By Judge Dale Tipps, Murfreesboro

I often assure attorneys at the outset of a hearing that I’ve read their briefs and prehearing statements. What I don’t say is how much I appreciate the fact that they filed them. But I do appreciate it, and I feel the lack when a party doesn’t file one. A brief is especially helpful when the employee is self-represented; otherwise, it is sometimes difficult to discern the issues.

Prehearing briefs aren’t currently required by our court rules for expedited or compensation hearings. However, Rule 0800-02-21-.20(1) says that briefs are “encouraged” and sets out some citation and timing requirements for them.

I’d like to add my personal encouragement – please file a brief whenever you have an evidentiary hearing. It need not be long (in fact, a brief brief is always appreciated), but I guarantee your client is better served when you provide a concise, well-reasoned brief before the hearing.

“But can’t I just address all the legal arguments and issues during the hearing instead?”

Of course you can, and it may be quite effective. No judge will penalize you for doing so.

But a pretrial brief provides a great roadmap for your arguments and helps the court listen for the relevant evidence during the hearing. If the issues are many or complex, the judge has a better chance of following your analysis if they’ve read it and had time to absorb it ahead of the hearing.

There’s another reason a brief is advisable, and it’s what led to this blog post.

I recently had an expedited hearing where the attorneys focused almost exclusively on a specific issue, both in their arguments and evidence. All the witnesses and most of the documentary evidence focused on the question of whether the employee’s trip was part of her job and, if so, whether she’d deviated from her route.

The problem with these arguments is that they didn’t apply to the facts of the case. The employee’s accident occurred on the employer’s premises, so she wasn’t subject to the “going and coming” rule or the deviation exception for traveling employees. Had the parties drafted prehearing briefs, they would’ve had to review the applicable law, and I have no doubt that this would have caused them to identify the real issue. Instead, they spent the whole hearing proving facts and arguing law that had no bearing on the case.

In the same hearing, the employee failed to offer the necessary proof to support her claim for medical expenses. I suspect a brief would’ve helped there, too. The simple act of crafting arguments and reviewing case authority as part of the drafting process could’ve provided a helpful checklist for the evidentiary necessities of the claim.

I could list other sound reasons for filing a brief, but I’ll be brief. You should, too.