News

Court Amends Rule 46 on E-filing

After review of public comments, the Tennessee Supreme Court has amended Revised Rule 46, which will be effective July 9. The rule refines certain aspects of the implementation of the e-filing system. Read the order as well as the changes to the rules here.
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6th Circuit Focuses on Conflicting Tennessee Laws in Brown Appeal

Attorneys in Cyntoia Brown's murder case appeared before a three-judge panel of the Sixth Circuit Court of Appeals in Cincinnati today, according to The Tennessean. During oral arguments this morning, the appeals judges repeatedly zeroed in on an apparent contradiction in Tennessee law. If Brown was serving a 51-year sentence, then a U.S. Supreme Court ruling forbidding life sentences for juveniles might not apply. The judges suggested that they might seek clarification from the Tennessee Supreme Court before moving forward. Her lawyers argue that Brown, of Nashville, was the victim of sex trafficking and shot Johnny Allen in self-defense. Mark Pickrell spoke for Brown's legal team today while Deputy Tennessee Attorney General John Bledsoe represented the state.

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Volunteers Needed for June 12 Legal Clinic in Nashville

Lipscomb University's Fred D. Gray Institute for Law, Justice & Society will host a free legal clinic in Nashville at 6:30 p.m. on June at Schrader Lane Church of Christ, located at 1234 Schrader Lane, Nashville, 37208. It will be an advice-only clinic with no expectation that volunteers take on continuing representation. For more information or to volunteer, contact Randy Spivey, 615-966-2503.
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Tennessee Supreme Court Gives OK to Modern Methods for Valuing Stock

In a case involving dissenting shareholders forced out of a closely held Nashville corporation, the Tennessee Supreme Court has overruled its prior case law and adopted a standard that allows trial courts to use modern methods to determine the “fair value” of the dissenting shareholders’ stock. The court overruled a 1983 case that required courts to only use the "Delaware Block" method of valuation and adopted a more open approach. However, in the case at hand, Athlon Sports Communications, Inc. v. Stephen C. Duggan et al., the Supreme Court remanded it back to the trial court, as the lower court and other parties may have been operating under the mistaken assumption that Delaware Block was the only valuation method that was available to them.

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New Video: Pera, Bivins Look at Next Steps in Indigent Representation

In a new video, TBA President Lucian Pera and Tennessee Supreme Court Chief Justice Jeff Bivins hold an informative and candid conversation about indigent representation reform. The pair talk about how the push for reform developed, the recent state budget approved by the General Assembly, and how the fight for reform will continue. Watch the conversation in full on the TBA’s YouTube channel. Those who have yet to fill out the TBA survey requesting comments on the issue have until midnight tonight to complete it.
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A Wellness Tip from the Attorney Well-Being Committee

Rather than checking on every e-mail as it arrives, schedule time in your calendar for reading and managing e-mail (and leave e-mail notifications silent during the other times of the day).  This will enable you to have focused time for given tasks without constant interruption and distraction.
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Tennessee Supreme Court Hears DUI Case

The Tennessee Supreme Court heard a challenge to the state’s DUI fee system today, the Times Free Press reports. When convicted, defendants were made to pay $250 to the Tennessee Bureau of Investigation to cover the cost of a blood alcohol or drug concentration test fees. Rosemary Decosimo was convicted of driving under the influence in March 2017, and is challenging those fees, which her attorney argues encourages positive results in blood alcohol tests.
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Senate Judiciary Chair Urges Justices to Retire Now

Sen. Chuck Grassley is urging any Supreme Court justice considering retirement from the lifetime job to announce immediately so a successor can be confirmed before the November U.S. midterm election, Reuters reports. The Iowa Republican chairs the Senate Judiciary Committee. The most likely justice to retire would be Anthony Kennedy, who turns 82 in July and has served since 1988. One of the court’s five conservatives, Kennedy sometimes sides with the four liberal justices on major issues like gay rights and abortion.

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This Week: Appellate Practice Section to Hold Meeting at TBA Annual Convention

The Appellate Practice Section will host an in-person meeting for its members at the TBA Annual Convention on June 14. During this meeting, we will discuss plans and section initiatives for the 2018–19 bar year and vote on East TN Delegate and current Vice-chair Kyle Wilson’s transition into Section Chair. We hope that you will join us for this opportunity to network and connect with fellow section members and welcome our new leadership. Here are the key details:
 
Appellate Practice Section Meeting
When: Thursday, June 14, 2 p.m., CDT
Where: The Peabody Hotel — Cockrell Room, 149 Union Ave, Memphis, TN 38103
 
TBA Convention
When: June 13–16
Where: The Peabody Hotel, 149 Union Ave, Memphis, TN 38103
 
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State Parole Board Divided on Clemency for Cyntoia Brown

The Tennessee parole board was split three ways while trying to decide whether to grant clemency to Cyntoia Brown, the Nashville woman serving a life sentence for a murder she committed at 16 as a victim of sex trafficking, The Tennessean reports. Two members of the six-member panel voted to recommend that the governor grant Brown clemency, two voted to deny, and two voted to reduce her current sentence of life to 25 years. Gov. Bill Haslam will ultimately accept or reject any of the recommendations.
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Senate Confirms Kentucky Lawyer for 6th Circuit Post

The Senate on Tuesday confirmed Kentucky lawyer John B. Nalbandian as the newest member of the 6th U.S. Circuit Court of Appeals, WMC Action News 5 reports. Nalbandian has practiced with the Cincinnati law firm of Taft Stettinius & Hollister since 2000.

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Appellate Practice Tip: What is the Mandate?

In ordinary parlance, a mandate is an official order to do something, or alternatively, the authority to carry out a policy or course of action. Under T.R.A.P. 42, however, the mandate of the appellate court is defined as, “Copies, certified by the clerk of the appellate court, of the judgment, any order as to costs or instructions as to interest, and a copy of the opinion of the appellate court ....”
 
In the case of an appeal taken to the Supreme Court, the clerk of the Supreme Court shall transmit to the clerk of the trial court the mandate of the Supreme Court with notice to the parties. Rule 42(a) requires that this be done “Eleven days after entry of the judgment unless the court orders otherwise.” Since a petition for rehearing may be filed within 10 days after the date the decision is filed, the rule further provides that the timely filing of the petition for rehearing will stay the mandate until disposition of the petition for rehearing. If the petition is denied, as it almost always is, the mandate shall issue immediately upon the filing of an order denying the motion for rehearing. When the case is remanded to the Court of Appeals or Court of Criminal Appeals, a formal mandate shall not issue unless the Supreme Court orders otherwise.
 
The clerk of the Court of Appeals and the clerk of the Court of Criminal Appeals have the duty to transmit to the clerk of the trial court the mandate of the Court of Appeals or Court of Criminal Appeals. That mandate must be sent no later than 64 days after the entry of judgment unless the court orders otherwise. The timely filing of a petition for rehearing will stay the mandate temporarily. Rule 42 provides that the clerk of the appellate court is responsible for collecting the clerk’s fees and that the mandate should not be delayed for the taxing of costs.
 
In cases in which review by the Supreme Court of the United States is sought, the appellate court whose decision is sought to be reviewed may stay the mandate. (Emphasis added) The clear implication of Rule 42(c) is that the decision of whether to stay the mandate when an appeal is sought to the Supreme Court of the United States is within the sound discretion of the Tennessee appellate court. (Also, under Rule 42(d), the court possessing the power to stay a mandate also includes the power to recall a mandate.)
 
Once the mandate is issued by the appellate court, the clerk of the trial court has the responsibility to promptly file it. See T.R.A.P. 43(a). If the appellate court has dismissed the appeal or affirmed the judgment of the trial court, once the mandate is filed in the trial court, the prevailing party may issue execution to enforce the judgment. T.R.A.P. 43(b).
 
The mandate is simply the order of the appellate court that disposes of the case in the appellate court and sends the case back to the trial court to handle the case. If the trial court is affirmed, the mandate allows the prevailing party to proceed. If the appeal is dismissed, the mandate gives the trial court the authority to conduct post-judgment proceedings, if any. It is important for appellate practitioners to understand the significance of the appellate court mandate and not to confuse it with the appellate court’s opinion, which is only a part of the mandate.

George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and chairs the Appellate Practice Law Section. 
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Share Your Thoughts on Proposed Amendments to Tennessee Supreme Court Rule 6

The Supreme Court recently requested comment on proposed amendments to TSC Rule 6 that would require new attorneys to complete a Tennessee Law Course within one year of admission to the Tennessee bar. The Tennessee Bar Association has a working group on this issue and will be drafting comments in response to the court's Order for Comment. To ensure this comment best reflects members’ views and positions, the groups is looking for your feedback. Share your thoughts about the proposed amendments through this form by June 8.
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    TSC Issues Notice of 2018 Rules Package

    The Tennessee Supreme Court issued notice today that the 2018 rules package will go into effect July 1. Included in the package were revisions to the Tennessee Rules of Appellate Procedure (Senate Resolution No. 165 adopted February 26; House Resolution No. 200 adopted March 5) Rules of Civil Procedure (Senate Resolution No.163 adopted February 26; House Resolution No. 202 adopted March 5) Rules of Criminal Procedure (Senate Resolution No.166 adopted March 1; House Resolution No. 207 adopted March 19) Rules of Evidence (Senate Resolution No. 164 adopted April 11; House Resolution No. 201 adopted March 5) and Rules of Juvenile Procedure (Senate Resolution No. 167 adopted February 26; House Resolution No. 208 adopted March 19), which have been ratified and approved by the General Assembly.
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    U.S. Senate Confirms Judge Over Home State Senator’s Objections

    In a rare move, the U.S. Senate confirmed the nomination of Milwaukee attorney Michael Brennan over the objections of one of his home-state senators, the Associated Press reports. The Senate traditionally gives lawmakers a “blue slip,” which allows them the chance to weigh in on a judicial nominee from their home state. Sen. Tammy Baldwin declined to return her blue slip, a sign of her disapproval of the nomination. Until this year, it had been almost 30 years since the Senate confirmed a judge without two positive blue slips. Brennan will serve on the 7th U.S. Circuit Court of Appeals.
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    Solo Attorney Hit with Sanctions After Accusing Court of ‘Extreme Judicial Activism’

    A federal appeals court ruled that a Texas solo practitioner must pay more than $60,000 in sanctions after claiming that the lower court had engaged in “extreme judicial activism,” the ABA Journal reports. This punishment comes on top of the nearly $176,000 that Omar Rosales was already sanctioned by that lower court for making false statements about opposing counsel. “Although it might have been possible for Rosales to raise genuine legal arguments,” the appeals court said, “he has not done so. Instead, his appeal was plagued with references to unrelated areas of law, mischaracterizations of the record and the law, and missing citations.”
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    Connect with TBA’s Appellate Practice Section

    The TBA Appellate Practice Section keeps you in the loop and on top of your game, providing key information important to appellate lawyers. Section members benefit from discount CLE programming, legal practice tips from seasoned professionals, networking events and a collective voice addressing legislation that impacts the practice. The section is chaired by Buck Lewis of Baker, Donelson, Bearman, Caldwell & Berkowitz PC. For information on becoming a member, contact Section Coordinator Jarod Word.
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    7 States File Suit to End DACA

    Texas and six other states have filed suit to challenge the lawfulness of DACA, arguing that former President Barack Obama's initial creation of Deferred Action for Childhood Arrivals in 2012 violated the Constitution and federal law, News Channel 5 reports. The move makes the future of the program even murkier and may ensure the question ends up before the Supreme Court.

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    SURVEY: Proposed Amendment to Supreme Court Rule 31, Relative to Alternative Dispute Resolution

    As you may know, the Supreme Court issued a notice requesting comment on amendments to TSC Rule 31. The Tennessee Bar Association will be filing a comment in response to the proposed amendments and we need your help in drafting our response to ensure that it best reflects our members’ views and positions. Completing this brief survey will assist us in determining specific sections' positions on the proposed changes. After completion, the survey will be sent to your section's executive council, who will review the received responses, determine the section's position and relay the final comments to the TBA.
      
    The TBA has generally summarized the proposed changes, but please read the order and proposed amendments, which are provided below, for more detailed information. Please provide your responses by Monday, April 30. Thanks for your help in this endeavor.

    TAKE THE SURVEY

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    Reception for Litigation and Appellate Attorneys

    The TBA Appellate and Litigation sections will hold a cocktail reception immediately following their collaborative forum on Thursday. Section members and practitioners are invited to attend (attendance to the CLE is not required but recommended). The reception will begin at 4:15 p.m. at Tennessee Bar Center's 5th Floor Terrace Room.
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    TSC Clarifies When a Ruling Issued After Trial Should Be Applied Retroactively

    In State vs. Minor, the Tennessee Supreme Court clarified when a new legal ruling issued after a criminal trial should be applied to a case retroactively and what standards an appellate court should apply to decide whether the new rule affords a defendant relief. The court concluded the law had changed between the time of Minor’s trial and appeal, so the law at the time of his appeal controlled. The majority opinion was written by Justice Cornelia A. Clark, with a separate concurring opinion written by Justice Sharon G. Lee.

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    Legal Practice Tip: Oral Argument

    All practitioners are aware that oral argument is governed by Rule 35 of the Tennessee Rules of Appellate Procedure. Entire books and day-long seminars have been devoted to oral argument, so the purpose of this tip is to convey a few pieces of information regarding oral argument of which practitioners may not be aware.
     
    The first point is to recognize that the time for oral argument set aside in the Sixth Circuit Court of Appeals and in the Tennessee Appellate Courts is different. In the Sixth Circuit, parties only get 15 minutes per side absent an order to the contrary. In the Tennessee appellate courts, the parties get 30 minutes absent an order to the contrary. This is a profound difference and has implications for the structure of the oral argument. Obviously, 15 minutes is a very short period of time and in the Sixth Circuit, counsel typically will have to rely on their briefs for one or more issues and focus the entirety of their oral argument on one or two principal arguments. It is actually wise in the Tennessee Appellate Courts as well to consider whether every single issue in the brief needs to be addressed during oral argument.
     
    Some sections tend to ask more questions than others just as some judges tend to ask more questions than others, but it is important, especially for the appellant, that the court get a full understanding of the principal argument being presented. During the argument, there may be present on the podium a panel of lights that change from green to yellow to red. The green light indicates that there is substantial time remaining. The yellow light indicates that the time allotted for the argument is about to draw to a close. The red light indicates that counsel should stop absent leave of the court.
     
    The preferred practice when time runs out is that if counsel is answering a question, counsel should request leave from the presiding judge to finish their answer. If counsel has not been asked a question and has run out of time, counsel should offer to answer any questions the court may have, acknowledging that they have run out of time. Rule 35 (d) allows the appellant some rebuttal time. At the beginning of the argument, most courts prefer to have the appellant state how much rebuttal time they are reserving. This allows the clerk to properly keep the time during the principal argument.
     
    Although (d) prohibits reading at length from the record, briefs or authorities, most courts will allow parties to have placed at each judge’s position on the dais one or two key exhibits for reference during oral argument. Most courts will also allow counsel to refer to charts that may be placed on a tripod in the courtroom. Counsel should work with and through the clerk of the appellate court with respect to either technique. Although generally not employed, having a key exhibit on the dais or having a key exhibit (or timeline or photograph) available on a chart in the courtroom can be a very effective tool.
     
    When there is more than one party on a side, most courts prefer that the parties designate one advocate to argue the case. Courts do not like redundant arguments and would prefer to be able to address one advocate with respect to all the issues. Nevertheless, if there are parties on the same side with diverse interests, the time for the oral argument can be divided. Counsel should also be mindful, though, that (f) provides that no more than two counsel or parties will be heard from each side requesting the same relief. Counsel should be mindful that oral argument must be requested by at least one party and that if no party requests oral argument expressly at the bottom of the cover page of the party’s brief, the court will submit the case for decision on the record and the briefs. The Court, of course, retains the discretion to direct that the case be argued even if no party has requested it.
     
    Clients also inquire as to which appellate judges will hear their case. That is a difficult question to answer because appellate judges from throughout the state may sometimes sit in divisions other than the divisions to which they are regularly assigned. In addition, counsel will generally not be aware until oral argument actually commences which judges will actually sit on their case. For example, there are instances of where even the Supreme Court has taken a recess and when the court reappeared after the recess a special judge was designated because one of the regular justices had recused themselves. Counsel, therefore, can make educated guesses about the judges who will probably hear the case, however, these predictions should also be accompanied by a caveat that it is within the court’s discretion to change who hears the case at the last minute. (Section 3 of Supreme Court Rule 10(d) governs the disqualification and recusal of appellate judges.)

    George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and currently chairs the Appellate Practice Law Section. 

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    Volunteers Needed for Monroe County Expungement Clinic

    Vet to Vet Tennessee and the University of Tennessee College of Law will host a free expungement clinic in Madisonville on April 21 and are seeking attorney volunteers to help out. The clinic will take place from 9 a.m. to noon at the First Baptist Church of Madisonville and aims to help residents in Bradley, McMinn, Monroe and Polk counties. To sign up to volunteer or ask a question, contact Troy Weston.
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    Judge Clement Speaks at Litigation CLE

    The Hon. Frank Clement with the Tennessee Court of Appeals joins an all-star CLE cast for the 2018 Litigation and Appellate Forum on April 19 in Nashville. Other speakers include the Hon. Barbara Holmes, the Hon. Randal Mashburn, the Hon. Brandon Gibson and Tennessee Supreme Court Clerk Jim Hivner. Topics include oral argument preparation, effective depositions and Tennessee’s new e-filing process.

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    Recent Ruling by Sixth Circuit Court of Appeals Gives Transgender Workers New Protection Under Title VII

    Employers are moving to adopt or strengthen policies to prevent bias against transgender people after the latest in a series of court rulings that have extended protections for an increasingly diverse workforce, The New York Times reports. A recent opinion by the Sixth Circuit Court of Appeals maintains that transgender people are protected by the civil rights law that bans workplace discrimination based on sex, rejecting the position taken by Attorney General Jeff Sessions in October 2017.
     
    The case was brought by the Equal Employment Opportunity Commission (E.E.O.C.) on behalf of a funeral director fired by a Michigan funeral home after informing the owner that she intended to transition from male to female and would dress as a woman while at work. Scott Rabe, an expert on employment law at the firm Seyfarth Shaw, said that the ruling was important because “it addresses two hot-button topics in employment law: the scope of the definition of ‘sex discrimination’ under Title VII and the impact of laws protecting the free exercise of religion in the workplace.”
     
    The funeral home maintained that it did not violate federal law by requiring the employee to comply with a sex-specific dress code. Additionally, the owner of the home, Thomas Rost, said that forcing him to employ the transgender worker would impose a substantial burden on his sincerely held religious beliefs, violating the Religious Freedom Restoration Act of 1993. In court papers, Rost said he wanted to run his business in keeping with his religious belief that “a person’s sex (whether male or female) is an immutable God-given gift and that people should not deny or attempt to change their sex.”
     
    In a memorandum to Justice Department lawyers, Sessions said that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” The court disagreed, saying that employees may not be discriminated against because they fail to conform to “stereotypical gender norms” — in this case, an employer’s notion of “how biologically male persons should dress, appear, behave and identify… Job discrimination based on a person’s transgender status violates Title VII of the Civil Rights Act of 1964” the court ruled. “Discrimination based on transgender status is a form of sex discrimination,” said the decision, written by Judge Karen Nelson Moore for a unanimous three-judge panel, because “an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex.”
     
    “The ruling is a big win for the Equal Employment Opportunity Commission and for transgender people,” said Rabe. “The court sent a strong message that the Religious Freedom Restoration Act has minimal impact on the E.E.O.C.’s authority to enforce the anti-discrimination laws under Title VII of the Civil Rights Act.” The court decision is binding in states covered by the Sixth Circuit: Kentucky, Michigan, Ohio and Tennessee, but its reasoning could certainly influence future decisions. The funeral home has not said whether it will appeal the ruling. You can read the court's opinion using this link.
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