Ep. 29 Mechanics of Appellate Opinions

Appellate courts can be a mystery. In this episode of Tennessee Court Talk, judges of the Tennessee Court of Appeals and Court of Criminal Appeals pull back the curtain. Judges Jill Ayers, Frank Clement, Tom Greenholtz, and Steve Stafford explore a wide variety of topics ranging from arguing cases before appellate courts to the issuance of opinions. Judge Jeffrey Usman hosts their discussion as these judges attempt to make Tennessee’s appellate courts less mysterious. 

This episode is intended for all audiences.

Produced by Nick Morgan, Tennessee Administrative Office of the Courts

Transcript

00;00;01;14 - 00;00;26;03
Judge Usman
Welcome to Tennessee Court talk. My name is Jeffrey Usman I'm a judge on the Tennessee Court of Appeals. And I will be the host for today's program. Today, we're going to try to pull back the curtain to demystify what it is that appellate judges do. The discussion today will be primarily aimed at non-lawyers. But I expect there will be takeaways from today's discussion that will prove helpful for new attorneys, and even for experienced lawyers to provide insight.

00;00;26;04 - 00;00;53;00
Judge Usman
Today we have we're absolutely amazing judges with us. Let me introduce them to you. Our first panelist is Judge Jill Evers. Judge Jill Heirs is a graduate of Belmont University and the University of Tennessee College of Law. Prior to joining the bench, Judge Aras was an attorney with the law firm Batson and Nolan. She previously served as a circuit judge for Tennessee's 19th Judicial District, which includes Montgomery and Robertson counties.

00;00;53;06 - 00;01;20;26
Judge Usman
Judge Ayres is a judge on the Tennessee Court of Criminal Appeals, and her chambers are in Nashville. Our next panelist is judge Frank Clement. Judge Frank Clement is a graduate of the University of Memphis and the National School of Law. Prior to joining the bench, Judge Clement was an attorney in private practice for over 15 years. He previously served as a circuit and probate judge for Davidson County, Judge Clement, as a judge on the Tennessee Court of Appeals, and his chambers are in Nashville.

00;01;20;28 - 00;01;45;23
Judge Usman
Our next panelist is judge Tom Green Volts. Judge Tom green also is a graduate of the University of Tennessee at Chattanooga and the University of Tennessee College of Law. Prior to joining the bench, Judge Green Volts was the law clerk to the Honorable William Barker of the Tennessee Supreme Court and an attorney with the Summers and Law firm, the law firm of Schumacher, whip, Gaiter and Whitaker, and the Law firm of Chambliss, Honor, and Stockwell.

00;01;45;25 - 00;02;06;14
Judge Usman
He previously served as a criminal court judge for Hamilton County Judge Green Volts, as a judge on the Tennessee Court of Criminal Appeals and History in Chattanooga. Our final ballast is Judge Steve Stafford. Judge Steve Stafford is a graduate of the University of Tennessee at Martin and the Cumberland School of Law. Prior to joining the bench, Judge Stafford was a partner with the law firm of Wilkerson and Stafford.

00;02;06;16 - 00;02;29;20
Judge Usman
He previously served as Dyersburg City Judge and as chancellor for the 29th Judicial District, which includes Dyer and Lake counties in western Tennessee. Judge Stafford is a judge on the Tennessee Court of Appeals and has chambers are in Dyersburg. With those introductions, let's get into our discussion today. As I mentioned, we have four absolutely amazing judges with us today.

00;02;29;23 - 00;02;44;29
Judge Usman
And every single one of these panelist, as you may have noticed, was formerly a trial court judge. Judges, I'd like to start with you with this question. How is your role different as an appellate court judge than it was when you were a trial court judge?

00;02;45;01 - 00;03;05;29
Judge Ayers
Well, I'll start with some of the basics. Since I think we're trying to talk to non-lawyers, you know, most people's idea of the courtroom, they either they've been in court for their own personal matters or usually they've just seen it on TV. And what we do is nothing like that. You know, in the trial court, you're going to see juries and witnesses and lots of action.

00;03;05;29 - 00;03;28;18
Judge Ayers
And at our level, it's certainly different from that. We are a reviewing court. So, we're using sports technology. I would say it's like we're going to the booth to do a review, to see what happened at the trial court, to review that and see if can make sure the law was applied correctly and that the, the litigants involved got a fair trial.

00;03;28;21 - 00;03;36;22
Judge Ayers
So just on that very basic level, it looks really different than, what I think most people think about when they think about courtrooms.

00;03;36;24 - 00;03;45;26
Judge Usman
Judge Clement, how do you find it to be different in terms of your experience, your role as an appellate court judge versus what your experience role was as a as trial court judge?

00;03;45;28 - 00;04;17;20
Judge Clement
Well, it's very similar to what Judge Ayres said, but we have the benefit of seeing the full record of what happened in the trial court. And then we have the benefit of each side presenting their briefs to state what mistakes they believe the trial court made or what the trial court did correctly. And then they have the responsibility to cite to the record, to where we can find the relevant evidence and assign it to the record where we can find the relevant law.

00;04;17;24 - 00;04;29;01
Judge Clement
And so from that perspective, and as judge said, it's like being in the booth on a review of a football game. But it it's quite different.

00;04;29;03 - 00;04;37;00
Judge Usman
Judge Greenholtz, same question to you. What have you found to be, the differences? How has the role different as an appellate court judge than a trial court judge?

00;04;37;02 - 00;05;01;10
Judge Greenholtz
It's interesting in a lot of different ways. So as a trial court judge dealing mostly with criminal litigation, the role of the criminal court judge, you know, overseeing jury trials or overseeing hearings or, you know, other proceedings, those types of judges operate, generally speaking, within a wide range of discretion. And so just to take kind of one, example, the discretion of the criminal court judge is probably at its maximum and sentencing.

00;05;01;10 - 00;05;18;24
Judge Greenholtz
And so there's a whole lot of information and factors that go into how a trial court judge will sentence what the ultimate sentence will be, how it will be served. As all of our judges have noted so far, that role is very different when you come up to an appeal. So we're generally looking on the Court of Criminal Appeals most often.

00;05;18;25 - 00;05;42;01
Judge Greenholtz
Was the trial court acting within the range of discretion and, a lot of times that's the case. Sometimes it's not. But a lot of times that's the case. Where it really differs is this is that is a trial court judge having a range of discretion. I can make a decision that I thought the justice required that, was consistent with the law, that, took into account all of the various interests involved on appeal.

00;05;42;01 - 00;06;00;28
Judge Greenholtz
That's not at all what we're looking at. And so even if I were to disagree personally with what the trial judge did, let's say in a sentencing case, if I would have ordered more time, for example, to be served, or if I would have ordered that, someone be incarcerated, whereas the trial judge thought that some time on probation was, was more appropriate.

00;06;01;00 - 00;06;19;04
Judge Greenholtz
That's not my goal. And so on appeal, what we're doing is really I think it's judge errors. But it very well we're serving as the check to make sure that the discretion that the trial court judges are exercising is done so appropriately within the guidelines. And once we make that determination, you know, the ultimate decision that the trial court made, it is up to the trial court.

00;06;19;04 - 00;06;36;29
Judge Greenholtz
It's not up to, to me on appeal to substitute, my judgment for that of the trial court. And frankly, as a new appellate judge, coming directly off of the trial bench, that can be hard sometimes. The great thing about the Court of Criminal Appeals is that we have a lot of colleagues who were very good to remind me in particular.

00;06;36;29 - 00;06;40;23
Judge Greenholtz
So I come on, read, hold, stay in your line. And I think that's important that we all do.

00;06;40;25 - 00;06;46;21
Judge Usman
Judge Stafford, same question to you. How is your role different as an appellate court judge than it was as a trial court judge?

00;06;46;23 - 00;07;23;19
Judge Stafford
Let me reframe your question just a little bit. And I think for purposes of who we are addressing today, I think it's the expectation level of the people who appear in front of us. If you think about it, by the time they get to the Court of Appeals or the Court of Criminal Appeals, they've been through, their, General Sessions career, criminal court change record, circuit court, and that's a whole different process than what you deal with when you get to the appellate court, when you get to those levels, you've got a whole lot going on.

00;07;23;19 - 00;07;41;28
Judge Stafford
So you perhaps have a jury, you're going to have a trial, you're going to present evidence, you're going to call witnesses. A whole lot of things are going out when you get to the appellate courts, though, all that's over where you've got the cold hard record, you've got a transcript, you've got a statement of evidence, you've got briefs.

00;07;42;01 - 00;08;05;20
Judge Stafford
And that's all that we're reviewing. And often times when we get self represented litigants in the court of appeals, they have difficulty understanding they're they want to call witnesses. They want to, reopen the trial. They must present other evidence. And of course, we can't do that. So I think it's the expectation level that is so important there.

00;08;05;26 - 00;08;28;04
Judge Stafford
And I think it's the role of the judges, too. I was a city court judge who had, General Sessions criminal jurisdiction when I started. I was a chancellor and also did circuit court for what I did, all that. I had lots of discretion. As Judge Greenhill pointed out, I could do a whole lot of stuff, and I was more a manager than I was anything else.

00;08;28;04 - 00;08;46;16
Judge Stafford
But once you get to the appellate court, all you are is a reviewer and you're stuck with whatever happened in the circuit court or the change record or the criminal court, we just we have to deal with what's presented to us. And that's sometimes very difficult for the litigants to understand.

00;08;46;18 - 00;09;08;14
Judge Usman
It's Rafferty you're talking a little bit about what's what. We're the court on appeal. Some of the cases on appeal are going to be cases in which it's just the briefs that are filed in the record that's filed before the court, and there's no oral arguments that occur in other cases. They're there are real arguments where the parties come in and lawyers come in and argue in front of the judges words.

00;09;08;17 - 00;09;22;28
Judge Usman
How does a case end up as an oral argument case where the lawyers already is going to come in and argue before the court, or a case that's going to be decided on the briefs without oral arguments, how does it end up one way or the other?

00;09;23;00 - 00;09;56;20
Judge Stafford
Primarily? And, and I speak for the Court of Appeals here because I think the, Court of Criminal Appeals may have some other nuances that need to be addressed, but it's the decision of the parties as to whether a case is heard at oral argument or the case is submitted on brief. So they decide that on the front end, if they would like to have oral argument, they have to request that on their brief and either side can request oral argument and obviously oral argument would be granted at that point time.

00;09;56;23 - 00;10;28;11
Judge Stafford
By that same token, the parties can decide that they just as well submit the case on brief to the court. And I want to point out, some people believe that there's a huge distinction between the way the case is analyzed, whether it's own brief or an oral argument. It's not the case is given the same regard, the same scrutiny, the same review, whether the case is heard at oral argument or on brief, there may be strategic reasons why someone wants the case to be submitted on brief or as opposed to oral argument.

00;10;28;11 - 00;10;30;08
Judge Stafford
So it's just up to the parties.

00;10;30;10 - 00;10;52;06
Judge Usman
Judge and also Judge Stafford mentioned there might be a difference between the Court of Appeals versus the Court of Criminal Appeals with regard to whether a case is going to be heard just on the briefs, or whether there's going to be oral argument with the lawyers, a party coming in and arguing, how is it different, before the Court of Criminal Appeals with regard to whether there's going to be in-person argument or not?

00;10;52;08 - 00;11;12;25
Judge Greenholtz
That's a great question. My my experience has been exactly like Judge Stafford, and the decision is principally made by the parties. I think that the with the Court of Criminal Appeals and also with the Court of Appeals, there could be a time, I think maybe the court itself would take a look at an issue and say, or to brief and say, you know, I think we need to have this argued.

00;11;12;25 - 00;11;30;01
Judge Greenholtz
There are questions we have here, and I just think we need to have argument on this. So the court has an opportunity to flesh out the issues a little more. I've not run into that situation yet, though. I have had the opposite situation where even on the day of argument, we've had a lawyer come into court and on the day of arguments.

00;11;30;01 - 00;11;52;10
Judge Greenholtz
So I think that the briefs themselves present the issues fairly. If the court has no questions, I'll go ahead and waive the rest of argument today. That's an unusual situation, but it's governed principally by the parties. Judge Stafford is absolutely correct that there is not a difference between how the cases are treated in terms of the analysis that's given to them, whether the cases are due to work.

00;11;52;10 - 00;12;09;28
Judge Greenholtz
That's on brief. We'll spend in our chambers. And I suspect that every every other judge knows the same. If a case is getting ready to be argued, we're going to spend a lot more time with the record. We're going to spend a lot of time getting ready for the argument itself, so as to be familiar with the issues, to be familiar with the facts so that the argument can be productive.

00;12;10;00 - 00;12;36;21
Judge Greenholtz
And obviously, that same process doesn't happen at the very beginning in a case that's submitted on brief. But it will happen. And so all of the parties believe there is necessarily an advantage to argument over briefing. It may only come down to whether the party believes that there are issues that can be better explored or more persuasively presented in an argument, but it can, from the, from the cold face of the brief that Judge Ayres I know will have more to add to that.

00;12;36;21 - 00;12;43;04
Judge Greenholtz
But from my perspective at least, I think we're operating on the Court of Criminal Appeals. Much like Judge Stafford described the Court of Appeals.

00;12;43;06 - 00;13;02;29
Judge Usman
One of the centerpieces of the conversation so far is you've mentioned multiple times briefing Judge Clement in thinking about briefing, what makes for a good brief? What is it that a lawyer or a pro se party is if somebody to represent themselves, what makes for a good briefs?

00;13;03;02 - 00;13;26;17
Judge Clement
First of all, if the brief is clear and concise, I find that very helpful, as distinguished from a brief that rambles on and goes on and on with a lot of elaboration. Occasionally it is important for an issue or a fact to be explained in more detail, but most of the time, if you can get to the point, that's helpful.

00;13;26;21 - 00;14;00;26
Judge Clement
I believe identifying the issue succinctly is very important, because I think that drives the brief and drives the court's analysis. So stating what the issue is, they view the appellate wish to raise is very important. And then that will guide the appellant in drafting the brief in citing to the record that evidence that's relevant to that issue and the law that is relevant to that issue, and then providing an analysis that explains why you should prevail on that issue.

00;14;00;26 - 00;14;03;08
Judge Clement
And then the court can take it from there.

00;14;03;10 - 00;14;14;07
Judge Usman
Judge, here's what makes a good brief for you. When you're looking at what what are you looking for? What's the difference between a good brief and a bad brief out of somebody? What's there in a good brief or what's missing in a bad one?

00;14;14;09 - 00;14;31;16
Judge Ayers
I agree with a lot of what Judge Clement said. First and foremost, though, I would say for a lot of what we see, we need to make sure the lawyers make sure if it's a pro se litigant, they need to make sure that they're following the rules. Sometimes briefs don't do what they're supposed to do under our rules.

00;14;31;16 - 00;14;49;21
Judge Ayers
And that leaves us in, you know, the unfortunate position of sometimes having to dismiss the case if the brief is not sufficiently adequate. So, you know, I would encourage those who are preparing briefs to make sure they know everything that needs to be correctly in it and how to argue it. But then I would definitely agree with Judge Clement.

00;14;49;24 - 00;15;13;25
Judge Ayers
Once you get past that threshold, I just want to be clear and to the point, be really clear about what the issue is. What do you think that the trial court got wrong? So we know exactly what we're looking at. Give us the relevant facts. We've all been trial judges. We know at trial, so much comes out that ends up not being relevant to the 2 or 3 issues on appeal.

00;15;14;01 - 00;15;37;22
Judge Ayers
We don't need to know all of that or get lost in some of that. Let's just be really clear about the relevant facts. That's something we try to do in our opinions. I'm sure you're going to talk about that later as well. And one thing I appreciate is just acknowledging and owning your weaknesses. If there are facts that are against you and law that's against you, you need to go ahead and address that in your brief, because we know that.

00;15;37;28 - 00;15;47;02
Judge Ayers
And it's not like if you don't put it in there, we're not going to figure it out. So those would be some of the highlights that I would like to see in good briefs.

00;15;47;05 - 00;15;50;10
Judge Usman
And Stafford, same question to you. What makes for a good reason?

00;15;50;13 - 00;16;16;26
Judge Stafford
I don't think we can overemphasize what judge is or said about following the rules. That's the first thing that the court's going to look at. That's the first thing the opposing parties going to look at. Does this brief comply with the rules? If not, it becomes a problem. If you follow the proposition that everybody starts off equally, then by failing to follow the rules, you are putting yourself in a hole to begin with.

00;16;16;29 - 00;16;43;11
Judge Stafford
So it's extremely important to follow the rules. And by that, you've got to read the rules and you've got to, take advantage of the opportunities. You've got to know how the courts work. So, I would suggest if anyone, believes that they're going to represent themselves, that they acquaint themselves with the rules in the beginning. Once you get past that, I agree totally with what judge limit judge er said.

00;16;43;11 - 00;17;13;06
Judge Stafford
And that is people have this belief that the more I say the better it is. That's not necessarily correct. Sometimes it's best just to get to the point and say what you mean and mean what you say. Another thing that the self represented litigants need to understand is the volume of work that an appellate court deals with. Let's say that we're having oral arguments and we have, ten cases set for oral argument in that period.

00;17;13;09 - 00;17;36;16
Judge Stafford
What that really means is that we will have a minimum of three briefs per case file, which means we've got 30 briefs that need to be read if their brief is just a long brief that really doesn't say anything or doesn't distinguish itself, then it's just a lot of the mass of paperwork that we have to get through to get prepared.

00;17;36;16 - 00;17;49;19
Judge Stafford
So consequently, it is important to say what you mean. It is important to be as brief as you can be, but you need to cover what you need to cover as well. So I think it's probably more of an art than it is a science.

00;17;49;22 - 00;17;53;07
Judge Usman
Judge green that art. What makes for a good painting of a brief?

00;17;53;09 - 00;18;14;23
Judge Greenholtz
I think that's, it it's really hard to add, I think, to what my colleagues are saying. Maybe one thing I would emphasize here, it's incredibly important in the briefing to actually respond to the arguments that are being made on the other side. One example that I see frequently is if Judge Stafford says that if he's got ten cases on the whole argument, he's going to have 30 briefs.

00;18;14;23 - 00;18;40;22
Judge Greenholtz
It is amazing to me how many times and appellant, typically a defendant appellant in the Court of Criminal Appeals, simply won't file a reply brief. So, for example, in a given case, maybe the state says the defendant waived an issue in the trial court because the defendant didn't object to the evidence, didn't take other procedural measures that the defendant should have taken to preserve the issue for appeal, so that we can move on it when the state raises a waiver argument.

00;18;40;22 - 00;19;02;19
Judge Greenholtz
It's amazing to me how many times the defendant simply doesn't follow reply brief, if only just to address the issue. It happens quite frequently, and I think the better briefs that I've seen are short in their statement of facts. They're limited to the relevant facts, but they're well done in terms of the law that's being presented, because that's on the intermediate courts.

00;19;02;19 - 00;19;24;06
Judge Greenholtz
And we're all serving on the intermediate court, where an error correcting court, essentially. And one of the things that we need to know is what is the law and how is the law being applied? And was that correct? Was it not correct? So the better briefs, I think, are going to be the ones that are going to actually respond to the arguments that are being raised by the other side and will actually cite authority in support of that proposition.

00;19;24;09 - 00;19;47;08
Judge Greenholtz
Judge Ayres was, she hit it right on the nail. It hit the head on the, on the nail when she said, you know, a lot of times we'll get, briefs that aren't citing law, which is amazing to. That's, not the case. Not much we can do. Frankly, when we have, an appellant that is coming forward and wants the court to do the research, wants the court to examine the record, and we're going to do all of that.

00;19;47;09 - 00;20;05;16
Judge Greenholtz
That's not really the function of these courts as it goes. And no judge wants to fight. I think in their heart of hearts, no judge wants to find that an issue has ever been waived for a procedural deficiency. But it can happen. And so I agree with all the other judges. I would add only that, make sure you respond to the arguments and, cite good authority judges.

00;20;05;21 - 00;20;27;11
Judge Usman
Judge Greenblatt's had spoken earlier about the preparation that you do on the Court of Criminal Appeals and getting ready for argument, reading the briefs, looking at the record in terms of getting ready for those those oral argument, cases, when you've done that preparation, do you have an initial sense of how you think the case comes out when you're walking into oral argument?

00;20;27;13 - 00;20;31;23
Judge Usman
And has your mind ever been changed by an oral argument?

00;20;31;25 - 00;20;56;12
Judge Ayers
Yeah, I would say absolutely. Yes to that. And that's one area of what I'm doing now as an appellate judge that I find similar to when I was a trial judge. Hopefully all judges go into the courtroom prepared. And whether you're a trial judge or, an appellate judge, we're going to have reviewed briefs, motions, all of that and be prepared and have, frankly, lots of questions.

00;20;56;12 - 00;21;17;12
Judge Ayers
I mean, when I've got good briefs, I have questions, you know, immediately that start popping into my head that I know that I want to ask the parties when hopefully we get to oral argument. But yes, I think when you've done that preparation in your mind, you have an idea of what you think the outcome will be. But that's not always where we land.

00;21;17;15 - 00;21;38;26
Judge Ayers
A good oral argument can certainly bring my attention to something I hadn't thought about, or even make me think differently about how some specific law should apply to the specific facts. You know, I would say definitely we can have our minds changed even though we go in with a certain mindset. And that's I mean, that's why I love that oral arguments.

00;21;38;29 - 00;21;59;08
Judge Ayers
Judge green helps me know we at the Court of Criminal Appeals, we get more, briefcases than we do oral argument. And I wish we had more oral argument. And I would certainly encourage young lawyers to request oral argument because I think it's great practice for them. And we like it. We like to be prepared. We like to ask the questions.

00;21;59;11 - 00;22;25;20
Judge Ayers
I love to sit with Judge Greenwald. He has great questions. Sometimes I'm thinking, why didn't I think of that? But, you know, it's it's a really useful exercise for us to go in. And an important part of the appellate procedure, in my mind, to go into oral argument. So that was a long way of answering your question, to say that my mind has definitely been changed, or I've been enlightened as to a different way to look at an issue, from oral argument.

00;22;25;22 - 00;22;43;04
Judge Usman
Judge areas mentioned questions at oral argument. I'm curious, Judge Stafford, parties come in, they may have a plan in terms of what they're intending to say. Maybe the lawyer has a plan in terms of what he or she is going to say, or pro party who's representing themselves before the court may have a plan for what they're trying to say.

00;22;43;06 - 00;22;52;05
Judge Usman
Why is it that a court asked question the appellate court asked questions during oral argument. What's the purpose of the questions that are that are being asked.

00;22;52;07 - 00;23;19;00
Judge Stafford
As Judge Ayres just said, as you prepare for oral argument and on the Court of Appeals, the majority of the appeals or heard by oral argument, we have the inverse situation with the court Rumble appeals. But as Judge Arrow stated a while ago, as you're preparing, you have questions. You think about things differently than perhaps the parties have thought about them, and you want to know what the answers to those questions are.

00;23;19;06 - 00;23;50;22
Judge Stafford
Sometimes the parties pick up on that and respond in a way that they can get back into their arguments. Sometimes it doesn't work like that. It's just we think that these questions are relevant and, have been raised and need to be answered. What that means sometimes is absolutely nothing. We just want to know what the answer to the question is, because we want to be able to see the big picture about the case and why two times parties read more into that than they should.

00;23;50;24 - 00;24;17;16
Judge Stafford
I've had many, many lawyers say to me that, they could tell which judge was being assigned the opinion because that judge asked the most questions that didn't got anything to do with it or that, we were really fascinated by that case because we had a lot of questions. Again, that may or may not be correct. So, it's just as we prepare, the questions arise, we want to know what the answers to the questions are.

00;24;17;18 - 00;24;25;27
Judge Usman
Judge Clement and your mind never been changed. But we're an argument. And what is what do you see as the purpose and use of questions during oral argument?

00;24;25;29 - 00;24;52;22
Judge Clement
Absolutely. My mind has been changed as a result of oral argument. To be fair, a judge does develop an initial impression of how he or she believes the case may be decided after having read the briefs. It's natural you hear each side's argument. You hear it by reading it, and thus you gain an initial perspective. But I don't lock in that viewpoint.

00;24;52;25 - 00;25;24;08
Judge Clement
I keep an open mind and look at the oral argument as a second opportunity to hear and understand what the parties what to say. Oral argument, view as the parties second opportunity to present to their view. But the court's first opportunity to ask questions and I ask questions not to prove a point, but to gain a better understanding of a party's perspective.

00;25;24;08 - 00;25;47;13
Judge Clement
For example, if a party says the case of Giles versus Smith does not apply to this case, then I'll say, well, the facts seem to be very similar. Why do you say it doesn't apply? Therefore, I give them an opportunity to persuade me or to convince me that they're wrong on the point. But I give them that opportunity to be heard.

00;25;47;16 - 00;26;17;03
Judge Clement
So, I welcome oral argument and I welcome the opportunity to ask questions. But the questions that I ask seldom indicate how I'm inclined to rule on the case. I will add that we give just as much attention to cases that are assigned on briefs, meaning where there is no oral argument. Each case is very important to someone, and it's our job to give each case the attention that their case deserves.

00;26;17;05 - 00;26;24;06
Judge Usman
Judge Greenholtz, Has your mind ever been changed by oral argument? And then what do you see as the purpose of questions? An oral argument?

00;26;24;08 - 00;26;54;05
Judge Greenholtz
Now, I think, my experiences is just like that of, my colleagues here. I can remember, this was a case that was argued maybe 6 or 7 months ago. So when we're getting ready for argument, each one of us has 2 or 3 staff attorneys that also work with us judicial law clerks. And what we tend to do is after reading the briefs, we'll have, you know, a short bench memoranda that's prepared for each case, an argument that summarizes kind of the highlights about what the issues are, what the legal authorities are.

00;26;54;10 - 00;27;13;20
Judge Greenholtz
And then we'll come together and we'll actually whiteboard the case. And the whole purpose of doing that is to figure out what questions we might have actually know is this area of the, of the argument is that unclear? Are the cases in the statutes that are being relied upon or they, are they the right ones? Are there other authorities that, that we need to, to ask about?

00;27;13;20 - 00;27;37;05
Judge Greenholtz
What? About responses to arguments, things like that. So we try to go into argument having essentially game from our perspective what our questions are. Sometimes that you get into argument and it's a completely different case. And so we had this was a case that about 5 or 6 months ago where the central issue in the case was about the effect of a closing argument, the state's closing argument on on the jury's verdict.

00;27;37;05 - 00;27;55;23
Judge Greenholtz
And I remember going into the argument we had gone through kind of exhaustively, that whole process with this case. And I remember going into the argument thinking, okay, you know, I think I understand where where everything is here and, you know, like other judges, you have kind of attendant view on it. It's not closed by any means, and you're certainly open to being persuaded otherwise.

00;27;55;23 - 00;28;17;11
Judge Greenholtz
I got into the argument in the defense lawyer in the case was an outstanding advocate. Frankly, we have the great opportunity to see some truly outstanding advocates here on the Court of Criminal Appeals. It was just a good advocate. And then all of a sudden, as he's arguing through the case, I begin to see something that wasn't just present in the paper briefs that were submitted that actually could see how the argument was coming to life.

00;28;17;11 - 00;28;42;11
Judge Greenholtz
And it was a very effective presentation, and it caused me to do a 180 degree turn around on the case when I was coming into the case, had some questions about it, had it tended to be coming out of the case, was pretty well convinced that he had the better of the argument on the case. So I think that as advocates are preparing for argument, and I've heard lawyers say this, you know, you can lose a case in oral argument, but you can't win it in oral argument.

00;28;42;11 - 00;28;58;18
Judge Greenholtz
I completely disagree with that. I think you can win a case in oral argument. And so you got to be prepared to do it. Also have to have, you know, a court that's, that's also engaged with it. And all the judges here, certainly on this podcast, are engaged in their cases. But, it takes two to tango, as they say.

00;28;58;18 - 00;29;04;04
Judge Greenholtz
But when that happens, it can be magical. It's a lot of fun to be in. A great appellate arguments are judged here.

00;29;04;04 - 00;29;18;10
Judge Usman
So, Judge Greenholtz was just talking about a particularly effective argument that he saw. I wonder, in general, what we talked earlier about what makes for good briefing, what makes for a good oral argument by an advocate? What what is good, effective oral advocacy.

00;29;18;13 - 00;29;50;08
Judge Ayers
Means that the same things I like about a brief, I like about an oral argument, again, just being clear and direct and just narrowing and clarifying the issues, you know, what is it you want us to do? What do you think the trial court got wrong and what facts and law support that? So again, I like clarity, but just from a the engagement kind of aspect of it, just being confident to and I think the way what you can probably tell from this podcast, I'm better on paper than I am arguing what I have.

00;29;50;10 - 00;30;16;02
Judge Ayers
So I get that not everybody is gifted in oral advocacy. They're just not, you know, we all have different talents and strengths. But for me, the way I got past that, as much as I could is preparation. I mean, you've got to know the record, know and understand your argument and be able to present it confidently. And that comes from just a lot of good preparation.

00;30;16;10 - 00;30;46;17
Judge Ayers
So that would be my advice, especially to young lawyers who may be listening. You may not be the best oral advocate out there, but you can do really well by being prepared. And that preparation gives you that confidence to come in and argue. And just like Judge Reynolds talked about while ago, change our minds on something. You know, when you when you're prepared and you say it with conviction and you have the facts and the law to support it, you need to sell that to us.

00;30;46;19 - 00;30;51;07
Judge Usman
Judge Clement and say the same question to you. What makes for good, effective oral advocacy?

00;30;51;10 - 00;31;15;07
Judge Clement
I like it when the party gets up and says, I'm here to make three points, number one. And they state that point number two, and they state that point number three. And they take that point. And then they proceed to follow up in that logical order and discuss each of those points by telling me what they want to discuss.

00;31;15;14 - 00;31;42;00
Judge Clement
It allows my brain to prepare to accept information relevant to those subjects. Instead of someone getting up and rambling broadly and moving from point to point to point. Sometimes I'm thinking, what is it that I should be paying attention to? What of this information is important? And so? So I like it when they start out saying like an outline.

00;31;42;07 - 00;31;45;02
Judge Clement
I'm going to do one, two and three and here we go.

00;31;45;08 - 00;31;50;14
Judge Usman
Judge Stafford, same question to you. What what makes for a good, effective oral advocate?

00;31;50;17 - 00;32;13;26
Judge Stafford
I think there are a couple of questions there. First of all, I think the first response would be a regurgitation at what's in your brief is not a good oral argument. And we get that quite often. I've read your brief. Everyone else has read your briefs. So consequently, telling me what's in your brief is not beneficial. You have to think about what the purpose of oral argument is.

00;32;13;26 - 00;32;47;25
Judge Stafford
It's the opportunity for the parties to basically get their best licks. And as far as their case goes, and you've got that period of time to do that. So they have to think about that. For me, the best oral argument is basically a discussion of why the court got it right or why the court got it wrong. It's not, an opportunity for the advocate to prove how eloquent he or she may be or how many big words they know it's for us to have a discussion about the case.

00;32;48;02 - 00;33;23;12
Judge Stafford
It's also the opportunity for the advocate to inform the court. What is important is in this case and what the court needs to know and what information the court has to have to make the decision that is going to make. So consequently, oral argument is, I think is Judge Maureen Holt said earlier, most of the time you are not going to really win at oral argument, but you can lose that overall argument by what you say or don't say. So, it's the time for the parties to get their best licks. It, I guess. In summary.

00;33;23;14 - 00;33;33;18
Judge Usman
Judge Greenholtz, you had spoken earlier of a particularly effective advocate you had seen in a case, I wonder, sort of broadening that out in general, what makes for effective oral advocacy?

00;33;33;21 - 00;33;56;10
Judge Greenholtz
I tell you this, it's interesting. As a lawyer, I approached appellate argument really kind of like Judge Stafford is saying from the perspective that my role as the advocate is to be before the court to act as, as a God, as a teacher, through the case. This is what I believe my case is about. I have an opportunity to actually to talk with you about the case and about the issue I think are important.

00;33;56;10 - 00;34;17;05
Judge Greenholtz
And with that, then come maybe if I could borrow from Judge Clement just a bit, with some bullet points. Two very important things come from that. One is that I'm not here to discuss the entire case. So I may have, in my brief, raised five, six, seven different issues maybe. I hopefully haven't raised a whole lot of just frivolous issues, but I may have raised a lot of good issues in the brief.

00;34;17;06 - 00;34;37;13
Judge Greenholtz
I'm not going to focus on all of those oral argument. I'm going to pick the 1 or 2 issues, an oral argument that I think I have the best chance of success getting relief on, and I'm going to focus my argument on those or may have questions about the other issues. But as the advocate, I'm going to spend the time profitably with the with the court on the most important issues in the court of criminal appeals.

00;34;37;13 - 00;35;06;20
Judge Greenholtz
You have 20 minutes aside, unless Judge Dyer and I are on a panel, then you may get 40 as it goes. Wait a minute. But you want to emphasize the kind of the most important. And the second thing, Judge Ayres is absolutely right about this. You have to be prepared. And so when I went into argument as a lawyer and it didn't always happen, that's why, admittedly, but my philosophy was I don't want there to be any question that the court asks me that I am not going to be able to answer, and that requires to get to that point now.

00;35;06;20 - 00;35;26;14
Judge Greenholtz
So I didn't get to that point as often as I would want to. But to get to that point requires an enormous amount of preparation. An ineffective oral argument is where the advocate is being asked maybe even basic questions about the record, basic questions about the law. And the advocate is just standing there because either the advocate doesn't know the record, maybe doesn't know the law.

00;35;26;14 - 00;35;49;19
Judge Greenholtz
We all freeze. You know, I do it myself. Or you might not know the answer to it, but just to stand there, right, is because you didn't have preparation. So in my view, the effective advocates are approaching it. Just like Judge Stafford said, where it's a dialog about the important issues in the case, just like Judge Eyre said, we've got to have our our preparation and it needs to be exquisite preparation to be effective.

00;35;49;21 - 00;36;06;13
Judge Greenholtz
As Judge Clement says, let's limit this. Give me the three bullet points. Give me the two bullet points. Let me know what we're really here to discuss today. And then let's, let's knock it out of the park. And, the greatest advocates I've seen exactly that. And it's, it's a wonder to behold when it happens. It's a lot of fun.

00;36;06;16 - 00;36;28;00
Judge Usman
If the party comes before a trial court has a hearing before the trial court judge. The trial court judge may rule from the bench. The trial court judge may rule that day that almost never happens before. Appellate courts. Judge Clement, why don't appellate courts rule from the bench? Why does it take time for a party to receive a decision?

00;36;28;00 - 00;36;37;19
Judge Usman
So let's say pro se parties come in, they argued. Why aren't they hearing their decision that day? And why does it take time for them to to receive a decision in a case?

00;36;37;22 - 00;37;13;09
Judge Clement
That's a very good question. And let me start out by answering that by referring to Court of Appeals rule 13, which allows the parties, if they all agree, to request an expedited civil appeal. And that rule says that if all parties agree, then the court will render its decision from the bench without preparing a formal opinion and the only thing that goes down on paper is an order that says we affirm the trial court on all issues, all issues one two.

00;37;13;09 - 00;37;58;01
Judge Clement
But reversal on three or what have you. But the, the order would not give an explanation as to the reasoning that underlies that decision. I've been on the Court of Appeals for 20 years, and nobody has ever agreed to waive that requirement. But I can envision that there a time will come when that's appropriate. But the protocol is that if a case is assigned to the Court of Appeals, the court of appeals will render a written opinion that appropriately identifies the facts and procedural history, identifies the issues that the parties raise, and then provides an analysis that explains how and why the court came to its decision.

00;37;58;01 - 00;38;34;25
Judge Clement
And then the opinion will stake what that decision is, and the opinion will be filed and circulated to all of the parties. It does take time to be fair. Some opinions can be written when a few days. Some opinions take weeks, if not longer, depending upon the complexity of the matter. But the point is that there's a pipeline that has cases in there that are already before your case, and we try to address the older cases first, with a few exceptions, such as termination of parental rights cases, which we are required by statute to expedite.

00;38;34;25 - 00;38;58;01
Judge Clement
And so we give those cases priority. But as I mentioned earlier, all cases are important to somebody, and it's our responsibility to respect the fact that it's important to that person. But it takes time to put on paper all of the reasoning that goes into it. And the Court of Appeals and Court of Criminal Appeals, three judges consider the matter.

00;38;58;01 - 00;39;12;00
Judge Clement
So one of the judges writes the original draft of the opinion and then circulates that among the other two judges and the other two judges may request changes some modest, some substantial. But that takes time.

00;39;12;03 - 00;39;37;17
Judge Usman
In terms of writing opinions, how is it determined? Who's going to write the opinion in the case and or who's made here? Concurrence is the sense judge. Here's how is it determined within the Court of Criminal Appeals? Who's going to write a particular opinion? And what exactly is a concurrence? What's a dissent? And when does a judge write a concurrence or dissent?

00;39;37;19 - 00;39;55;26
Judge Ayers
Right. That's a lot of questions. I'll see if I can answer them all at the same time. So on the Court of Criminal Appeals, I'm so glad you asked this question, because we have such a high tech way of deciding who is going to write the opinion. We all prepare for oral argument, and we don't know who's going to have which case.

00;39;55;26 - 00;40;14;28
Judge Ayers
Usually as we're preparing for oral argument and before we go out to take the bench, we tear up a piece of paper with some numbers one, two and three on them, and we draw. So as I said, it's it's a very high tech way that we operate at the Court of Criminal Appeals. But that's the way it's always been done apparently.

00;40;14;28 - 00;40;41;18
Judge Ayers
And that's what we do. So you find out, I think somebody mentioned earlier that sometimes the parties think that one judge has the case because of how they're asking questions or whatever. We don't really know that most of the time going into court. So that's definitely not the case. But just as Judge Clement said, than that whichever judge drew and then then we just literally go through the docket one, two, three, one, two, three and assign the cases for who's going to write them.

00;40;41;20 - 00;41;01;13
Judge Ayers
And then, you know, once that opinion has been written, it is circulated. Then to kind of address your questions about concurrence and dissent, the way we handle it at the Court of Criminal Appeals, if I've been the author of the opinion, then I'll send it to the second judge on the panel, and I really decide which one I want to that second judge to be.

00;41;01;13 - 00;41;32;16
Judge Ayers
There's no particular magic to that. That judge will review it and give me feedback and sometimes say, yeah, I don't agree with this, but let's go ahead and send it to the third judge and see where we are. That's one of the things I really enjoy about being on the Court of Criminal Appeals or any appellate level, is that you have time to get it right and to have those discussions and disagreements with your colleagues, because I think that all makes for a better decision.

00;41;32;22 - 00;41;57;05
Judge Ayers
You know, when all of that input has been sought, and not only do the attorneys at argument often make you think of things in a different light, your colleagues that you're sitting with on a panel make you think of things differently, and sometimes they persuade you and you agree, and sometimes you don't. So, you know, a concurrence would just be if someone said, well, I totally agree with the outcome, but I don't agree with your reasoning.

00;41;57;12 - 00;42;20;27
Judge Ayers
But and how you got to that point. So sometimes a judge will just concur in results only sometimes a judge may concur in results only and write a separate opinion explaining that why they didn't necessarily agree with the reasoning or the application of a certain principle of law. And then obviously a dissent would be when you just don't agree at all and you want to put on the record.

00;42;20;27 - 00;42;44;29
Judge Ayers
You know, I don't agree with this, and here's why. Sometimes that's on a maybe a hot, controversial topic that may be signaling to the Supreme Court. There's not good unanimity among the Court of Appeals on this issue. Y'all should maybe take a look at it. You know, sometimes that's the reason that dissents get written. And I will say, I just had a case recently where one of my colleagues dissented and and she was correct.

00;42;44;29 - 00;43;03;08
Judge Ayers
And and the Supreme Court took it up. So, you know, to me, that's part of the process. That, again, helps get it right. That's the most important thing that we do is we're not writing opinions because I want to be right. We're writing opinions to make sure that what we're doing is correct under the law.

00;43;03;10 - 00;43;12;23
Judge Usman
Judge Stafford, on the Court of Appeals, how is it determined who's going to to write the opinion? And when does a judge there write a concurrence or dissent?

00;43;12;25 - 00;43;36;28
Judge Stafford
I think different sections of the Court of Appeals do it different ways. As far as assignments. When I'm the presiding judge in the western section, I make the assignments. We'll review the records, review the workload, the people who are sitting, and then we'll assign those cases out according to, who's got the most cases or who gets the least cases.

00;43;36;28 - 00;44;02;26
Judge Stafford
So consequently, we have a method to it. I'm not sure it's better than the random method, but I could not help. But yeah, a laugh as I heard Judge Sayers describe how things are done on the Court of Criminal Appeals. I remember sitting space late in the late 90s with the Court of Criminal Appeals, with, the late Justice Mickey Barker and the, like Judge Joe Jones and that's exactly how it was done in there.

00;44;02;29 - 00;44;14;01
Judge Stafford
So things haven't changed a whole lot about that, but that that's essentially how I do it. But I know the other presiding judges do it a bit differently than that.

00;44;14;04 - 00;44;35;03
Judge Usman
In terms of. But our remaining time, I want to focus on on the opinions themselves in terms, trying to to get across what an opinion is, what are the parts of an opinion or what are you trying to accomplish with the written opinion and an opinion comes out? It couldn't just write something. Joe Smith wins, Jane Smith wins.

00;44;35;05 - 00;44;44;12
Judge Usman
But that's not how they end up being. Judge Clement, what are the different parts of an opinion? What are you trying to accomplish with a written opinion? In a case?

00;44;44;15 - 00;45;12;00
Judge Clement
The most important thing in an opinion is to explain to the parties a whole the world, how the court came to its conclusion. But to be more specific, the opinion starts out with, the citation of the type of case or the name of the case, the docket number, the trial court from which it came, the judges who are on the panel, the trial judge and the parties and their attorneys.

00;45;12;02 - 00;45;43;12
Judge Clement
And then you provide facts and procedural history, and then the decision that the trial court rendered, then you identify the issues that the parties raise in there. And importantly, we identify the standard of review. And there's not enough time for me to explain that in detail. But it's important to know that the appellate court doesn't have the right to just change a trial court's decision, because the Court of Appeals just thinks it should have been decided a different way.

00;45;43;14 - 00;46;22;25
Judge Clement
There are some cases, such as, a jury trial where the appellate court has to be extremely deferential to any factual determination by the jury as distinguished from a case that's decided by a trial judge, purely a legal principle, then the appellate court has the right to make its own decision as to how it interprets that law. But to get back to the opinion after the standard review, then the court is to discuss, let's say, issue number one, the appellant raises this issue, the appellant argues this, and the appellate argues conversely.

00;46;22;29 - 00;46;43;09
Judge Clement
And then we will provide an analysis that weaves like a tapestry the relevant facts and the law. And then we'll explain that we've reached a decision and how and why we come to that. Then we'll go to the second issue and the third issue and no, no, no. And then he will say, that's the decision of the court and enter judgment accordingly.

00;46;43;11 - 00;46;51;18
Judge Clement
And then our decision will be not only sent to the parties, but filed with the appellate court clerk and made available to the public.

00;46;51;20 - 00;46;56;28
Judge Usman
Judge Greenholtz we aren't saying which party prevails. What are you trying to accomplish with an opinion?

00;46;57;01 - 00;47;23;21
Judge Greenholtz
That's a great question, because, you know, depending upon the level of the appellate court, there's going to be different reasons why you would have how you would structure opinions or why you're writing the opinions. And so, for example, our supreme Court is a court of law development. So you heard Judge Sayers speak very well about when you have a disagreement in the law, maybe in the lower courts, the job of the Supreme one of those jobs, is to clarify that law is to develop a law as it goes.

00;47;23;28 - 00;47;43;07
Judge Greenholtz
And so is it's writing in an opinion. It may be writing an opinion or different purposes, maybe then an intermediate court. So on our court, though principally what we're focused on is correction of errors, making sure that, the trial courts are applying the law correctly, that they're doing so within ranges of discretion, as we talked about earlier.

00;47;43;07 - 00;48;06;03
Judge Greenholtz
And that will govern what the opinion, what what so what we try to do sometimes is when we're drafting opinions, we start off with the question even before the draft, and we start off with a question about who is our audience. And you might think that the audience is the same in every case, but it's not. Sometimes it's the parties, sometimes it's lawyers trying to maybe help lawyers understand, maybe a more complicated area of law.

00;48;06;03 - 00;48;26;05
Judge Greenholtz
Sometimes it's trial courts. And in those kinds of cases, we're trying to outline what the outer bounds of discretion may be on a particular issue. Sometimes it's the legislature, sometimes we're talking about, you know, this is, we've we've got this interesting statute over here. It seems to produce results that maybe one wouldn't expect, just given the plain language of the statute.

00;48;26;07 - 00;48;40;27
Judge Greenholtz
You all want to take a look at it. Your, you know, we're just going to highlight the issue for you. We're not telling you how to resolve it. We're just highlighting the issue. And then sometimes, as judge er said, we're communicating to the Supreme Court to say, you know, hey, the law isn't clear here. Do you all want to weigh in on this as it goes?

00;48;40;29 - 00;49;05;10
Judge Greenholtz
And depending upon who the predominant audience for the particular opinion is, it will shape how the opinion is written. And so if we're trying to outline, for example, what the outer bounds of a trial court's discretion are, for example, and some of the opinions we'll write, we'll actually put in a bullet pointed list to say, hey, you know, when this issue arises, think about these things as they go along and, you know, trial court did it exactly right here.

00;49;05;13 - 00;49;18;24
Judge Greenholtz
But in future cases, you know, just take a look and had these considerations in the back of your mind that's completely separate from who wins or who loses. And they're we're not really communicating to the parties in that regard. What we're trying to do is to help the trial court in that particular case. I'll do that.

00;49;18;24 - 00;49;30;16
Judge Greenholtz
So that's how we try to approach it as it goes. And, I don't know if that's successful. I hope it is. I hope we're bringing value to the system as a whole and to the people that we serve on this important court. But that's what we're trying to do.

00;49;30;18 - 00;49;36;10
Judge Usman
Judge Stafford what are you trying to accomplish with the written opinion beyond saying who wins the case?

00;49;36;13 - 00;50;04;07
Judge Stafford
I think, what Judge Greenhill said is exactly correct about we have to think about who we're writing for and who we're trying to communicate with. I'll take that a little further in saying we're always writing to the trial court, we're always writing to the lawyers, and oftentimes we're always writing to the parties. Sometimes we may be wanting to give the legislature, you know, as to the problem.

00;50;04;07 - 00;50;27;15
Judge Stafford
Sometimes, as you the yours said, we're attempting to, let the Supreme Court know that there's a question that needs to be resolved, I think, and I could be in the minority about this, but I believe that in writing an opinion, one of the things that you always need to do, unless there's a good reason to the contrary, is what they used to say about how people talk.

00;50;27;15 - 00;50;58;00
Judge Stafford
May you have to show your work. You have to explain not only what the result is, but you need to explain how you got there. If you don't do that, then you have to question the value of the opinion. If we just make a decision and we don't explain to the trial court or to the bar what we thought was important and emphasize what things that they need to be considering and looking at in their decision making, then I'm not sure that the opinion has a whole lot of value.

00;50;58;02 - 00;51;19;06
Judge Stafford
One of the things that, people who are not familiar with the law may notice is that we have two types of opinions on the Court of Appeals. We have a regular opinion, and then we have a memorandum opinion. And when you get a memorandum opinion that always has a footnote that says this opinion can't be cited or relied upon for any other reason.

00;51;19;09 - 00;51;28;10
Judge Stafford
So, there is a distinction there. And that distinction is important if in fact, you're trying to rely upon that case for precedent in the future.

00;51;28;12 - 00;51;34;01
Judge Usman
Judge Ayers beyond saying who, who prevails, what are you trying to accomplish in an opinion?

00;51;34;08 - 00;51;51;24
Judge Ayers
Well, there's not a whole lot to add. After all, these esteemed colleagues have weighed in on this issue and done so. Very well. I think the only thing I would add is, just like I expect with briefs and an oral argument, I try to follow some of those same rules. In writing an opinion, I think it needs to be clear.

00;51;51;26 - 00;52;10;19
Judge Ayers
It needs to be succinct. You know, we lap it, it's harder to write a short opinion than it is a long opinion. It takes longer to write a short opinion that it takes to write a longer opinion. And that can sometimes be frustrating. You know, I'll have a lot of a lot of facts in there, and then I'll, I'll go through and realize a lot of that's really not relevant to the issues.

00;52;10;26 - 00;52;33;20
Judge Ayers
And I think, again, because our audience is it is the parties, but it's it's lawyers, it's trial judges. I think the clearer we can be, the more narrowly we can draw the issue and the application of very specific facts to that issue. The more helpful we can be, the more guidance we can give for those who rely on our opinions.

00;52;33;22 - 00;52;53;24
Judge Usman
Our panelists have been incredibly generous in giving of their time today and sharing their their insights. Thank you to the judge. Here's to Judge Clement, to Judge Green Holtz, and to Judge Stafford. And thank you to listeners of Tennessee Court Talk. We certainly hope you enjoyed this program. Thank you very much. Thank you. Judges. Thank you.

00;52;53;26 - 00;52;54;24
Judge Usman
Thank you all.