Sessions Criticizes Federal Judges Who Block Trump Administration Policies

Attorney General Jeff Sessions today had harsh words for judges who have issued nationwide injunctions that blocked Trump administration policies, the ABA Journal reports. Sessions said in a speech to the Heritage Foundation that the judges are failing to respect the legislative and executive branches, and emphasized that "the judiciary is not a superior or policy-setting branch." American Bar Association President Hilarie Bass issued a statement saying that the ABA is “alarmed” in response to the remarks. “Judges should not be attacked or diminished by another branch of government just because they do not rule in its favor,” Bass said. “Judicial independence is critical to maintaining the rule of law in our nation.”
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New Appellate Advocacy Guide Available from NBA

The Nashville Bar Association recently completed updates to Appellate Advocacy: A Handbook on Appellate Practice in Tennessee. This handbook is intended to aid practitioners in preparing their cases so that the merits are the focus of their appeal. Don Caparella, TBA Appellate Practice Executive Council member, served as editor over these revisions.

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Appellate Practice Tip #3: Interlocutory Appeals and Rule 54

There is always a certain amount of confusion about the fact that the Tennessee Rules of Civil Procedure contain a rule, Rule 54.02, which seems to provide for an interlocutory form of relief while the Tennessee Rules of Civil Procedure, contains Rules 9 and 10, which specifically provide for interlocutory relief. While there are some similarities, the factors to be considered with respect to the appropriateness of these types of appeals are different. Technically, under Rule 54.02, the Tennessee Rules of Civil Procedure, when more than one (1) claim for relief is present in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the Court may direct an entry of final judgment as to one or more, but fewer than all the claims or parties.

However, and this is extremely important, the trial court must make an express determination that there is “no just reason for delay” and must expressly direct the entry of a judgment on specified claims and/or as to specified parties. The Rule is clear and our courts of appeals have been steadfast in enforcing the requirement that in the absence of this determination and direction, any order or other forms of decision, however, designated, that adjudicates fewer than all the claims or rights and liabilities or fewer than all the parties, shall not terminate the action as to any of the claims or parties and the order or another form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. The requirements of Tennessee Rules of Appellate Procedure 9 and 10 are different and savvy practitioners should review TRCP 54 and TRAP Rules 9 and 10 to determine which is the most tactically advantageous in their situation.  

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

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10 Sworn-in to U.S. Supreme Court at TBA Academy

Ten Tennessee attorneys were admitted to the U.S. Supreme Court today as part of the TBA's 34th Annual Academy in Washington, D.C. The event, which offered three hours of CLE credit, kicked off Tuesday with a reception and celebration dinner, continuing today with breakfast at the Supreme Court, being sworn-in, and watching two oral arguments. After hearing a lecture on the history of the court the group had lunch at the U.S. Capitol, followed by a tour conducted by a staff member from Sen. Bob Corker's office. Those admitted today are Deborah Murphy Dickson, Michael Patrick Dolan, Floyd Senter Flippin, Thomas H. Forrester, Mark N. Foster, Zachary D. Jones, TBA President-elect Jason Pannu, Donna Simpson, TBA Executive Director Joycelyn Stevenson and Scott David Weiss. See a picture of the group.

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DOJ Tells Supreme Court to Drop 'Moot' Travel Ban

The U.S. Department of Justice told the Supreme Court yesterday it should drop a pending challenge to President Donald Trump’s travel ban because the ban has been replaced with a new version, the ABA Journal reports. The third and newest version of the ban removed Sudan and adds Chad, North Korea, and certain citizens of Venezuela. The DOJ said that due to the changes, the case is moot. It also asked the Supreme Court to vacate lower court rulings in the case.
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Court Affirms Especially Aggravated Robbery Conviction

In an opinion filed today, the Supreme Court of Tennessee clarified when a serious bodily injury must occur during a robbery to elevate the crime to especially aggravated robbery. In State of Tennessee v. Antonio Henderson, the Supreme Court determined a serious bodily injury suffered by a victim of a robbery must be sustained during the robbery in order for the enhanced charge and punishment to apply. In deciding when a robbery is over, the Court concluded a theft is completed when a defendant has taken all of the property he intended to steal.
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8 Cases Granted Review by Supreme Court

The Tennessee Supreme Court has recently granted review in eight cases, including civil cases that involve wrongful death plaintiffs, health care liability pre-suit notices, and accrual of civil actions. Criminal cases include sex offender probation, error coram nobis, warrantless searches, retroactivity of constitutional challenges, and creation of child pornography. The Raybin Supreme Court Hot List reviews the cases and offers predictions.

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Court Issues Proposed Rules Amendments, Asks for Comment

The Tennessee Supreme Court has published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence, the 2018 Proposed Rules Amendments. Several TBA sections are reviewing the recommendations for possible comment. Comments are due to the court no later than Nov. 22.

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SCOTUS Kicks Off Term Today

The U.S. Supreme Court took the bench today to kick off what Justice Ruth Bader Ginsburg is calling a “momentous” term, CNN reports. This year’s big issues include gerrymandering, voting rights, religious liberty, privacy and immigration issues. Cases up for the Court include that of a Colorado baker who refused to bake a cake for a same-sex wedding, a case of whether investigators need to obtain a warrant for cell tower data and the case of the Trump Administration’s travel ban, which might have to be sent back down to a lower court due to the recent changes made to the order.
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SCOTUS to Hear Case of Death Row Inmate Unable to Stop Lawyer from Conceding Guilt

The U.S. Supreme Court today announced it will consider whether it is unconstitutional for defense counsel to concede a defendant’s guilt over his express objection, the ABA Journal reports. The question centers around the case of Robert Leroy McCoy, a Louisiana death row inmate who objected to his lawyer’s suggestion to admit guilt and accept a plea deal. His lawyer, Larry English, argued that it was his ethical duty to save McCoy’s life, and therefore admitted McCoy’s guilt with the goal of sparing him from the death penalty.
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Court Square Series Coming to Dyersburg on Friday

On Sept. 22, TBA CLE will bring the Court Square Series to the Farms Golf Club in Dyersburg. Public Defender Sean Day will provide case law updates and review statutory law governing criminal cases. Bankruptcy Trustee Molly Williams will provide guidance on real property issues in bankruptcy cases. The final session will be a presentation on appellate practice with attorneys Jennifer Vallor Ivy and Samuel Ivy.

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Appellate Law Section Connect


We had a packed house for the TBA Supreme Court Academy, which the Appellate Practice section held in collaboration with the UT College of Law on Sept. 6. I would like to thank the Supreme Court, Professors Lucy Jewel and Penny White, and the advocates who argued so well and stayed afterwards to discuss the argument and their preparation for the argument. 



Appellate Practice Tip: Appellate Mediation

Pursuant to Rule 34 of the Tennessee Rules of Appellate Procedure, parties may request voluntary mediation while the case is pending in the Court of Appeals. Parties desiring to engage in mediation should file a joint stipulation requesting suspension of the appeal with the clerk of the appellate courts. Upon the filing of a timely joint stipulation, the time for preparing the transcript or statement of the evidence, the record on appeal and the brief shall be suspended for no more than 60 days to enable the parties to mediate their dispute.
The provisions of the voluntary mediation rule, however, do not apply to appeals required to be expedited by statute, rule or order of court, appeals in which the constitutionality of a statute or rule or the constitutionality of an application of a statute, ordinance or rule is an issue, or appeals involving the imposition of criminal contempt sanctions.
If the mediation is successful, the parties should file a Notice of Voluntary Dismissal of the appeal.
Note: The practice in state court is different than the practice in the Sixth Circuit Court of Appeals. In the Sixth Circuit, absent good cause, the parties are expected to participate in mediation, which is conducted by a sixth circuit mediator who is an employee of the Sixth Circuit Court of Appeals.
In the last Legal Practice Tip, we discussed cost and stay bonds. We have been advised that the clerk of the appellate court will soon begin collecting court costs on the front end, so no cost bond will be posted. Stay bonds will continue to be handled first in the trial court, subject to review on appeal.
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Court Amends Rule 34: Public Access to Court Records

The Tennessee Supreme Court issued an order and appendix late today amending Tennessee Supreme Court Rule 34. The amendments, effective immediately, revisit the records policy for appellate courts and indicate they are adopting a separate written public records policy applicable to the appellate courts.

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Tennessee Supreme Court Reviews ‘Good Faith’ in Law Enforcement

The Tennessee Supreme Court heard two cases yesterday that concern the good faith exception to the exclusionary rule, the Memphis Flyer reports. Defendants in both cases claim that police illegally gathered evidence by drawing their blood or searching their house. Both were convicted due to that evidence, and both want new trials because they claim police violated their rights to unreasonable searches and seizures. While the U.S. Supreme Court already allows such exclusions, the Tennessee Supreme Court only began allowing “limited” good faith exceptions last year.
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TSC Reverses Dismissal of Wrongful Death Suit Filed Without a Lawyer

The Tennessee Supreme Court has rejected a defendant hospital’s argument that a wrongful death lawsuit filed by a surviving spouse was null and void because the spouse was not represented by a lawyer when the lawsuit was filed. Read the unanimous opinion by Justice Holly Kirby at the Court’s website
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Briefs Now Available in Supreme Court CLE

Read briefs from both cases before attending the Sept. 6 Supreme Court CLE in Knoxville. Just go to the course description page to find the briefs, then listen to the oral argument portion of the CLE program live in Knoxville. Cases to be heard are State of Tennessee v. Lindsey Brooke Lowe and State of Tennessee v. Angela Faye Daniel.
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Southeast Complex Litigation Forum Set for Sept. 7

The Southeast Complex Litigation Forum, a TBA CLE offering four general credits, will be Sept. 7 at the Tennessee Bar Center in Nashville. The seminar will cover the latest developments in mass torts, class actions and multi-district litigation (MDLs). You will learn from national litigators about the latest in cutting-edge aggregate litigation, including emerging litigation involving opioids, medical devices, pharmaceutical drugs and consumer products. The discussions will also include litigation tips and best practices on how to approach discovery in the post-proportionality world. Learn more and register here.
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Watch for Practice Tips from Your Appellate Section

Beginning with this issue, we will be sending you periodic tips on appellate practice. These may be based on new cases or rule changes or they may just be practice tips regarding existing sections of the Tennessee Rules of Appellate Procedure. We hope that you will find these tips worthwhile and we would appreciate it if you would spread the word that members of our section will begin receiving these tips.
Appellate Practice Tip #1: Bonds and Stay Orders
Pursuant to Rule 6 of the Tennessee Rules of Appellate Procedure, unless an appellant is exempted by statute or by rule, a bond for cost on appeal shall be filed by the Appellant in the trial court along with the Notice of Appeal. Tennessee Rule of Appellate Procedure 6(a) governs the requirements for surety and the rights of sureties on appeal.
Pursuant to Tennessee Rule of Appellate Procedure 7 and Rule 62 of the Tennessee Rules of Civil Procedure, a stay of the order of the trial court (such as an execution on a money judgment) may be sought in the trial court. Review of the trial court's order regarding the stay may be sought in the appellate court. Review of the trial court stay order or refusal of the issue of stay order may be sought in the Court of Appeals by filing a motion for review accompanied by the motion filed in the trial court. A party may appeal the Court of Appeals decision on a motion for review by filing a motion for review in the Supreme Court within 15 days of the filing of the Court of Appeals order. Any attempt to file the first motion for stay in the appellate court will generally be rejected. Stay orders should be sought first in the trial court and then, any aggrieved party may seek review of that order in the Court of Appeals.
Counsel for the party posting a bond and counsel for opposing party should review the language of the bond carefully. The precise language of the bond and/or any ambiguities in the language of the bond can become very significant. See e.g., Wright Medical Tech. vs. Bernard Grisoni & Biogeneration Inc., W2000-01302-COA-R7-CV (Dec. 18, 2001).
Buck Lewis, TBA Appellate Practice Section Chair
Baker, Donelson, et. al.
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Sen. Grassley Doesn’t Expect Imminent Supreme Court Vacancy

Sen. Chuck Grassley, R-Iowa, chair of the U.S. Senate committee that handles Supreme Court nominations, said he does not expect an imminent court vacancy, Reuters reports. The statement signals that Justice Anthony Kennedy will not retire this year, despite earlier speculation. "Evidently that's not going to happen," Grassley said. "I don't have any expectation we will have a vacancy as I thought there would be" earlier this year.
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Enroll in the Tennessee Supreme Court Academy

Learn about best practices in the Tennessee Supreme Court at a special CLE set for Sept. 6 for the University of Tennessee College of Law. Attendees will first observe oral arguments before the Tennessee Supreme Court and then attend follow-up sessions regarding appellate practice, advocacy, and ethical considerations.

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Appeals Court Confirms Sumner County Schools Violated Open Records Act

A Tennessee appeals court today sided with a Joelton man who sought records from the Sumner County School District but was denied, the Tennessean reports. The school system initially denied Ken Jakes his request on the basis that it was not made in person or via email. The appellate court upheld the original 2015 ruling from a Sumner County Criminal Court judge, which found Sumner County Schools in violation of the Tennessee Public Records Act.
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Be Admitted to Practice Before the U.S. Supreme Court

If admission to practice before the U.S. Supreme Court is one of your career goals, don’t miss the opportunity to make it a reality during the 34th Annual TBA Academy, Oct. 10-11. A select group of Tennessee attorneys will be able to take part in this private ceremony before the court and enjoy other events at the court and the capitol. A reception and celebration dinner kick off the Academy, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, where the TBA has obtained a special rate for Academy participants.

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SCOTUS Allows Extended Family Exemptions to Travel Ban

The U.S. Supreme Court today allowed a lower court’s decision to stand that would exempt grandparents, grandchildren and other extended family members from the Trump administration’s travel ban, the ABA Journal reports. The Court did block a portion of U.S. District Judge Derrick Watson’s ruling that exempted from the travel ban refugees who have formal help from a resettlement agency.
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Court Overturns Murder Conviction Over Suppressed Testimony

The Tennessee Court of Criminal Appeals overturned the second-degree murder conviction of Brandon Scott Donaldson and ordered a new trial, over testimony that was barred from the original trial, the Knoxville News Sentinel reports. Donaldson was convicted of the 2013 fatal shooting of his pregnant girlfriend Marcia Crider and her unborn child, as well as the attempted murder of Crider’s mother. However, testimony that the victim had told Donaldson news about transmitting a venereal disease to him just two hours prior to the crime could have swayed the jury to find Donaldson guilty of a lesser crime, such as voluntary manslaughter.
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Appellate Court Rules Landowners May Challenge TDOT Pipeline Permit

A judge found that two landowners do have standing to challenge a Tennessee Department of Transportation permit granted to US Nitrogen, which operates two 10-mile pipelines running along two state highways and could be intruding on the owners’ property, the Knoxville News Sentinel reports. Appeals Court Judge Brandon O. Gibson’s ruling completely reverses the decision of a lower court. US Nitrogen could be forced to remove the pipelines, which are being utilized in the production of ammonium nitrate, after the case goes back to Chancery Court to determine the legality of TDOT’s permits. 
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