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VOL. 43 | NO. 37 | Friday, September 13, 2019

Maryville’s Matlock ‘makes it look easy’

Black ending storied career as litigator

By Nancy Henderson

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It didn’t seem funny at the time, but 50 years later the memory of one of his first cases elicits a chuckle from attorney David Black.

Appointed to represent two young men who claimed they were innocent after being arrested for allegedly stealing a car battery – the Maryville area did not yet have a public defender – Black listened intently as the prosecution’s eyewitness described how he was sitting on his front porch swing in the middle of the night when he saw the pair walk past to his neighbor’s vehicle, lift the hood and remove the object under question.

“The attorney general asked the witness which one was carrying the battery,” recalls Black, 75, co-founder of Kizer & Black in Maryville. “To my shock and dismay, I looked over and one of my guys had raised his hand. The witness then said, ‘The one with his hand up.’

“That’s why I decided it’d be better to prosecute than to defend.”

Although his client’s honesty dashed all hopes of a courtroom win that day, Black’s own truthful nature has served as the bedrock of his practice. Known among friends and colleagues as an even-keeled, optimistic and honorable man who treats everyone fairly, he has practiced extensively in the areas of major civil, business and estate litigation. Black is currently working on his final case, a breach of trust matter, and hopes to retire later this year.

“His presence is calming in turbulent situations. He makes you feel like everything is going to be okay,” says Melanie Davis, a partner and civil litigator at Kizer & Black who has worked for the firm since she clerked there in 1995. “If there is an issue, he addresses it politely and professionally, but head on and in person. He never seems scared of or intimated by anything or anyone. It is not swagger; it is confidence.”

Born in Fontana, N.C. – his father helped build the dam there – Black was just a baby when his family moved to his widowed grandmother’s farm in East Tennessee to help her tend the land. “I remember picking little woolly worms off the tobacco a lot, but I wasn’t old enough, really, to do much,” he says. He loved being outdoors but, except for tennis, wasn’t particularly good at sports.

Intrigued by law, at 16 he began traveling to the Maryville courthouse by himself, where he sat in on a few “sensational” murder trials. “The one of particular interest involved the death of a neighbor, who unfortunately was shot and killed on a break-in, a burglary,” he recalls. “The irony of that was [10 years] later I was appointed to represent the shooter in a post-conviction relief act.”

Eager to “get going with life,” Black overlapped his first year of law school with his senior year at the University of Tennessee, earning his B.S. in liberal arts from UT and his legal degree from the College of Law back-to-back in 1966 and ’67.

From the beginning, he knew he wanted to be a litigator. “I like people. I like the process,” he explains. “I enjoyed resolving cases, resolving issues, addressing problems. And if you couldn’t solve them, there was a process by which a jury or judge could bring closure.”

But, like many young men of that era, he was faced with the prospect of serving in the Vietnam War. Addressing the inevitable, in 1968 he applied for a direct commission to the Army Security Agency and began the yearlong wait for the background checks to be completed.

He also talked solo practitioner Ben Kizer, who understood the rigors of war – a rear gunner on a B-52 bomber during World War II, Kizer was shot down over Austria and held for 17 months in a POW camp – into giving him a job, knowing he might have to leave at any time. For a year, Black did transactional work for his mentor, tried a couple of lawsuits, and defended a few local clients, including the battery bandits.

Starting in 1969, his role as battalion legal officer took him up and down the east coast, from Georgia’s Fort Benning to Fort Devens in Massachusetts and later Fort Bragg in North Carolina. He carefully sidesteps the details of his “top security” job.

In 1972, after returning to his practice at Kizer & Black, he became one of two part-time assistant attorney generals who rotated between Roane, Loudon and Blount counties, trying cases. The experience fine-tuned his organizational skills as well as his ability to communicate well with juries.

“I learned that oftentimes you had to shoot from the hip,” he says. “You might have 60 or 70 cases in Sessions Court a day that involve the cases being bound over to the grand jury – misdemeanors, just the whole gamut of criminal law.”

In the early years, Black handled everything from family and small business disputes to personal injury and wrongful death suits. “It’s what I call ‘Maryville law,’” he says. “Maryville’s a very diverse community. The small firms in Maryville did whatever the client needed.”

In one “especially moving” case in the 1970s, Black represented the family of an 18-year-old killed in the state penitentiary.

The defendant and three younger boys had hotwired a car from a barn after their own vehicle broke down. After their joyriding spree, they were returning the car when they ran into a ditch 250 yards away and got caught.

Black pled his client guilty – he was guilty, after all, and the teenager had confessed – expecting a probation sentence. Instead, because the young man had smoked marijuana at age 14, the judge sent him to prison in Nashville. Forty-five days later, the blonde-haired boy who weighed only 138 pounds was murdered while resisting a sexual attack from an inmate who broke into his cell.

Black challenged the state prison system for failure to meet Tennessee’s constitutional requirement of providing “safe and comfortable” prisons. He also filed a civil rights action and a claim with the state’s Board of Claims. Stating only that “a confidential settlement was reached,” Black notes that the Constitution’s “safe and comfortable” prison requirement was later reworded.

In another far-reaching case, he and his legal team filed the state’s first class action suit against a major loan company for charging exorbitant interest rates in violation of the 10 percent limit established by the Tennessee constitution. “Some of [the rates being charged] were 40 percent, 50 percent, 70 percent. One of them was 140 percent,” Black notes. “Our position was pretty clear, that 10 percent means 10 percent, nothing more and nothing less.”

The case eventually went to the Tennessee Supreme Court. “The Supreme Court, five to zero, affirmed the trial judge [in Blount County],” he says. “And every loan company in the state closed down the next day.” The provision that had permitted the high charges was declared unconstitutional.

One reason her boss has been so successful, says Davis, is that “he is not afraid to do the nitty gritty work.” As an example, she notes that early one morning, her husband spotted Black walking on the side of Alcoa Highway in the rain, showing surveyors where to assess a part of the roadway before it was destroyed by construction.

“We needed the data in a car wreck case where the condition of the pavement was an issue,” Davis continues. “I do not think that many other attorneys at that stage of their career would be out in the rain at rush hour doing that work on behalf of their clients.”

In court, Davis says, Black is extremely credible with judges and juries. “He always makes what he does look easy, which is in my mind a mark of someone who is really brilliant at what they do. He is a true old-school advocate for his clients. He always wants to find a way to solve a problem, not place blame for the problem.”

Tim Park, who has known Black for more than 70 years, describes his friend as “a modern-day Matlock.”

“Woe be unto any opponent who gets lulled to sleep with his, ‘Aw shucks, good ol’ boy’ façade,” Park adds, “for they will soon go down for the count for having greatly underestimated his underlying intelligence, preparation, passion, inventiveness and unmatched work ethic.”

When asked if he ever turns into a bulldog in the courtroom, Black quickly replies, “Possibly. Sometimes. As necessary. I just tried my lawsuits, just got them ready and tried them, and went from there.

“I always tell the truth,” he adds. “I always want to be honest with the jury and the court.”

In addition to his private practice, Black served as Maryville’s city attorney from 1999 to 2017. He has also chaired the Blount County Planning Commission, the Blount County Economic Development Board, and the Tellico Reservoir Development Agency (TRDA), where he remains a board member. Other board affiliations include the Blount County Historic Trust and the Great Smoky Mountains Heritage Center. A past president of the Blount County Bar Association, he is licensed to practice before all state courts, U.S. District courts, the Sixth Circuit Court of Appeals, the U.S. Claims Court and the U.S. Supreme Court.

Curious to know more about how mediation worked, Black became one of the state’s first certified mediators. He still prefers litigation, but the new skill shed light on an evolving profession that is no longer trial-heavy. “It involves problem-solving, communication,” he explains. “You kind of figured out where the mediator was headed, and the training helped you understand what mediation is all about.”

Law has been a family affair for Black, whose wife Martha (“Marty”), a highly-respected Maryville attorney and the first woman tenured by the UT College of Law, joined Kizer & Black in 1981. She is now retired. Their daughters Charlotte and Elizabeth are attorneys too, with one on the west coast and one on the east. “So it’s diluted,” Black jokes.

The Blacks enjoy traveling and collecting antiques, and over the years have rehabilitated a number of log cabins, including one from the 18th century on the grounds of their Hollybrook Farm in Rockford. An avid East Tennessee history buff, Black has researched and written about the early beginnings of the area. In 2017, he wrote, produced and directed “Tanasi 1796,’’ a historical drama about the state’s early years and the influence of the Cherokee nation that was performed at Maryville’s Clayton Center for the Arts. He hopes to write more after he retires and continue some of his community work.

Of his longtime career, Black says, “My brother said it best. He retired a few months ago from Delta Airlines, and he’d been there 60 years. When asked why he was there so long, he said, ‘Well, I like what I do. I like who I do it with. And I like who I do it for.’ I think that sums up my practice as well.”

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