The James Wiseman saga mixes my two favorite things: Memphis basketball and Chancery Court procedure

The James Wiseman news ruined my Friday evening. It doesn’t get more ominous than this:

First, I’m a Memphis fan. This includes the University of Memphis, the basketball team, the football team, the people of Memphis, and the city itself.

(Side Note: As a Memphian For Life, how awesome was it to see my Memphis people representing on twitter last night? Don’t mess with Memphis.)

Second, I’m a commercial litigator, and, here I was, thinking through issues of complex legal procedure, exactly 45 minutes before I was planning to watch James Wiseman play basketball.

But, then, some exciting news:

So, the Shelby County Chancery Court granted a Verified Complaint filed by James Wiseman, represented by Lesline Ballin, that requested a Temporary Restraining Order.

Story over, right? Not at all.

Legal analysis to follow:

Tennessee Rule of Civil Procedure 65 controls here. Tennessee Rule of Civil Procedure 65.03 provides, in part, that a court “may issue a temporary restraining order without written or oral notice to the adverse party or its attorney” when “an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party can be heard in opposition [.]”

Here, this TRO was entered without notice to the NCAA. The NCAA didn’t have an opportunity to respond with factual or legal analysis…or even a one page “We Object!” filing.

The Shelby County Chancery Court simply reviewed the filed pleadings to make sure that the Verified Complaint, if assumed to be true, connected all the dots to satisfy the elements for getting a TRO issued. In a way, it’s just a matter of being good at paperwork at this stage.

And it helps if you probably have the Judge’s cell phone number.

Don’t get me wrong; it’s still savvy lawyering. Courts refer to any relief under Rule 65 as “extraordinary relief.” It’s a big deal, and a strong move by Memphis and Ballin.

But there is a long road ahead, with the first test coming up soon.

TROs only last 15 days. Under Rule 65.03(3), TROs have a limited life; they only last 15 days, unless they are extended by the Court. That’s the reason for the low proof threshold; TROs are designed to be temporary remedies.

The real fight will be over the Temporary Injunction. Under Rule 65.04, the court will replace the TRO with a Temporary Injunction, which is designed to provide longer injunctive relief to the plaintiff while the litigation proceeds.

Under Rule 65.04, a “temporary injunction may be granted during the pendency of an action if it is clearly shown by verified complaint, affidavit or other evidence that the movant’s rights are being or will be violated by an adverse party and the movant will suffer immediate and irreparable injury, loss or damage pending a final judgment in the action, or that the acts or omissions of the adverse party will tend to render such final judgment ineffectual. “

In deciding whether to grant the temporary injunction, the court will apply a “four-factor test: (1) the threat of irreparable harm to plaintiff if the injunction is not granted; (2) the balance between this harm and the injury that granting the injunction would inflict on the defendant; (3) the probability that plaintiff will succeed on the merits; and (4) the public interest.”

Here, James Wiseman’s case will rise and fall on item # 3, and the NCAA will want a mini-trial on the violation. Wiseman should have a fairly good argument on items 1 and 2, since he’ll lose valuable chunks of his college career if he has to sit out.

If I had to bet, I’d think a judge would let him play, while the matter is being litigated.

But, what Court will decide? There’s no way this matter stays in Shelby County Chancery Court.

Despite what Bluff City Law says (i.e. where every case they handle is in the Shelby County Courthouse), this case will be removed to federal court.

Pursuant to 28 U.S.C. § 1441, a case “may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” Here, the District Court for the Western District Courts of Tennessee will likely get this case, unless the NCAA both removes the matter to district court and then asks for a change of venue (to a different district court in the US) at the same time.

Given the time challenges here, I’d bet the matter would stay in Memphis’ district courts.

There are a number of reasons a defendant would remove this. For one, a state court judge is popularly elected, and, while judges are generally not biased, an elected judge would face great public pressure from a rabid fan base. District Court judges are lifetime appointees by the President, and they are perceived to be free from bias.

October is Pro Bono Month in Tennessee, and what have you done?

October is Pro Bono Month in Tennessee. The Tennessee Bar Association’s Celebrate Pro Bono Month 2019 page has a list of opportunities to choose from.

It is not difficult. A lot of lawyers never provide pro bono services.

Frequently, they’ll say “I practice in [insert corporate/high end practice area], and there’s nothing I can do to help [them].”

If you really think that, call or e-mail me, and I can help find you an opportunity that will be perfect for you. Two months ago, I got a call from an in-house lawyer at a Fortune 50 company who didn’t know what his legal team could do. Not only did I find them some options to serve, but I volunteered with them. Seriously, call me if you want to volunteer, but don’t know where to start.

The vast majority of matters at walk-in clinics are just common-sense/paperwork based issues. Occasionally, you’ll get some really specific landlord-tenant or divorce question, but there is always someone else at these clinics with that expertise.

If you, commercial real estate attorney, take 15 minutes to help somebody deal with an issue about their neighbor’s barking dog, that frees up 15 minutes of that divorce expert’s time.

In my experience, most people just want somebody to just listen to their legal issues, and give them common sense advice. To be clear, these are all important questions that people have. They’ve taken the time out of their day to drive downtown, so whatever their question is, it’s a big deal to them.

And, sometimes, all it takes is a smart person to talk it through with them and make their life a little easier.

Looking to Help? There are only five days left in October, so, if you haven’t volunteered yet, here are two great last chances:

  • Veterans Project Legal Help Clinic, in downtown/Gulch Nashville, on Wednesday, October 30, 2019, from 11a to 1pm. This clinic is operated by Legal Aid, and it focuses on serving the veteran community. It’s not too busy (i.e. you get about 7 customers over the course of the 2 hours), with generally straight-forward questions.
  • Judge Rachel Bell’s General Sessions Music City Community Court Expungement Clinic, on Saturday, October 26. This is an incredible program that helps people clean up their criminal record, making it easier for them to find jobs. Lawyers generally need to arrive by 9:30 and should expect to stay until around 1pm.

Upcoming Legal Aid Gala. A big fundraiser is scheduled for next Saturday, November 9, 2019, An Evening at the Frist: Celebrating 50 Years of Service. This is going to be a fun night, celebrating the work of Legal Aid.

Here’s where I go a little negative. When it comes to big-law support of Pro Bono initiatives, I’ve got some pretty strong opinions. I will keep the specifics to myself, but you are welcome to ask me at the Legal Aid event.

Warning: You will be a little weirded out at how passionate I feel about the need for lawyers to be doing more, especially in Nashville in 2019.

Listen to the Judges

One of the benefits of practicing law for nearly two decades is that, by this time, I know the judges. I’ve either appeared in front of them dozens of times or, just as likely, I know them personally after spending years dealing with them when they were just regular lawyers.

Now, this isn’t to suggest that, even with 20 years of experience, you don’t have to give the judge respect, just because you’re so familiar with them. It means that you come to realize that judges are people too, and they’re subject to the same frustrations, flaws, and distractions that all lawyers are.

In the past two weeks, I’ve spent time with 3 different judges in social settings, and here’s some wisdom that I’ve picked up.

Stop it with the discovery disputes. They hate them, and two of the judges said “I wanted to tell them to be adults and just figure it out.” That’s easier said than done, especially when it’s the other side who is being the jerk. I guess the take-away is, unless it’s really bad, try really hard to get it resolved and, if you do have to court, make it clear how hard you tried to get it resolved.

Get to the point. Another frustration is that the parties want to push all their facts and legal citations toward the bench, and essentially ask the judge to figure it out. And, yes, that’s the judge’s job. But, if you can make it as clear and easy as possible, you should.

And, a big part of that is presenting clear, straight-forward briefs, without any extraneous legalese.

I really like this article, “How to Write So Judges Will Like You.” “Life on the other side of the gavel is busy, filled with hearings and trials and conferences and five hundred lawyers who all think their motion is an emergency that deserves immediate and undivided attention….get to the point quickly.” 

The next time you’re writing a big brief, before you start, take a moment and read that article. We practice law in a time when heretofors, comes nows, and by and through undersigned counsels just aren’t expected by modern judicial readers. It’s a waste of space and time, when a judge needs you to get to the point, say what’s really going on, and why you’re right.

Stop it with the fidgeting and listen. One judge shared a story about presiding in a small courtroom, about 7 feet away from plaintiff’s counsel before trial. And, as the judge was discussing preliminary pre-trial issues, counsel just couldn’t stop arranging everything. Pens. Post-its. Folders. Files. The judge couldn’t even focus, because it looked like counsel wasn’t listening. And that was irritating.

Now, as all trial lawyers know, that’s a nervous time. You’re rehearsing your opening statement, terrified that you’ve misplaced your exhibits, and worrying about 50 things at once.

That’s a fairly extreme example, but here’s one I see a lot: Lawyers simply can’t stay off their phones, even during their own court proceedings. Sure, sometimes there are emergency e-mails, but, generally, it’s mindless checking of twitter or texts.

I remember, as a young lawyer, some of the older lawyers would set up shop on the back row and open up the newspaper and read it while waiting for their case. Can you imagine that? That’s somebody who isn’t paying any attention–I mean, people used to do that at football games as a show of disrespect to the other team.

Staring at your phone is the modern equivalent. It makes you look unengaged and bored by what’s going on.

So, again, all of this is hearsay, gleaned from conversation here and there. But, keep this in mind the next time you’ve got something coming up in court. These may have been words from your Judge.

341: Bluff City Law, Ep. 3: What’s with all the Ribs?

Last week, I talked about the latest episode of Bluff City Law, the legal drama set in Memphis, my old hometown. I got enough positive feedback to offer my comments about Episode 3, 25 Years to Life. My quick thoughts follow:

They didn’t teach Geography in law school. One of my criticisms last week was that all of the lawyers on the show were Vanderbilt Law graduates. In my experience, this isn’t the case in real life Memphis. I just assumed that it was Hollywood / quasi-Ivy League snobbery, but, after seeing Ep. 3, I wonder if the writers realize that Vanderbilt isn’t actually in Memphis?

In the show, two of the lawyers (who had earlier been established as Vandy grads) represent their former law professor (thus, a Vanderbilt law professor) in an age discrimination case. The episode actually shows them meeting with him, at his Vanderbilt law school office, in Memphis.

As a warning to all you prospective law students who may watch this show and fall in love with Memphis, Vanderbilt is not in Memphis.

Mo much Ribs. Just like episode, lawyers eating ribs at lunch was a plot point this week.

I’ve been a lawyer for 20 years, and I have never seen a lawyer eat a huge plate of ribs for lunch. They are messy–can you imagine all the fingerprint smears you’d get on your pleadings? Plus, it’d be an awful lunch food. You’d want to take a 10 hour nap after that meal.

I have to wonder if the show writers just assume, weirdly, that everybody eats some form of ribs for every meal in Memphis.

Also, pimento cheese and honey? As so many shows set in the South do, Bluff City Law makes reference to all types of southern charm (Jimmy Smits with a southern accent!). But, what makes this show unique is that, in lieu of actual southern traditions, it sometimes just makes them up.

Like when Jimmy Smits and his son were eating “a Memphis tradition” early in the episode. Apparently, this was a pimento cheese and honey, on an english muffin. What?

With all the eccentrically precious southern things out there, how on earth did they decide to present this to the world?

On to the legal dramas. It’s still jarring to see cases commenced in one scene and, then, basically, being tried two scenes later.

Law students: This is not how any of the practice of law works. I filed a law suit for $20,000 a few months ago, and I’m not sure if it will get tried in 2020 or 2021.

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”

New Court of Appeals Opinion provides good statement of doctrine of Res Judicata

As lawyers, the business model is fairly simple: We sell our time, multiplied by our hourly rates.

This creates a huge disconnect between clients and lawyers. All clients want their matters resolved in their favor, but also quickly, smartly, and cost-efficiently (that’s a nice way to say for as little legal fees as possible). On the other hand, the lawyer-industrial-complex wants lawyers to ponder, research, litigate, bill, examine, depose, etc. (i.e. for as many billable hours as possible).

First off, run away from lawyers like that.

Second, if you’re a lawyer and want clients to be happy, you should read this new Tennessee Court of Appeals opinion, which discusses the concept of res judicata. That’s a doctrine that allows parties to avoid unnecessary, duplicative litigation, when the issues have already been decided by a court.

The facts aren’t that important, so I’ll just focus on the legal discussion.  The Court wrote: Continue reading “New Court of Appeals Opinion provides good statement of doctrine of Res Judicata”

341 Meeting: Suing Your Own Employees; Public Schools; Urgent Political Spam

Hassling Poor People, Who Happen to be Your Own Employees. When the economy hit rock bottom in 2009 or so, all kinds of doctors, lawyers, private schools hired me to collect their debts. Many had never dealt with bad debt before, or the awful circumstances that lead to defaults. They just saw the bad debt and thought it could be an income stream for them. It was an eye-opening lesson for many.

Since then, I occasionally have had to tell some of my clients that some debt isn’t worth collecting, whether it’s a low return on investment or, frankly, just bad PR.

This story out of Memphis reminds me of that.   NPR reports that Methodist Le Bonheur Hospital is making national news for its practice of suing its own employees when they can’t pay their medical bills, and then using some pretty aggressive collection tactics when they can’t pay the judgments rendered in the lawsuits.

…what is striking at Methodist, the largest hospital system in the Memphis region, is how many of the patients being sued are the hospital’s own employees. Hardly a week goes by in which Methodist workers aren’t on the court docket fighting debt lawsuits filed by their employer.

That’s a really bad look, especially in a climate where employers are criticized for not paying a living wage and also terrible health insurance benefits. Continue reading “341 Meeting: Suing Your Own Employees; Public Schools; Urgent Political Spam”