this can be figured out, but there’s definitely going to be learning curve.  The Tennessee Supreme Court conducted oral arguments via video this past week, and those went well.

Although, if I were one of the lawyers arguing, I would have 100% had to stand up for my presentation.

tn sup cort

Personally, I’m not looking forward to more telephone or video hearings. I go to court a lot, and there’s so much you pick up by physically present in the courtroom, whether it’s a good read on the judge’s demeanor that day, on opposing counsel, or just the ability to be physically present when you’re making a huge argument for a client.

There is simply so much that goes into oral argument, and there’s so little of that in a phone call.

Zoom. Maybe we don’t need to see each other.  Speaking of how technology maybe doesn’t always make things better, when all this first hit, everybody wanted to do a Zoom call. But, then, after a week of seeing the decorations in everybody’s guest bedroom, we sort of figured out that all this could have been done via conference call.

Personally, I can’t decide where I look: at who is speaking; at myself (which I’m usually doing); or directly at the camera. Bonus points to the participants who just leave their camera off the whole time.

Either way, I guess I fall in the middle on this app. In some situations, it makes sense to be able to see the person and get a read of their social cues or to establish a rapport. For example, I represent a large class of clients on a matter, and I like to communicate with them via video so they can see me and my team.

Slack.  I acknowledge that I sound like a curmudgeon.  So, to counteract that, I’ll provide a whole-hearted endorsement of Slack, the real time messaging platform.  It seems like a really effective and well-done way to manage work teams.

Side-note: If you’re navigating all of this, I can’t recommend the Lawyerist website enough, as well as the Lawyerist podcast.  It’s run by a group of very smart lawyers, and they constantly talk about remote work, law firm management, and law tech and innovations.

I really enjoy all that they do on that site to educate lawyers.

New Developments versus Custom and Habit. It’s hard to tell how much of this is temporary or here to stay. Some part of that answer will depend on the Court leadership forcing all counties to fully embrace the new rules, policies, and technology.

Yesterday, we were figuring out how to get a garnishment form notarized with all of us spread out over town.  One of the lawyers on the e-mail chain correctly pointed out that Tenn. R. Civ. P. 72 and the brand new Supreme Court Orders allow for /e/-signatures and declarations in place of a notarized signature.

This was a garnishment, though, in a very small county, one that probably hasn’t read the Order from last week, and where the front desk clerk would take one look at the form, see the lack of a notarized signature, and potentially reject the filing.

This is what makes collections so different than other aspects of the law. Once you get the judgment, instead of dealing mainly with a judge, you’re mostly dealing with court clerk staff. You can be technically and legally correct, but, if you don’t follow their habit and custom?

Long story short, we got it notarized. Our goal wasn’t to be right. It was to get our garnishment issued.

My hope for all of this is that the Administrative Office of the Courts establishes a commission to look at all these issues and to anticipate as many of these issues that could arise in the future. And I hope that they don’t just pick the usual same people from the usual same big law firms to participate. Those lawyers don’t talk to clerks. They don’t file e-file documents. They don’t go to court on all kinds of matters.

The decisions that are being made today may set the policies and procedures across the state for years, and it’ll be interesting to see what changes implemented during this pandemic become the new custom and practice.

341: Coronavirus Impacts Tennessee Courts, and Creditors too

No Suits, No Ties, No Court…For the Rest of This Month! Tennessee Courts acted quickly in response to COVID-19. On Friday, the Tennessee Supreme Court issued an Order that all courts will remain “open” (sort of) during the coronavirus outbreak. I say “sort of” because all in-person judicial proceedings will be suspended through March 31, 2020.

I’m a litigator, and I generally appear in court 3 to 4 times a week. This is going to be weird. I usually appreciate days when I don’t have to wear a suit or tie to work, but this might be too much non-court time. Especially since I’ll be spending this time, 24/7, with my small children.

I love them, but they make the most unreasonable judge seem like a breath of fresh air.

My collections clients are going to hate this. For many courts, the inability to appear at court proceedings means, effectively, that court is closed. Specifically, I’m talking about General Sessions Court, where judgments get entered only in open court.

Following the Supreme Court’s lead, Davidson County General Sessions Court announced they will be closed to in-person proceedings, except for very limited matters (generally criminal matters), through April 13, 2020, at the earliest.

This means that there will be no debt collection dockets or evictions in Nashville for over a month. You can file new lawsuits all month long, because the Clerk will remain operational to accept new filings, including a “drop-box” for non-in-person filings.

This is good news from a “disease containment” sense, as it’s designed to limit physical access in a very bustling courthouse. It’s also good news for those who are economically impacted by the shut down of our local economy.

But, for landlords with pending eviction actions (i.e. non-paying tenants who had already been in default), these extra weeks will be frustrating.

Creditor attorneys won’t like it either. And, for creditor attorneys whose livelihood depends on that monthly collections disbursement check from the Clerk, any interruption in the Clerk’s ability to meet customers to accept judgment payments, process those payments, and disburse those payments will create a huge cash flow problem.

I’m guessing if debtors can’t get in the door, there’s a chance that they can’t get to the Clerk to make their weekly/monthly payments.

The only civil hearings you’ll see are TRO hearings. The Supreme Court order lists a number of exceptions for legal proceedings involving life, liberty, and limb, but most civil actions will not be heard.

The only civil law exception is for “Proceedings related to petitions for temporary injunctive relief.”

That’s a good exception. Injunctions are generally described as “extraordinary relief,” and they are designed to address emergency situations.

I wonder if the Courts will enter “no response” orders–orders that generally get granted as a matter of course and without a hearing, when there’s no response filed.

All Middle District of Tennessee Bankruptcy Court Chapter 13 Meeting of Creditors will be conducted via Zoom.us online video conference. On Friday, the Chapter 13 Trustee sent around an email announcing that all 341 Meetings would be conducted via Zoom online conferences. I think this is very smart, to reduce the number of people having to come to court and, at the same time, to keep the process moving forward.

But, it’s going to have a steep technological and learning curve. I suspect this is going to be a difficult process to master, but I’m impressed with the quick response and effort.

You’ll be getting Zoom invites from me next week. So, I’ve struggled with finding a good mass/video communication platform, and I’ve experimented with a few services.

If it’s good enough for Jordan Furlong, then it’s good enough for me.

Well, with all the great press I’m seeing about Zoom, I signed up and did my first test run this morning, with my 8 year old in the next room. It went fairly flawlessly and was very user-friendly.

341: Nashville lawyers go to US Supreme Court, while Memphis lawyers settle the most talked about Tennessee lawsuit

From the Supreme Court to Nashville... I’m on a plane from Washington, DC, with about 7 Nashville lawyers riding with me, after yesterday’s United States Supreme Court oral arguments that featured Nashville bankruptcy lawyers on both sides.

Here’s how SCOTUS Blog framed the issue: whether a bankruptcy court’s denial of a creditor’s motion seeking relief from the automatic stay is a “final” order that is immediately appealable.

This was a pretty obscure procedural issue, and I pity those poor student groups who sat through the animated back-and-forth about what a “proceeding” is in Bankruptcy Court.

It was a great day for the Nashville bankruptcy bar, and the lawyers on both sides really shined. It was also my first trip to the Big Courthouse, and I’m planning a longer post about the experience for early next week.

Save Bluff City Law! I was forwarded the attached e-mail petition, created by a Memphis lawyer, trying to rally support for NBC’s legal drama Bluff City Law.

I’m impressed by the grass-roots activism from the Memphis bar, and I have to admit, the show makes the practice of law in Memphis look very exciting and scenic. I’m signing the petition.

Bluff City Law, Indeed. Talking about national attention focused on the Memphis bar, it looks like there’s a potential resolution in the James Wiseman v. NCAA and the University of Memphis lawsuit filed in Shelby County Chancery Court.

Here’s my blog post about it from the weekend.

The Daily Memphian interviewed me for their story, What comes next in James Wiseman’s eligibility saga?, about the various legal issues and strategies presented (which, I’ve been told, ESPN’s Jay Bilas quoted in an on air interview!)

No deed goes unpunished, and this involved me diving deep into federal court jurisdictional issues, whether a “nominal defendant” destroys complete diversity, and looking up the exact nuances of Injunctive relief procedure.

Trust me, this was the first time this 26 year old reporter ever cited Wright on Federal Procedure.

Regardless, I love the Daily Memphian, and it got me this close to appearing on the Geoff Calkins radio show as a legal expert. I was scheduled to appear on Monday, but a producer bumped my appearance.

It was with great shame that I notified my Memphis friends and family that I was bumped to make room for listener call-ins.

Speaking of great shame… I was alerted that the following blurb and text auto-posted over the weekend. To be clear, the words below this blurb are a quote from the advice column, not how I feel (at least not all the time).

The opening line? “I’m a litigation attorney and am absolutely miserable.”

341: In 2019, you don’t want to be called any of these: Developer; Bachelor Bro; Lawyer; Podcaster.

“How ‘Developer’ Became Such a Dirty Word.” That’s the title of this New York Times article, talking about the  impact of opportunistic development throughout the boroughs (spoiler alert: it’s not good).

The developers are coming. They’ve got the politicians in their pockets and the gaudy architectural plans in their hands. They will gorge on the entire city. And they won’t stop until peak profit has been wrung from every patch of land.

This is a problem everywhere, and, here in Middle Tennessee, we have front row seats.

In fact, as Nashvillians prepare to head to the polls next month, it’s interesting that the recurring (and most damaging) insult hurled by Mayor David Briley at challenger John Cooper is that Cooper is a  “millionaire developer.Continue reading “341: In 2019, you don’t want to be called any of these: Developer; Bachelor Bro; Lawyer; Podcaster.”

341: Lawyers Doing Good Matters

My law firm recently met with a public relations group, who gave us the pitch on all the things they could do for us, including beefing up our presence on LinkedIn, posting special interest stories on our corporate Facebook page, and more Twitter updates.

After this week of front page stories and national press, I’m not sure we need too much help. Here’s a look at the stories we’ve been involved in this week…

Continue reading “341: Lawyers Doing Good Matters”