Tennessee Board of Professional Responsibility Seeks Disciplinary Counsel – Litigation, Appeals

The Tennessee Board of Professional Responsibility is seeking a motivated attorney for the position of Disciplinary Counsel – Litigation Section, Appeals. The duties and responsibilities include: investigate and conduct discovery related to complaints of attorney misconduct; prepare pleadings and appear in disciplinary hearings before hearing panels; represent the Board in appellate proceedings before special judges in trial courts and before the Tennessee Supreme Court; prepare and present continuing legal education; and other duties as assigned.
Excellent written and oral communication required. Applicants must be licensed in Tennessee and have a minimum of seven (7) years experience in the practice of law. Must have significant experience in appellate advocacy. Practice before the Tennessee Supreme Court is preferred. You can find out more about the position including how to apply by using this link.
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Court of Criminal Appeals Boot Camp 2018

The Tennessee Bar Association’s Appellate Practice Section held its annual boot camp this past Wednesday. Produced by Section Chair Kyle Wilson and Vice-chair Leslie Price, this year’s boot camp was focused on criminal appeals. Attendees viewed oral arguments at the Court of Criminal Appeals and enjoyed a Q&A with the presiding judges. Following court, boot camp participants moved to the Tennessee Bar Center for a networking lunch and oral advocacy panel with the attorneys who presented arguments that morning discussing briefs, argument preparation and providing practice tips. The TBA would like to thank Kyle, Leslie and the TBA Appellate Practice Section for another successful program!

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Three Short Appellate Tips

1. Keep an APPEAL FILE on the counsel table in plain view.
"Be always sure you are right — then go ahead." – Davy Crockett
Write the word “APPEAL FILE” in big letters on the front of a file folder. Every time the judge does something you don’t like, write it down and make a big production about opening the appeal file and put your note in the APPEAL file. After a time, folks will get the message. Seriously, you want to keep things in a handy place that may have something to do with a possible appeal.
2. Always write down the dates of all your trial court proceedings and always get the name of your court reporter.  
A short pencil is better than a long memory —
Stick important information in your appeal file. Think about all the time you have wasted as a lawyer running around trying to remember when you had this hearing or that hearing and trying to figure out who the court reporter was for a particular proceeding. You cannot have an appeal without a transcript and you cannot have a transcript if nobody remembers the name of the court reporter.  
3. Protecting your Verdict.  
"I'm no idealist to believe firmly in the integrity of our courts and in the jury system — that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up." — The character, Atticus Finch, in his argument to the jury in To Kill a Mockingbird – Harper Lee, Author
Most modern trials have a verdict form. Attorneys should be careful to examine the jury form regarding the verdict to be certain that it is responsive to the issues while the jury is still in the box. In criminal cases, the jury form must be specific as the degree of the crime or designating the particular offense in a multiple count indictment or, for example, in theft cases, the value of the property taken. In civil cases, of course, the rules permit special verdicts which is a topic worthy of a separate presentation. Generally, see Tenn. R. Civ. P. 49.

David Raybin is a Middle Tennessee Delegate of the executive council for the Tennessee Bar Association's Appellate Practice Section. Raybin has been named the Best Criminal Lawyer in Nashville in criminal general practice and white collar defense by Best Lawyers in America and listed among the Best Criminal Lawyers in Tennessee by the Tennessee Business magazine. Raybin holds degrees from Virginia Commonwealth University and the University of Tennessee College of Law.
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Appeals Court Reverses Gallatin Fossil Plant Coal Ash Cleanup Order

A federal appellate panel last Monday overturned an order that would have required the Tennessee Valley Authority to unearth and remove a massive amount of coal ash at the Gallatin Fossil Plant, The Washington Post reports. In a 2-1 decision, the 6th U.S. Circuit Court of Appeals maintained that leaks from unlined coal ash pits through groundwater into the Cumberland River are a “major environmental problem” but the Clean Water Act isn’t the “proper legal tool of correction” to address it. A district judge in 2017 ordered the coal ash to be excavated and removed, citing Clean Water Act violations regarding pollutants leaking into the Cumberland River. You can read the opinion here.

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Legal Practice Tip: Appellate Issues and the Armed Career Criminal Act

Criminal appellate attorneys should be aware of litigation currently working its way through the federal appellate system that may have substantial repercussions on how federal courts treat certain firearm offenses, violent crimes and drug offenses. 
Federal law prohibits certain classes of people from possessing firearms. 18 U.S.C. § 922(g). In general, violations of this ban can result in prison sentences of up to 10 years’ imprisonment. 18 U.S.C. § 924(a)(2). The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), provides that, for offenders with particularly notable criminal histories, this punishment is markedly increased. Specifically, if an offender has sustained three or more earlier convictions – state or federal – for a “serious drug offense” or “violent felony,” he or she will face a minimum prison term of 15 years and a maximum of life. 
Originally, the ACCA defined a “violent felony” as: any crime punishable by imprisonment for a term exceeding one year. . . that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B) (2014) (emphasis added). In 2015, the Supreme Court addressed the italicized portion of the ACCA — colloquially known as the “residual clause” due to its general scope — on a challenge claiming that it was unconstitutionally vague. See Johnson v. United States, 135 S.Ct. 2551 (2015). The Court decided the residual clause was unconstitutionally vague and, consequently, unenforceable.
Accordingly, courts now consider whether a prior conviction qualifies as a predicate offense under the remainder of the ACCA, i.e., whether the offense of conviction (1) has an element the use or the attempted/threatened use of force (the so-called “use of force clause”); or (2) whether the offense is otherwise specifically listed in the statute (the “enumerated offense” clause). Appellate cases (and by extension, years of custody for a federal appellant) can – and often do – turn on this complex and nuanced analysis.   
Appellate advocates may be required to address in federal court whether a decades-old state conviction has “the use of force” as an element. This can present complicated questions. For example, what if a criminal statute sets out alternative elements by which a person may commit a crime, some of which contemplate the use of force, some of which do not? See Mathis v. United States, 136 S.Ct. 2243 (2016). Assuming a defendant is convicted under such a “divisible” statute, how can an attorney show which elements relate to her client’s past conviction? See id.; Shepard v. United States, 544 U.S. 13 (2005). What if a state statute criminalizes the reckless use of force – could this count as a “violent” predicate offense? See United States v. Verweibe, 874 F.3d 258 (6th Cir.  2017).  
Alternatively, appellate attorneys should be prepared to argue whether a prior conviction constitutes one of the four remaining enumerated offenses under the ACCA.  Although this seems like a straightforward task, it is anything but. Only those convictions with elements that are identical to, or narrower than, the “generic” crimes in the enumerated offense clause will qualify.
The most recent example involves Tennessee aggravated burglary, Tenn. Code Ann. § 39-14-403.  Despite being a “burglary” statute, the United States Court of Appeals for the Sixth Circuit has held that, because the elements listed in the Tennessee Code are broader than those of generic burglary, Tennessee aggravated burglary is not a “violent felony” within the meaning of the ACCA.  See United States v. Stitt, 860 F.3d 854 (6th Cir. 2017). Conversely, a prior conviction for “burglary,” Tenn. Code Ann. § 39-14-402, as a Class D felony, will qualify as a violent felony under the ACCA. United States v. Ferguson, 868 F.3d 514 (6th Cir. 2017). Put another way, the current status of federal law is: in Tennessee, aggravated burglary is not a violent felony, but Class D burglary is. 
The ACCA presents some of the most rapidly changing and nuanced criminal appellate issues, and appellate attorneys must be prepared to address them thoroughly. Trial attorneys should keep abreast of them, as well, so that they may appropriately advise their clients about potential significant future consequences. One tip to help stay on top of the developing law: sign up for the 6th Circuit’s free listserv, which will push daily opinions to your e-mail inbox as soon as they are released: The TBAToday newsletter also includes all published 6th Circuit opinions the day they are released.
The Armed Career Criminal Act is a substantial facet of federal criminal litigation. Despite the shifting legal landscape, one thing is certain: more guidance is coming. The Supreme Court has granted certiorari in Stitt, supra, and it will no doubt weigh in on these and other issues in the months to come. It’s anyone’s guess as to how profoundly the law may change, if at all, as a result. The only thing a skilled appellate advocate can do is be prepared.

— Kyle J. Wilson is the Section Chair for the TBA Appellate Practice Section.
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Justice Lee Denounces Supreme Court Ruling

Tennessee Supreme Court Justice Sharon Lee delivered a rebuke to the court’s recent ruling denying a request by some death row inmates to slow down the appellate schedule, which comes as several death row inmates seek to stop or change their execution method, The Tennessean reports. Lee has been an outspoken critic of the expedited court schedule, recently saying "the Court unwisely put this appeal on a 'rocket docket.' Now, it is “Houston, we have a problem'.”

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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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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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Prevailing Party at PCR Must Ensure the Trial Court’s Order Actually Contains Findings of Fact

The Tennessee Court of Criminal Appeals has again admonished trial courts to include actual findings of fact for each and every ground relied upon and to make explicit credibility determinations. TCCA reminds trial courts that they “shall set forth in the order or a written memorandum of the case all grounds presented and shall state the findings of fact and conclusions of law with regard to each such ground. Tenn. Code Ann. § 40-30-111(b)....  [Making] findings of fact is mandatory. Donald Mays v. State, [2004 WL 2439255, *6 (Tenn. Crim. App. No. W2003-02761-CCA-R3-PC, Oct. 28, 2004)].”
TCCA further wrote, “We take this opportunity to point out again that a mere recitation or summary of the testimony of the witnesses at a hearing is not a ‘finding of fact’ as is required. Such a summary only sets forth the testimony, which is usually contradictory. A ‘finding of fact’ is the post-conviction court’s opportunity to fulfill its responsibility to sort through all the evidence and set forth what actually happened, as opposed to just each witness’s version of what happened. See Charles Bradford Stewart v. State, [2017 WL 2645651, *14 (Tenn. Crim. App. No. M2015-02449-CCA-R3-PC, June 20, 2017)], perm. app. denied (Tenn. Oct. 4, 2017).” Nabi v. State, 2018 WL 1721869, *6 (Tenn. Crim. App. Apr. 9, 2018).
Prevailing parties, either the state or petitioner, must ensure the trial court’s order complies with these requirements in order to facilitate appellate review of the decision.

Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair-Elect of TBA's Criminal Justice Section.

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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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