Much to my former law partners and book-keepers’ chagrin, I often apply courtesy discounts to my clients’ legal invoices.
It’s counter-productive to my business model. But, as a kid raised by a mom who worked at the local Piggly Wiggly and a dad who worked on an assembly line, sometimes I look at a bill, am reminded of how expensive lawyers are, and apply a small discount.
Don’t get me wrong: All my billable entries are wonderful and worth every penny. In fact, I tend to win many of my cases, including an award of attorney fees, and, when I do, I sometimes wonder whether the defendant have to pay the full amount (and not the discounted amount)?
A recent Tennessee Court of Appeals says that a court can only award what the prevailing party actually pays (or is obligated to pay). It’s at St. Paul Cmty. Ltd. P’ship v. St. Paul Cmty. Church, No. M202101548COAR3CV, 2023 WL 1860692(Tenn. Ct. App. Feb. 9, 2023).
In the case, the trial court originally awarded the Church $343,535.07 in attorney fees and expenses, which were computed at the rate of $295.00 per hour. In later proceedings (after an earlier remand), the Church attorneys asked for $515,655 in attorney fees, which appeared to retroactively calculate all entries at $450 per hour.
Why? The attorney and client had a unique “side” agreement to the engagement letter, that, even though the hourly rate was $295, if they won, the attorney would ask the Court to reimburse the fees “at a higher rate than the $295/hour I’m billing the church.” There was no agreement that the Church would ever actually have to pay that higher rate.
In light of the Tennessee’s application of the “American Rule” on attorney fees, the Court of Appeals focused on the text of the underlying agreement, which required the reimbursement of attorneys fees “incurred” by the Church. “Incur,” the Court noted, means “to become liable for” or “to be legally obligated to pay.”
Here, the lawyer’s engagement letter clearly said that the Church would never be expected to actually pay that higher rate. The trial court, then, was correct in awarding the attorney fees at the $295 rate, “which were charged and paid at the $295 rate pursuant to the written engagement letter” and denying any requests that the higher rate. Id. *6.
It’s an interesting opinion, with some fairly unique facts that would never come up in most cases.
But, in the context of long-standing litigation, a few $300 or $500 “courtesy discounts” here and there over the course of a case could add up to a few thousand (or more) dollars. After a long fought legal battle, it’d be natural to have your billing software show your cumulative legal fees for your Affidavit (which would naturally output only logged time entries and not paid bills) and forget to give your adversary the benefit of those discounts.
Under this new opinion, you may be legally obliged to. So, maybe my book-keeper is right.
All the good Nashville lawyers I know are so busy right now. This is a good problem to have, but, nevertheless, it is a problem. There’s simply too much demand right now.
I overheard one local lawyer telling a story about a frantic call he received from a client, who was freaking out because they hadn’t filed an Answer to a lawsuit, and it had been more than 30 days after service.
“Have they filed a Motion for Default yet? If not, then it’s not late.”
I’m sure the lawyer was more tactful in the actual conversation, but the reasoning has some basis in local custom. Often, in Davidson County courts, if a defendant files an Answer before the hearing on a Motion for Default Judgment and pleads a tenable defense, a court will not grant a judgment under Tenn. R. Civ. P. 55, under the theory that the justice system prefers that “matters be decided on the merits” not a technicality. (See, generally, Discover Bank v. Morgan, 363 S.W.3d 479, 491 (Tenn. 2012)).
A recent opinion from the Tennessee Court of Appeals shows that there are risks in waiting to file an Answer.
That case is Conserv Equip. Leasing, LLC v. Schubert Enterprises, LLC, No. E2022-00535-COA-R3-CV, 2023 WL 1489768 (Tenn. Ct. App. Feb. 3, 2023). There, the creditor filed a motion for default, and, a few days later, received a phone call from an attorney who “expected to be retained” by the defendants and asked for a 3 week continuance on the motion hearing. After the hearing was so continued, that defense attorney “fax-filed” an Answer at 3:59pm on the Friday before the Monday morning default hearing, with an original copy filed with the Clerk about 33 minutes before the hearing.
Defendant appeared at the hearing, objecting to the relief and presumably with filed Answer in hand, but the default judgment was nevertheless granted. At the trial court level, Defendants later tried to set aside the ruling on excusable neglect grounds and Tenn. R. C. P. 60.02.
The Court of Appeals noted that “[a]lthough courts construe Rule 60.02 ‘with liberality to afford relief from a default judgment,’ the movant bears the burden of showing ‘why the movant was justified in failing to avoid the … neglect’.” Id. at *2. The Court wrote that “[i]f the court finds that the defaulting party has acted willfully, the judgment cannot be set aside on ‘excusable neglect’ grounds…” and “[m]aking ‘deliberate choices’ amounts to willful conduct. Id.
In the end, the issue was remanded back to the trial court, whose order denying the Rule 60 motion failed to include findings of act and conclusions of law (per Tenn. R. Civ. P. 52.01). In short, the trial court didn’t provide any explanation for its ruling.
To be clear, though, the Court of Appeals didn’t say the trial court was wrong; instead, it sent it back down for the trial court to provide more explanation for its refusal to set aside the judgment. The most likely outcome, of course, is that the plaintiff will prepare a properly supported proposed order, the judge will sign it, and, then, that order will be appealed.
It’ll be an interesting case to watch, but, procedurally, it’s also a reminder: Don’t delay when dealing with court deadlines.
No matter what the actual ailment is. Food poisoning. Anxiety. Indigestion. Insomnia.
When you wake up at 2am, with a racing heart, and a feeling that something isn’t quite right, and get asked “Do you think you might be having a heart attack?”
Well, in that moment, you think one thing. That you might be having a heart attack.
I know this from my own experience, just last month. It was the very early Tuesday morning evening of a very busy week: I had a trial scheduled to start 32 hours later in Memphis and, at the end of the week, a bankruptcy conference in California.
And, in that moment, at 2am, yes, it felt like I was having a heart attack.
I promised a follow-up to my “Best of List,” but, since complaining is more fun, I am writing about some things I disliked in 2022.
The courts system’s quick return to pre-COVID practices. You remember my rant when I caught COVID on a 5 hour docket in July. I think courts were too quick to abandon the pandemic innovations and return “to the way law was practiced when people rode horses to court.” Sure, a court might let you call-in for a hearing, but there is always a risk the technology won’t be up to speed, the judge won’t realize you’re on the line, or she won’t be able to hear you on the invariably staticky line. Having seen the trouble other lawyers had with call-in appearances, I decided to never risk my client’s case on a remote appearance. When in doubt and given the option, lawyers will generally appear in person. How about–for some hearings–there’s a process that allows for no other option other than to call-in?
There’s no state-wide, uniform e-filing system. My law practice has a fairly small foot-print. (My marketing materials call it a “curated practice.”) In the 3-4 counties where I do most of my work, I have separate log-ins for the different courts in each of those counties. Each e-filing system has its own set of rules, exclusions, and peculiarities. E-filing is awesome, so I’ll take a bad system over no system. But, having said that, why can’t the State of Tennessee establish a uniform system?
Our Tennessee foreclosure system is entirely based on physical newspapers. Until recently, I had a newspaper subscription, even though: (a) for the past 20 years, I’ve gotten 99% of my news online; (b) my local newspaper had shrunk to about 10 pages (total); and (c) my newspaper carrier generally delivered my morning paper either 8 hours late, the next day, or not at all. Physical newspapers are possibly the worst way to convey information in our modern age, but, nevertheless, Tennessee’s entire foreclosure and UCC sale system is tied directly to published notices in physical copies of newspapers. All over the country, newspapers are going to an online-only model (followed, most likely, by going out of business). But our foreclosure laws haven’t been updated. We’re headed for trouble unless we change these laws.
There’s no penalty for bogus lien filings in Tennessee. Sure, there’s the toothless “exaggeration of lien” statute (Tenn. Code Ann. § 66-11-139) or the confusing “slander of title” cause of action, but, by and large, if somebody records a piece of paper with “Notice of Lien” written somewhere on it (and includes the owner name and property address), they’ve got a totally un-lawful, but also practically-effective, lien. A few years ago, the Tennessee Legislature passed Tenn. Code Ann. § 66-21-108, which gave property owners a nuclear bomb to deal with invalid lien claims, but it was repealed within a year. As it stands now, there’s no useful remedy, other than to pay the invalid lien or to cancel your transaction.
Big Mortgage Lenders refuse to provide payoffs on their debts with impunity. One of the weirdest sub-plots throughout my 2022 was how near-impossible it was to get a payoff from mortgage lenders. In December, I had to sue a mortgage lender to get a payoff (and to stop an immediately pending foreclosure sale). It might have been the dumbest lawsuit I’ve ever filed (dumb as in the other side was dumb to make me go to the trouble): Within 24 hours of my getting a foreclosure injunction, the lender provided the payoff and, within a few hours of that, it was paid off in full. A win, except it cost more than $5,000 in unrecouped legal fees to address an unnecessary situation. There needs to be a law that imposes penalties, including attorney fees, in these situations.
I spent the entire year in a sales funnel. In 2022, after a full year as a small business owner, I took some time to evaluate my existing legal technology and services and what needed to be upgraded. On legal tech websites, I’d enter my email in order to download some awesome “Free Guide To _____” that promised a magical solution or explanation for some common problem or process. Having downloaded a number of those (none of which solved any problem), my phone rang all year long, over and over, with sales calls. It’s not “free,” if I end up in a Sales Funnel. My advice to service providers: How about sharing your expertise, impressing me with your vast knowledge, and leaving me alone, confident that I’ll return to you for my buying needs?
Phone calls from Tom James Company custom clothiers were the worst. If I ever find out who sold my name and phone number to Tom James Company, I will immediately sever ties with that organization (I suspect one of the bar associations did it). Tom James representatives were relentless in 2022. They called me so many times that I remembered the caller’s name (from the prior week’s call), could recite their opening line back to them, and remind them that I was the person who wasn’t interested because I buy all my suits from South Korea, just like BTS (not true, but why not go big, right?). After maybe 25 calls in 2022, I reached out to Tom James corporate, and asked if I could pay them something to be added to a no-call list.
Dealing with global, multi-state law firms. All of Nashville’s medium to big law firms are slowly selling out to mega-law firms. For the most part, I still deal with local folks on my litigation matters, but, on matters where a Tennessee law license may not be required, I have to deal with out-of-towners, and it’s rarely a pleasant, easy relationship. It’s a trend I’m dreading, as these firms bring their billable rates, minimum hourly requirements, other customs into the work they do in the local market. In short, their weirdness makes my job harder.
I miss old twitter. Many years ago, while waiting at a docket call in Montgomery County, I tweeted that I forgot to bring a pen for court. Within a minute, a local lawyer who follows me on twitter introduced himself and handed me a pen. Over the past decade plus of very-regular twitter use, I have found a vibrant and diverse lawyer community who post updates, victories, and advice. It’s awesome. Over the last few months, it’s gotten less active. If twitter as we once knew it goes away, we will have truly lost something.
The Lawyer-Industrial-Complex has gotten out of hand. Have you tried to hire a lawyer lately? If so, you were probably shocked by their hourly rates. The Clio 2022 Legal Trend Report (warning, you have to enter your email to access it) says that, in fact, lawyer rates are too low and haven’t risen with the general rate of inflation. I don’t know about that, but, holy smokes, lawyers and all the law adjacent services are so expensive right now. I’m using a Westlaw Rules of Civil Procedure book from 2020 because a new set (that will be obsolete in a month) is nearly $1,000. Some lawyers say that this isn’t a problem (more money in my own pocket, right?), but, frankly, it’s a trend that I don’t like. Prices are going up, but the quality of service is staying the same.
Having said that, where are all the good, reasonably priced Nashville lawyers? As noted above, I keep a small footprint for my law practice, and I refer out about 2/3 of the “new client” calls I get. My biggest problem with referrals has been “To whom”? I only refer cases to lawyers who will make me look good and will do an awesome job. Everybody on my existing list is swamped right now. What Nashville lawyer does good, competent, cost-efficient work? And, also, is looking for more work? I can’t find him or her. But I’m looking.
Everybody’s doing “end of the year” lists, so this is my list of law-related things that I’ve enjoyed in 2022, in no particular order:
Best Show About Lawyers?Extraordinary Attorney Woo: This South Korean legal dramedy follows Woo Young-woo, a new law school grad starting her career at a white shoe law firm. It debuted in summer 2022 to record-breaking ratings, and is currently streaming on Netflix.
The show offers commentary on the legal profession through a novel lens: Attorney Woo has autism spectrum disorder, so many of the profession’s customs and courtesies are lost on her. Through her unique perspective, the show thoughtfully examines universal issues facing lawyers everywhere, like burnout, imposter syndrome, and nuanced ethical issues (i.e. should an attorney care if their clients are corporate “bad actors”).
Maybe it’s the South Korean cultural influence, but the show presents a thoughtful and refreshing alternative to the typical blinged-out, L.A. Law-style lawyer portrayal. Added bonus? After watching the show, my kids think lawyers are really cool…
Best Lawyer Jokes on the Internet?Alex Su. Lawyer jokes are pretty bad, mainly because they play on misconceptions and miss their mark. Alex Su, a reformed corporate lawyer turned legal tech sales guru, knows exactly where to aim his mockery.
He may be the funniest lawyer on the internet, but, whatever you doand no matter how brilliant and hilarious you think one of his clips is, never try to explain your favorite videos to a non-lawyer. They will not laugh. Alex has invented the niche category of “lawyer-jokes-for-lawyers-by-lawyers.”
Best third-party service that has made my job easier?Proof Technology, Inc. The most frustrating part of a new lawsuit is often service of process. Especially when you’re dealing with an out-of-state defendant, and you have to hire an out-of-state process server and have no idea who to hire. In my experience, whoever you hire will not care about speed, customer-service, or communication with a “one-off” customer. Unfortunately, your own client will care desperately about all of that.
That’s where Proof comes in. Proof is a nationwide service of process company, who–after you upload your legal documents to their site–does all the work to hire, monitor, and make sure you get your documents served, using their network of servers. Due to their nationwide network, you get the benefit of their buying power.
In the past, I’ve just used a random google search and hoped for the best, but generally expected (and gotten) the worst. Since I’ve started using Proof, I’ve been shocked at how easy this process is. I can’t recommend them enough.
Best One-Stop-Shop for a lawyer logo, website, and everything else? Huckleberry Branding. I left my big law firm 2.5 years ago, and, since then, I’ve had three websites and three logos (well, the “third” incarnation is going to be unveiled in a few weeks). Of course, there’s an entirely different post about that, but I want to talk about Huckleberry for a moment. They are genius branders, artists, and designers, and they really learn your story and incorporate your vision into building a unique and representative brand concept.
Is it time to upgrade from a bunch of people’s last names yet?
If so and/or if one your New Years resolutions to update your brand, call Mariko.
Other best items? I’ll probably supplement this list a few more times over the next few days, so stay tuned. It’s sort of hard to remember an entire year all at once. Tune in for Part 2 later.
The Tennessee Rules of Civil Procedure are being updated to reflect how lawyers use e-mail in the year 2022 (well, really, how lawyers have been using email for the past 20 or so years).
Lawyers email each other all day long. Constantly. It’s awful.
Law TikTok Superstar, Alex Su, showing us how lawyers email. He is, truly, a national treasure.
But, when it comes to sending opposing counsel a copy of a court filing, lawyers generally mail it.
This is largely due to custom (i.e. “the way it’s always been done”), but also due to the current version of Tenn. R. Civ. P. 5.02, which–even though it does allow for e-mail service–does not make it easy.
Under the current version, an attorney can serve via email, but only if there’s an attorney on the other side, and the sender must also send by “mail, facsimile, or hand-delivery” a separate notice that: says a document has been emailed; has a conspicuous subject line that a court pleading was e-mailed; includes the case caption; includes the official title of the e-mailed pleading(s); discloses the total number of pages being e-mailed and time of e-mail; contains a full statement of all the sender’s contact information and all email addresses of the recipients; and include a statement for recipients to notify the sender if the email is not received.
Faced with all these extra hoops to jump through, I have generally emailed the other lawyer a copy and, then, instead of doing all that extra stuff, would just print and mail a full duplicate set of the pleadings.
It was a complete waste of time, paper, and postage, but way less hassle.
Yesterday, the Tennessee Supreme Court issued an administrative Order that would modernize Tenn. R. Civ. P. 5.02(2)(a) in two important ways.
First, service by email can be effected on another attorney or “party” (so pro se and unrepresented parties can receive e-mailed pleadings, where they’ve provided an e-mail address). And, second, there is no longer a requirement to mail/fax/hand-deliver the other attorney or party a separate written notice of the email. E-mail service no longer requires the use of the United States Postal Service.
Many lawyers are switching to remote and non-traditional office space set-ups, and, across the board, e-mail is truly the easiest way to send notice of filings. In fact, in the rare instances when I’ve only first-class mailed pleadings, I wonder if the other lawyers are offended that I didn’t also email the pleadings for immediate receipt.
Sure, lawyers tend to hate change, and the amendments allow the “old guard” will continue to mail printed copies of documents, just like we’ve done for 100 or so years.
You can’t change old habits, I guess, but I’m glad to see these changes. They are an acknowledgement of how law is practiced in the modern world.
A legal conference where, at the end, you were sad that it didn’t last longer. Have you ever heard that?
You’ve probably never been to ClioCon then.
The simplicity of that arrow is misleading. This event was at Opryland Hotel. Everybody was lost, all the time.
Clio is a cloud-based legal practice management platform. With more than a decade of constant feature updates and welcoming third-party app integrations, Clio is designed to be a “one-stop-solution” for running a law firm. Billing. Document management and automation. Intake and client relationship management. Calendaring.
Basically, for everything a lawyer does during the day, Clio’s goal is to make it easier and more efficient. If they don’t offer a solution, let them know, and they’ll create one. One legal tech commentator called their culture “a cult of innovation.”
You probably think this is a paid post. (I mean, who shows this sort of rabid exuberance for legal practice management solutions?)
There are lots of law practice management tools out there, but none have the branding or message that these guys do (or care to have it). Clio casts itself and its users as rebels and disruptors. Clio knows its core audience, and ClioCon is a concert where they play the hits.
I’m telling you, Clio is a vibe.
In his closing address, Clio CEO Jack Newton said attendees were part of a “tribe.” “We are part of a big community here with a common goal of transforming the legal experience for all,” he said.
Legal tech writer Bob Ambrogi wrote this about the 2022 event: “It is no exaggeration to say that this is a conference in which it feels as if every single person is there because they are deeply committed to improving the practice of law and the delivery of legal services through the better use of technology and the innovation of their practices.”
Clio and their some 200 employees were there, at every turn, offering impromptu training sessions, directions (ugh, Opryland Hotel), and friendly smiles.
It was like hanging out with 200 people who really wanted you to be better at your law job, but also were your new best friends, and, occasionally, a life coach.
Part instructional, part sales-pitch, part motivational/self-help pep talk, it was hard not to leave ClioCon fired up about being a better lawyer.
(I actually signed up with FOUR new technology service vendors after leaving.)
The theme this year was, essentially, the world political and economic landscape is a mess, only getting worse, and we (and our clients) are in for some tough times in 2023. What can we, as lawyers, do to prepare and to provide better service to our clients?
It’s different than a typical legal conference because of the diversity of attendees. People come from all over. Most are lawyers, but some are administrative staff and other legal professionals. Many attendees are neither, but work on innovations in legal technology and processes.
Nevertheless, across the board, the common theme was that we (the Clio staff, the attendees, all of us in the room) are collectively collaborating on something different, rebellious, innovative…and all with the goal to provide awesome service to clients.
Every conversation I had–walking all over that awful hotel; waiting for sessions to start; meals–the topic was “how does your firm [insert some technical/practical law practice task].” “What works/What doesn’t.” People were there for one reason: To be better lawyers.
Who can’t help but get fired up about that?
I’ve attended 3 ClioCons now (the first two were remote, due to the pandemic).
My first year, it felt like we all were in on a big secret. In the early COVID world, it felt scandalous to openly talk about things like virtual law firms, document and client communication automation, and fully cloud-based systems. This was a crowd that held zero regard for “The Way Things Have Always Been Done.”
It felt awesome and liberating to not have a Managing Partner hiding around the corner, waiting to tell you that “we’ll form a committee to consider your idea and tell you ‘No’ in 6 months.”
In the past few years, the rest of the industry has come a long way, but they’re still far behind the types of things that are being discussed as a matter-of-fact at ClioCon.
What I’m saying is this: Find your tribe. If you care about things like disrupting the status quo in the legal industry and ways to be a better (and happier) lawyer, come to 2023 ClioCon in Nashville (yes, again) on October 9-10.
You can register here. I’ve already signed up for it.
My only compliant: No karaoke. Clio, if you’re reading this, call me. I can fix this.
Neither Dell, Microsoft Support, or frantic prayers could save the day. My working laptop was somehow connected to an expired domain (my expired firm), and it was locked shut. (“A very expensive door-stop,” the nice lady at Dell Support in Texas unambiguously explained.)
After spending 5-6 desperate hours on the phone on a gorgeous early-fall day, I had cobbled together the diagnosis: This is exactly what the system is supposed to do in a situation like this; and The remedy was to wipe the computer and start fresh.
This was bad news.
If you’ve ever sat next to me at an event or at a cocktail hour, you know I like to talk in colloquialisms. For me, it’s a way to survive small talk, but also a way to be authentic and also contextually appropriate (i.e. to make a joke).
Maybe the best response from me would be a simple “I’m fine, how are you?” But, sometimes, why not be honest and funny (especially if you are one of the rare Nashville attorneys who has won a city-wide award for their sense of humor)?
If done well, the response is short, funny, but also brutally (and subtly) honest.
While doing the rounds on the 2021 lawyer holiday party circuit, lots of people asked if I liked my small law practice. My response was generally the same: “It’s the best job on earth, and it’s also the worst job on earth. But never in the middle. Sometimes, I miss the middle.”
It was quick, easy, and honest. For more than a decade, at somebody else’s firm, I spent a lot of years in the middle. I billed my hours and won my cases, but I didn’t have any say in the big (or the day-to-day) firm issues. It was frustrating and unfulfilling, but also comfortable and familiar and easy.
Plus, on any day when my computer didn’t work, I had somebody to call who spent their Sunday figuring it out.
In fact, that’s something I told the Tennessee Bar Association’s Sidebar Podcast last year: “My job used to be to show up, do awesome legal work, and write down my time. Now, my job is to do all that, and also take out the garbage.”
Back to the laptop. In the end, let’s be clear: It all got sorted out.
My legal tech “committee of one” had made the right choices about Clio (a cloud based practice management system), NetDocuments (cloud based documents), and a redundant Microsoft OneDrive backup. Plus, I have a backup computer (“Dynamite”) that is fully functional and has been promoted to first chair.
Other than the hassle, wasted time, and the year of my life that the stress cost me, all ended fine.
Last year, after using my “best job, worst job” line at a holiday party, I got a text the next day, from a managing partner at a local Big Law Firm who I had talked to. Maybe I wanted to interview with them and cut out all the hassle of running my own thing, he asked.
All he had heard was the “worst” part, I guess. It was awkward and awful responding (and I made sure to avoid him at the next holiday party), but I had to be honest: “Hey, thanks and I may take you up on that someday, but I’ve had a long stretch where it’s been the ‘best job’ and I’m going to ride this for a while.”
There’s not really a point here, other than to say that you should be sure to back up your documents in multiple places. And, also, that life is too short to live in the middle. And, finally, not to be too braggy, but small law firm life really is the best.
After voting in Tennessee and Davidson County’s primary elections this morning, I’m feeling a bit political, so I’ll share my endorsement for the Tennessee Supreme Court’s interviews for Attorney General of the State of Tennessee, scheduled for August 8 and 9.
I had never met Bill Young, not until a September 2016 Chancery Court court docket, which–coincidentally–was his first ever court docket as a judge. And my case was the first case heard that day.
I can’t remember the exact issue, but I remember that, pretty quickly, I won the hearing. He ruled in my favor and asked me to prepare the Order. All good, right?
I have a thing I do when I win in Court. I leave the courtroom as soon as possible. Nothing good comes from lingering in court after you win. I don’t need judges reconsidering, or listening to more argument, or some surprise development.
I win. I thank the judge. Then I leave court.
But, that day, as I was leaving–in fact, I can still picture my hand on the big swinging door in Part II of Chancery Court–the Big Firm Lawyer who I beat was still arguing his case. And, worse, this new judge was listening.
So, I went back to counsel’s table, and I defended the logic of the original decision, and, ultimately, I won that hearing (and then left as soon as possible).
But, I also remember thinking “I’m not so sure about this new judge.“
As a litigator, my entire job depends on the quality of the judges I appear in front of. With any judge, I watch closely and form opinions about how they handle matters in front of them. Are they prepared? Are they respectful? Are they decisive? Are they smart? And, to a larger degree than is fair, did they agree with me? All very relevant factors to my job and my clients.
Because we had such little Chancery Court judicial turnover in Davidson County, I watched Chancellor Young very closely over those first months.
I’ll cut to the chase. Despite that early skepticism, I really, really enjoyed practicing in front of him during his time on the bench. I came to realize that his demeanor that first day wasn’t indecisiveness; it was a sincere desire to get it right and to make sure that both sides were fully heard.
In fact, the highest compliment I can give any judge is that I respect and trust them, no matter how they rule in my cases. That’s what I have said for years about Chancellors McCoy and Lyle–I don’t always win in front of them, but I trust them. It’s a compliment that I give begrudgingly, after they have earned it after doing good work as a judge.
I quickly felt that way about Bill Young. In fact, my two most vivid memories from court appearances in 2017 were two losses–both in front of Chancellor Young. And I respected both opinions. (As a disclaimer, however, I could argue both cases sitting here today and still feel like I had the better argument on both.)
What’s my point? Politics in this country are more divisive than they’ve been at any point in my lifetime. This divisiveness–bordering on spitefulness–has seeped into Tennessee politics. And I hate that.
Through its work and policy decisions, the Tennessee Attorney General plays a big role in many of those political decisions. When I look at the list of candidates, I see a number of “political” candidates, a few with extreme ideological backgrounds.
I don’t want them to be the next Attorney General. Our State deserves somebody who is cautious, deliberate, smart, and understands the value in making everybody in the state feel heard.
It’s an important decision that will impact the lives of Tennesseans for years to come. You can learn more about the applicants here, and all interviews are open to the public and will be livestreamed to the TNCourts YouTube page.
Everything that I have seen from Bill Young makes me think he’d do a great job as Attorney General for all of the people of the State of Tennessee.
After 2.5 years of not catching COVID, I began to think I was special. That, maybe, I had a rare, super-human immunity. That, at some point, future scientists would ask to study my blood to cure unknown diseases.
But, last Sunday, I woke up feeling terrible. My Sunday morning COVID test was negative, so I assumed I’d caught a summer cold.
After 2.5 years of wearing masks, avoiding crowds, and, generally, being really safe, I had hardly gotten sick and, maybe, this is what a cold feels like.
Reality hit two days later, when–still sick–I took another COVID test. And then another. I was 2 for 2 positive.
And I knew that I caught COVID in court.
My last big, pre-COVID night out on the town was a Friday night, February 28, 2020, the week before COVID hit. We went to Cross-Eyed Critters, the best karaoke spot in Nashville. It was the unofficial after-party for our kids’ Parent-Teacher fundraiser, and it was a night for the ages. In retrospect, it was also a post-COVID nightmare, with close talking, jam-packed seating, and no ventilation.
It was also the last time we’ve been in that type of crowd in the past 2.5 years. Early COVID was no joke, and we took it seriously. No more football games, concerts, restaurants, or crowded karaoke for us.
If we didn’t have to leave our house, we didn’t. And, to this day, we still don’t.
The biggest COVID risk for our family has always been me. I’m a lawyer (as you know), and my schedule isn’t always up to me. Part of a lawyer’s job is doing whatever is needed to represent their client, and I take that responsibility very seriously.
Early on, when courts were shut down and virtual, I was fine. In fact, I posted on here all the time about how my job got easier. Lawyers weren’t setting unnecessary matters for hearing, and courts were incorporating new technologies like Zoom trials(!) and e-filing systems to reduce in-person work.
But, despite all the law articles about the Future of the Law, by July 2021, the future was trending back to “the way things have always been done.”
As Nashville lawyer Daniel Horwitz tweeted, “If you thought that we were at risk of staying in a quasi-21st century state of affairs—rather than instantly reverting back to the way law was practiced when people rode horses to court—I assure you, yours fears were never founded.”
And that’s, pretty much, where we find ourselves in July 2022.
It’s a shame, really, because so much of the technology, innovation, and streamlining that we did in response to COVID shouldn’t have been a stop-gap, it should have been permanent.
Those measures didn’t “work” simply because we all weren’t coming down with COVID; they worked because they they were keeping lawyers safe and, also, made the system faster, more efficient, and less expensive.
In a system based entirely on precedent, this wasn’t a surprise; I saw this all happening in November 2020: “8 months in, I haven’t yet seen the more comprehensive changes to court dockets and settings that I had expected. Instead, it’s been a little bit here, gauge the reaction, and then a little bit less in response. In the end, the court system seems to be only making minor tweaks to the ‘usual way of doing things,’ rather than embracing innovative models that could result in future improvements.”
Back then, it felt like we were missing a chance to really make things better. In retrospect, we absolutely did.
Going to court in modern downtown Nashville is a huge pain in the neck. Aside from the unbearable traffic, pedestrian congestion, beer trucks, and construction blockages, you also have to deal with expensive parking, onerous security, and, this time of year, southern heat.
Some matters and arguments may justify in-person hearings. “Bet the company” arguments? Custody battles? Life and liberty at stake? Sure.
The day I caught COVID, I was in court on a heavy docket, opposing a pro se hand-written nonsense Motion (seriously, a piece of paper with a frowny-face would have had more factual or legal basis than what I was dealing with). It was one of the busiest days in Davidson County that I’d seen in years, as I tweeted an hour into my wait:
An hour later, I was still waiting:
My pro se defendant never even showed up, so I ended up winning, but I also sat in a busy courtroom from 8:30 to about noon, just watching other cases (big and small) get argued and responding to emails.
I’m not mad at the Judge on my matter (who is awesome); in fact, when my case was called, he apologized and I assured him that “somebody is last on every docket.” It’s part of being a litigator, right? (Plus, I get to bill for all that.)
But, on a broader level, what’s keeping the court system from putting policies in place that separate cases on a mega-docket into “Will take 30 minutes” and “Will take 5 minutes” stacks and, then, “No hearing needed” or “Phone hearing” stacks?
The Judges can’t enjoy this present system, where 20-30 matters of varying complexity are randomly jumbled together on a Friday morning and the Judges are forced to play whack-a-mole, mixed with lightning-round legal analysis.
If this system is just out of habit and custom, let’s fix that right now. Even without a global pandemic, this can’t be the best way to handle cases.
In my personal life, I’ve valued health and safety over really fun things, like Grizzlies playoff games, exotic trips, and karaoke. But, in my professional life, it’s frustrating to take on so much risk, when it’s both unnecessary and unjustified.
Two years in, we have all this experience and technology, but, nevertheless, we are handling hearing dockets than the same way we did it 100 years ago.
My sharing this experience isn’t meant to complain or scold anybody, but to talk openly about my experience. I know so many lawyers and court staff who have caught COVID in court, but we don’t talk about it, because…it’s embarrassing or we don’t talk about being sick? I don’t know. But, if not talking about it means that we don’t realize it’s a problem, then I hope my story starts that conversation.
In the end, my COVID has passed pretty easily, but I also worry about the people who I came into contact with on Sunday and Monday, before I realized what I had.
What’s worse is, as I type this on Friday morning, my 9 year old daughter woke up with a fever. All because I sat in court last week for 3 plus hours on something that should have taken 3 minutes.
The biggest COVID risk for our family has always been me.
People are getting sick, and we have the ability to reduce the risk. Why aren’t we? What I can do to help?
Creditors Rights 101 