Better Get it in Writing: A Few Takeaways

By Jane Salem, Staff Attorney, Nashville

takeaway

Who doesn’t love a good takeaway once in a while?

Judge Robert Durham’s most recent blog post generated comments from court reporters, which deserve some follow-up. So here goes.

[Official Disclaimer and Apology: These are the musings of a staff attorney, rather than official pronouncements of law from the Court. OK? Good. Also, unlike Judge Durham, I’m incapable of making any clever football analogies. Sorry.]

Court reporter Sheila Wilson mentioned the timeline for producing a transcript for the Appeals Board. Tennessee Rules and Regulations 0800-02-22-.02(1) provides that “a transcript of any hearing pertinent to the appeal prepared by a licensed court reporter” must be filed with the clerk of the court of workers’ compensation claims within 10 business days of the filing of the notice of appeal.

This time frame reflects the legislature’s intent to accelerate the pace of workers’ compensation cases generally when passing the Reform Act. The Appeals Board recognized this intent in its Practices and Procedures; Rule 1.2 calls for construing their rules “to secure a just and speedy determination of all matters at issue during the pendency of an appeal.” (Emphasis added.)

The takeaway is clear: probably the very next step after filing the notice of appeal is to contact the court reporter so he or she may immediately get started on the transcript.

If neither party hired a court reporter to attend the hearing, remember that a recording may be purchased from the Clerk of Court, Penny Shrum. The recording must then be given to a licensed court reporter to prepare a transcript.

Court reporter Marilyn Morgan commented to Judge Durham’s post that some people view a recording as an adequate substitute for an experienced court reporter. My guess is, that’s not the Appeals Board’s opinion, since it requires transcripts prepared by court reporters and doesn’t allow parties to simply file recordings. And, as Judge Durham explained, the judges record the hearings principally for their own use when drafting orders. The Court makes them available for purchase as a convenience to parties and for the sake of transparency.

The recordings cost $25. On this note, remember that a party may file an Affidavit of Indigency if he or she can’t afford the filing fee for the appeal. However, the party remains responsible for the expense of purchasing the recording and preparing a transcript.

Recognizing that this expense might be sizeable, Rule 0800-02-22-.02(1) provides an alternative: “the parties may file a joint statement of the evidence within ten (10) business days.” The joint statement of the evidence must be approved by the trial judge before the record is submitted to the Appeals Board.

The takeaway is obvious on this point, too:  Get started right away on drafting this, as the parties might dispute its contents and need time to negotiate verbiage that everyone can agree to — including the trial judge.

On this note, um, what exactly is a joint statement of the evidence?

Luckily, the Appeals Board has offered guidance on this question. In Palmer v. Hardy, a footnote explains that the employer filed a “unilateral” rather than joint statement, and that the “record on appeal contains no information indicating Employee acquiesced in or objected to the ‘Statement of Evidence.’” The implication is that unilateral statements are not appropriate, and trial courts shouldn’t approve them.

More recently, the Appeals Board commented on the joint statement of evidence filed in Edwards v. Fred’s Pharmacy. The Board wrote, “The document filed by the parties in this case, while titled a statement of the evidence, was not a summary or recitation of testimony heard by the trial judge. Instead, it was a discussion of the procedural history of the case, the arguments of the parties, the issue presented on appeal, and a recitation of the trial court’s expedited hearing order.” So, the Board wants a “recitation of the testimony heard by the trial judge.”

Whether parties opt for a transcript or statement of evidence, the time frame is the same: 10 business days. The Appeals Board wisely envisioned that in some cases, this just isn’t enough time.

Rule 4 of the Board’s Practices and Procedures states that parties may move to extend any time limit during the pendency of an appeal before expiration of the applicable time limit. The motion “must show good cause … sufficient to establish exceptional circumstances.”

The takeaway is clear here, too:  The Board will and has granted motions to extend deadlines when the circumstances warranted. 

Finally, thank you, Ms. Wilson and Morgan, for your comments and your service to the legal profession.

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