Lessons Learned from “Coffee with the Court”

By Chief Judge Kenneth M. Switzer, Nashville

Kenneth Switzer

During April, I toured the state’s three largest cities and attended “Coffee with the Court” conducted by the local Court of Workers’ Compensation Claims’ offices.

The purpose of these coffee-talks was to listen to lawyers and other stakeholders discuss issues they face daily. I took copious notes. The other judges in attendance did as well. We combined our notes and looked for common themes.

We also heard individual anecdotes about circumstances that happened in particular cases. While we didn’t discount those individual anecdotes, we tried to respond to commonly occurring events. Where possible, I tracked down the individual anecdotes and responded to the concerned lawyers.

The common themes were: 1) multiple (and sometimes conflicting) rules; 2) settlement continuity from office to office; 3) dispute certification notice contents and amendments; 4) motion practice, and 5) medical records (an ever-recurring concern). Over the next few weeks, this blog will attempt to address each of these issues with explanations and/or possible solutions. Some of those solutions will take time, and we will ask for your patience.

This week I’ll address the concern about multiple sources of rules.

One of the best suggestions came from Memphis, where a lawyer proposed combining the rules in one place for simplicity. This is a grand idea, and we will work on that. But first, let’s examine the history of how we arrived where we are.

The 2013 Reform Act authorized the Administrator to create rules to implement the Act. It also specifically adopted the Tennessee Rules of Evidence and the Tennessee Rules of Civil Procedure, unless they conflicted with a Bureau rule. See  Tennessee Code Annotated § 50-6-239(c)(1). Practically speaking, only a few instances exist where the Bureau rule changes evidence or civil procedure rules. The most significant difference is evidentiary changes dealing with admissibility of medical records at expedited hearings.

The Mediation and Hearing Procedures in 0800-02-21-.01 were in place before the appointment of judges. Upon arriving on the scene, we collectively noticed that many standard court rules were missing from this set.

These are what lawyers commonly refer to  as “local rules.” To this day, each judicial district in the State has a separate set of rules for their courts; a quick glance at the AOC website illustrates this. So, we adopted a set of Practices and Procedures for use in our courts. These have been amended a time or two, and the newest version was issued recently. We could change these on our own without participating in the formal rule-making process, until now.

During the most recent legislative session, an Act passed that requires even these Practices and Procedures to go through the formal rule-making process, beginning July 1, 2018. As you might’ve heard me explain before, the rule-making process takes about one year.

With that in mind, now is a good time to combine the Practice and Procedures with the Mediation and Hearing Procedures into one set of rules. By doing this, you won’t have to look in two places for the Court’s rules, and we can eliminate some of the sections that seem to contradict each other.

The caveat is that this will take about a year to complete. We’ll work on combining the two immediately. Once complete, we must submit them to the Secretary of State, and a waiting period of 50 days follows. Next, we set a date for a public hearing on the rules 60 days later. We conduct that hearing and wait two more weeks for additional written comments. After we respond to any written comments, we submit the proposed rules to the Attorney General for a constitutional blessing, which takes anywhere from 30 to 45 days.  Finally, we appear before the Governmental Operations Committee of the legislature. After their approval, the rules take effect 90 days later.

So, we’ll undertake that journey by preparing a draft that combines the Practices and Procedures with the Mediation and Hearing Procedures. We’ll keep you updated as they progress. With any luck, by this time next year, the suggestion from Memphis will become reality. Thanks for this input.

Next: Settlement practices from office to office.

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