A Few Thoughts on Briefs

Since our court’s inception, we have strongly encouraged the filing of briefs in advance of evidentiary hearings, as well as motion hearings that present dispositive or novel issues. Below are a few pointers on brief-writing.  
1. It’s a brief, not a position paper. Under the old law, attorneys wrote letters or emails to specialists explaining their clients’ positions. For post-July 1, 2014 cases, however, these should be formatted and formalized as briefs, with a style, signed by counsel, with contact information and your B.P.R. number.
2. Follow the rule for briefs.  See Rule 6 of the Court’s Practices and Procedures (scroll to pages 8 and 9), which is devoted entirely to briefs: pre- and post-hearing briefs, and requirements.

3. File them well in advance of the hearing. Rule 6.01 requires prehearing briefs to be filed 10 business days prior to a scheduled hearing. Nonetheless, it’s becoming more frequent that practitioners file a brief the day before a hearing, often at 5:00 p.m. or later, and some have even shown up on the day of hearing with a brief in hand. Assuming the other side doesn’t object, we will probably read these briefs. But we generally don’t like surprises, either. So if you follow the rule, you’ll likely avoid an argument with opposing counsel over whether it may be considered.  Bonus: You’ll also have a happier judge on the day of your hearing.

4.
Fulfill the requirements. You’ll further note that Rule 6.03 calls for a recitation of the facts and a statement of law with citations. As for the law, if you only read one case from the Tennessee Board of Appeals — and we don’t recommend reading only one, but read them all — read McCord v. Advantage Human Resourcing before coming to an expedited hearing. It’s not the McCall standard anymore; it’s McCord. McCord also offers guidance for when you may cite to cases that predate the Reform Act of 2013. 

5. A word about citing. We understand it’s one of the more challenging (tedious?) aspects of the practice of law. Judge Richard Posner famously called for its abolition. And just when we all think we’ve mastered the Blue Book, a new iteration is rounding the bend in the form of The Indigo Book. For now, we’re sticking to the Blue Book. You might notice that the Tennessee workers’ compensation courts cite to LEXIS rather than Westlaw when a case is not published in the South Western Reporter, and consider following suit. We prefer pinpoint cites.  Further, you don’t need to append the full-text of the case itself as an exhibit, unless it’s a foreign authority. 
We wish this were the rule as well.
6. It’s called a “brief” for a reason. A handful of Tennessee workers’ compensation lawyers seems to dislike trees. Our time is limited, as is yours. Keep them short and to the point wherever possible. Further, if you submitted a position statement to the mediator, and that position is essentially unchanged, a brief is probably unnecessary (but note the distinction listed in Tip #1, and if you are filing a brief, make it look like one). Along these lines, you don’t need to append documents that have already been filed. For example, if you want to refer to a medical record and the parties have agreed to the admissibility of the medical records on the dispute certification notice, simply identify that for the Court. We read the entire file before conducting a hearing, and we can find it, if properly identified. 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s