Ep. 2 The Appellate Court Process in Tennessee

Episode 2 focuses on appellate practice in Tennessee from start to finish. Guests include Court of Criminal Appeals Judge Tim Easter, Court of Appeals Judge Neil McBrayer, and Clerk of the Appellate Courts Jim Hivner. Topics include everything from tips on filing a notice to appeal to brief writing to preparing for oral argument. 

Produced by Nick Morgan

Transcript

00;00;00;00 - 00;00;21;25
Host
Welcome to Tennessee Court Talk. I'm your host, Barbara Peck, and this episode is intended for lawyers and law students. Today we are discussing appellate practice in Tennessee from start to finish. Our guests are Court of Criminal Appeals Judge Tim Easter. He has been on the court since 2014, and served as a circuit court judge in the 21st Judicial District for 16 years.

00;00;21;28 - 00;00;42;16
Host
Court of appeals judge Judge Neal McBrayer. He has been on the court since 2014 and was in private practice for 25 years prior to joining the bench. And our third guest is clerk of the appellate courts, Jim Hivner. He has served in that role since 2014, and previously was a chief court administrator for Shelby County Chancery Court and was also in private practice.

00;00;42;23 - 00;00;44;08
Host
Welcome to all three of you.

00;00;44;10 - 00;00;46;06
Jim Hivner
Thanks. It's good to be here. Thank you.

00;00;46;09 - 00;00;58;02
Host
So let's get started right at the beginning of the process. Jim, most of the appeals are initiated as a notice of appeal. What are some of the common pitfalls and mistakes associated with filing a notice of appeal?

00;00;58;05 - 00;01;22;02
Jim Hivner
Well, from the clerk's perspective, it's really just not including enough information. We have a form on the website t and courts.gov. And, we like for people to use that form because if you use the form, it actually provides all the information that we request. But we do get a lot of appeals that only have limited information and some appeals that don't even tell us what court they're appealing from.

00;01;22;03 - 00;01;26;24
Jim Hivner
So, if people use the form that we provide, that's the best way to do it.

00;01;27;00 - 00;01;29;15
Host
And what happens to an appeal that is missing information?

00;01;29;23 - 00;01;46;19
Jim Hivner
Well, most of the time, the clerk's office is trying to find out which code it's from. In some limited instances, if you don't have even the minimum amount of information that's required, the court will dismiss the appeal because you didn't you didn't file it properly.

00;01;46;21 - 00;01;55;17
Host
And what if I incorrectly filed my appeal on the 29th day and there wasn't enough time? Well, that I didn't lose my chance to appeal, then.

00;01;55;19 - 00;02;06;05
Jim Hivner
I generally, we make every effort to ensure that your appeal gets, dated timely. So we're going to make every effort to make sure that you get in on time.

00;02;06;08 - 00;02;16;08
Host
Excellent. So the first deadlines the parties encounter relates to the record that will be reviewed on appeal. Is it always appropriate to include the full record on appeal?

00;02;16;11 - 00;02;39;13
Jim Hivner
Well, in my opinion, well, the first, actual deadline is getting the transcript done after the notice of appeal is done. And that's always been a major problem in making sure that appellants actually get the the transcript file. But then after that, the record what's included in the record is really up to the appellant at the beginning. And then the appellee can can make that change.

00;02;39;15 - 00;02;45;04
Jim Hivner
And as to what should be in the record, I'm certain that Judge Easter and Judge McBrayer might have some comments about.

00;02;45;07 - 00;03;09;08
Judge McBrayer
There's a couple of ways that you can opt out of filing a complete record on appeal. And and I don't think, parties do enough of that. There's a lot of things that we see when we're reviewing a record on appeal. It just don't need to be in the record for the questions that we're presented with. And so I wish parties would be a little more intentional.

00;03;09;10 - 00;03;16;10
Judge McBrayer
In many cases, about deciding that, you know, less than the full record is, is, necessary in a case?

00;03;16;12 - 00;03;38;29
Judge Easter
Well, one of the things that I think has been beneficial for me in preparing for this today was to go back and look at the rules, and I encourage any attorney, particularly if they're here in the appellate courts for the first time, to look at the rules. Just read all Tennessee Rules of Procedure Trafford's. 40 some odd rules.

00;03;39;02 - 00;04;04;03
Judge Easter
And I think it's rule 24 deals specifically with what you should have in the record. And I agree with judge McBrayer. There's simply many, many, many things that are not needed. What the rule says is that you should submit a record that sufficient that is sufficient to convey a fair, accurate and complete account of what transpired with respect to those issues that you're raising on appeal.

00;04;04;05 - 00;04;25;05
Judge Easter
So if you're not raising an issue on something that, that transpired, you don't need to include it in the record, like, for example, what we see a lot is, jury selection. There are no issues with the jury selection process. So we have in the record a transcript of, two days of what ear?

00;04;25;10 - 00;04;48;02
Judge McBrayer
Or in the worst case, we might be presented with an issue about division of marital property that will end up with a lot of information on, the parenting plan and, what arrangements were made for the minor children or the children may have reached, adulthood by the time people gets to us. That's information. Doesn't need to be in the record.

00;04;48;02 - 00;05;09;01
Judge McBrayer
It keeps us from getting to the material that you really want to see. You know, Barbara, I wanted to add to what judges you just said, too. Even if you are an old hand, it appeals. It really makes a lot of sense to go back and read the rules. If, you know, it's been a little while since you've done that, because there's a lot of, changes that happen over time.

00;05;09;01 - 00;05;20;24
Judge McBrayer
But there's other things that you just simply forget. From, lack of exposure to them. And I think you would find that, that very helpful in most cases going in and say, oh, I just didn't realize that was in.

00;05;20;24 - 00;05;45;08
Judge Easter
There and not I'm sorry. Okay. But not just the, the trap, but also the Court of Appeals rules, and the Court of Criminal Appeals rules. We we have our own separate rules, that apply to the and the Supreme Court room and the Supreme Court rules. I forget we're talking about that, too. And, today, again, in preparing for this, looked at ours again.

00;05;45;11 - 00;05;49;28
Judge Easter
They're straightforward. They're very straightforward. Not hard to understand.

00;05;49;28 - 00;05;53;09
Judge McBrayer
And it wouldn't take you long to read them all in one setting.

00;05;53;09 - 00;06;10;26
Jim Hivner
That one other thing I would suggest to attorneys is that as the record is being prepared, they ought to have communications with the trial court clerk and try to see the record before it actually gets sent to the appellate court, because oftentimes what happens is the record comes up and then the attorneys see it and they realize something is missing.

00;06;11;03 - 00;06;19;10
Jim Hivner
So if they were if they took the initiative and tried to work with the trial court clerk to make sure that the record is complete before it comes up here, it's a whole lot better for all of us.

00;06;19;17 - 00;06;26;16
Judge McBrayer
Saves you a little effort on the back end. You don't have to be filing motions to supplement the record. If, you're working with the clerk on the front.

00;06;26;16 - 00;06;50;00
Judge Easter
End, if there's anything that folks take away from this conversation today, it's just what Jim said. I, I don't understand why lawyer and appellate would not go and look at the record before it shipped from Polk County to Knoxville, or from Lawrence County to Nashville or Madison County, to our Jackson. So why not look at the record?

00;06;50;00 - 00;07;14;27
Judge Easter
Because more often than not, you're going to find, I should say, more often than not. But many times something is not there that you will need. And what what you find yourself then doing is supplementing the record on the back side. So always as an appellate, lawyer, look at the record before it leaves your county to, to go to Nashville Knox for, Jackson.

00;07;15;00 - 00;07;19;12
Jim Hivner
And as all the judges will tell you, if it's not in the record, they can't review it now.

00;07;19;14 - 00;07;22;25
Host
So how does the court use the trial records?

00;07;22;28 - 00;07;55;00
Judge McBrayer
Really, For us, the process of really digging into the record, happens either after oral argument or after the case of submitting on brief. There'll be a law clerk in chambers that have given, the record sort of an initial review, I would say, looking primarily at items that were cited in the briefs as they're preparing us to, study the case before, oral arguments or as we're thinking about, where we're going to go on an opinion, if it's submitted on briefs.

00;07;55;00 - 00;08;22;09
Judge McBrayer
So that's, that's where we sort of dig into it. And you know, I think it's important for people to know that our, you know, appellate lawyers do to be thinking about how we're consuming that information. These days. I mean, all the records are scanned now, and, many of my colleagues, myself included, are looking at the record either on a computer screen or on an iPad or some sort of tablet.

00;08;22;12 - 00;08;34;15
Judge McBrayer
And so, you know, keep that in mind, when you're presenting your case, that that may be how we are, digesting what what has been presented to the trial court and what we're reviewing.

00;08;34;18 - 00;08;58;07
Judge Easter
And in so many cases, in the Court of Criminal Appeals, the record will be all we've had. We have, roughly speaking, roughly speaking, we only hear all arguments about 40% criminal cases, 60%. When you say that's a good number. Yeah, I believe that's a pretty good estimate. Waive oral argument. So how do we use the record?

00;08;58;09 - 00;09;30;02
Judge Easter
We use it for everything. That's that's how we get our work done, is looking at the record. And as Judge McBrayer mentioned it, it is all now scanned into a system that makes it very user friendly and searchable, a whole lot easier than it was when we had, just a paper record, for example, if you have an issue, let's say on dog bite and you're looking for something about the dog bite, you can do a scan through the transcript, but the term dog bite and go right to it.

00;09;30;09 - 00;09;36;21
Judge Easter
So, it's, it's it's very, very helpful.

00;09;36;24 - 00;09;45;16
Host
So the record is obviously extremely important, especially if it's all that you have. So what advice do you have to attorneys for creating the record for appeal in the first place?

00;09;45;19 - 00;10;07;26
Judge McBrayer
Well, you know, there's I think the common wisdom is that you always try a case with the appeal in mind. And so you're always thinking about how the case might be presented on appeal when it goes up and when you think about preserving the record or the appeal, I think about preserving error or or making sure that you're pointing out error.

00;10;07;29 - 00;10;29;16
Judge McBrayer
When they come up in, in the trial court so that you don't waive those potential errors. And so you have to be mindful that all the time, you also have to be mindful of the requirement for you to take reasonable steps to try to mitigate errors if they come up. So it's not just obviously, if you're responsible, you're not going to get relief from that.

00;10;29;16 - 00;10;39;24
Judge McBrayer
But if it's, error that comes in from some action from the side, you've got to try to mitigate that. And part of that is identifying from trial court so they can fix it at that level.

00;10;39;26 - 00;11;16;20
Judge Easter
The only other thing I would you would ask, generally when do you first look at the record and I think it varies between our two courts judgment. Breyer but now that we have it on the the pads that you're talking about, it is we have the entire record really at our fingertips on the bench. And if you, as the, appellant or the appellee start arguing something that the trial judge said in their findings of facts or in their order, you need to know we can find that within probably 15 seconds it'll be in front of us.

00;11;16;20 - 00;11;37;00
Judge Easter
If we touch this, we touch the scroll here, scroll there. Boom, there it is. So, it's not unusual at all these days since we don't have the boxes. We have our pads that we can look at the order that you're talking about right now, when you're arguing in front of us and have it right there in front us.

00;11;37;01 - 00;11;55;23
Judge Easter
So it's not unusual while you're on your feet arguing that we're looking at at the record that you're arguing about. Well, as a follow up to that, it's been my experience, whether you're in the Supreme Court or the court of Appeals or the Court of Criminal Appeals, that it's not uncommon for one of the judges to ask you, where can I find that in the record?

00;11;55;26 - 00;12;08;10
Jim Hivner
When you're arguing a point and what they may be looking at the record right then, or they may just be writing it down because they're going to go back and look at that. So it's important that the attorneys not only have a record but actually study the record.

00;12;08;13 - 00;12;28;19
Judge McBrayer
You know, the fact that it's so accessible now and so searchable doesn't excuse the attorneys from the obligation to citation record and judges. You mentioned about the importance of reviewing not only the rules of appellate procedure, but the rules of each individual court. That's where you actually find, a lot of the requirements in terms of citation of the record.

00;12;28;25 - 00;12;42;12
Judge McBrayer
And, you can waive issues if you don't have appropriate citation record. And I'm always surprised when I see that problem in a brief. It's like, you know, they make these factual points and there's no citation to the record.

00;12;42;15 - 00;12;59;00
Judge Easter
It's it's it's low hanging fruit for the other side because they can say they didn't cite, cite to the record. They may have argued it, they waived it. And and they are right under the rules, if you don't cite to the record where you're getting that, you've wiped it.

00;12;59;02 - 00;13;03;17
Host
So let's move on and talk about the briefs now. So how important is the written brief?

00;13;03;23 - 00;13;35;19
Judge McBrayer
I don't know that we can emphasize enough how important the brief is, because that is the first impression we have of the appeal. And your, position on appeal. So I, you know, I'm not sure, a lot stepped on this side of the, the bench. I really appreciated, the purpose behind the brief. You know, I just, I think the private practice, I saw this taking, taking, format and and sort of filling out the various elements.

00;13;35;22 - 00;13;59;22
Judge McBrayer
The brief is really about assisting the judge in coming to a conclusion, which hopefully is a conclusion that supports the side your you're advocating for. But you're doing whatever you can to aid the judge in that job. I'm still looking for the brief that I can, just take the attorney's name off the bottom of it and slap my name on the bottom and say, that's the court's opinion.

00;13;59;26 - 00;14;05;28
Judge McBrayer
I'm not not there yet. And we see some good ones, but we unfortunately also see some not so good ones.

00;14;06;00 - 00;14;33;17
Judge Easter
When I was thinking about this question, it's kind of put it in terms of being back in the trial court, the brief is sort of like the opening statement or jury selection, where you're going to establish your credibility with the court right out of the gate, that the brief that you submit. And if your brief is sorry, you're starting, at a lower point because we have definitely looked at the breeze.

00;14;33;17 - 00;14;55;09
Judge Easter
And if it's a weak, sorry, brief, you're in, you're not in your best position. So this is kind of like opening statement or what are with the with the jury. You know, you're trying to win credibility as the lawyer. And that's where it starts with the brief. Secondly, how important is it. And in our court we have a rule that says if your brief is inadequate, we can strike it.

00;14;55;11 - 00;15;05;20
Judge Easter
And we the rule does allow you to or us to give you time to submit a better one. Or we could just say you lose altogether on on your weak brief.

00;15;05;27 - 00;15;18;21
Judge McBrayer
It's also our impression of you, whoever submitted the verdict. And so if we look at a brief and we see it's well written and well researched, we immediately have a good impression of the attorney this minute. Right.

00;15;18;23 - 00;15;53;09
Judge Easter
Well, and if you're if you're a new attorney out there wondering, what would I go to look to find out, to do a good brief again, look at the rule. No, I think it's rule 27 content of a brief. You follow that rule, and you submitted a good brief. Well, now, I would say this, if you're an attorney, who's in the appellate court, I would put more emphasis on my brief than planning on being a great orator, because when you get to all argument, you never know what's going to happen.

00;15;53;12 - 00;16;06;10
Jim Hivner
You may have plans to argue something for 15 minutes and never get a chance to say any of the words you intended to say. So you should put all your emphasis, at least in my opinion, on writing a fantastic brief. Because, you.

00;16;06;10 - 00;16;24;19
Judge McBrayer
Know, after we've read the briefs, you can't help or debris, so you can't help but have, like I say, initial impression about the outcome of the case. And it's oftentimes very hard to undo that. And a little argument, that initial impression that you get once you've looked at those brief. So that's important. It sets.

00;16;24;19 - 00;16;25;10
Judge Easter
The tone.

00;16;25;12 - 00;16;45;10
Judge McBrayer
And then judges mentioned rule 27. And then for my court, you want to also look at rule six. And if it's domestic relations case rule seven of the rule, I will say the court of appeals, because we see people miss the requirements and those rules also, they say, well, I've satisfied rule 27 of the rules of procedure.

00;16;45;10 - 00;17;16;17
Judge McBrayer
I don't have to, you know, I'm I'm good. But there's additional requirements. You follow a rule six and seven. Rule seven I want to emphasize because that is puts additional requirements on briefs where there's a question about the classification, valuation or division of a marital property. And so if you're going to raise that issue, you need to make sure that you have that table attached to your brief or it's included within the content of your brief and or body.

00;17;16;17 - 00;17;22;01
Judge McBrayer
The brief itself. Because if you do not, you've waived those issues.

00;17;22;04 - 00;17;25;16
Host
So what are your tips on writing a good brief?

00;17;25;19 - 00;17;56;09
Judge McBrayer
I would spend, I agree with Jim in terms of allocation of time. And I would say when you get to, working on the basis, itself, I would spend most of your time formulating the issue to me, writing a good issue and formulating a good issue is the key to putting together a good brief. If you if you can do that, I think writing the brief becomes a lot easier.

00;17;56;09 - 00;18;24;04
Judge McBrayer
And so I would spend the majority of my time doing that, formulating the issue and, you know, make it a make it an issue. When you state your issue, make it something that tells us about what you think happened in the court below, either correctly or incorrectly. I hate seeing an issue that says simply the trial court aired and granting this motion or this motion, it tells me nothing about what this appeal is all about.

00;18;24;07 - 00;18;30;05
Judge McBrayer
You're not writing a mystery novel. I don't want to be in suspense about what this appeal is all about. I want to see it.

00;18;30;05 - 00;18;45;26
Judge Easter
The issue. It's a great point. It's a great point. And and again, my answer to your question, just look at the rule, follow the format set out. And the rule and you'll be way ahead of the game.

00;18;45;29 - 00;18;48;05
Host
So Judge Easter, what are your pet peeves with.

00;18;48;10 - 00;19;15;25
Judge Easter
Oh my goodness, I'm glad you asked. I had to narrow it down. What is my pet is my most pet peeve would be when something's been cut and pasted from another brief, and the party's names are wrong. The name. And it's amazing. You you would think. No, you don't see that at this level. Baloney. We see it.

00;19;15;28 - 00;19;42;27
Judge Easter
It's been amazing to me where briefs have always been cut and pasted in, and I get cutting and pasting, and, full disclosure, I've done it myself, but, I guess then it becomes an issue of proofreading because, you've got names in your brief from the last time you were up here, on another case or, recently, we had a case where there were multiple defendants.

00;19;42;27 - 00;20;20;05
Judge Easter
Obviously, the defendant's attorneys had shared their briefs because they had raised the same issues. You had a lawyer for defendant, a siding lawyer for Defendant B's, brief and citing it as defendant B, and he represents a so it's proofreading. That's what all this this rant gets down to is just proofreading. Just proofreading. And then as judge McBrayer said earlier, just simply saying the trial court aired by failing to suppress this evidence and then moving on.

00;20;20;07 - 00;20;29;21
Judge Easter
And that's the analysis I've seen where that is the full extent of the analysis. Those probably or my two biggest pet peeves.

00;20;29;27 - 00;20;57;27
Judge McBrayer
I think my number one pet peeve has to be the weak issue. Number two would be overly long briefs. We have a very liberal, page limitation in my view. And briefs, I agree. You get 50 pages in the argument section. Otherwise, if you're filing it paper the old fashioned way. The rest of your briefs can be as long as it need be.

00;20;57;29 - 00;21;31;04
Judge McBrayer
And a lot of them are just overly long, and they use cut and paste registered. They use cut and paste within the brief themselves, these overly long ones. I'll read the same passage in the facts section, that I will read in the argument section. And it's just there's no need for that. You know, you're trying to direct the court's attention to the errors or that were committed below or how the court did things correctly.

00;21;31;07 - 00;21;38;25
Judge McBrayer
The judge, I promise you will lose sight of that if you write an overly long brief. I mean, get to the point.

00;21;38;28 - 00;22;14;20
Judge Easter
And I think it's amazing judgment. Breyer and I was talking about this earlier today, actually, that, sometimes, since there's not a limitation on the facts section, section of the, brief, there's limitation on the argument section. That's the only limitation. The 50 pages. We'll find arguments in, in the facts section. And lawyers get creative and start arguing their case in the facts section so they don't eat up their 50 page limit once they get to the argument section and then the other where one side or the other will say, usually the appellee, that issue was waived.

00;22;14;22 - 00;22;35;04
Judge Easter
It was waived. It was not brought up in motion for a new trial, or there was an objection made. And we'll get to digging into the record and clear day right there it is in the motion for new trial. It was raised or it was argued. There was there was. I mean, we've had some cases where there was a full blown hearing.

00;22;35;08 - 00;23;02;18
Judge Easter
There was a 412 hearing on that particular issue. And now in your brief, you're saying it's waived again, lose credibility when that happens real quick? I think that's a good point. And it goes to the brief and oral argument. And it really goes back to the discussion about the record that we had in that, attorneys need to be very careful about what they're saying in their brief and in their argument, and make sure that they're stating it correctly and that the record supports it.

00;23;02;20 - 00;23;07;13
Jim Hivner
Because at some point they're going to say something, and if the record doesn't support it, they're going to be found out.

00;23;07;16 - 00;23;17;00
Host
So how many issues are too many? So I think sometimes the approach is let's just throw the kitchen sink and see what sticks.

00;23;17;03 - 00;23;51;12
Judge McBrayer
That's a terrible approach. And it sort of goes to, the idea that you got a limited amount of, concentration on, the jury, the time you can spend sort of concentrating on these issues. And if you're throwing everything up there, you're always going to have a, priority, you know, some argument stronger than others. And what you can have happen is those weaker arguments, the lesser arguments will detract from your better arguments.

00;23;51;14 - 00;24;21;19
Judge McBrayer
You only need to hit on one. And you know, if you've got a lot of sort of silly arguments or, less, less, serious or substantial errors in there, you're, you're really going to hurt your better argument. So I think you need to really think about refining. I mean, some things I understand if you got in a divorce case in a paper, bring up domestic relations over and over again, but you might have a lot of discrete issues.

00;24;21;19 - 00;24;54;24
Judge McBrayer
And so that might generate, several issues. You might have it on the parenting plan and on, alimony and on, division of marital property and classification property. And that will end up creating a lot of issues. We understand that, but this should not be true in every case. You and I, there's not a hard and fast rule, but I think most attorneys, when they, they focus on it, they'll say, these are the errors that really affect a substantial lot.

00;24;54;25 - 00;25;12;19
Judge McBrayer
And that's what our rule 36 is all about is, you know, this is an error that the impacts of substantial right, that would have, given the record whole, impacted the final judgment. The case in a lot of these issues that are that, are arise sometimes just just don't rise to that level.

00;25;12;22 - 00;25;15;05
Judge Easter
I just just ditto what do you say.

00;25;15;11 - 00;25;29;13
Host
And this is different. Like in appellate advocacy when we were in law school, it was throw at me law schools about throw everything up there, say every issue, get your points. But this is real life. So in real life you need to be more precise about what you're arguing before.

00;25;29;17 - 00;25;58;08
Judge McBrayer
The law school is about learning. And so you want to be able to deal with lots of different issues and, and see how they play out and how they ride. And but when you're up here, you're trying to be persuasive and you hurt your ability to be persuasive and get the result that you're looking for when you, or, or dividing our attention on a lot of issues that are true issues.

00;25;58;10 - 00;26;05;11
Host
Okay. So, Jim, tell us a little bit about, where we can find information on the required formats and styles for written briefs.

00;26;05;13 - 00;26;25;17
Jim Hivner
Well, I think, Judge Easter just mentioned that. And so the rules of appellate procedure provide I think it's rule 27. What you're required to do to, to prepare your brief. So I think that's where, like, judges are mentioned earlier. And Judge McBrayer also commented on everyone should read the rules and make sure they're familiar with all of the rules.

00;26;25;19 - 00;27;00;16
Judge McBrayer
Can I can I make a plug here on e-filing? E-filing, I think is something that more attorneys should be taking advantage of on the state level. You have a real opportunity with e-filing. First of all, the convenience is amazing. I mean, you don't have to, concern yourself with, worrying about when the clerk's office closes or getting something to the, drop box outside the courthouse, and you can, you know, do it from the comfort of your office or even your home, for that matter.

00;27;00;18 - 00;27;27;21
Judge McBrayer
But also the presentation on an e-file brief can in many, circumstances, be so much better. In the few that I've seen so far, a lot of the, litigants have used it to its full potential and included, for example, color photos in a rooms. And, you know, a picture speaks a thousand words and, you know, that's that's true for for briefs.

00;27;27;21 - 00;28;00;04
Judge McBrayer
I mean, you get around that page limitation, by using, you know, a good picture or a diagram. I say not not in any case I've been involved in. But I know in some other appeals that they've, included links in the brief to the actual authority that they're citing, which just makes it so easy for the judge to to be able to, look at your, authority for your arguments and, you know, I think, not not every case may, justify that sort of, you know, links for, for authority.

00;28;00;04 - 00;28;04;29
Judge McBrayer
But but some do, and I just I think more attorneys should take advantage of it.

00;28;05;01 - 00;28;24;02
Judge Easter
I meant to say, when we first started that, I'm speaking for Tim Easter here today and not every member of my court. And, I don't know about judge McBrayer, but, I agree with everything you just said. You will get. If you had another judge, another member of my court sitting here, you would get a different answer.

00;28;24;04 - 00;28;57;06
Judge Easter
On this evolving situation. And so, it's like everything else change is hard and there's going to be resistance to it. But as I understand it, Mr. Hefner, it's coming. Fully coming. And the days of big boxes being shipped from, Nashville to, wherever those days are coming. Coming to an end. Well, I think many attorneys enjoy, and appreciate the e-filing system, and want to e-file.

00;28;57;06 - 00;29;17;19
Jim Hivner
So we're getting more and more use of the e-filing and but just to go back to your comment about formatting, and I think that's maybe there's, we ought to talk about that a little bit because rule 46, a one that was, implemented, which is that you filing rule for the appellate courts, it was really discussed about formatting for the documents that are being filed.

00;29;17;22 - 00;29;41;16
Jim Hivner
And the format for e-file documents is different than the format for paper documents. And the idea was what you read on the computer is or how you read on the computer is different than how you read on paper. If you file your document in paper, you certainly that document is going to be scanned in and it can be reviewed on the computer, just like Judge Breyer mentioned earlier.

00;29;41;18 - 00;30;04;07
Jim Hivner
But it's going to be in the format for paper. If you file it in e-file it, you're going to use the e-file format. The fonts different. The page. It's not, the same page numbering. It's a word count. So and so there are aspects of the e-file document that are different. And there's some things that you can do if you're filing a document as judgment.

00;30;04;07 - 00;30;15;11
Jim Hivner
Judge McBrayer just mentioned, like using links or sending a colored picture, that kind of stuff that you wouldn't be able to do if you were a paper file. So I encourage people to use that you filing system as well.

00;30;15;13 - 00;30;29;06
Host
So let's talk a little bit about how you are reading these reviews, whether either way, I think it's sometimes it helps a writer when they sort of understand what, where, how the reader is taking their material and evaluate it. So where are you reading your briefs? How are you reading your briefs?

00;30;29;09 - 00;30;32;01
Judge McBrayer
Yeah, I'm doing all mine on an iPad.

00;30;32;03 - 00;30;37;04
Judge Easter
Well, and again, this is one of those questions that if you had a different member sitting here, they say something completely.

00;30;37;04 - 00;30;38;06
Judge McBrayer
Absolutely.

00;30;38;09 - 00;31;09;25
Judge Easter
But I'm with judgment. Breyer. One of the first things we do is once it's filed on what we call C track, which is our what is that to our case management system? Okay. Our case management system, first thing we do is, it's cumbersome. Mr. Hebner, I have to tell you, but the first thing we will do is somehow transfer it to a document that I can put on my iPad, that then I can stick my finger around and underline things and write questions out in the in the, in the, in the margins so that when you're standing in front of me.

00;31;09;28 - 00;31;40;26
Judge Easter
Mr.. Miss attorney, arguing, I mean, you have questions on your hand written with my finger on my iPad that I want to ask you. And then other of my brothers and sisters on this court will have done the same thing with their paper copy. And I used to do one before we had e-filing. Read the briefs, read all the briefs, and, sometimes, I, I've had enough time to do it or I have the, support staff to do it.

00;31;40;26 - 00;31;50;27
Judge Easter
And usually it's interns while students who will be here, they will have read the briefs and prepared, some type of event brief,

00;31;50;29 - 00;32;14;16
Judge McBrayer
That's helpful in my courts. The same way you'll, I walk out on the bench with just a hand because everything I need is there, and we can access Westlaw from from the bench and then also see track as well. So if there's something in the record that, for example, I did not, convert to PDF and need to look at, I can I can do that.

00;32;14;19 - 00;32;43;16
Judge McBrayer
But some of my colleagues are still carrying the paper briefs out there, and I'm sure that'll that'll continue for a while. And, you know, I appreciate the where that puts the practitioner, because they're sort of in this transitional, phase. But I do think the future is going to be this e-filing. And, and I would encourage if towards you if it's easy to do, if you have not already done it, to look into it and get ups and get set up to e-file.

00;32;43;22 - 00;33;01;14
Jim Hivner
Well, let me make one other comment about that. And Judge Easter kind of hit on it a little bit. And that is each of the judges have staff as well, and their staff are reading these briefs and other documents that are being filed. And as new staff come on, these are younger folks who are used to only looking at things on the computer.

00;33;01;20 - 00;33;20;03
Jim Hivner
It's not that and I don't want to give the impression that older folks don't as well. We have some older, more mature judges who that's all they do as well. That's they look at things on the computer. So, but many of the staff for the judges are reviewing these briefs and commenting to the judges and helping the judges and discussing the matters with them.

00;33;20;03 - 00;33;25;10
Jim Hivner
And so you got to think about them as well. And they're reading things, on the computer.

00;33;25;13 - 00;33;34;06
Host
Jim, let's talk about the communications that the lawyers received from the clerk's office. Once they file their briefs, what sort of interaction dos does the typical case have with the clerk's office?

00;33;34;09 - 00;33;52;28
Jim Hivner
Well, every time something is filed with the clerk's office, a notice goes out to the parties advising them or their attorneys advising them of what's been filed. If something hasn't been filed or notifying them that they've not met their deadline or something like that, to let them know that they need to be filing. So, whatever it may be, a brief or another document.

00;33;53;01 - 00;34;00;07
Host
And any party can request, an oral argument. When should you request an oral argument? When is it a good idea?

00;34;00;09 - 00;34;24;08
Judge Easter
Well, as I indicated earlier, we're seeing it less and less in the Court of Criminal Appeals. And I think, till young lawyers and old lawyers, any lawyer that'll listen, don't waive it, don't worry that it is valuable. And I am again, if you had other members of my court here, you might hear different answers. But from my perspective, I'll come on to the bench sometime.

00;34;24;08 - 00;34;43;23
Judge Easter
Having read a brief, I think not much here. Yeah, okay. I'm to sit through this and I'll turn around on oral argument. And, I've heard other colleagues say that as well. So just the experience of it being a lawyer, for one thing, you're arguing, you're standing up. I'm arguing. That's that's what being a lawyer is all about, that.

00;34;43;23 - 00;34;45;24
Judge McBrayer
Mom, I'm making an argument.

00;34;47;00 - 00;35;06;13
Judge McBrayer
You obviously, by rule, you request or argument by putting a request on the cover of your brief and either side can do that. My view on oral arguments changed a little bit since I've gotten on the court. I feel like, you know, I always felt like and judges and I talked about this before we, sitting down here today.

00;35;06;16 - 00;35;40;03
Judge McBrayer
So I thought you always request will argue no matter what. And, because if they're, you know, no matter how strongly you feel about your brief, this is opportunity for the judge to ask a question. If you're something that they were confused about, you might think it's crystal clear in your brief. And this is a chance, to set, the court straight on, on where you were going on a point, you know, now I'm, I'm, I think, rethink it a little bit and maybe, I think there may be some circumstances where I would say no, and I'm not sure it will argue is necessary to me.

00;35;40;05 - 00;36;00;21
Judge McBrayer
Sometimes it indicates a position of strength that you don't feel like law argument is necessary in the particular case that this is such a clear cut case in my favor. Well, argument is not necessary. You know? Okay, you also have the advantage, at least in our court. And I think registered for the court criminal bills. It may be slightly different.

00;36;00;23 - 00;36;15;24
Judge McBrayer
You're going to get the case to the court for a decision a little quicker. If you forego all argument, because it'll be submitted on briefs just as soon as the appellee's. Brief. Well, I guess as soon as the reply brief is submitted will get.

00;36;16;01 - 00;36;37;19
Judge Easter
Well, I think that's probably the same way. Jim, for our if you ask for oral argument in the Court of Criminal Appeals, is it going to delay getting your case to us? Yes, it will delay it, I mean, potentially. Okay. But you guys are I mean, both courts are very quickly about, getting things set for oral argument and then getting opinions out.

00;36;37;22 - 00;36;58;17
Jim Hivner
I will comment about oral argument, though, and I, and I sort of am of the opinion that if you can have an argument, dual argument, but I can understand Judge Breyer's comments. But if you're going to request oral argument, you need to be prepared for oral argument. And if you're not going to prepare for argument all argument, then I'd suggest don't do it.

00;36;58;20 - 00;37;01;27
Judge Easter
But with that, I would agree with that.

00;37;01;29 - 00;37;08;21
Host
So Jim, how is if I requested oral argument, how am I going to find out who my panel is and when an oral argument is?

00;37;08;24 - 00;37;33;13
Jim Hivner
Well, when the appellant's brief is found, most of the time it's the appellant requesting oral argument, but the appellee can as well. So once the briefing is complete, then the each of the courts, set their dockets, usually a couple of months ahead of time and a panel is set for that docket. You kind of generally know there's usually, three or usually four.

00;37;33;15 - 00;37;48;23
Jim Hivner
Well, for the Court of Appeals, as four judges for the Court of Criminal Appeals, you kind of know who your panel is once the docket is set. So and then a notice has gone out to the parties, as soon as the docket is finalized, letting them know when the docket is set and who the panel is.

00;37;48;26 - 00;37;56;00
Host
So, preparing for an argument, you just said it's very important. If you're not going to prepare, don't do it. So how do you suggest attorneys prepare?

00;37;56;02 - 00;38;27;16
Judge Easter
I I'm a fan of rehearsal. Stand in front of a mirror, bring in somebody knows something about your case so that they can pepper you with some questions that might come, because that's going to happen. That is, that is going to happen. And again, thinking on your feet and being prepared for that, the only way to be ready for that is to prepare and rehearse and, I have a colleague who says you should think of a hundred questions that are going to be asked of you, and they ask you 50, you've done good.

00;38;27;18 - 00;38;53;10
Judge McBrayer
Yeah, I agree with that. I think muting your argument is the best way to prepare for your argument. But there's another good resource and more based on our conversation before we started, I think people are taking perhaps taking advantage. I was watching video of Supreme Court arguments online is a good way of saying, you know what? It's what it's like to argue a case and then you don't have the video option for our court.

00;38;53;12 - 00;39;22;20
Judge McBrayer
But you do have the audience that are available after a time that you can listen to audios of oral arguments and just sort of see what it's like. I always, before I would go to a courthouse that I had not been in before. I like to come the day before and just sort of get the feel of the courtroom and walk around, and if it was permitted in the courtroom was free, maybe just sort of walk up to the podium where it would be if it was a strange courthouse.

00;39;22;23 - 00;39;31;13
Judge McBrayer
It just gave me a certain comfort level. When I came back the next day that I'd been there before, and I sort of knew what it was like to stand before the court.

00;39;31;15 - 00;39;56;11
Judge Easter
And I've got to imagine that some lawyer out there listening to this who's been appointed on the case is going to be laughing at that suggestion that take a lot of a drive to Jackson, right? The day before when I'm getting paid zero for this. So I know it in our court, just by the nature of, the Sixth Amendment right to a lawyer.

00;39;56;13 - 00;40;26;16
Judge Easter
Sometimes it's an economic thing. Even waiving the oral argument, I understand that's the that that drives a lot of the attorneys who are, representing an indigent defendant on appeal, waiving oral argument is a way to save money. And the legislature, has taken a look at that. And I understand now, the public defenders, there's been some, new funding for public defenders to have their own sort of mini version of the attorney general's office to handle appeals.

00;40;26;18 - 00;41;02;14
Judge Easter
That's a great thing. So I'm hoping that maybe that'll bump up the number of oral arguments a bit. Now that we have that, you can't ignore the economic impact of of, representing an agenda defendant and, rehearsal and driving to the courthouse and doing what you do if you get a good paying client. One other thing that suggest, as you're preparing for the record, is something that's coming in on several times already, and that is you need to read the record, you need to review the record, and you need to know the record as well as you can, because a lot of this stuff that you put in your brief and a lot of

00;41;02;14 - 00;41;20;28
Jim Hivner
the questions that you're going to get are going to be related to the record and what's in the record. And too many times I've had a seeing attorneys come to oral argument. And the question is, where can I find that in a record, or is that in the record? And the answer is, I don't know. Or I wasn't trial court attorney.

00;41;21;00 - 00;41;42;03
Jim Hivner
And that's really not a good response. So I recommend that attorneys really spend some time on the record. You can purchase an electronic copy of the record from the clerk's office if you need one. That will help you to search for things and find things that are in the record. So spend some time studying the record. Not only that, spend some time spending your brief and your advocates review the other side of the brief.

00;41;42;03 - 00;41;59;06
Judge Easter
So I want to piggyback on that for just a second. Okay, Jim, if at oral argument, you realize, hey, there is something that is not in the record, it should have been, do not be afraid to ask a supplement the record. And sometimes I've seen some of my colleagues, just sort of tee it up for it.

00;41;59;06 - 00;42;12;22
Judge Easter
Well, is there anything that you would like to ask the court to do in order to, know? Judge? There's not. Well, we're just trying to tell you I asked to supplement the record. It's not it's not the, and pardonable sin.

00;42;12;25 - 00;42;14;10
Judge McBrayer
Not all our questions are hostile.

00;42;14;12 - 00;42;15;16
Judge Easter
No, some of them.

00;42;15;16 - 00;42;16;29
Judge McBrayer
Are meant to help.

00;42;17;02 - 00;42;22;06
Host
So let's talk about questions. So what are your tips on handling the hot bench?

00;42;22;08 - 00;42;25;01
Judge Easter
We don't have hot benches. The all over there in Court of Appeal.

00;42;25;01 - 00;42;47;10
Judge McBrayer
I don't have been known to ask a question or two, I guess. And I know the Supreme Court is, very active on the bench. Mooting your case, I think, is the number one way to deal with it. And that's why I grew Judge Easter. That's the best way to prepare for argument is, is moving it in front of a panel that'll little, approximate the questions that you might get in the oral argument.

00;42;47;10 - 00;43;08;23
Judge McBrayer
So practice makes perfect, I think. And, for dealing for for those questions, I don't know is an appropriate answer. Except I agree with Jim. When it comes to the record, you should know if you're if your argument is going to be, based on some fact that's in the record, you need to go in knowing where that can be found in the record.

00;43;08;25 - 00;43;14;23
Judge McBrayer
But, you know, experience is the best teacher, I guess. Would I agree with difficult questions?

00;43;14;23 - 00;43;35;05
Judge Easter
I'd say the first thing is do not take it or take it personally. Take it seriously. Do not take it personally, though, that, that they're coming after me. No, it's not that. It's not a personal thing at all. Do not argue with the court. If you feel like they're they're a particular member of the whole panel's really come down.

00;43;35;06 - 00;43;59;22
Judge Easter
Do not argue with them and be professional about it. And let the let the court finish. That's sort of been a surprise to me since I've been on this court for five years now, as lawyers will interrupt the, judge. Well, he or she is asking a question. And and, you should let the judge finish their thought and hear them out.

00;43;59;25 - 00;44;22;23
Judge Easter
Hear their question? Don't be thinking about your answer and missing the rest of the question. Hear them out. Be professional, be polite. And if you're wrong, admit it. Admit it. Don't try to argue something that you do not have a good argument on, that you lose credibility again, and you and you gain credibility. I think when you can see listening.

00;44;22;23 - 00;44;44;27
Judge McBrayer
So skill that has to be developed. You know, I think sometimes lawyers will hear a question and then just like you say, they'll think they know where it's going and sometimes they're wrong or wrong. And then one of my colleagues would, would be upset with me if I didn't also mention that you need to answer the question.

00;44;44;29 - 00;45;16;01
Judge McBrayer
A lot of times, I think people are concerned about what the answer might be in and try to avoid it. And it just never. And I know Jim has seen this a lot in the Supreme Court. In the arguments up there, just you're there's no way you're going to avoid that because they will stay on you until you answer that question or they'll assume that the answer is, is is bad for your, side of the case.

00;45;16;01 - 00;45;34;07
Jim Hivner
I was going to say, one thing you don't want to do is ignore a judge's question. And it's not uncommon, especially when you have a hot bench and hot issues that a question gets asked. You start answering it. And another question you get pop with another question. And you may think, well, that's a whole lot easier question to answer, or that's the one I want to answer.

00;45;34;12 - 00;45;51;05
Jim Hivner
And you start answering that one and don't go back and answer the other one, or suggest to the judge you're going to come back. If you don't come back to that judge, that judge is going to come back to you, I assure you. Or that judge is going to think negatively of your what answer you were going to give them.

00;45;51;07 - 00;46;10;24
Judge Easter
And again, it adds as Judge McBrayer indicated. And Jim said, if if your answer is not a good answer, just admit it. Just concede. That's not my strongest argument, judge. And you don't lose credibility when you do that. In fact, in my mind, you you gain credibility.

00;46;10;26 - 00;46;22;11
Host
So what happens to the case after lawyer argument? We see you walk off the bench. Everyone takes a deep breath and the court's secret and and what happens? So what happens to the case after oral arguments?

00;46;22;13 - 00;46;24;12
Judge McBrayer
Well, we're in the room where the magic happens.

00;46;24;19 - 00;46;26;10
Judge Easter
So we right now we're.

00;46;26;15 - 00;46;32;14
Judge McBrayer
That's right. We're in that room. We, come back and discuss our initial thoughts on the case.

00;46;32;17 - 00;46;48;25
Judge Easter
And it's it's that and I think this is different, and I don't think I'm given any way secrets by telling us this is different between the procedure of our two courts. That's when we decide who wins the case. Is it that at that point, who's going to write the majority opinion? We do that on the day of the hearing.

00;46;48;27 - 00;47;17;16
Judge Easter
And if it happens to be an issue that, a particular member of the panel has recently worked on, then it's likely that that, judge is going to show up as the, the writer of this opinion. But we generally generally have a I kind of like to think it's like a roadmap in our discussions post argument here in this room or in the other robing rooms across the state where we just get a roadmap of generally how we're going to hit.

00;47;17;19 - 00;47;35;15
Judge Easter
And sometimes I believe all three of us leave with a big question mark on the docket. By that case, wow, we don't know. We just have to wait and see. Generally, we know, that it's it's either going to be an firm or reverse.

00;47;35;17 - 00;47;55;26
Judge McBrayer
We, you know, when we're discussing we have a presumptive right or on a case, but then in the course of our discussions that might change. And sometimes, after we leave the room and the presumptive right or whoever finds himself in the majority ends up writing the opinion, circulates it. You know, that may change as well.

00;47;55;26 - 00;48;17;17
Jim Hivner
Absolutely. Well. And, and, I think everyone should understand that your opinions aren't going to come out the next day. That it usually in my experience, takes somewhere between 3 to 6 months when you're talking about the intermediate appellate courts and usually longer, maybe about a year before, if you're talking about the Supreme Court, it can be longer, it can be shorter.

00;48;17;19 - 00;48;23;18
Jim Hivner
It's just dependent upon the case and the issues that are involved in the case and, and the judges schedules and that kind of stuff.

00;48;23;18 - 00;48;52;07
Judge McBrayer
So we have an internal operating procedures that are available. You can look at them through the AOC website. And our, internal rule is, is that, the judge that is the presumptive right or the opinion has to circulate that opinion within six months. And then there's a certain, time period for, the other members of the panel to respond and to prepare a separate opinion whenever, whatever, might be happening in that particular case.

00;48;52;07 - 00;49;04;12
Judge McBrayer
But we try to beat that by, and I think, Jim, you're right that that's our goal is 3 to 6 months. We try to do even quicker if a child's involved.

00;49;04;14 - 00;49;34;04
Judge Easter
Our IOP requires not requires, suggest recommends on non-capital cases. 180 days from oral argument to filed. And that's usually not a problem at all. And that's okay. Capital cases are always different, but we do have a requirement on those. And, again, our internal operating procedure requires or suggests that those be filed within 270 days of oral argument.

00;49;34;06 - 00;49;53;00
Jim Hivner
So and let me assure you, if you call the clerk's office and ask when the opinion is going to be issued, or answer you're going to get is I don't know. It's not because I haven't studied the record, it's because I really don't know. But I can assure you that somebody is working on that opinion.

00;49;53;02 - 00;50;05;03
Host
So tell me a little bit about the what's going on during these 180 days. These are the are you going back and forth? Are you sharing written copies? How much how does the court make its decision?

00;50;05;05 - 00;50;26;10
Judge Easter
Well, and again, members, different members would say different things. So I can tell you basically how the Easter office works. It's assigned to a clerk, law clerk, the law clerk. We we try to meet once a week with our law clerks, and we talk about each individual case. What issues are you dealing with?

00;50;26;13 - 00;50;42;24
Judge Easter
What's the struggle for you? And then not only discuss with me, but the other law clerks involved, and we flesh it out, usually within a fairly short period of time. Or in most cases, I get a draft from that clerk and I go over it, make changes to it, and try to get it out the door to judge number two.

00;50;42;25 - 00;51;02;27
Jim Hivner
Within enough time that it's going to fall within our standard operating procedure requirements. And judge number two, and again, this has changed since I've been here in the last five years. When I first got here, GM, we were still packing up boxes. And if I was sat with the, judges from Knoxville, then that box would be shipped to Knoxville.

00;51;03;03 - 00;51;25;26
Judge Easter
Big, banker's box. Now it's all electronic, you know, attach it to an email and say, here's my draft. And many, many, many times on with our cases. I don't know how it is in Court of Appeals, but with our cases, I don't hear anything from the other judge other than, I'll get a, an email back with a sheet of paper that says, join here with my suggestions.

00;51;26;03 - 00;51;46;26
Judge Easter
But I join either way, and usually the suggestions are just grammatical mistakes or, you know, dropped a comma here if we got a period there kind of thing. But it's not unusual either then that we'll get email, usually by emails. We do a lot by email. Hey, have you thought about it from this angle? Okay, I don't I can't go along with you on this.

00;51;46;29 - 00;52;07;01
Judge Easter
And then when it it really gets, and again, none of it's personal at all. I mean, that's what we do. That's what we do. It's it's sort of a bonding kind of thing. I found when I disagree with one of my brothers or sisters, it's almost kind of a bonding thing. We developed a better friendship because we disagree over that particular rule of law.

00;52;07;03 - 00;52;23;26
Judge Easter
But we go back and forth and if we can't reach an agreement, then, then it goes to the third judge, and the third judge looks at it and says, you know, I agree with judge number two. And so then all of a sudden I become the out guy. I'm writing a dissent. And it's what we do. It's fine.

00;52;23;29 - 00;52;55;18
Judge McBrayer
It's it's we, circulate, drafts to each member of the panel at the same time and get their comments back. And this judge and his experience is similar to mine in that, oftentimes it's simply a concur. You know, the opinion will match pretty much, the notes that I had taken from conference. And, and there might be some suggestions, grammatical or, you know, missing or missing a period or an extra space or something like that.

00;52;55;21 - 00;53;14;27
Judge McBrayer
But there are occasions where they can come back and say, well, you know that I've looked at this little more closely. I'm not so sure that it that I agree with where I was before or now that I've read the way, the opinion has written, you know, just that I'm just not sure that I'm still on board with that.

00;53;14;27 - 00;53;36;17
Judge McBrayer
That's not the way I thought it would come out, is when you see it in writing, it's one thing to to to discuss it aloud and another thing to see the opinion in writing and that, sometimes will change someone's mind. And then, you know, we walk back and forth sometimes if it's, if it's one of my colleagues here in Nashville that was on the panel will come and see me.

00;53;36;17 - 00;53;52;12
Judge McBrayer
We'll talk about it that way. But because, like the Court of Criminal Appeals, we're setting more mixed panels. I'm doing more of that in email than when I first started out, which is a good thing. I like working with my colleagues more frequently in the East, in the West, in the.

00;53;52;13 - 00;54;01;22
Host
Hopefully now we've all learned a lot about appellate practice in Tennessee. And that wraps up this edition of Tennessee Court Talk. So thank you all for being guests again.

00;54;01;24 - 00;54;04;26
Judge Easter
Thank you.