TBA Law Blog

Posted by: Marshall Davidson on Apr 1, 2015

Journal Issue Date: Apr 2015

Journal Name: April 2015 - Vol. 51, No. 4

20 Lessons Learned from 20 Years at the Tennessee Supreme Court

During the years I was privileged to work as a staff attorney for Tennessee’s highest court, I made unexpected discoveries about the justices, lawyers who appear before them, and pitfalls to avoid in navigating our state’s appellate judiciary. Here are some of those discoveries.

1. The Court’s Opinions

As a newly licensed lawyer, I had no idea whether Tennessee’s appellate judiciary functioned well or hardly at all. Twenty-five years later, I realize just how fortunate Tennessee attorneys are to have an appellate judicial system that is both efficient and effective. While some states face difficulties with the timely resolution of cases on appeal, Tennessee is not one of those states. That good fortune is no accident.

Few lawyers probably realize that the working rule at the Tennessee Supreme Court is for opinions to be released within six months of oral argument. Most of the court’s opinions are decided and released sooner than that, quite an achievement given the number and complexity of cases at that level. The legal scholarship of the court’s opinions relative to those of many other states is impressive and a source of pride for all who work at the court.

2. The Justices

Everyone knows that the men and women who end up on the state’s highest court are bright, conscientious lawyers and judges from lower courts. However, because most attorneys seldom interact with the justices as a normal part of their practice, few lawyers know much about the people who manage the state’s judicial system. Having worked with 17 different justices, some for many years, the common thread I have observed is that the justices strive to reach a resolution in each case that makes both legal and practical sense, which is not always an easy task. They are driven by a desire not only to reach a just result that comports with legal requirements and common sense, but to ensure that the law is as clear and sensible as possible.

When I started working at the court in 1990, I was surprised to learn how much time the justices devote to managerial and administrative duties, such as tending to boards and commissions, legislation affecting the judiciary, budgets, employment matters, and rules of procedure, to name a few. Although these relatively thankless tasks have little direct connection to deciding cases, an efficient judicial system demands full attention to such things. The justices spend roughly half their time doing just that.

The justices who have served on the court during the past two decades can generally be described as low-key individuals who quietly and meticulously go about their work. For the most part, they have been and are today humble, unassuming individuals who care deeply about educating the public, particularly school children and college students, about how the courts perform their work. Indeed, thousands of young people from across the state have witnessed oral arguments through the court’s SCALES (Supreme Court Advancing Legal Education for Students) project. The justices are not just concerned about deciding cases, but  also making tangible, lasting impacts on the lives of all Tennesseans.

3. Administrative Side of the Appellate Judiciary

Early in my career, I had no idea how much time, money and effort go into supporting and operating the state’s judicial system. I now know that there is an arm of the Supreme Court called the Administrative Office of the Courts, which works with the legislative and executive branches to address issues confronting the state’s court system. Among other things, the Administrative Office of the Courts administers the state’s $39 million indigent defense fund and is devoted to tasks such as keeping statistics, compiling reports, tracking legislation that impacts the judiciary, and ensuring that courts at all levels have access to technology and are supported logistically and educationally. The Administrative Office of the Courts employs about 70 people who make certain the legal system has what it needs to function. Most lawyers have no idea they exist but see the results of their work every time they step into a courtroom.

4. The Appellate Court Clerk’s Office

The Appellate Court Clerk’s office serves all the appellate courts statewide, including judges on the Court of Appeals, Court of Criminal Appeals, Supreme Court, and their respective staffs. The offices, located in Nashville, Knoxville and Jackson, are the busiest in the appellate judiciary, serving not only the appeals courts, but the public by assisting lawyers and pro se litigants. Most lawyers probably have no idea that someone in the Clerk’s office checks every record filed to ensure compliance with the applicable rules. Rest assured you will hear from these folks if an infraction is discovered.

Most lawyers understand the importance of interacting with the Clerk’s staff in a professional, respectful manner. But I have discovered that some lawyers have difficulty with such things. One lawyer, for example, called a deputy clerk an “idiot” for insisting that the lawyer file the number of briefs required by the rules of appellate procedure. Rarely is this productive. Clerks, like the justices they serve, are a lot like elephants. Both have long memories.

Understand too that when the Clerk’s office contacts you by phone or email asking that you return a record, they are not trying to make life difficult for you. The likely reason for the contact is that someone who will be working on your case, namely a justice or a member of the court’s legal staff, needs the record. I am amazed at how many times the Clerk must contact some lawyers before the record finally gets returned. Do not be one of those lawyers.

5. Staff Attorneys

The Supreme Court employs seven lawyers, six in Nashville and one in Knoxville, who specialize in either civil or criminal law, though some overlap exists. These attorneys review and evaluate cases from lower courts in which the parties seek Supreme Court review, handle procedural and substantive motions filed with the court, and assist in drafting orders and opinions. Their work involves reviewing and analyzing issues in a wide array of cases, both civil and criminal, covering a diverse range of legal topics from every trial and appellate court in the state.

The staff attorneys tend to be long-term employees of the court — more than twenty years is not uncommon — and help serve as the institutional memory of the court. As such, these individuals are accustomed to working on complex cases containing issues to which there is no clear answer. These are also the lawyers who spend time studying the record and briefs in your case before the justices ever see it. Having worked on thousands of cases in which Supreme Court review is sought, they are particularly adept at separating the cases worthy of the court’s review from those that are not.

6. Law Clerks

Each justice has at least two law clerks, as do the judges on both intermediate appellate courts. Unlike the staff attorneys who work for the Supreme Court as an institution, the law clerks work for the individual justice who hired them. At one time, the law clerks were hired for short terms of a year or two. The current, general practice is for one law clerk to stay indefinitely and the other clerk stay for the traditional shorter term. Both groups of law clerks spend their time preparing draft opinions and critiquing for their respective justices opinions circulated by other chambers. The end result is that the opinion you see is the product of a truly deliberative effort, with input from each justice and staff. Before working at the court, I had no idea that a minimum of 10 people — really smart people — work on each and every opinion.

7. Internal Process of Analyzing an Appeal

From the practitioner’s perspective, there is little activity from the time an appeal is filed with the Supreme Court until the order is issued granting or denying the appeal. In fact, a good deal of activity is taking place.

When an appeal is filed with the Supreme Court, the Appellate Court Clerk’s office assembles the record and briefs and sends them to the court’s staff attorneys, who read the materials and perform any additional research that may be needed (it is often needed). The staff attorneys then prepare a detailed memorandum discussing the facts, issues, law, the parties’ arguments, and the reasons for and against review by the court. The memorandum will conclude with a recommendation to grant the appeal, deny the appeal, or make some other disposition, such as a summary remand.

As part of the evaluation process, the staff attorneys give every case seeking review an A, B, or C designation. An “A case” is a clear grant. These appeals are rare. A “B case” is one that is worthy of serious consideration by the court, and is given a recommendation of either grant or deny. Appeals with a “C” designation clearly fail to meet the Rule 11 criteria for granting the court’s discretionary review and are easy denials. The majority of appeals, both civil and criminal, fall into this category.

After the staff attorneys complete their evaluation of the case, they meet once a month in Nashville to review each staff memo and raise questions, offer clarifications, add a note about differing opinions among the staff, and otherwise address any lingering concerns about the case. Following that conference, the staff memos are sent to the justices who likewise hold a monthly conference to decide what to do with the appeal. Each case is assigned to a justice who is responsible for leading the discussion at conference. Two justices must vote in favor of granting the appeal or it will be denied.

8. Critical Role of Lawyers

Most attorneys underestimate their role in educating the court on the legal principles applicable to their case. Although the justices are experienced lawyers, the law is too vast for them or the lawyers who work for them to have a working understanding of every nuanced legal principle in every type of case.

Consequently, effective appellate lawyers make their mark by clearly laying out the legal landscape for the court, especially in cases involving issues of first impression or where the law is complex. It can be quite effective, for example, for the party seeking a change in the law or clarification of an unsettled principle of law to demonstrate national trends or discuss scholarly, well-written decisions of other state supreme courts addressing the same issue.

Another powerful advocacy tool when seeking a change in existing law is to show that Tennessee is in a minority of jurisdictions regarding the point at issue. The majority approach is probably the majority approach for a reason, a point not lost on the justices, even if they ultimately decide to take another route. 

9. Professionalism

Although the overwhelming majority of attorneys conduct themselves with civility and strive to adhere to the highest of ethical standards, some have difficulty with such things. One lawyer, for example, refused to stop talking even after being informed by the judge that he would be jailed if he refused. He refused, went to jail, and got his law license suspended in the process. Another lawyer sent an email to a judge telling the judge to “get down off your high horse and act like a man instead of a bully and clown” after the judge denied the lawyer’s fee application.

Appellate judges and justices do not expect to be treated like royalty, nor should they. But they do expect to be treated with respect, and rightly so.

10. Motions

Most lawyers are unaware of the extent to which the Supreme Court is willing to accommodate them regarding motions, scheduling argument, briefing deadlines, and the like. For example, a motion seeking a first-time extension of time to file a brief or response is granted as a matter of course. Even second extensions of time are typically granted, though often for less time than requested and with a warning that no further extensions will be granted absent unusual circumstances. The justices, who rotate motions duty every two months, understand the practical realities of law practice. Of course, they also understand that efficient docket management requires keeping appeals moving forward. For that reason, third extensions of time are rarely granted.

11. Whether to Appeal

At some point, every lawyer who litigates is on the receiving end of an adverse decision from the Court of Appeals or Court of Criminal Appeals. Whether to appeal that decision to the Supreme Court should take into account a variety of factors, not the least of which is whether there exists a legal basis to appeal. Typically, asking a higher court to change a lower court’s decision will be based on one or more of the following arguments: (1) the lower court’s decision relied on erroneous facts, (2) the lower court’s decision relied on erroneous conclusions of law, (3) the lower court’s decision misapplied the law to the facts and reached the wrong result, or (4) the law should be changed.

A party contemplating an appeal should also consider the odds of obtaining a favorable result. Appellate courts are deferential to findings of lower courts, particularly regarding factual matters. The reality is that the majority of cases are affirmed on appeal.

12. Applications for Permission to Appeal

The Supreme Court generally hears four types of cases: (1) those involving issues of first impression, (2) those involving conflicts among the intermediate appellate courts on the same issue, (3) those that involve important legal questions that should be settled by a court of last resort, and (4) those that present a need for the court to exercise its supervisory authority. By accepting cases that fall into one of these four categories, the court serves the broader interests of the law and the legal system.

Although there are a number of ways to seek the court’s review, the most common method is to file an application for permission to appeal within sixty days of the intermediate appellate court’s decision as provided for in Tennessee Rule of Appellate Procedure 11. While it is nearly impossible to predict which cases the court will accept, the odds of a grant go up if the case presents an issue of first impression, there are conflicting intermediate appellate court decisions, or there is a legal error of sufficient magnitude that it affects the precedential value of the law.

After analyzing thousands of applications for permission to appeal, several things are apparent to me relative to preparing an application for permission to appeal:

Demonstrating error is not enough. Spend at least as much time discussing why the court should grant the appeal as you do discussing the merits of the case. If the application succeeds only in establishing that the decision below is erroneous, it has not fulfilled its purpose. It is essential to demonstrate that your case should be used as a vehicle to develop the law.

Be brief. In drafting the application, get to the point and convey the ideas you need to convey and stop. Avoid string cites, too many footnotes, and lengthy quotes. Remember that the application will be read by people who, like you, are busy, and keeping the application brief makes the material more readable. However, do not be so brief that you fail to present a complete, coherent picture of the legal problem you want the court to address.

Be clear. If the court cannot follow your argument, it is unlikely the appeal will be granted.

Be selective in raising issues. The issues raised are critical because this is your chance to draw the court’s attention to why the case needs to be heard. The more issues raised, the less weight any one of them is likely to be given.

Avoid purely emotional pleas. Such approaches do not move appellate courts. Save the fiery rhetoric for the jury.

Avoid criticizing the opposing side. Beating up on the other side is wasted effort because it does nothing to persuade the court that the case is of such importance that it should be used as an opportunity to clarify the law. And being overly critical or disrespectful of the lower court judges is never a good idea.

Avoid a fact-bound case. Draft the application so as to dispel any notion that your case is fact dependent. The court’s focus will not be drawn to a case when the parties are merely arguing over facts. Courts of last resort are not interested in resolving fact questions, but clarifying the law and establishing guidelines for lower courts to be used in future cases.

Avoid uniqueness. Do not emphasize that your case is unique. If the case is truly unique, the issues will not come up again. Any real chance of a grant is thus eliminated.

Focus on the Rule 11 criteria. Make much of the fact that the case involves an issue of first impression, there are conflicting intermediate appellate court opinions, there is a dearth of recent authority on the subject, or that the case involves an issue the court indicated in a prior opinion it was saving for another day. These are all effective ways to distinguish your case from the many others competing for the court’s attention. Conversely, if you do not want the appeal to be granted, emphasize the unimportance of the case to anyone other than the parties, demonstrate that the case is a fact-bound case, the question raised was not presented below, or the record will not enable the court to reach the question presented.

13. Briefs

It is surprising how many briefs filed in the Supreme Court do not adhere to the rules addressing the content and format of briefs.[1] Not following these rules is indicative of substandard lawyering, and the state’s appeals courts can and do dismiss appeals when briefs do not comply with the applicable rules. You might have a very persuasive brief, but it will do you no good if the court refuses to consider it because it fails to comply with the rules.

The most important part of an appeal is the brief. There are several reasons for this. First, the brief is the first opportunity for creating a favorable, or unfavorable, impression with the court. The justices will have read your brief before oral argument and will have formed initial impressions regarding the merits of the case. Consequently, the brief is your first opportunity to influence the court’s thinking about its decision.

In addition, the brief is the main opportunity to lay out an analysis of the case. It is usually not possible to articulate a comprehensive legal analysis in the short time available for oral argument because questions from the justices dictate the content of oral argument. Thus, oral argument tends to jump around from topic to topic in a disjointed fashion. The brief should not.

Many lawyers fail to appreciate the importance of the statement of the issues in the brief. Articulating the issues on appeal is a crucial part of the brief because this is often the first thing a reader looks at and, therefore, it is the first opportunity to create the impression that the case presents important questions worthy of the court’s time. Initial impressions about the seriousness of the appeal can be formed just from looking at the statement of the issues.

The natural tendency of lawyers is to raise every issue that can be raised for fear that something will be missed. This all-inclusive approach is a poor strategy because the more issues raised the more diffused the appeal becomes. Briefs are meant to be persuasive, and the art of persuasion favors quality, not quantity. If you cannot win on your stronger issues, it is unlikely you are going to win on your weaker ones. Thus, except in criminal cases where issues must be raised to preserve them, raising every possible issue is a doomed strategy because it obscures issues of significance.

Factual assertions in a brief must be completely accurate. There are two ways to destroy your credibility in writing a brief. The first is to cite a case for a proposition of law for which it does not stand. The second is to make a factual assertion that is not supported by the record. It is one thing to portray the facts and the law in a light most favorable to your client — which is perfectly acceptable — but it is something else entirely to cite cases that have little to do with the proposition for which they are cited, to take testimony out of context, or to exaggerate the proof. As stated by the Court of Appeals, “We note that the Appellee’s brief takes undue liberties with the art of advocacy by the mischaracterization of testimony and the non-contextual recital of selected segments. The difficulties attendant upon such practices are self-evident and the practice is never productive.”[2]

Fully develop your arguments. As the Supreme Court has said, “[I]t is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.”[3] Or, as stated by the Court of Appeals, “It is not this court’s responsibility to comb through the record searching for error,” and “[i]n order for an issue to be considered on appeal, a party must, in his brief, develop the theories.”[4] Tell a compelling story, but one anchored in the law.

14. More on Briefs

I have noticed that the most effective briefs share several key attributes. For example, they:

Confront adverse authority. Dealing with adverse authority head-on is the best approach because it allows you to frame the discussion of that authority and argue why it should not apply. Specifically, you may want to (1) distinguish the adverse authority from your case by pointing out that key facts are different and, therefore, that case should not control your case, (2) argue that the adverse authority leads to an unjust result as applied to your case, or (3) the adverse authority should be abandoned as outdated or is based on faulty reasoning or produces an unworkable rule. Dealing with unfavorable authority yourself takes some of the sting out of it.

Choose authority carefully. Rely heavily on mandatory authority and other primary authority. Rely on secondary authority if there is no primary authority or if secondary authority helps to understand primary authority. Ideally, your brief should be heavy on primary authority and light on secondary authority.

Achieve the right tone. Brief writing is formal writing, and the tone of your brief should reflect the serious responsibility you have assumed as your client’s advocate. Thus, do not place the client at risk with flippancy or exaggerations. Similarly, refrain from using strong and bitter words, as these often indicate a weak cause.

Pay attention to writing style and organization. When preparing a brief, place a premium on the qualities of precision, conciseness, simplicity, and clarity. An appellate brief is not the forum to display your eloquence or impressive vocabulary. Simple, clear writing should be the goal.

Use short sentences and short paragraphs. Long sentences and long paragraphs bog down the reader because they contain too much information. And make sure there is a logical flow to the brief. If sentences and paragraphs are inserted where they interrupt the line of thought, or where they have no connection to what precedes or follows, coherence is lost.

Use headings and subheadings to identify where treatment of one subject ends and another begins.

Be meticulously accurate. If you inaccurately describe the authorities relied upon or distort the factual record, the court will not trust your work. As one court has said, a lawyer’s reputation “for intellectual and ethical integrity will be your greatest asset or your worst enemy. You will be judged by your judgment. Treat every pleading, every brief, every contract, every letter, every daily task as if your career will be judged on it. There is no victory, no advantage, no fee, no favor, which is worth even a blemish on your reputation for intellect and integrity.”[5]

Edit carefully. Proofreading and revising are part of the writing process, and great care should be used editing, checking citations and quotations, and in polishing the wording for maximum effectiveness. Good arguments can be ruined by sloppy proofreading. I have seen briefs with pages missing, citations to a case but nothing more (not even the name of the case), and every other page in the brief turned upside down. Proofreading is a relatively minor chore, but do it attentively because sloppy editing might be equated with sloppy research and analysis by those reading your brief.

15. The Rules

Not following the Rules of Appellate Procedure gives the court an easy way to deny the appeal. If your case has already been granted, not following the rules risks an embarrassing admonition, such as “the court has taken note of counsels’ failure to comply with Tenn. R. App. P. 28(g) requiring citations to the record. There is not a single reference to the record in the briefs filed in this case. Counsel are reminded that compliance with the Rules of Appellate Procedure is not optional.”[6]

16. Oral Argument

In some appeals, oral presentations by the lawyers, in addition to the briefs, are of minimal value. The conventional wisdom, however, is that most cases should be argued because doing so calls to the attention of each justice the essential contentions of the parties and gives them and the lawyers an opportunity to discuss the case, a markedly different function from that of the brief. Oral argument forces the justices to think, question, discuss, and consider the case as nothing else does.

In preparing for oral argument, be sure to study the briefs and the record. You, as the oral advocate, must be intimately familiar with the briefs, the authorities cited in those briefs, and with the record. Only then will you be able to present the case to the justices in an organized and persuasive manner.

Also, update the research. Check the cases cited in the briefs to determine whether there have been any developments in the law since the briefs were filed. Several months are likely to have gone by between the time the brief was filed and the date of oral argument, and the law may have changed during that time. Nothing could be worse than getting to oral argument only to find that a key case you were relying on has been overruled.

17. More on Oral Argument

When arguing before the Supreme Court, bear in mind a few practical considerations:

Observe. If there are cases being argued before your case, sit in the courtroom and observe so that you will have a feel for whether the questions tend to be about the record, the law, or about future ramifications of the court’s ruling. You can often pick up on the justices’ moods and temperaments, which can and do change, by sitting and listening to the arguments preceding yours.

Make a strong initial impression. When it is your turn to speak, walk to the podium without hesitation, adjust the microphone so that it is nearest you, and begin immediately. Do not wait to be recognized, just start talking and stay close to the microphone because arguments are recorded and some justices or staff will listen to the recording later while working on the opinion.

Give a synopsis of the argument. After introducing yourself and reserving time for rebuttal, give the court a concise outline of the legal arguments you intend to develop. Giving the court a roadmap provides a structure that helps the court follow your argument and enables the justices to defer questions until the appropriate time if they choose.

Lead with strength. Make your strongest points first to draw the court’s attention to them and to ensure that they are not omitted if time runs out.

Blend the law with the facts. This is precisely what the justices must do in writing the opinion.

Address the impact of the case on the law. You can be sure this is something the justices are thinking about. Remember, a law-making court has taken your case to clarify the law. The justices did not take your case merely to correct an error that has no real effect on the precedential value of the law.

Answer all questions. Questions from the bench are indicative of interest and should be welcomed. The question the justice is asking may be the very thing he or she will be talking about in conference right after your argument ends.

Listen to each question carefully and stop speaking immediately when a justice interjects a question. Do not talk over the court. If you do not understand a question, say so. It will be rephrased. Likewise, if you do not know the answer to a question, indicate that in a straightforward manner instead of feigning an answer and leaving the impression you do not know what you are talking about. Lawyers definitely stumble here.

Answer each question directly followed by an explanation. Do not respond by saying, “I’ll get to that in a minute.” It does not matter how disruptive you think the interruption is. If the court is asking the question now, it is interested in an answer now.

Maintain the proper demeanor. Appellate proceedings are formal affairs, so be serious and polite at all times. Never lose your temper no matter how off-base the questions may seem or how badly you believe opposing counsel has distorted the record or the law. If two justices are talking or writing notes to one another, as they sometimes do, ignore it and keep speaking. The other justices are still listening and the recording is still on.

Remember basic speech techniques. Speak loudly and with your head up so that your voice carries. Also, speak slowly, as the tendency will be to speed up because you are nervous or excited. And maintain eye contact with the justices. An oral argument should be a conversation with the court. When you converse with someone you look them in the eye. Stand up straight and do not move around, lean on the podium, or put your hands in your pockets and jingle keys or coins. Nervousness will manifest itself with these distractions, so be sensitive to them.

18. Eat Before Going to Court …and Never Take Your Family

I was sitting in the front row of the courtroom in the Supreme Court building within a few feet of the podium watching a lawyer argue his first appeal after he had just been introduced to the court by his father, who was also a lawyer. The occasion was evidently a family affair, for the young lawyer’s mother and girlfriend were there too. The lawyer, while understandably nervous, was doing fine until the judges began asking him questions, taking him off his prepared script. Suddenly, the lawyer stopped speaking in mid-sentence, turned pale, stiffened, and fell straight back, his head landing between my feet. His mother and girlfriend let out a scream, the father rushed to his son’s aid, and the court clerk ran out of the courtroom and called 911. I was mortified.

Fortunately, there was nothing seriously wrong with the novice lawyer. He was nervous about his first appearance before an appellate court, had not eaten all day, got a bad headache, and locked his knees at the podium, the combination of which caused him to faint. When the young man came to but was still on the floor looking up at the ceiling in his nice new suit, the presiding judge leaned over him and said loudly, “Young man, this is one oral argument you’re going to remember for a long time.” I learned from that unfortunate and probably traumatized lawyer not to forego food the day of one’s first appellate argument, not to lock one’s knees while arguing, and definitely leave the family at home.

19. After Oral Argument

Immediately following oral argument, the justices will gather in a room just off the courtroom, discuss the case, and decide it. The Chief Justice will assign the opinion to one of the justices who will prepare a draft opinion and circulate it to the other members of the court. Memos typically go back and forth amongst the chambers regarding proposed revisions and, in turn, revised drafts of the opinion go back and forth as well. The opinion is carefully “bluebooked” by the law clerks to ensure all citations are in the proper form. Concurring or dissenting opinions, if any, are circulated and commented upon as well.

If you do not receive the court’s decision within about six months, it could simply mean that the authoring justice is unusually busy or has gotten behind. The more likely scenario, however, is that the issues are complex and take time to work through or, as is sometimes the case, the justices are divided and are trying to find a middle ground upon which to resolve the appeal.

20. Most Important Lessons of All

On my first day on the job as Chief Justice Frank Drowota’s law clerk some 25 years ago, he had me in his office explaining his expectations and housekeeping matters one expects to hear the first day at any new job. At the end of that discussion, he said, “I want you to remember one more thing. Around here, we work hard and we play hard.”

He then explained the importance of a lawyer striving to live a balanced life, “for when we neglect the people and the causes that keep us anchored, we tend to drift personally and professionally in ways that often aren’t good,” he said.

That advice made a huge impression on me as a new lawyer and as a new dad in my 20s. When I turned 30, Justice Drowota said to me, “Cherish the time with your kids, for they will grow fast.” He was so right.

When I turned 40, he said, “Be sure to enjoy the little things in life, for one day you will realize those are the big things in life.” So very true.

Then, when I turned 50, he said, “Life is short; eat dessert first.”

Of all the lessons I have been privileged to learn while working at Tennessee’s high court, I am most grateful for wise insights such as these that have little to do with the law, but everything to do with life.


  1. Rules 27˜–30 of the Rules of Appellate Procedure govern briefs.
  2. Keylon v. Hill, No. E2003-01054-COA-R3-CV, 2003 Tenn. App. LEXIS 855, at *18 (Tenn. Ct. App. Dec. 11, 2003).
  3. Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010).
  4. Berg v. Berg, No. M2013-00211-COA-R3-CV, 2014 Tenn. App. LEXIS 373, at *10 (Tenn. Ct. App. June 25, 2014).
  5. In re Moncier, 550 F. Supp.2d at 774–75.
  6. Ogle v. Ogle, 880 S.W.2d 668, n.1 (Tenn. 1994).


Hon. Marshall L. Davidson After graduating from the University of Tennessee School of Law in 1989, MARSHALL L. DAVIDSON III served as a law clerk for Judge Houston Goddard on the Tennessee Court of Appeals and then Chief Justice Frank Drowota on the Tennessee Supreme Court. He then spent time in private practice handling both civil and criminal cases before working as a Staff Attorney for the Tennessee Supreme Court for twenty-two years. Judge Davidson has served as a Judge Advocate General Officer in the United States Army Reserves, was an adjunct professor at Middle Tennessee State University for eleven years, and has been on the faculty of the Nashville School of Law since 1992 teaching torts and advanced legal writing. In 2014, he was appointed by Gov. Bill Haslam to the Workers’ Compensation Appeals Board where he serves as presiding judge.