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Brandon D. Fersten

Brandon D. Fersten

Barnes Law Firm
  • Appeals & Appellate, Business Law, Criminal Law...
  • Tennessee
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Brandon D. Fersten’s practice encompasses criminal defense, juvenile defense, appellate work, business litigation and contract dispute representation of individuals and small businesses, and personal injury. Brandon heads up the firm’s business litigation and contract dispute practice, where he helps individuals and small business owners obtain the relief that they deserve.

Brandon graduated Magna Cum Laude with a concentration in Advocacy & Dispute Resolution from the University of Tennessee College of Law. During law school, Brandon made the Dean’s list three years in a row and he was awarded the prestigious CALI Excellence for the Future Award in Advanced Criminal Law, Advocacy Clinic and Negotiation. Prior to law school, Brandon received his undergraduate degree in Political Science with a minor in Economics from the University of South Florida.

Some of Brandon’s accomplishments as a student attorney with UT's Advocacy Clinic include: successfully drafting and arguing an appeal in Criminal Court, receiving multiple dismissals of criminal and delinquency charges in General Sessions and Juvenile Court, successful arguing a motion for judgment as a matter of law during a contract dispute bench trial, and drafting a motion to dismiss on behalf of a tenant in a landlord-tenant dispute that ultimately resulted in a favorable settlement agreement for his client, among various other accomplishments that resulted in Brandon obtaining the CALI Excellence for the Future Award.

When Brandon is not practicing law, he enjoys playing golf and softball, watching sports, and hiking in the Great Smokies with his girlfriend of four years, Taylor. He is a die-hard L.A. Rams and N.Y. Mets fan. He also recently brought home his first daughter, an English Golden Retriever puppy, that occupies the majority of his time at home.

Practice Areas
  • Appeals & Appellate
  • Business Law
  • Criminal Law
  • Juvenile Law
  • DUI & DWI
  • Construction Law
  • White Collar Crime
  • Real Estate Law
  • Personal Injury
  • Landlord Tenant
  • Consumer Law
  • Free Consultation
  • Credit Cards Accepted
  • Contingent Fees
Jurisdictions Admitted to Practice
Board of Professional Responsibility of the Supreme Court of Tennessee
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6th Circuit
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United States District Court for the Eastern District of Tennessee
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  • English
Professional Experience
Associate Attorney
Barnes Law Firm
- Current
Student Attorney
University of Tennessee College of Law: Advocacy Clinic
Law Clerk
Barnes Law Firm
Law Clerk
McDonald, Levy & Taylor
University of Tennessee College of Law
J.D. (2019)
Honors: Magna Cum Laude
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University of South Florida
B.A. (2016) | Political Science; Economics
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Excellence for the Future Award: Advocacy Clinic
Excellence for the Future Award: Negotiation
Excellence for the Future Award: Advanced Criminal Law
Professional Associations
Tennessee State Bar
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Tennessee Trial Lawyers Association
- Current
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Tennessee Association of Criminal Defense Lawyers
- Current
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Knoxville Bar Association
- Current
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Articles & Publications
Difficulty in Establishing a §1983 Lawsuit Against Municipalities For Police Brutality Proves That A Solution is Needed: Respondeat Superior May Be The Solution
The U.S. Supreme Court Or Congress Should Eliminate Major League Baseball's Antitrust Exemption To Scrutinize Major League Baseball's Constitution: An Evaluation of City of San Jose v. Office of Commissioner of Baseball
Professional Legal Research
Lexis Nexis
Legal Answers
3 Questions Answered

Q. I need to show the consequences, when caught, to my step-son for driving while smoking marijuana, he already has a DUI
A: I would explain to your step-son that he can be charged and convicted of a DUI for driving while smoking marijuana. It is a common misconception that you can only be convicted of DUI for drinking and driving. The DUI statute makes it a crime to drive or be in physical control of a motor driven vehicle while under the influence of a substance that affects the driver's ability to drive. Thus, being under the influence of marijuana, and even being under the influence of prescription drugs that make the driver impaired, can form the basis for a DUI charge and conviction. As it relates to the specific consequences of a DUI second offense, assuming that your step-son's DUI was a DUI first offense conviction and within the last ten years, the minimum sentence to serve is 45 days and a maximum of 11 months and 29 days (a DUI first is a minimum of 48 hours served). In some circumstances an attorney may be able to decrease the 45 day minimum for a DUI second offense to 25 days of incarceration with the remaining period of the served sentence in a substance abuse treatment program. Similar to a DUI first offense, a DUI second offense is a Class A misdemeanor. Thus, the consequences of a DUI second offense increase significantly from a DUI first offense conviction. For further illustration, if convicted of a DUI third offense, the minimum sentence increases to 120 days incarcerated or 65 days of incarceration with the remaining period of incarceration in a substance abuse treatment program. If convicted of a DUI fourth offense, the conviction is a Class E Felony, rather than a Class A misdemeanor.
Q. Can a towing company increase the price on a previous quote?
A: To start, it sounds like you originally had an oral contract for your vehicle to be towed for $75. As such, generally speaking, the towing company was required to tow your vehicle for the agreed upon price. The price is usually offered based on the distance that the vehicle will be towed and the total amount of time that the company expects that it will take to complete the service. There are circumstances where unforeseeable events may excuse a party from performance under the affirmative defense of frustration of commercial purpose. Based on the information that you provided, such as the need to call the police and wait for the police to arrive to direct traffic, if you created a breach of contract claim, the defense of frustration of commercial purpose may provide the towing company with a defense to their obligation to tow your vehicle for $75. At that point, the towing company's new offer was for $150, which you accepted. On the other hand, it can be argued that based on the tow company's experience, it was foreseeable that they may have to call the police to direct traffic. As such, the towing company should have given an estimate rather than an offer, especially considering the location of your vehicle made it foreseeable that such an issue may arise. As it relates to your rights, unfortunately your options are limited. First, you can pursue a civil action in small claims court for breach of contract by filing a civil summons to the court clerk. Sadly, the filing fee alone is likely more than $75 in your county, in addition to the time that you would have to spend in court, and therefore it may not be worth pursuing. Other free options include filing a complaint with the company and sending the company a demand letter. Once again, these options may not be effective but it is a free option that may end up working. It is unfortunate that you were in a vulnerable position where you had no choice but to accept the second offer and it is even more unfortunate that the towing company will likely get away with it. I hope that one of the free options ends up working and that your vehicle is fixed!
Q. In Criminal Case is there just one discovery or is there multiple for defendant to recieve before trial or indicted
A: In a criminal case the defendant usually receives discovery from the State multiple times as the State continues to accumulate more evidence against the defendant. To start, before a defendant is indicted and while the case is in general sessions court, the defendant usually receives limited discovery. The initial limited discovery usually will not include all of the evidence against the defendant and thus, the defendant should anticipate receiving more discovery after he or she is indicted. A defendant's attorney should file a motion for discovery as soon as practicable after the case is indicted by a grand jury. Once the defendant requests discovery, the State has a continuing duty to disclose any additional evidence that is discovered thereafter and that was either originally requested in the defendant's motion or subject to discovery under Rule 16 of the Tennessee Rules of Criminal Procedure. As such, it is common for defendant's to receive additonal discovery as the case and the State's investigation continues to progress towards trial. Your lawyer will know what documents to request in the motion for discovery based on Rules 12 and 16 of the Tennessee Rules of Criminal Procedure, the Tennessee Code Annotated, the Tennessee Rules of Evidence, the ABA Standards, and caselaw.
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Barnes Law Firm
109 S. Northshore Dr.
Suite 310
Knoxville, TN 37919
Telephone: (865) 351-6105