Transferring Conservatorships from Other States to Tennessee

Filing for a conservatorship is a well-worn path. Although there are lots of ins and outs to it, it basically requires a petition, an affidavit from a doctor stating the need for the conservatorship, and a few procedural items, like an ADA notice and proposed orders. Many courts provide their own preferred forms, such as here.

Depending on the court, the process then moves pretty fast, relative to other litigation. The chancellor appoints a guardian ad litem (if needed) who meets the proposed ward and issues a report. The chancellor then sets a hearing and hopefully issues an order. The conservator can then post a bond and take charge.

When a ward moves, the process is different. Most states, including Tennessee, have adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. This act clarifies which state’s law controls and provides “registration” of an out of state conservatorship in another state. It also provides a slightly cumbersome method of transferring the conservatorship without having to reestablish the grounds for the conservatorship.

Also, if the conservatorship is disputed in some way, this Act can save a lot of money and heartache as it limits forum-shopping.

If the conservatorship (or guardianship) exists in a state not a party to the Act, it can still be moved. The Tennessee statute for transferring conservatorship, T.C.A. § 34-8-302,  requires attaching a copy of an order from the transferring court. However, the transferring court (the other state) often requires an order from the receiving court. The conundrum can be resolved by getting a provisional order from the receiving (Tennessee) court.

After receiving the provisional order, the petitioner then needs to get an order from the transferring state. This often requires hiring local counsel in the transferring state. Once that order is obtained, it can be filed with the Tennessee court for issuance of the final order.

Despite the time and efforts, moving the conservatorship is essential when the ward moves. Thankfully, the Chancery Court in Hamilton County is easy to work with. Failing to transfer a conservatorship can get you in trouble, so make that a priority when moving.

Etsy, Copyright, and You: Please don't take down my store!

Etsy is a place where creative people can go to showcase their talents and earn money from their creativity.  It has grown at a steady pace has even the starting off point for many businesses to make the move from Etsy to an official online store based on customer interest.  Because the online marketplace is an extension of creativity and intellectual exploration, many entrepreneurs and artists find themselves losing their brand presence just as they're breaking out of the gate.  The intellectual property that is exhibited and sold using Etsy requires no less protection of items you would sell through a website or Amazon store. 

What is Intellectual Property and How is it Protected

Intellectual property (IP) is a legal umbrella term that is used to describe those creations of the mind or intellect that can have potential commercial success.  That includes fiction, art, designs, music, film, etc.  Each “type” of IPhas its own types of protections.  Trademarks protect logos, designs, or symbols, while copyrights protect expressions of creation like a song, work of fiction, paintings, etc., while patents protect innovations. 

Copyrights are natural and exist from the moment the idea is expressed until 70 years after the death of the creator.  Whether the item is registered with the Office of Patents and Trademarks or not, the item is wholly yours from its creation.  These protections are added value.  However, being registered certainly helps should there be a dispute over the creative expression in a court of law.  The ability to sue and have adequate protections is very important when placing your expression in the public realm.

Etsy and You

Several Etsy merchants in Tennessee and Georgia have had their items taken down and their store suspended for copyright infringement on items their creators had no idea were copyrighted or trademarked. This often happens when a seller reports on a competitor who is doing well, ostensibly at the seller’s expense. There are copyrighted or trademarked items you may not even realize can be trademarked or copyrighted; making a painting of a green and yellow tractor, for example.  It doesn't even have to say John Deere. They patented a specific shade of green and yellow for tractors.  An “M” drawn in a certain way is trademarked by Madonna. Usually, Etsy merely shuts down your store, but depending on your sales, you can be liable for money damages. Conversely, the same can be true of you if you see your copyrighted expression being used by other sellers.

Although the legal principles may be straightforward, applying the law to the particular situation may be tricky and costly.

Etsy may sometimes shut-down-first-ask-questions-later. In Websters Chalk Paint Powder, LLC v. Annie Sloan Interiors, Ltd. (N.D. Ga. 2014), the plaintiff and defendant fought over the use of “Chalk Paint” in their respective logos and advertisements. Plaintiff sold its products on Etsy. The defendant sent notice to Etsy of the potential trademark infringement. Etsy’s response was to unilaterally take down the part of plaintiff’s Etsy store content relating to the Chalk Paint. The federal district court ultimately ruled that the plaintiff did not have jurisdiction over defendant in the lawsuit and dismissed the plaintiff’s lawsuit. Nonetheless, the defendant had lost sales and prestige from losing that part of its online store.

For further reference, you may want to check out Etsy’s information on copyright. Also, YouTube has a well known “Copyright School” that provides a good introduction+ to copyright in the online context.

Television's Evil Influence in the Conasauga Circuit

I was privileged to interview retired federal district judge Robert Vining, Jr. yesterday in Dalton. Among many other fascinating stories, he told me of an interesting terminology change in Georgia law.

Judge Vining was the first solicitor general of the Conasauga Circuit (Whitfield and Murray counties). Prior to that it was 5 counties called the Cherokee Circuit. A solicitor general prosecuted criminal cases on behalf of the state.

One of the top shows in those days was Mr. District Attorney, which had started as a radio show and then to television. In the radio show, the main character had no name other than Mr. DA. Vicki Vola played the DA's essential secretary.

 Vicki Vola, the DA's right-hand woman

Vicki Vola, the DA's right-hand woman

The popular show caused the solicitors general across the state to want to rename the position "district attorney." Judge Vining said he strongly opposed the silly cave-in. Nonetheless, he was in the minority and he then became the first "district attorney" of the circuit.

Georgia Counties with No Attorneys

With as many lawyers as there are, I found it a bit surprising that there were six Georgia counties with no attorneys as reported in the Daily Report.

Those are Baker, Chattahoochee, Clay, Echols, Glascock and Webster. The only county near Northwest Georgia listed is Dade County with "6-10" lawyers.

While many might think an absence of lawyers is a good thing, most of the counties lacking are very poor, rural areas where it would be good to have a lawyer around.

Click here for the map.

The 1907 Lynching of Dock Posey

In performing research locally, I came across the following story which I have adapted from newspaper articles from the day:

On July 1, 1907, the citizens of Dalton awoke to find a dead man hanging from a downtown bridge. Around 6 oclock A.M., the body of Dock Posey was taken down and, being refused by his wife, shipped by train down to Atlanta. There, it was taken by the Atlanta Medical College, now Emory, for further destruction.

Posey was a middle aged white man, who had recently moved near Dalton from Walker County, the county immediately to the west. Posey married a woman with two daughters, the youngest nine-years old. Posey was a no-count rapist. Upon the little girl, Posey committed the most horrible affair that has ever occurred in this county. In the euphemism of the time, he outraged her. Realizing that his stepdaughter was near death due to his crime, he took her into Dalton to the office of Dr. J.C. Rollins. Dr. Rollins called in two other doctors thinking that the girls injuries so severe she might not recover.

Posey denied he had anything to do with the rape, and fixed the blame on someone else. Even in the girls severe condition, he had taken the time to scare her into telling the same story. However, when the girl was able to speak freely, she told exactly what happened. Posey still denied but he realized he was a goner.

The Reverend W. H. Bird, also the president of the local Farmers Union, took a personal interest in the matter and did his own investigation. He went and spoke to Poseys wife. The wife told him that Posey had attempted an outrage of her older daughter recently. With this and perhaps some other persuasion, Rev. Bird was able to get a confession out of Posey. In fact, Posey identified the place, time and physical evidence of the crime.

Word spread of the confession. As some of the locals called for Poseys neck, the authorities attempted to squelch the towns passions by calling for an immediate term of court so that justice could be meted out promptly, but judicially. Many of the town folks realized, however, that the little girl was the key witness. She may not even survive, but at least it could be weeks before she was able to testify at a trial and even that would be more than she should have to bear.

All these difficulties worked themselves out on the night of July 1.

Rev. Bird stayed with a jailer to watch Posey that night. Voices were heard around one oclock A.M. which woke Rev. Bird. He arose from his make shift bed, out into the hall and was held at gun point by a group of 25 or so men. The group included two police officers who had been passed on the way over, disarmed and forced to come along. Except for these officers, all the men had guns. Each of the men wore long black robes, and white pointed hoods, only their eyes, feet and hands were visible.

The leader of the group made himself known and demanded the keys or else he would blow the jail to hell. The keys were found, Posey cell was unlocked, and out he was dragged out, limp, begging for his life.

The mob was extremely well disciplined, placing guards around the jail, who fell in line as they left the jail with the prisoner. The group marched double file. It was said no oaths were sworn, few words were said and all the orders of the leader were followed with precision.

The leader, being a gentleman, said he did not want to hang an innocent man asked Posey for the truth. Posey confessed again, but begged for his life. Satisfied with this due process, the leader and the mob toted Posey out of the jail, into a car and down the street to the bridge running over the railroad. Posey was put on top of the buggy and tied up to a wooden beam under the bridge.

From that position, Posey was given 15 minutes to pray, which he did. He also asked the crowd to pray for him. He again said he didnt intend to harm the girl. The crowd shouted die with a lie in your mouth. As his pitiful last words were uttered, the buggy then drove out from under him triggering the mechanism of his death. He strangled to death from that point.

The mob left, but demanded that the jailer and Rev. Bird stayed. They were not to take the body down until 6 oclock A.M. at the earliest and also to make sure the spectacle did not spook a horse passing over the bridge. The leader said he would be sorry to see anyone injured by a runaway horse frightened by the dangling body.

For whatever reason, the jailer and Rev. Bird remained until the morning, leaving the body hanging as instructed.

The local paper  suggested none of the mob could be identified and were not thought to be Dalton citizens. The town was not sorry to see Posey go, and went about its business.

There is a photo of the hanging that can be seen here. It's graphic.

Top 6 Ways to Immediately Make Your Solo Law Office More Efficient

1. Start the day dreaming

As counter-intuitive as it may sound, you will be more productive spending the first few minutes of the workday thinking about where you are headed with all this. What are your long term goals and what are you doing this day to move in that direction?

2. Make a to-do list

Although not a cure-all, making a list makes you take random hopes and thoughts and put them in concrete items to perform.

3. Calendar all your tasks

Even with a to-do list, smaller, more tedious tasks tend to get pushed back, and back and back, so that they are never completed. Setting an actual time on your calendar forces you to eat the frog and get this stuff done on schedule.

4. Send someone a bill

Getting paid is awesome and someone owes you money. As frustrating as collection is, many solos simply neglect to send bills. Take a look at that accounts receivable and send another bill.

5. Fire bad clients

They waste your time, dont pay and are the most likely to lead to ethical complaints. You have the right to fire them; give yourself permission and let them go.

6. Stop reading so many Top 6 lists

Hypocrisy aside, goofing around on the internet not only takes time, it saps your motivation and yields very little results. Work hard and complete your tasks. Then stop for the day, and read whatever youd like without the guilt.

I Miss Alabamy Once Again, And I think It’s a Sin – a Review of “Just Mercy” by Bryan Stevenson

You may not know it, but the tooth brush was invented in Alabama.*

I really love Alabama: my mother is from there. A visit to the Collinsville flea market provides a new story every time I go. A lot of my favorite songs are about Alabama. See the documentary Muscle Shoals. I admit that I get a bit defensive when people pile on that state. Georgia, minus Atlanta, is pretty much Alabama

Bryan Stevenson, head of Equal Justice Initiative in Montgomery, Alabama graduated from Harvard Law School. And despite all the opportunities that brought with it, Stevenson forwent all of that to live an adventure.

Right out of school, he moved to Atlanta, then Alabama to represent the impoverished and oppressed. It sounded a little to me like the young idealists that say they want to move to the inner city/developing world and fix the problems there. Thats usually a very naive view of those communities.

On the other hand, for Stevenson, he was right. There were very bright line offenses taking place that he had the ability to rectify. And what strikes me in the end, is that Stevenson gave up the money and prestige and influence after he graduated from Harvard, only to receive it magnified (minus the money) now.

Alabama-love aside, there are some real, very real problems there. The states use of judicial override seems so ill advised. That is where a judge can and often does impose the death penalty over the sentence imposed by the jury. See Woodward v. Alabama.

Stevenson carefully describes injustices that are just hard to comprehend. Besides the judicial override, people are placed on death row with so little evidence. I struggle to get my mind around how these things could happen. Our system, which I have no doubt is among the best in the world, has so many checks: the police have to have probable cause, a district attorney has to look at the case, the accused gets a trial and often a plea deal, and then there are several options for appeal even at no expense to the defendant. Still, these guys with solid alibis, no motive, etc. were getting the death penalty.

Confirmation bias on the part of Stevenson just doesnt explain it way. There are systematic problems that may be a little more pronounced in some geographical areas, but exist in our great system.

Stevenson explains that people are sometimes placed on death row, or given egregious sentences because those particular people arent able to put up much resistance. Ive done appointed work and realized that the person I was representing really didnt know what was going on and what the consequences would be. He or she just wanted it over. A lazy lawyer could get a client in big trouble without facing too much retribution himself. Second, minorities are frequently victims of conscious and unconscious biases. Theres too much evidence to deny.

I heard a great lecture from Russell Fowler of Legal Aid of East Tennessee who talked about the history of punishment, including trial by ordeal, hue and cry, etc. Trial by ordeal, as you may know, was deciding  the facts by making the perpetrator perform some ordeal, or test. A witch might be thrown in the water to see if she floated, a man might hold scalding hot rocks to see how fast the burns healed.

These things sound ridiculous to our post-Enlightened minds, but they worked very well at the time! The reason they worked was because people believed in them. They actually believed that if you were lying, your sins would find you out.

The same is true of our current system. Its effectiveness depends not just on logic, but our faith in it. Its important to have compassionate critics pushing us to better and more thoughtful penal and legal systems. Otherwise, things begin to go sideways.

Stevenson just seems like a remarkable guy. I think the best compliment I can give is Stevensons book is that it changed my thinking.

*Otherwise, it would be called a "teeth brush."

Harvard lawyer gives attorneys a bad name

As a small business person, and in representing small businesses, I understand the risks and frustrations posed by contemptibly obnoxious people. A story out of Boston shows how an exquisitely trained lawyer can use his powers for bad:

Last week, Edelman ordered what he thought was $53.35 worth of Chinese food from Sichuan Garden’s Brookline Village location.

Edelman soon came to the horrifying realization that he had been overcharged. By a total of $4.

This Harvard associate professor contested an $4 discrepancy in his bill and the online menu prices to the point of contacting state authorities and asking to speak the the restaurant's attorney.

The email correspondence shows a very courteous and apologetic business owner trying to calm an empowered and silly "victim." Publishing the correspondence has now led to a lot of public shaming. Still, these situations can cause intense stress on a small business owner. 

How to Renew a Judgment in Tennessee

Keeping your judgment enforceable is a fairly straightforward process in Tennessee.

A Tennessee judgment is good for ten years. Tenn. Code Ann. § 28-3-110.

Rule 69.04 of the Tennessee Rules of Civil Procedure allows a party to renew her judgment within ten years from entry of judgment. To do so, the judgment creditor must move the court for such an extension. This is often done in the general sessions court, depending on the amount of the judgment.

Notice must be sent to the judgment debtor’s last known address. Certified mail is not required, but is a good idea. The judgment debtor then has 30 days in which to show cause why the judgment should not be extended.

This process can be repeated basically forever until the judgment is satisfied.

It’s important to note that notice to show cause must be mailed to the debtor (but not, necessarily the motion see King v. King (Tenn. App. 2013). Just filing in court without notice is not enough but is a fairly common mistake.

The motion for extension should be filed before the 10 years is up. If the order is nunc pro tunc (which means “now for then”) to an earlier date, the earlier date is the effective date. Cook v. Alley (Tenn. App. 2013).

If you need help with this, please let me know.

The Practice of Law as Craft

A lawyer is an artist. But how?

Many "artists" are able to take common things and bring out something new and beautiful. In a recent book, Bach: Music in the Castle of Heaven, John Eliot Gardiner writes:

Towards the end of his more than thirty years as music director of Berlins Singakademie in 1827, Carl Friedrich Zelter wrote to his friend Goethe, Could I let you hear some happy day one of Sebastian Bachs motets, you would feel yourself at the centre of the world, as a man like you ought to be. I hear the works for the many hundredth time, and am not finished with them yet, and never will be. After knowing them for more than sixty years I feel exactly the same. The glorious freedom that Bach exhibits in his motets, his balletic joy in the praise of his maker and his total certitude in the contemplation of death this, surely, is the best imaginable response to our mortal entrapment.

If genius exists, then Bach was it as it came to music composition. Part of his brilliance was his insight/ability able to play with the harmonics from a note (which were pleasing to the ear) to create and resolve tension, and then compose multiple lines to be played at the same time. But the music was in the note, Bach just brought it out.

Similarly, Michelangelo commented on his sculpture that in every block of marble I see a statue as plain as though it stood before me, shaped and perfect in attitude and action.

Likewise, a good story teller or writer is able to take the cacophony of everyday events, sounds, sayings, etc. and bring out of that a compelling story: the thing the character wants, the conflict/tension that stands in the way and the resolution.

Many business people are likewise able to take common things and combine them in exciting and new ways. Cell phones, smart phones, the ability to look up the answer to pretty much any question on the internet, weren't available actions until relatively recently, but the ether for their creation was out there.

As a lawyer, I often wonder how to create something new using my craft. Fundamentally, that begs the question as to what is the substance of the law. What do you think?