In 2008, a North Memphis family reported that a neighbor's two pit bulls entered their home and attacked them. Memphis has seen her citizens mauled to death by pit bulls in the past. As a trial lawyer who regularly practices in all Shelby County courts, I have seen my clients injured by dogs on occasion. However, as a dog lover myself and a Tennessee resident, I wondered whether or not some breeds of dogs were more likely than others to attack Memphis residents.

For example, in 1990 Betty Lou Stidham was attacked and mauled to death by two pit bulls in a quiet Memphis neighborhood. In this case, the dogs had a history of violent tendencies. They had previously attacked their owner sending him to the Emergency Room of a local hospital for treatment of his injuries.

Jefferey J. Sachs, M.D., MPH for the United States Centers for Disease Control studied various breeds that had injured or killed people. In Sachs' article, he analyzed many breeds of dogs that had attacked people over an extended period of time. This article is best summarized by a Chart of Bites by breed that is a part of the results of the study. As you can see, far and away the most dangerous breed was the pit bull. For example, animal control officers must approach this breed with the following event in mind:

In response to these kinds of situations, the Tennessee Legislature in 2007 amended the existing laws respecting animals that are likely to cause harm to others. Under T.C.A. 44-8-413, new standards were set with an eye towards protecting persons and property from the dangers we have seen above. The law requires owners to keep their animals under "reasonable control" and to prevent them from "running at large". The most interesting feature for lawyers, and perhaps the injured, is that the owner can be liable even if the dog has never shown violent or dangerous characteristics prior to the event in question. This new act may well protect a valuable asset: our peace of mind and our future safety.

Sadly, the more things change, it seems, the more that things stay the same.

According to the Bureau of Justice Statistics, intimate partner murders happen with astounding frequency:
• Fatal intimate partner violence includes homicide or murder and non-negligent manslaughter,defined as the willful killing of one human being by another.
• In 2007 intimate partners committed 14% of all homicides in the U.S. The total estimated number of intimate partner homicide victims in 2007 was 2,340, including 1,640 females and 700 males.

While these figures are frightening, the numbers of those hurt or maimed are far more profound:
• Intimate partner violence includes victimization committed by spouses or exspouses,boyfriends or girlfriends, and ex-boyfriends or ex-girlfriends.
• In 2008 females age 12 or older experienced about 552,000 nonfatal violent victimizations (rape/sexual assault, robbery, or aggravated or simple assault) by an intimate partner (a current or former spouse, boyfriend or girlfriend) (table 1).
• In the same year, men experienced 101,000 nonfatal violent victimizations by an intimate partner.
• The rate of intimate partner victimizations for females was 4.3 victimizations per
1,000 females age 12 or older. The equivalent rate of intimate partner violence
against males was 0.8 victimizations per 1,000 males age 12 or older.

In order to address the practical and ethical duties of attorneys who deal with these issues, the American Bar Association has established aspirational guidelines to assist both the Bench and Bar. ABA Guidelines. Never the less, The practical implications for victims and accused persons continue to confound an already overloaded criminal justice system. In my experience, swift protection can often be delayed or denied due to internal operating procedures. Having said that, there remain alternatives to being an unprotected victim, thereby exposing you and your children to the horrors of family directed violence.

Help with getting protective orders to protect both you and your children:
Citizen's Dispute
901-545-2520

For a safe place to stay
YWCA Abused Women's Service
901-725-5861

YWCA Crisis Line
901-725-4277

Help for victims and their children
Victim's Assistance Center
901-545-4357

Exchange Club
901-276-2200

At the end of this legislative session, T.C.A., sec 40-7-123 was enacted. This new law requires all jailers to make a fax or other referral to ICE for any detainee whose documentation does not clearly establish that person's legal right to be in the United States.

§ 40-7-123. When a person is arrested for any offense and is confined, for any period, in the jail of the county or any municipality, a reasonable effort to review documents in the possession of the prisoner shall be made to assess the citizenship status of the person so confined. If the keeper of the jail or other officer cannot determine the lawful status of the prisoner from the documents in the possession of the prisoner or if it is determined that the person is not lawfully present in the United States, pursuant to the federal Immigration and Naturalization Act, compiled in 8 U.S.C. § 1101 et seq., the keeper of the jail or other officer shall notify the United States department of homeland security by facsimile transmission or other appropriate means.

One can only suppose that this new law will be evenly applied to all those detained. However, consider a scenario where a caucasian female who was born in, say, Bartlett is arrested without any identification showing that she is a U.S. citizen. Now think about the same set of facts for a physician born in Brazil who has dark skin.

The constitutional implications of this statute can and, I am sure will be, debated in the years to come. However, the question comes to my mind respecting the training that will be given to a jailer to carry out a "reasonable effort" to investigate such a person. Or, will this be another ill conceived law that results in a lawsuit which gains a life of its own. Most cases that get to the United States Supreme Court take years to arrive in Washington. Will this enforcement statute be any different?

I have found ICE agents to be over worked and under paid. Should we heap another job onto such an already burdened agency? But perhaps most importantly, will this become a safe harbor for abuse by a bored jailer on a hot Saturday night in the delta?

The first step where a spouse can first become co-obligated on such a loan is the Guaranteed Student Loan Application. Next come the Loan Documents themselves which may require a signature too. Sadly, the final stop on this financial freight train is the Marital Dissolution Agreement which comes at the tearful end of the marriage. Not only can this document free one from legal obligation to pay for a co-signed student loan, but it can also require a person to pay an agreed upon share of the student loan as well.

But there is a catch. A BIG catch. If you have already co-signed the student loan a Tennessee divorce court cannot remove you from legal responsibility for the loan. The most that such a court can do is to require your former spouse to pay the loan and to "hold you harmless" from the loan. This means that the student-spouse is required to timely pay the loan. But the lender can still seek the balance of the loan in full from the non-student if the payments are not made as agreed.

In the case that we dealt with today,the Husband missed several payments and the Lender sought repayment from the former Wife. Wife filed a contempt pf court action on the divorce court because former husband failed to "hold her harmless" by making timely payments. The Court ruled that former Husband could either satisfy the Lender and therefore hold Wife harmless or spend a few days as a guest of the county. Husband decided that he would find a way to get the payments made as he thought horizontal stripes did not become him.

U.S. inspectors found thick dust and contaminated ingredients at the Johnson & Johnson plant that produces Children's Tylenol and dozens of other products that were recalled last week.

A Food and Drug Administration report released on Tuesday said its inspectors found thick dust and grime covering certain equipment, a hole in the ceiling and duct tape-covered pipes at the Fort Washington, Pennsylvania, facility that made 40 products recalled last Friday.

Inspectors also found raw ingredients contaminated by an unspecified bacteria, a lack of quality control procedures and poor handling of complaints, according to the report dated April 30.

The findings were a further blow to J&J's reputation, as the FDA later on Tuesday urged parents to choose private label alternatives for the over-the-counter medications and said it was weighing possible further regulatory action.

"Consumers should not use these products," Deborah Autor, director of the Office of Compliance at FDA's Center for Drug Evaluation and Research told reporters in a conference call, even though the chance of getting sick from the recalled products was "remote."

There were 46 consumer complaints about dark material in the liquid products between June 2009 and April 2010, according to the FDA report.

J&J, which has issued four major product recalls in the last year, said on Tuesday that the quality problems at the plant "are unacceptable to us" and that it would continue to work closely with the FDA to fix them.

The company has suspended production at the plant.

"We will not restart operations until we have taken the necessary corrective actions and can assure the quality of products made there," said a statement from J&J's McNeil Consumer Healthcare unit.

On Saturday, the FDA urged consumers to stop using liquid Tylenol, Motrin, Benadryl and Zyrtec for children and infants after a broad recall late on Friday.

Investors have largely shrugged off the recall as a minor financial concern for J&J, maker of a wide variety of devices, medicines and other consumer products. While the Tylenol brand is closely connected with its public image, it amounts to a tiny fraction of nearly $62 billion in annual sales.

"The latest recalls of children's Tylenol probably means there's just less upside to J&J's earnings estimates," said RBC Capital Markets analyst Glenn Novarro. "They can manage the expense side to make up for this. J&J just doesn't miss numbers."

But officials at the FDA, which has vowed closer industry oversight under the Obama administration, said the recall served as an example of companies' responsibility to ensure the quality of the products they make.

"While the potential for serious health problems is remote, Americans deserve medications that meet FDA standards for quality, safety and efficacy," FDA Commissioner Margaret Hamburg told reporters.

The FDA's report said inspectors found raw material used to manufacture several lots of Children's and Infant's Tylenol was contaminated with bacteria, but none of the finished drug product sampled tested positive.

Agency inspectors will complete a more detailed, narrative report for FDA officials to evaluate and determine if further action is needed, the FDA's Autor said. That could include sending a warning letter, seizing products, seeking a court order to halt manufacturing or pursuing criminal penalties.

J&J survived a massive recall of intentionally contaminated Tylenol products in the 1980s and its handling of the matter is widely studies as as a model business and public relations case.

Branding expert Robert Passikoff said so far the company has done everything right in handling the latest recall.

"There's no way to excuse it and J&J isn't. What they're looking to do is fix whatever the problems are," said Passikoff, head of Brand Keys Inc. Customers are loyal to the Tylenol brand "and that goes a long way."

For more specific information, the FDA has published a redacted version of its report. A specific problem taken directly from the FDA report states:

The Quality Control Unit (QA) authorities most responsible for overseeing daily operations at the Fort Washington facility did not ensure that the responsibilities of the Analytical, Microbiological, Compliance, and Quality Assurance departments were enforced for rejection and withholding from approval any raw material component that contained known contamination of gram negative organisms.

Let all buyers beware of this potential hazard to our children.

Some of the products included in the recall may contain a higher concentration of active ingredient than is specified; others may contain inactive ingredients that may not meet internal testing requirements; and others may contain tiny particles.

The list of recalled products reads like a list of many parents' medicine chests for young children:

TYLENOL® INFANTS’ DROPS CONCENTRATED TYLENOL® INFANTS’ DROPS 1 OZ. GRAPE FLAVOR

50580-144-01
CONCENTRATED TYLENOL® INFANTS’ DROPS 0.5 OZ. GRAPE FLAVOR*

50580-144-15
CONCENTRATED TYLENOL® INFANTS’ DROPS 1 OZ. CHERRY DYE FREE

50580-167-01
CONCENTRATED TYLENOL® INFANTS’ DROPS 0.5 OZ. CHERRY FLAVOR

50580-143-15
CONCENTRATED TYLENOL® INFANTS’ DROPS 1 OZ. CHERRY FLAVOR

50580-143-30
CONCENTRATED TYLENOL® INFANTS’ DROPS 0.5 OZ. GRAPE - HOSPITAL

50580-144-18
CONCENTRATED TYLENOL® INFANTS’ DROPS 0.25 OZ. GRAPE - SAMPLE

50580-144-40

CHILDREN’S TYLENOL® SUSPENSIONS
CHILDREN’S TYLENOL® SUSPENSION 2 OZ. CHERRY BLAST FLAVOR

50580-123-02
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. CHERRY BLAST FLAVOR

50580-123-04
CHILDREN’S TYLENOL® DYE-FREE SUSPENSION 4 OZ. CHERRY FLAVOR

50580-166-04
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. GRAPE SPLASH

50580-296-04
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. BUBBLEGUM FLAVOR

50580-407-04
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. VERY BERRY STRAWBERRY FLAVOR

50580-493-04
CHILDREN’S TYLENOL® SUSPENSION 1 OZ. CHERRY BLAST FLAVOR – SAMPLE

50580-123-01
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. CHERRY BLAST FLAVOR – HOSPITAL

50580-123-03

CHILDREN’S TYLENOL® PLUS SUSPENSIONS
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. COUGH & SORE THROAT CHERRY FLAVOR

50580-247-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. COUGH & RUNNY NOSE CHERRY FLAVOR

50580-249-04
CHILDREN’S TYLENOL® PLUS DYE-FREE SUSPENSION 4 OZ. COLD & STUFFY NOSE GRAPE FLAVOR

50580-253-04
CHILDREN’S TYLENOL® PLUS DYE-FREE SUSPENSION 4 OZ. COLD & COUGH GRAPE FLAVOR

50580-254-04
CHILDREN’S TYLENOL® PLUS DYE-FREE SUSPENSION 4 OZ. MULTI-SYMPTOM COLD GRAPE FLAVOR

50580-255-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. FLU BUBBLEGUM FLAVOR

50580-386-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. COLD GRAPE FLAVOR

50580-387-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. COLD & ALLERGY BUBBLEGUM FLAVOR

50580-390-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. MULTI-SYMPTOM COLD GRAPE FLAVOR

50580-391-04

MOTRIN® INFANTS’ DROPS
CONCENTRATED MOTRIN® INFANTS’ DROPS 1 OZ. BERRY DYE FREE

50580-198-01
CONCENTRATED MOTRIN® INFANTS’ DROPS 0.5 OZ. BERRY DYE FREE

50580-198-15
CONCENTRATED MOTRIN® INFANTS’ DROPS 0.5 OZ. BERRY FLAVOR*

50580-100-15

CHILDREN’S MOTRIN® SUSPENSIONS
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. BERRY DYE FREE

50580-184-04
CHILDREN’S MOTRIN® SUSPENSION 2 OZ. BERRY FLAVOR

50580-601-02
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. BERRY FLAVOR

50580-601-04
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. TROPICAL PUNCH FLAVOR

50580-215-04
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. GRAPE FLAVOR

50580-603-04
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. BUBBLEGUM FLAVOR

50580-604-04
CHILDREN’S MOTRIN® SUSPENSION 1 OZ. GRAPE SAMPLE

50580-603-01
CHILDREN’S MOTRIN® SUSPENSION 1 OZ. BUBBLEGUM SAMPLE

50580-604-01
CHILDREN’S MOTRIN® SUSPENSION 1 OZ. BERRY SAMPLE

50580-601-01
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. BERRY HOSPITAL

50580-601-50
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. COLD BERRY FLAVOR

50580-902-04

CHILDREN’S ZYRTEC® LIQUIDS IN BOTTLES
CHILDREN’S ZYRTEC® 4 OZ. BUBBLEGUM SYRUP

50580-721-04
CHILDREN’S ZYRTEC® DYE FREE 4 OZ. GRAPE SYRUP

50580-730-04
CHILDREN’S ZYRTEC® SUGAR-FREE DYE-FREE 0.5 OZ. GRAPE

50580-730-15
CHILDREN’S ZYRTEC® SUGAR-FREE DYE-FREE 0.5 OZ. BUBBLEGUM

50580-721-15
CHILDREN’S ZYRTEC® SUGAR-FREE DYE-FREE 2 X 4 OZ. BUBBLEGUM LIQUID

50580-721-08

CHILDREN'S BENADRYL® ALLERGY LIQUIDS IN BOTTLES
CHILDREN'S BENADRYL® ALLERGY 4 OZ. BUBBLEGUM FLAVORED LIQUID

50580-535-04

* CONCENTRATED TYLENOL® INFANTS’ DROPS 0.5 OZ. GRAPE FLAVOR is also included in JOHNSON'S ® Baby Relief Kit.

*CONCENTRATED MOTRIN® INFANTS’ DROPS 0.5 OZ. BERRY FLAVOR is also included in JOHNSON'S ® Baby Relief Kit

For a complete report, please go to the government website http://www.fda.gov/Safety/Recalls/ucm210443.htm. CAVEAT EMPTOR!

This Spring has brought a frightening mix of wind and water to the Mid South. The result has been a life altering combination of personal injury, property damages and thoughts of steps to be taken to prevent these calamities in the future. The old saying is more true now than ever: every one complain about the weather but no one does anything about it. However, we can become better prepared to deal with the less than perfect storm.

The Federal Emergency Management Agency has may resources to help us not only deal with but to prepare for natural disasters. Floods happen. Hurricanes happen. Dams break. the list goes on and on. Please take a moment to review the link that is copied above and also please follow it for appropriate advice to fit your needs.

Judicial power to grant a divorce is based on domicile. Tennessee courts have no divorce jurisdiction unless one of the parties is domiciled here. Residency under Tennessee Code Annotated 36-4-104 is treated as domicile. Domicile is defined as the place where a person has his principal home and place of enjoyment of his fortunes; which he does not expect to leave, except for a purpose; from which when absent, he seems to himself a wayfarer; to which when he returns, he ceases to travel.

A person may have two or more residences but only one domicile.Snodgrass v. Snodgrass A temporary residence in a state for the purpose of getting a divorce will not confer jurisdiction upon the courts of that state to render a decree for divorce that will be binding upon the courts of the state of actual residence of the party.
Domicile of choice is acquired by physical presence plus intent to remain.

The plaintiff wife may acquire a separate domicile by withdrawing from the defendant husband.If the plaintiff leaves because of the defendant's fault and takes the children or if the plaintiff is awarded custody, the domicile of the children will follow that of the plaintiff.

A domicile once acquired is not lost until a new one is established. If custody is awarded to one other than a parent, the domicile of a child will follow the person having custody. Based upon all of the above, even though both parties are physically absent from Tennessee, the only state with immediate jurisdiction to grant a divorce would be Tennessee. However, if by conduct and the passage of time the parties were to manifest a different "wayfarer intent" the result might differ.

Studies in the early 1980’s showed that children in repeat divorces earned lower grades and their peers rated them as less pleasant to be around. (Andrew J. Cherlin, Marriage, Divorce, Remarriage –Harvard University Press 1981)

Teenagers in single-parent families and in blended families are three times more likely to need psychological help within a given year. (Peter Hill “Recent Advances in Selected Aspects of Adolescent Development” Journal of Child Psychology and Psychiatry 1993)

Compared to children from homes disrupted by death, children from divorced homes have more psychological problems. (Robert E. Emery, Marriage, Divorce and Children’s Adjustment” Sage Publications, 1988)

Children of divorce are at a greater risk to experience injury, asthma, headaches and speech defects than children whose parents have remained married. (Dawson, “Family Structure and Children’s Health and Well Being” National Health Interview Survey on Child Health, Journal of Marriage and the Family)

A study of children six years after a parental marriage breakup revealed that even after all that time, these children tended to be “lonely, unhappy, anxious and insecure. (Wallerstein “The Long-Term Effects of Divorce on Children” Journal of the American Academy of Child and Adolescent Psychiatry 1991)

People who come from broken homes are almost twice as likely to attempt suicide than those who do not come from broken homes. (Velez-Cohen, “Suicidal Behavior and Ideation in a Community Sample of Children” Journal of the American Academy of Child and Adolescent Psychiatry 1988)

Taking the above as the gospel truth, what can be done to ameliorate these problems? The answer is, I don't know. What I do know is that you can be a voice of support and reason for your kids during this impossibly difficult time. It takes courage, maturity and stability to follow the following rules. However, in my opinion, after over 30 years of handling these kinds of cases, the following concepts are a minimum plan to save your childrens' future:

1. Make sure your children understand that they are not the reason for the divorce. Keep the explanation simple, your mother and I can no longer live together happily. You need to know that this has nothing to do with you. Your mom and I both love you very much and nothing will change that.

2. Take care when discussing litigation. Your children do not need to know the sum and substance of all legal documents, depositions, and proceedings. If you and your spouse are unable to decide the issue of custody, you may wish to offer a simply explanation like a judge is going to decide the time you will spend with your mommy and daddy because we both love you very much and can't agree.

3. Allow the children to love both parents. Create an environment where the children can be free to love both parents. If you cringe or change the subject when your child brings up Daddy's name, you may be sending a message to your child that you do not approve of his or her relationship with your ex.

4. Do not send messages through your children. If you are unable to communicate by any means with your ex whether in-person, by phone, or e-mail, you may wish to consider co-parenting counseling or request a parent coordinator.

5. Do not say disparaging things about the other parent in front of the children. Judges will expect you to be supportive of the childrens' relationship with their other parent

6. Be supportive of your childrens' activities. If at all possible, take your children to their activities when it is your time. On the other hand, be respectful of the other parent's time with the children. It's difficult to look supportive of the other parent's relationship if you always schedule well-visits during the other parent's time.

7. Use good judgment before introducing your children to someone you are dating. Introducing your children to someone that you have just met or are just beginning to know can be confusing and even detrimental to your children.

8. Take the high road when possible. This may sound contrary to the advice you might expect from a divorce attorney. However, when it comes to things like schedule changes, sometimes it is better to give a little even if the favor isn't always returned. In the event the matter goes to court, it is always better to be perceived as the parent who is flexible and cooperative.

That is the emotional side of a relatively emotionless process. In Tennessee, as in most states, a claim for the wrongful death of a spouse or child belongs to the survivor of the decedent. Husband, wife, mother, etc. can seek a recovery for the death of their loved one.

The tricky part is identifying and proving what lawyers call the "pecuniary value" of a human life. This phrase can be defined as: “The ‘pecuniary value’ of a decedent's life represents the value of the decedent's probable future financial accumulations at the time of the decedent's death.” This typically involves the use of an expert in making this calculation because the accumulation is a net figure. That is, in its most elementary form: average income + years of work life remaining + any increase or decrease in value of the total earnings due to inflation etc. - taxes, the cost of living = the pecuniary (dollar) value of the departed's life.

This all boils down to an expert opinion in the area of forensic economics. Under our rules of evidence an expert is a person who based upon his or her knowledge, training, skill, experience and education is likely to be able to help the jury better understand a fact that requires such help.Experts in Court This process is only a part of the analysis.

Pain and suffering of the lost loved one from the time of injury to death is crucial. The lost to the remaining family (loss of consortium) of the nurture, support, guidance and affection is a significant factor as well. Nonetheless, one cannot ignore that the crucible of a trial heats emotions and hearts as the trial progresses. In other words, the cost of reliving the loss and its consequences can often outweigh any financial recovery. Before traveling down this road, please consider that which you have to gain in light of what you have already lost.

I had said that the blogging hiatus had ended. Little did I know the enormous time commitment that being a coach of a competition level college mock trial team would demand. By this I do not mean only my time, but far more importantly, the time that these young men and women would devote to this important work. The work is important not just for trophies and accolades. Rather, the true significance is the preparation for a life in trial law that is the product of this program. The students spend hours each week (I would estimate in excess of 20 hours) learning the Rules of Evidence; how to conduct direct and cross examinations; the customs of propriety in the courtroom; and the other "rules of the road" which exist in this small area of specialization.

The team has traveled from Los Angeles to Washington, D.C. to compete against other college teams from the likes of Columbia, UCLA, Arizona, The Air Force Academy, Missouri, and Miami. What began in August is now culminating in the AMTA National Championship competition which is being held in Memphis this year and is being hosted by Rhodes College. Over 600 colleges and universities and in excess of 10,000 participants has been narrowed to 48 teams that will do battle as either the prosecution or defense side of a conspiracy to murder trial. After 4 rounds of preliminary trials, on Sunday evening the last 2 teams left standing will seek the title of THE NATIONAL CHAMPIONS for the coming year.

The 20 plus men and women that I have had the honor to coach at one time or another this year in the Rhodes College Mock Trial Program have exceeded my highest expectations. Through grit and tenacity, Rhodes has clawed its way to a berth in this ultimate challenge. whether or not we become this year's champs in the eyes of others is of no consequence. For me, each and every one of these incredibly talented "mockers" already wear the badge of success. They have proven through time and competition that they possess the right stuff. I am humbled by not only their potential but their passion. Bravo to them one and all.

National Championship Tournament
Memphis, Tennessee

FRIDAY (April 16th)

12:00 Registration, BCLC Ballroom, Rhodes College
1:00 All-Group Meeting, BCLC Ballroom
2:00 Captains’ Meeting, BCLC Ballroom
3:00 Judges’ Meeting, Shelby County Court Houses
4:00 ROUND ONE, Shelby County Court Houses

7:00 Judges’ and Coaches’ Reception, Burch, Porter & Johnson Law Firm

SATURDAY (April 17th)

8:30 Captains’ and Judges’ Meetings, Shelby County Court Houses
9:30 ROUND TWO, Shelby County Court Houses
1:30 Captains’ and Judges’ Meetings, Shelby County Court Houses
2:30 ROUND THREE, Shelby County Court Houses
6:00 Student Reception w/ food, University of Memphis Law School

8:00 Rhodes Alum Reception, Marty and Chesney McAfee Residence

SUNDAY (April 18th)

8:30 Captains’ and Judges’ Meetings, Shelby County Court Houses
9:30 ROUND FOUR, Shelby County Court Houses
1:00 Awards Luncheon, Silky Sullivan’s (183 Beale Street)
4:00 NATIONAL FINAL ROUND, University of Memphis Law School

In a divorce proceeding the trial court awarded the parties the premarital balances in their respective 401(k) accounts as each party’s separate property. Recognizing the existence of prior, inconsistent analyses by different panels of the Courts of Appeals with respect to whether 401(k) accounts are “retirement or other fringe benefit rights relating to employment” as defined by statute, the Tennessee Supreme Court held that:
(1) any balances that exist in the parties 401(k) accounts as of the date of the marriage remains the parties’ separate property,
(2) the entire net amount by which the parties 401(k) balance increased during the term of the marriage is marital property, and
(3) it is not necessary to consider the parties’ contributions to the increases in the value of the 401(k) plans during the marriage. Snodgrass vs. Snodgrass, (Tenn. Oct. 9, 2009).

While this may seem almost too loaded with common sense to be true, it has laid to rest an important issue during many trials. In my experience the issue sharpens into the "tangible and intangible" contributions of the respective spouses to the appreciation of the 401k asset. For example, if the Husband was a bank president and the Wife was a home maker, the arguments abound that he did all of the work, earned all of the money and that the value increases over time did not result from any action (such as hosting dinners for clients) by the Wife. On the other hand, Wife argues that the added values result from her services as a home maker and wife which allowed the Husband to earn a large income and that but for those services, the Husband would have been unable to earn as much money as he did.

Justice Cornelia Clark wrote in Snodgrass [T]hat net gains from any source
accruing in such accounts during a marriage are all marital property within the meaning of the second clause of section 36-4-121(b)(1)(B)" without resort to the issue of the parties contribution. A sound and good decision in my book. Had the Court ruled otherwise then there would continue to be interminable wrangling over this issue when the reality is that the law says that marital property is that property which is acquired during the marriage unless acquired by some source that clearly is separate, i.e. a gift, a bequest from a will, etc.

Bravo to the Supreme Court.

Englewood Cliffs, NJ, October 22, 2009 –Unilever United States, Inc., of Englewood Cliffs, NJ, in cooperation with the U.S. Food and Drug Administration (FDA), is voluntarily recalling a limited number of tubs of Breyers®ice cream because it was MISPACKAGED and may contain UNDECLARED WHEAT. People who have an allergy or severe sensitivity to wheat run the risk of allergic reaction if they consume this product.

On a limited number of tubs, the lid describes the product as “Breyers®All Natural Cookies & Cream” ice cream, and the tub portion of the package describes the product as “Breyers®All Natural Mint Chocolate Chip” ice cream. The product inside of the tub is “All Natural Cookies & Cream.” The ingredient statement on the tub does not declare wheat, which is an ingredient of the Cookies & Cream product.

The mispackaged ice cream product was distributed in Alabama, Arizona, Delaware, Florida, Georgia, Maryland, New Jersey, New York, Ohio, Pennsylvania, Puerto Rico, South Carolina, TENNESSEE, Trinidad and Virginia through retail stores in these locations and adjoining areas. The affected product is being recalled from consumers and retailer store shelves, back rooms and warehouses.

Fear not! You Memphis calorie lovers need not forgo the delectable, tongue-pleasing treat. simply venture forth to your local grocery for a refund. The affected mispackaged product was distributed in 1.5-quart (1.41L)paperboard tubs marked with UPC # 077567254245 located on the side of the tub and in combination with “Best If Used By” dates of FEB1711GH, FEB1811GH and FEB1911GH located on the bottom of the tub.

Dare we say it? If not a refund, how about an even exchange! You gotta love it!

These results are indicative of the endemic drug problems in society as a whole and Tennessee in particular. Drug abuse cuts across economic, generational and law related lines. For example, The Bureau of Justice Statistics reports in 2007 that 73% of our fellow citizens view drug related problems as either extremely or very serious.BJS Drug Statistics. Is there an area of the law that is not impacted by the reality of these concerns? Just this week, a nine month old child was placed into state custody when the parent's home was raided and a methamphetamine lab was discovered. CA drug bust. Recently, actor Dennis Quaid and his wife are suing a hospital because their children were given a massive dose of blood thinning drugs made by Baxter Pharmaceuticals.. The product liability lawsuit seeks more than $50,000 in damages and claims Baxter was negligent in packaging different doses of the product in similar vials with blue backgrounds. The lawsuit also says Baxter should have recalled the large-dosage vials after overdoses killed three children at an Indianapolis hospital in 2007.

While these two events are at the opposite ends of the legality spectrum, both point to a logical conclusion. Legal and illegal drugs severely impact upon children in all areas of their lives and, sadly, sometimes causes their deaths. I can offer no solutions to these tragedies. We can all only hope that as time passes, a solution can be fashioned based on common sense and rule of law. I am going to dig further into this knotty issue and I will try and write on the impact of drug use or abuse on divorce and custody cases. More to follow.

Whether or not Heene is guilty as a matter of law is, in the grand scheme of things, of little lasting import. What does matter are convictions of innocent persons based upon faulty evidence. What follows are statistics gathered by
The Innocence Project (weblink):

There have been 244 post-conviction DNA exonerations in the United States.

• The first DNA exoneration took place in 1989. Exonerations have been won in 34 states; since 2000, there have been 178 exonerations.

• 17 of the 244 people exonerated through DNA served time on death row.

• The average length of time served by exonerees is 12 years. The total number of years served is approximately 3,077.

• The average age of exonerees at the time of their wrongful convictions was 26.

Races of the 244 exonerees:

146 African Americans
70 Caucasians
21 Latinos
2 Asian American
5 whose race is unknown

• The true suspects and/or perpetrators have been identified in 104 of the DNA exoneration cases.

• In more than 25 percent of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted during the criminal investigation (the study, conducted in 1995, included 10,060 cases where testing was performed by FBI labs).

• About half of the people exonerated through DNA testing have been financially compensated. 27 states, the federal government, and the District of Columbia have passed laws to compensate people who were wrongfully incarcerated. Awards under these statutes vary from state to state.

Leading Causes of Wrongful Convictions
These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed. For more than 15 years, the Innocence Project has worked to pinpoint these trends.

Eyewitness Misidentification Testimony was a factor in 74 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions. At least 40 percent of these eyewitness identifications involved a cross racial identification (race data is currently only available on the victim, not for non-victim eyewitnesses). Studies have shown that people are less able to recognize faces of a different race than their own. These suggested reforms are embraced by leading criminal justice organizations and have been adopted in the states of New Jersey and North Carolina, large cities like Minneapolis and Seattle, and many smaller jurisdictions.

Unvalidated or Improper Forensic Science played a role in approximately 50 percent of wrongful convictions later overturned by DNA testing. While DNA testing was developed through extensive scientific research at top academic centers, many other forensic techniques – such as hair microscopy, bite mark comparisons, firearm tool mark analysis and shoe print comparisons – have never been subjected to rigorous scientific evaluation. Meanwhile, forensics techniques that have been properly validated – such as serology, commonly known as blood typing – are sometimes improperly conducted or inaccurately conveyed in trial testimony. In other wrongful conviction cases, forensic scientists have engaged in misconduct.

False confessions and incriminating statements lead to wrongful convictions in approximately 25 percent of cases. In 35 percent of false confession or admission cases, the defendant was 18 years old or younger and/or developmentally disabled. The Innocence Project encourages police departments to electronically record all custodial interrogations in their entirety in order to prevent coercion and to provide an accurate record of the proceedings. More than 500 jurisdictions have voluntarily adopted policies to record interrogations. State supreme courts have taken action in Alaska, Massachusetts, Minnesota, New Hampshire, New Jersey, and Wisconsin. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases.

Snitches contributed to wrongful convictions in 16 percent of cases. Whenever snitch testimony is used, the Innocence Project recommends that the judge instruct the jury that most snitch testimony is unreliable as it may be offered in return for deals, special treatment, or the dropping of charges. Prosecutors should also reveal any incentive the snitch might receive, and all communication between prosecutors and snitches should be recorded. Fifteen percent of wrongful convictions that were later overturned by DNA testing were caused in part by snitch testimony.

Events such as these are not isolated nor absent from the Tennessee criminal justice system.

Prosecutors dropped charges against a former Tennessee inmate who spent 22 years on death row before new evidence cast doubt on his guilt. The district attorney said DNA tests presented “a reasonable doubt” about whether the former inmate, Paul House, 48, acted alone in the murder of a woman near Knoxville in 1985. At the time of the arrest Mr. House was not only 26 years of age, but DNA testing did not exist. Presumed Innocent is not a catch phrase. It is rather a safety valve that guards us all from hasty judgments and overly emotional jury verdicts.