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CHAMBER RULES AND
PRACTICE AND PROCEDURE MANUAL OF
THE JUDGES and CHANCELLORS OF
THE DAVIDSON COUNTY
CIRCUIT, CHANCERY AND CRIMINAL COURTS
Nashville, TN
Prepared by:
The Chamber Rules Committee
Nashville Bar Association Young Lawyers Division
and
The Davidson County Circuit, Chancery and Criminal Courts
First Edition
September, 1999
TABLE OF CONTENTS
PREFACE
JUDGE HAMILTON GAYDEN, 1st Circuit Court
JUDGE MARIETTA SHIPLEY, 2nd Circuit Court
JUDGE BARBARA HAYNES, 3rd Circuit Court
JUDGE MURIEL ROBINSON, 4th Circuit Court
JUDGE WALTER KURTZ, 5th Circuit Court
JUDGE THOMAS BROTHERS, 6th Circuit Court
JUDGE FRANK CLEMENT, 7th Circuit Court
JUDGE CAROL SOLOMAN, 8th Circuit Court
JUDGE STEVE DOZIER, Division I Criminal Court
JUDGE RANDALL WYATT, JR., Division II Criminal Court
JUDGE CHERYL BLACKBURN, Division III Criminal Court
CHANCELLOR IRVIN KILCREASE, Chancery Part I
CHANCELLOR CAROL McCOY, Chancery Part II
CHANCELLOR ELLEN HOBBS LYLE, Chancery Part III
SPECIAL MASTER MARY ASHLEY NICHOLS
Appendix 1: Alternative Dispute Resolution
Questionnaire
Appendix 2: Mediation Order
Appendix 3: Guidelines & Forms for 2nd Circuit
Family Cases
Appendix 4: Probate Scheduling Letter
Appendix 5: Probate Revised Pretrial Schedule
Appendix 6: Amendment to Local Rule 39.03
Appendix 7: Sample Probate Petition
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PREFACE
It has been suggested by members of the Nashville Bar that a
manual outlining the practices and procedures of the individual courts
within this judicial district be provided to attorneys to be used in
conjunction with the local rules.
Several points must be made concerning the use of this manual. First,
the manual is not a substitute for a thorough reading and grasp of the
Local Rules of Court and the Tennessee Rules of Civil Procedure. This
manual is to be used in conjunction with the existing body of law; it
does not supersede it.
Secondly, the primary purpose of this manual is to assist all
attorneys, but particularly new attorneys and attorneys who do not
regularly practice in these courts by giving them detailed, practical
information beyond the Local Rules.
Thirdly, this manual is not intended to replace the regular feedback
and communication between the bar and our judges.
Fourthly, this manual is not a final document. It is contemplated and
assumed that input from the bar at large, changes in personnel in
these judicial positions over time, and development of new or amended
practices and procedures to address particular problems or situations,
will require regular updating of this manual.
Recently, a Case Management Consultant was hired to evaluate the case
management practices of the Circuit and Chancery courts. The Judges
and the Bar are reviewing the Consultant?s recommendations, which were
published in the Steelman report, and discussing the possibility of
standardizing many trial court procedures. As a result, changes may
take place in the near future concerning the practices and procedures
of the trial courts. Efforts will be made to update this manual to
accommodate any changes.
Please remember that this manual is, by nature, general and is not
intended to supersede any rule or procedure of any judge in any
particular case; nor should it be cited as authority. The judges
always have the right and duty to handle each case differently than
outlined in this manual, depending on the facts of the case.
We on the Chamber Rules Committee of the Nashville Bar Association/
Young Lawyers Division, the Young Lawyers Division officers and Board
hope that you will find this manual useful. We welcome suggestions
concerning changes or revision in the manual that will make it even
more useful.
Sincerely,
Jeffrey L. Peterson
Nashville Bar Association/ Young Lawyers Division
President
Meera Ballal
Eric Hipp
Co-Chairs
Chamber Rules Committee
1998-1999
September, 1999.
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JUDGE HAMILTON GAYDEN
1st Circuit Court
Room 502
I. Brief Biography
Judge Hamilton Gayden is the First Circuit Judge for Davidson County.
He served as Presiding Judge in l996-l997.
He is an alumnus of New York State and Tennessee Secondary Schools,
and a graduate of Vanderbilt and Vanderbilt Law School. He was in
private practice for eight years. He is a former Metro Attorney and
has been a Judge for 25 years. He is a member of the ADR committee of
the Tennessee Judicial Council. Judge Gayden has obtained
certification as an International Arbitrator and he has also
successfully completed the required 40 hours in civil mediation
certification.
II. Preliminary General Matters
A. Scheduling
In all jury cases, there will be a status conference after the
expiration of approximately four (4) to six (6) months. The conference
will be conducted by Court personnel and/or the Court. At the first
conference, a scheduling order will either be agreed upon or ordered
by the Court. Each case shall be designated as either expedited,
standard or complex. Each scheduling order shall contain either a
trial date or an outside date before which a trial date must be set
and placed upon the central calendar
. A scheduling order may not be amended, including the date provided
for as the outside date to set the case for trial, without leave of
court.
Trial dates for non jury and jury cases can be obtained from the
Assignment Clerk, Holly Russell at 862-5181 or Bobbie Eden or Candy
Rucker at 862-5901.
Judge Gayden hears workers? compensation approvals and minor
settlements each morning at 8:45 a.m. in his chambers Monday through
Thursday. On Fridays he hears those matters in open court after call
of the motion docket.
B. Correspondence with the Court
Judge Gayden prefers that all matters be communicated to the court in
pleadings, notices, memoranda and briefs. Letters sent to the Court
will be filed in the Clerk?s office. An attorney objecting to opposing
counsel?s order should contact Bobbie Eden.
C. Telephone Conference with the Court
Judge Gayden is accessible by telephone to resolve discovery disputes.
He has no objection to conducting status conferences or pre-trial
conferences by telephone when out-of -town counsel is involved.
D. Telephone Conference with Law Clerk
Telephone conferences with Judge Gayden?s law clerks are allowed
concerning administration, but not the merits, of any case.
E. Pro Hac Vice Admission
File a motion and order.
III. Pretrial Matters-Civil Cases
A. Scheduling Orders
All jury cases designated as standard or expedited must have
scheduling orders agreed to by the parties or ordered by the Court.
All modifications to original scheduling orders must be by order of
Court and cannot be by agreement of the parties, unless approved by
Court. B. Continuances and Extensions
See Rules.
C. Pretrial Motions
File a motion pursuant to Local Rule 26. Judge Gayden will allow a
motion to be heard earlier than the minimum notice if all parties
agree.
D. Discovery
1.Discovery period and extension
Judge Gayden expects the parties to meet the case
management/scheduling order deadlines. Any extensions must be by Court
order, and agreement of counsel is not sufficient unless also ordered
by the Court.
2.Resolution of Discovery Disputes
File a motion pursuant to Local Rule 22.08. Judge Gayden refers many
motions regarding discovery to his law clerk. He also resolves
discovery disputes by telephone conference.
3. Confidentiality Agreements/Filings Under Seal
These agreements and discovery matters submitted under seal should be
in envelope with a label marked TO BE FILED UNDER SEAL. The envelope
should be accompanied by a motion to seal.
E. Alternative Dispute Resolution
A questionnaire is attached to all complaints and it is expected that
the parties and attorneys will answer the questionnaire and exchange
their respective answers to the questionnaires and make a good faith
attempt to utilize ADR. The scheduling order should include possible
ADR.
1. Settlement Conferences
After a request for a settlement conference, the file is forwarded to
Megan Gregory, case coordinator to be given to Judge Haynes for her
review. If Judge Haynes feels the case is suitable for a settlement
conference, Megan contacts the parties regarding scheduling a
conference. If Judge Haynes feels the case is not suitable, a letter
is sent to the parties referring to another form of alternative
dispute resolution.
Judge Gayden presides over settlement conferences assigned to his
court or any circuit. If the case does not settle, he would not hear
the trial in the matter unless all parties agreed.
Judge Gayden requires that the parties or their representatives with
full settlement authority attend the conference. He also requires a
settlement statement to be filed with his office and not filed with
the clerk. The statement shall include a summary of the viable
theories of liabilities or defenses, status of settlement
negotiations, strengths and weaknesses of plaintiff's position and
strengths and weaknesses of defendant's position. He begins the
conference in his courtroom meeting with all parties. He then meets
with each side separately, shuffling back and forth. He conducts his
settlement conferences in an informal setting.
2. Mediation
Judge Gayden is a strong advocate of mediation. He has ordered
mandatory mediation in several cases. In November l998, a pilot
program began in his court regarding alternate dispute resolution.
Judge Gayden?s office sent questionnaires to all parties in cases
assigned to his Court asking for their preference of ADR. Out of this
program, many cases agreed to some form of ADR.
Any party may file a motion to require mandatory mediation. The
parties may also agree to Court annexed mediation or non-Court annexed
mediation.
A book of certified mediators is available in First Circuit Court. If
the parties can?t agree on a mediator, file a motion with the Court.
F. Pretrial Briefs
1. Form & Scope in workers compensation cases
As per local rules.
2. Form & Scope in other cases
As per local rules.
IV. Trial Procedures
A. Scheduling
Trial dates for jury and non jury cases can be obtained from the
Assignment Clerk, Holly Russell at 862-5181 or Bobbie Eden or Candy
Rucker at 862-5901.
B. Out-of-Town Parties, Witnesses or Attorneys
The Court will try to accommodate these parties.
C. Motions in Limine
As per local rules.
D. Courtroom Decorum
Lawyers may move about the courtroom as they like. Counsel must ask
for permission before handing documents to witnesses and jurors.
Women may wear pantsuits.
E. Voir Dire
Judge Gayden asks questions to the prospective panel of jurors. At
random, twelve persons are seated in the box and the remaining are
seated on the benches. Judge Gayden randomly selects jurors in several
ways. His clerk randomly calls jurors from a list to be seated in the
box. He will ask all jurors who have not set on a trial to come
forward and sit in the box, or if the trial will be a lengthy one, he
may ask for volunteers. Respective counsel shall ask questions to the
entire prospective panel regardless of where the jurors are seated.
F. Note taking by Jurors
Judge Gayden allows jurors to take notes, but not to take their notes
in to deliberate. He also allows jurors to ask questions; however,
whether the questions will be allowed to be answered is determined
only after consultation with the attorneys or pro se litigants.
G. Opening Statements
1. Length
Judge Gayden has no time limits. 2. Use of exhibits
Ordinarily use of exhibits in opening statements is permissible.
H. Side Bar Conferences
Judge Gayden holds side bar conferences to avoid having the jury leave
the courtroom unless it is a complicated matter that will take
considerable time.
I. Videotaped Testimony
This type of testimony is permitted. Attorneys should reserve a VCR
through Holly Russell in the Clerk's office.
J. Deposition Reading
This is permitted. Counsel may install a paralegal or co- counsel in
the witness box to read the answers in the deposition.
K. Proposed Jury Instructions and Verdict Forms
Proposed Jury instructions are to be filed with the clerk.
Sometimes Judge Gayden uses the verdict form furnished by the
attorneys. Sometimes he draws up his own form.
L. Jury Deliberation
1. Copy of Instructions
The jury is provided a copy of jury instructions.
2. Access to Exhibits
All admitted exhibits subject to No. 3 below, will be sent to the jury
room. 3. Access to Transcript of Testimony or Videotaped Testimony
Usually Judge Gayden will not permit the jury access to such
transcripts or video tapes during its deliberations.
4. Availability of Counsel
Judge Gayden will allow counsel to return to their office if it is
nearby and if they leave their telephone numbers.
5. Polling the Jury
Judge Gayden always asks counsel if they want the jurors polled.
6. Interviewing the Jury
Judge Gayden will allow for the jurors to be interviewed if their jury
service is completed and the juror wishes to speak to the attorney.
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JUDGE MARIETTA SHIPLEY
2nd Circuit Court
Room 501
I. Brief Biography
Judge Marietta Mundinger Shipley was elected judge of the Second
Circuit Court in 1990. Her cases include civil jury trials as well as
one-fourth of the family cases. She graduated from the Nashville
School of Law in 1976, served in the District Attorney's Office and
then in private practice with Dodson, Parker and Behm. She presently
serves on the Supreme Court ADR Commission and is the Chair of the
Judicial Conference ADR Committee. She was on the board of the Academy
of Family Mediators from 1995-99.
II. Preliminary General Matters
A. Scheduling
See Family Guidelines (Appendix III) for family cases.
For civil cases, see Case Management Plan. All scheduling for motions
in civil cases, contact the Second Circuit Court Law Clerk. Civil
Motions are heard the first and third Fridays of each month at 9:00
a.m. with a few exceptions. Barbara Eddings, Second Circuit Court
Clerk, 862-5905, schedules all family law cases.
B. Corresponding with Court
For scheduling or rescheduling conferences or trials, you may call
Barbara Eddings. Judge Shipley prefers that all communication be by
pleadings, memoranda and briefs, unless she directs otherwise in
specific situations, such as follow-ups to a status conference.
C. Telephone Conference with the Court
The court often handles conferences by phone in emergency situations
or to accommodate out of town or out of county attorneys. The judge
will accept no telephone calls from one attorney or from litigants. If
a conference call is necessary, Barbara Eddings will ask one attorney
to begin the conference call and bring in the judge as the last person
on the conference.
D. Telephone Conference with the Law Clerks
The law clerk will discuss scheduling and administrative matters with
attorneys, but not substantive matters.
E. Pro Hac Vice Admission
The Court follows the Rules of Civil Procedure.
F. Motion to Ascertain Status
The Court is happy to have any attorney call or write and inquire as
to the status of a case under advisement, particularly if the opinion
is over 30 days. Second Circuit is a very busy court, particularly
because of the diversity of cases , so Judge Shipley takes few matters
under advisement. You will not be penalized if you ask what the status
is.
III. Pretrial Matters - Civil Cases
A. Scheduling Orders
See Case Management Plan and Family Law Guidelines. Judge Shipley has
status conferences within 4-6 months of filing a civil jury case.
Generally Special Master Marsh Nichols will preside at the scheduling
conference. Judge Shipley will hear the more complicated cases.
B. Continuance and Extensions
See Case Management Plan. The court will only grant a continuance if
the attorneys appear personally or, in an emergency, have a phone
conference. If a case is continued, the parties must plan an ADR event
between the continued date and the new trial date, whether it is a
civil or family case. Continuances are rarely granted, as the court
does so much management of its cases.
C. Pretrial Motions
Civil motions are heard generally the first and third Fridays of each
month at 9 a.m. to 10:30. You may check the dates on the Internet at
www.nashville.org/cir/ or in the clerk's office. Second Circuit
strictly follows Rule 26 concerning the two-week rule, unless you and
your colleague agree to hear a motion earlier than the two weeks for
emergency purposes. If your argument is expected to exceed a total of
one-half hour, you should schedule the motion specially or alert the
court.
If you are citing out of state cases in your briefs, please attach a
copy of the case to your brief. If you file a reply late on Wednesday,
to insure that it has reached the law clerk, please bring a courtesy
copy to Second Circuit Court directly.
On oral argument in civil cases, please remember that Judge Shipley
has read the bulk of your materials and briefs. Please go directly to
your most important issues so that she can ask questions about
particular points, rather than reciting the same material that you
have in your brief.
D. Discovery
1. Discovery Period and Extensions
All discovery is carefully outlined in the Scheduling Order. The dates
set are reasonable and with attorney consent. Unless there is an
unexpected occurrence, the court will not extend deadlines.
2. Discovery Disputes
Judge Shipley expects that almost all disputes can be worked out
between the parties as they have the superior knowledge in the case.
Attorney disrespect of each other will not be tolerated. Discovery
disputes that require court action will generally be concerning
evidentiary matters.
E. Settlement
The court encourages settlement of cases, particularly with the use of
ADR. The Scheduling Order provides a date for an ADR event. Unless
there is a particular reason not to do an ADR event, the court expects
the parties to attempt settlement where possible. Judge Shipley does
settlement conferences approximately two weeks per year, unless
specially scheduled. At the time that a settlement conference is set,
she or Megan Gregory will send you a letter which directs you to
produce certain materials to the court prior to the settlement
conference. She will not try a case in which she has done a settlement
conference.
Judge Shipley expects all parties to be present at the conference,
including the representative of the insurance company, if applicable.
At the beginning of the conference, she will ask all parties to make a
statement of their case. She will then see if there are any factual
disputes, which can be worked out between the parties. If necessary
she will then use break-out sessions with each side in order to learn
more about their view of the case. She particularly encourages parties
and not just attorneys to participate. These sessions are confidential
and no information will be disclosed to the other side, unless they
agree. These sessions will continue either separately or with all
parties back together, until settlement is reached or there is an
impasse. Although Judge Shipley may refer to prior jury case verdicts,
she does not generally give her assessment of the value of the case,
until impasse has been reached.
Requests for settlement conferences other than with Judge Shipley are
sent to Megan Gregory at 880-2554. She and Judge Haynes review the
requests for settlement conferences. All requests that are denied are
sent to Rule 31 Mediation Conferences.
F. Pretrial Briefs
Judge Shipley appreciates receiving briefs in both civil and family
cases, where there are issues that are not routine. This may be
especially helpful in complicated civil cases or more unusual
evidentiary issues. In family cases with complicated assets, it is
helpful to have briefs or summaries of assets presented at the
beginning of the case.
G. Injunctions
The court will hear a Restraining Order ex parte, if the attorney
assures her that he or she does not know if there is an attorney or if
on diligent effort the attorney has been advised of the request but
chose not to appear. If the party or attorney is available the court
will require that the requesting attorney invite the other party or
attorney to an emergency conference. The remainder of the process
follows the Civil Rules. Family case Restraining Orders are addressed
in the next section.
IV. Trial Procedures
A. Scheduling
Please see Family Guidelines for family cases.
Jury cases begin at 9 a.m., except on Thursdays, when court begins at
9:20 to accommodate uncontested divorces. There is a 15 minute break
in the morning and in the afternoon. Lunch is usually at noon, but may
be moved to accommodate witnesses or Judge Shipley's other
obligations. Court usually ends at 4:30 or 5:00 unless there is a
necessity of witness accommodation, due to scheduling conferences.
In most jury cases, Judge Shipley expects that the voir dire is
completed in the morning session. Therefore, please do not have your
subpoenaed witnesses wait all morning, only to be told to return in
the afternoon. This applies especially to police officers in accident
cases.
B. Out-of-town Parties, Witnesses, or Attorneys
Judge Shipley will accommodate out of town parties and witnesses as
much as possible. If it is necessary, they will be taken out of order
or even in the middle of an in-town witness' testimony. If you have
out of town parties, it is best to schedule that case on a Monday, so
that the case will be heard.
In family cases, if you are from out of town, please check with
Barbara Eddings as to whether your case will definitely be heard and
at what time of the day, if we are able to predict that.
C. Motions in Limine
The court appreciates Motions in Limine. As the Local Rules state,
they should be filed five days before trial. In complicated cases, the
court will schedule a special hearing on the Friday of the week
preceding the trial, so that we will not lose trial time.
D. Courtroom Decorum
Judge Shipley expects each attorney to treat the court as all other
attorneys with respect, even in the midst of a heated legal argument.
Each attorney should address the court, rather than each other. Judge
Shipley will listen respectfully to each side, but does not expect the
other party to interrupt the party speaking, until that party has
completed their statement.
In family cases, it is especially important that parties understand
when they are allowed to address the court and when only their
attorneys should address the court. If an informal setting would be
more helpful to resolving the dispute, the attorneys may ask the court
to meet with them and their parties in the jury room.
E. Voir Dire
The court officers will seat 12 persons in the box and 12 persons in
chairs in front of the box. You will consider all 24 persons at one
time. The remaining prospective jurors will be seated behind the rail.
The court will ask each juror to introduce themselves, state the
nature of their employment, if any, whether they have a spouse and
spouse's employment, any accidents or injuries, if a personal injury
case, or other pertinent questions depending on the nature of the
case. Each party's attorney may then ask any questions to all 24
jurors. You are not to go back and ask each juror in turn a question,
except to follow up their initial statements. You will only have one
opportunity to ask questions of all 24 prospective jurors.
Each side has 4 challenges per each party, with a maximum of 8. To
challenge a juror, each party may challenge persons in the box until
all challenges are used or until no party exercises their challenges.
Each person in the box may be challenged at any time. Replacements for
jurors in the box are picked at random from those persons sitting in
front of the box. If more replacements are necessary, the process will
repeat as above from those jurors in the courtroom. Each attorney will
place their challenge sheet at the front of their table. The clerk
will pick up the sheet and exchange it with the sheet of the other
attorney, to allow for either attorney to make a challenge under the
Edmondson/Batson cases. If an attorney elects to make such a
challenge, the attorneys shall approach the bench to request a ruling
from the court, prior to the juror's dismissal.
The court will seat alternates by selecting one of the remaining
jurors. Each side has two challenges to each alternate. In longer
cases, the court will consider the jury to be a jury of 13 and will
select one of the jurors at random not to deliberate at the end of the
trial, if the alternate had not already been used.
F. Note Taking by Jurors
Judge Shipley encourages note taking by jurors, unless the case will
conclude in one day. They may take their notes into the jury room, but
may not read from their notes to fellow jurors.
G. Opening and Closing Statements
1. Length
An opening statement should not exceed 10 minutes. If more time is
necessary, please make a specific request. A closing statement should
not exceed 20 minutes.
2. Use of Exhibits
An attorney may make use of exhibits, if the attorney has shown the
proposed exhibit to the other attorney and there is agreement.
Otherwise make a request of the court to make a ruling.
H. Side Bar Conferences
It is difficult to have a meaningful conference at the bench. The
court will willingly ask the jury to return to the jury room to have a
full discussion of an evidentiary issue. Please try to schedule these
at the breaks, or by Motion in Limine. Judge Shipley does not
appreciate a surprise or that attorneys will not follow what previous
agreements or rulings had been.
I. Videotaped Testimony
Video depositions are usually preferred over reading depositions. The
videos should be edited so that only important information is
presented to the jury. The best way is to designate the parts chosen,
and let the other attorney then designate any other parts.
J. Deposition Reading
See above. It shows lack of respect for the jury and the court for the
attorneys not to look at their depositions and edit them prior to
trial. The court will strongly encourage attorneys to edit depositions
even mid-trial, so that the jury does not fall asleep and miss the
important points. If the deposition is read, please have someone else
read the part of the deponent, even your secretary or the other
attorney, if necessary.
K. Exhibits
If possible, all exhibits should be marked by the law clerk prior to
the trial. The order they are presented is irrelevant. If marked
during the trial, please give the exhibit to the clerk, (not the court
reporter) who will mark it for identification or for admission. If you
plan to give the exhibit to the jury, please have 14 copies in
advance. If you plan to have a lot of exhibits, you might want to have
a jury notebook available.
1. Diagrams
A witness who wishes to use a diagram or drawing, shall prepare same
prior to trial or at recess, prior to testimony. This is particularly
true for police officers or parties.
L. Motions for Judgement as a Matter of Law
At the conclusion of the plaintiff's proof and at the end of the
trial, the court will ask if there are other matters before we take up
the defendant's proof or go to final argument, at which time the court
will excuse the jury, if a motion for directed verdict is to be made.
M. Proposed Jury Instructions and Verdict Forms
In a routine trial, the court will give a proposed draft of jury
instructions and verdict form to the attorneys. If the attorneys wish
to propose other than standard instructions, please have those
instructions to the court as soon after the trial begins as you can.
The jury instructions will be prepared during the trial.
At the conclusion of the trial, the court and the attorneys will
discuss the proposed draft and any other proposed instructions. The
court will endeavor to get agreement on all instructions, unless there
is a clear objection.
The attorneys may state during the final argument that the "court
will charge you...."
N. Proposed Findings of Fact and Conclusions of Law
If you wish to have proposed Findings and Conclusions, it will be
necessary to propose such findings and then have a response from the
other side. The court does not encourage this often time-consuming
endeavor, unless it is a very special case.
O. Offers of Proof
The court will hear offers of proof generally in summary form at a
break, rather than during the trial, after an evidentiary ruling has
been made.
P. Jury Deliberations
Jury deliberations are done either in our jury room or in the
courtroom, depending on the temperature of the jury room.
1. Copy of Instructions
A copy of the written instructions are provided to the jurors.
2. Access to Exhibits
The jury is immediately given all exhibits that have been admitted
into evidence.
3. Access to Transcript of Testimony or Videotaped Testimony
At this point the court does not give depositions to the jurors,
unless all parties agree. However when there are full video
transcripts of the trial available to the court, the court may
reconsider.
4. Availability of Counsel and Court Reporter
If counsel do not remain in the courthouse, they should let the court
know exactly where they will be by telephone. They should not be more
than 10 minutes away.
5. Taking the Verdict and Special Interrogatories
If the jury has a question, Judge Shipley will have the attorneys in
chambers or by telephone in order to fashion a response to the
question.
If the jury is deadlocked, she will bring the jury back into the
courtroom and reread instruction 15.22 and let them continue to
deliberate until the either reach a verdict or come to another
impasse.
The jury foreperson will read the verdict of the jury.
6. Polling the Jury
The court will ask if all on the jury agree. Then the court will ask
all jurors to raise their hands if they agree. If the attorneys wish
each juror to respond, they shall so request of the court.
7. Interviewing the Jury
Attorneys may interview the jury after the trial if this particular
set of jurors has finished with their jury service for the week.
Otherwise, they must wait until the end of the week.
V. Other Comments
Be prepared! Communicate with your fellow attorneys. Sit back and
analyze your case objectively. Use all the court processes such as
scheduling conferences, second conferences, settlement conferences,
and private mediation to fully advocate in the best manner for your
client. There is nothing worse than having a client be totally
surprised by what happens in court. Remember that you and your client
are in control of your fate. It is your choice as to how to best
represent the interests of your client. Remember that only 5% of cases
ever make it into the courtroom. The other 95% of the cases should not
wait to settle on the courthouse steps. That is an unfair process for
your client, if it can be avoided. When the client, be they plaintiff
or defendant, comes to your doorstep, you should plan your case with
resolution, not necessarily trial in mind. How to strategize that
resolution successfully is what good trial advocates do.
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JUDGE BARBARA HAYNES
3rd Circuit Court
Room 510
I. Brief Biography
A native of Davidson County, Judge Barbara Haynes is a graduate of
Isaac Litton High School, earned a B.S. Degree from the University of
Tennessee in 1959 and a J.D. from the Nashville School of Law in 1976.
Judge Haynes has been a Legal Assistant on a Congressional Staff and a
partner in the law firm of Haynes and Haynes. Judge Haynes was elected
to Division I of the General Sessions Court in 1982 and served there
until she was elected to Third Circuit Court in 1990. From 1986 to
1994 Judge Haynes was Chair of the Tennessee Sentencing Commission and
currently serves on the Juvenile Justice Reform Commission. The
Tennessee Supreme Court has recently asked her to sit on the Civil
Rules Committee on behalf of the trial judges.
Judge Haynes is an active member of many business, civic and
professional organizations. She sits on the Board of Directors for
Vanderbilt Children's Hospital and Family and Children's Services. She
is married to Senator Joe M. Haynes, and they have three children and
six grandchildren.
II. Preliminary General Matters
A. Scheduling
All scheduling for Third Circuit Court is done through Laurie Dill,
the Judge?s Judicial Assistant. She will provide attorneys with dates
for settlement conferences, status conferences, personal appointments,
specially set motions and speeches. A trial date is obtained from
Holly Russell in the Clerk?s office.
B. Correspondence with Court
All matters concerning a case before Judge Haynes should be in
writing, either through pleadings, memorandums or briefs. While there
is no need to file a courtesy copy with Third Circuit Court, if the
Judge has taken a matter under advisement and has requested a
particular document, a phone call to the law clerk stating that the
material has been filed is appreciated.
C. Telephone Conference with the Court
While telephone conferences should be used sparingly, the Judge will
accommodate out-of-town lawyers when an economic burden exists.
Contact Laurie Dill for scheduling. Additionally, the Judge is
accessible by telephone to resolve discovery disputes.
While the Judge prefers that attorneys appear for status conferences,
they may be conducted over the telephone. Contact Laurie Dill, who
will be conducting the status conference, at least one day in advance
for scheduling.
D. Telephone Conference with the Law Clerks
Telephone conferences with the law clerk are permitted concerning the
administration but not the merits of a case. If a case is taken under
advisement, the law clerk will notify the attorneys of the Judge?s
decision by telephone unless the Judge is drafting an opinion.
E. Pro Hac Vice Admissions
The Judge will hear upon request.
F. Motion to Ascertain Status
If the Judge has had a motion under advisement for more than four
weeks, she requests that the attorneys either file a motion to
ascertain the status of the case or call the law clerk and request
status orally. Third Circuit Court is dedicated to moving cases
quickly along and appreciates the help of the Bar in doing so.
III. Pretrial Matters
A. Scheduling Orders
Every file assigned to Third Circuit is read immediately and set for a
status conference by the Court six months from the date that it is
filed. All parties involved or their attorney will receive a notice of
the status conference and an order in the mail.
Status conferences are conducted by Laurie Dill, the Judicial
Assistant, Monday through Thursday at either 8:00 or 8:20 in the Third
Circuit Court jury room. The Court will provide the attorneys with a
blank Agreed Scheduling Order that provides spaces to set dates for
discovery deadlines, settlement conferences and trial.
Attorneys who are present or available by phone set the dates.
Those that are not present are sent a copy of the order but must file
a motion to amend the scheduling order if a date, set by the attorneys
present, is not convenient for them.
If, for some reason, the case is not ripe for a status conference, ie:
the Plaintiff has not reached maximum medical recovery or the
Defendant has not been served, the attorney should call Ms. Dill and
ask that the status conference be rescheduled. She will give you a new
date and send out a notice resetting the status conference.
B. Continuances and Extensions
Every continuance is considered on a case by case basis. There are no
automatic continuances or extensions. A motion to continue should be
filed with an affidavit by the attorney stating the specific reasons
for the request of a continuance.
Judge Haynes prefers that continuances be heard on regular Friday
motion dockets. However, if this is not possible, due to a pending
trial date, the Judge will specially hear the motion. Obtain a date
from Laurie Dill.
C. Pretrial Motions
1. Oral Argument
Oral argument is generally allowed on all motions. However, if
attorneys wish to waive oral argument by agreement and submit the
motion on the briefs, they may.
If an attorney is orally arguing a motion on the Friday motion docket,
he or she should state their name, the style of the case and the
number as they appear on that day?s docket in order for the Judge and
her staff to quickly find the material on the subject case.
Judge Haynes reads all materials submitted by both parties prior to
hearing. As a result, she is familiar with the facts of the case and
does not need a recitation of the facts. However, she may ask
questions concerning the facts that appeared ambiguous in the briefs.
2. Briefs / Memoranda of Law
The Judge appreciates Briefs and Memoranda that concisely state the
facts and the law with updated citations. Please attach all Federal
cases cited in Briefs and Memoranda.
On motions for summary judgment, Judge Haynes requires strict
compliance with Rule 56.
3. Chamber Copies of Filings
Unless specially requested, please file all copies with the clerk. If
the materials that you are filing need immediate attention, please
report this to the clerk, and he or she will walk the filed material
to chambers.
4. Proposed Orders
Generally, there is no need to submit a proposed order along with a
motion. Once the Judge hears the motion, she will generally ask the
prevailing party to submit an order.
D. Discovery
1. Discovery Period and Extensions
Discovery deadlines are outlined in the Agreed Scheduling Order
generally filed six months after the filing of the case. Extensions
are granted only for good cause.
2. Resolution of Discovery Disputes
Discovery disputes are reviewed on a case by case basis. Judge Haynes
expects a good faith effort by counsel to resolve the dispute without
the Court?s intervention.
3. Confidentiality Agreements
Confidentiality agreements are considered based on a balance between
the public?s right to have access to public records and the need for
confidentiality in a particular case. Confidentiality agreements are
generally allowed if the agreement will facilitate settlement.
4. Expert Witnesses
The Court will consider pretrial motions in limine on the expert?s
qualifications. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113
S. Ct. 2786 (1993); Kumbo Tire Company, LTD v. Carmichael, 119 S.Ct.
1167 (1999). Be prepared to discuss both of the above mentioned cases
in depth.
E. Settlement Proceedings in Third Circuit Court
1. Setting up a Settlement Conference
Davidson County is in the process of refining a system to ensure that
adequate time each month is available to schedule settlement
conferences. Third Circuit Court will schedule all settlement
conferences for civil cases.
To schedule a settlement conference for a case that has been assigned
to Third Circuit, contact Laurie Dill, the Third Circuit scheduler, at
862-5907, and she will provide available settlement conference dates.
The attorney who initially requests the settlement conference serves
as the liaison between Third Circuit Court and the parties and
attorneys involved in the case.
To schedule a settlement conference for a case that has been assigned
to any other Circuit Court, contact Megan Gregory, the ADR Case
Coordinator, at 880-2554. Ms. Gregory presents the requests to Judge
Haynes every Monday, who then assigns them to the Circuit Courts for a
settlement conference.
The Circuit Court that is assigned the case for settlement will notify
the attorneys of the materials that the Court needs prior to the date
of the settlement conference in order to better prepare for the
conference. All materials submitted by attorneys are kept confidential
and are to be delivered directly to Chambers one week prior to the
date of the settlement conference.
In the event that a case does not settle, the Judge will not try the
case unless both parties and their attorneys agree that she hear it.
Upon an attorney?s request, an order of recusal will be entered. See
Davidson County Local Rule 23.
2. Settlement Conference Materials
Settlement Conference Materials are materials submitted by attorneys
that are not included in the file/record that enable the presiding
Judge to become better acquainted with the case for settlement
purposes.
Detailed materials increase the effectiveness and the successfulness
of the settlement conference.
For example: (1) Material organized in a notebook with tabs is easy to
read and understand and affords the attorney an opportunity to present
his or her client's case succinctly. (2) Other materials that are
helpful to Judges may include excerpts of depositions, itemized
medicals, photos, persuasive case law and amount of subrogation liens.
Materials submitted are confidential. They should be hand delivered
directly to the Judge?s Chambers. Materials SHOULD NOT be filed with
the Clerk's office.
3. Settlement Conference Procedure
All parties and attorneys congregate in the courtroom prior to the
settlement conference. At the beginning of the settlement conference,
either a member of the Judge?s staff or the Judge will provide an
introduction and format for the settlement conference procedure for
the day. This introduction takes place in the courtroom.
It is imperative that the Plaintiff(s) be present for an effective
conference to be conducted. It is also imperative that the person or
the representative of the entity controlling the money for the
Defendant(s) be present.
If either the Plaintiff(s) or the individual with settlement authority
for the Defendant can not be present, their attorney should notify the
Court prior to the settlement conference. Judge Haynes may refuse to
hold a settlement conference at all if the above mentioned parties are
not present. However, exceptions may be granted when a party, due to
their health or for geographical reasons, can only be available by
phone.
Once the introduction is completed, the Judge meets with the
Plaintiff?s attorney(s) and then with the Defendant?s attorney(s) in
Chambers, where the procedure becomes more informal. The Judge may
chose to speak with the attorney(s) concerning the following topics:
1. Pros and Cons of the case based on the materials submitted to the
Court - trial strategy
2. Controlling case law and the possible ruling of potential legal
issues (ie: surviving Motion for Summary Judgement)
3. Value of the case (in light of issues such as medicals, liens,
subrogation interests, and recent jury verdicts in Davidson County)
After speaking with the attorneys, the Judge may request to meet with
the parties in the presence of their attorneys. This is an important
step in the process, especially when a client has unreasonable
expectations. This also gives the Plaintiff or Defendant an
opportunity to be heard by the Court and for the Judge to explain the
realities of their case when taken in context with the verdicts
rendered by recent juries in Davidson County.
Often, the parties and their counsel are rotated in and out of
Chambers until either the case settles or the parties and attorneys
reach an impasse.
All discussions are confidential unless an attorney or party gives the
Judge permission to share information with the opposing party or
counsel to facilitate settlement.
A telephone and fax machine are available for use during the
settlement conference as well as a bottomless pot of coffee in the
jury room.
If a settlement is reached, an Order of Compromise and Settlement will
be drafted by the Court and signed at the conclusion of the
conference. This order does not state the settlement amount or
particulars of the agreement but only states that the case has been
settled. All parties will receive a copy of the order at the
conclusion of the conference, and the original will be filed in the
Clerk?s office.
4. Evaluation
At the conclusion of the settlement conference, the Court requests
that all attorneys, insurance adjusters, and risk managers complete an
evaluation form that is provided by the Court.
All responses are anonymous and can be submitted via mail or hand
delivery at any time following the settlement conference.
Third Circuit is dedicated to improving the settlement process.
Judges and attorneys have found that time and money can be saved, in
attorney and witness fees, in discovery and trial preparation, and in
court time and juror fees.
F. Pretrial Briefs
Attorneys should always submit pretrial briefs in non-jury cases and
as needed in jury cases.
G. Injunctions
A motion for injunctive relief should be well prepared and state the
reasons for the injunction and the law.
IV. Trial Procedure
A. Scheduling
Court will begin at 9:00 a.m. unless otherwise specified by the Judge.
Jurors are asked to arrive at 8:30 when a breakfast is provided for
them. Generally, a trial will continue as long into the afternoon or
evening as the jury?s and attorneys? schedules will allow, taking into
consideration such issues as child care and elderly care. There is no
set time for lunch, which may be either 30 minutes or an hour,
depending on the time schedules of the attorneys, jury and Judge. Once
a jury begins to deliberate they may stay as long as they wish, and
the Court, generally, will accommodate.
B. Out-of-Town Parties, Witnesses, or Attorneys
Judge Haynes will attempt to accommodate out-of-town parties,
witnesses and attorneys. Upon request, she may allow witnesses to be
heard out of order.
C. Motions in Limine
Judge Haynes prefers the use of motions in limine as opposed to
addressing anticipated conflicts during trial. As a result, trials run
more smoothly and efficiently, and jurors are not left waiting in a
cramped jury room for disputes to be resolved.
D. Courtroom Decorum
Counsel should begin proceedings behind the podium but may ask for
permission to approach the witness, jury or Judge. An attorney should
never directly hand an exhibit to the Judge or a witness. Instead,
wait for the court officer to come forward and pass the exhibit.
E. Voir Dire
After the prospective jurors are randomly seated, with twelve starting
in the box, Judge Haynes begins voir dire by introducing the attorneys
and litigants and asking the prospective jurors if they know them and
if so, in what capacity. She then asks them the following preliminary
questions: (1) Have you ever sat as a juror? (2) If so, was it civil
or criminal? (3) Do you understand the difference in the burdens of
proof between civil and criminal cases? (4) Was serving as a juror a
pleasant experience? (5) Do you have a valid Tennessee Drivers licence?
(6) Do any of you have pending litigation, including workers
compensation? After these preliminary questions, the Judge asks each
prospective juror to stand, state their name, their profession, their
spouse?s name and their spouse?s profession.
After the jurors have given this short history, the plaintiff?s
attorney and then the defendant?s attorney may ask questions. This is
not an opportunity to make an opening statement, and the Judge invites
effective questions that will not bore the jury.
It is important for counsel to understand the effect of the Supreme
Court decisions concerning strikes based on race in Edmonson v.
Leesville Concrete Co., 500 U.S. 614 (1991) and Batson v. Kentucky,
476 U.S. 79 (1986).
Attorneys strike from the jury box. The Judge allows attorneys to back
strike.
F. Note Taking by Jurors
Judge Haynes permits jurors to take notes in every case but does not
provide notebooks until a juror requests to take notes. If a juror
takes notes, while charging the jury, Judge Haynes gives TPI 1.03
concerning the use of juror notes.
G. Opening and Closing Statements
1. Length
Judge Haynes does not require that opening or closing be a specific
length, but given the type of case and the proof submitted, often
requests / suggests a time frame. Occasionally, she will impose limits
on closing, and feels that after twenty minutes, regardless of the
type of case, the attorneys lose their audience.
2. Use of Exhibits
The use of exhibits is allowed as long as both parties agree to their
use and there are no apparent evidentiary problems. Once an exhibit is
used, then it may be used freely by either party.
H. Side Bar Conferences
Judge Haynes holds side bar conferences to avoid having the jury leave
the courtroom, unless it is a complicated matter that would take
considerable time. However, a ?jury out? hearing is always conducted
before a motion for directed verdict is made.
I. Videotaped Testimony
Videotaped testimony is permitted. Third Circuit has a television and
VCR that is available at all times. Therefore, there is no reason to
reserve one with the Clerk?s office (but you must reserve an overhead
projector, usually, several days in advance, with Holly Russell) .
However, attorneys should become familiar with the equipment before
the trial begins and provide an edited tape that can be shown to the
jury.
J. Deposition Reading
Prior to trial, attorneys should agree in advance as to what portion
of the deposition should be redacted. If this is not agreed upon prior
to trial, the Judge will send the attorneys into a room to determine
portions to be read. If an impasse is reached on a certain provision,
only then will the Judge make a ruling.
If possible, it is better to place another attorney in the witness
stand to read the answers to the attorney?s questions. It makes the
testimony more interesting to the jury, and they tend to pay closer
attention.
K. Exhibits
There should be two copies of every exhibit; one for the Court, and
one for the jury. A court officer will mark all exhibits at trial.
Therefore, there is no need for pre-marking.
L. Motions for Directed Verdict
Attorneys should always request a jury out before making this motion.
M. Proposed Jury Instructions and Verdict Forms
The Judge encourages attorneys to submit jury instructions and verdict
forms prior to trial. She will take these proposals under
consideration, then she will prepare the jury instructions. She will
hold a charge conference after the proof and objections may be made at
that time.
N. Proposed Findings of Fact and Conclusions of Law
If requested, the Judge will usually ask opposing parties to file
briefs.
O. Offers of Proof
These are to be filed as needed and when requested.
P. Jury Deliberation
1. Copy of Instructions
After the Judge charges the jury, they are taken into the jury room,
and each juror is provided with their own copy of the charge.
2. Access to Exhibits
The jurors are not given the exhibits unless they request them. Before
passing the exhibits to the jury, a court officer will meet with the
attorneys and go over each exhibit to ensure that an exhibit does not
get to the jury that they are not allowed to review.
3. Access to Transcript of Testimony or Videotaped Testimony
This is allowed only upon proper motion.
4. Availability of Counsel
During jury deliberations, counsel need not remain in the Courtroom.
However, they should be available on short notice and let the Court
know exactly where they can be reached, if they leave either the Fifth
floor or the Courthouse.
5. Taking the Verdict and Special Interrogatories
Special interrogatories are submitted by the jury in writing. The
Judge will read the question, then in writing, cite a provision of the
jury charge in most circumstances. If the question can not be answered
in this manner, she often calls the attorneys into chambers, reads the
interrogatory and asks for comments.
The Judge asks the foreperson to read the verdict.
6. Polling the Jury
After the foreperson reads the verdict, the Judge asks the attorneys
if they would like to poll the jury.
7. Interviewing the Jury
Attorneys may interview the jurors after the verdict is read but only
with their permission.
V. Other Comments
Trial tips that will make you a star in Third Circuit Court:
1. Cite all cases correctly. Be prepared to discuss the most recent
cases on the issue. If a Judge asks you about a case that you are not
familiar with, it is best to admit that you have not read the case,
but would be happy to submit a supplemental brief on that issue prior
to the arguing of the motion.
2. Furnish copies to the Court of unreported Tennessee decisions or
cases from another state or federal jurisdiction. Bring copies of all
cases you plan to use for oral argument to court to provide to the
Judge, if requested, during the motion.
3. Scan TAM and slip opinions for the latest cases.
4. Be prepared. Practice your argument. Organize your argument.
5. Be on time. Court opens at 9:00 a.m. sharp. If you are going to be
late because you have a motion in another court, please notify the
court in which you will be late by 8:00 a.m. on the day the motion is
to be heard. Notify the deputy clerk as to where you can be located
and an approximate time that you will be present.
6. After the Court Officer opens Court, the Judge will call for
announcements. If your case is on the non-response docket or is a
matter that will not take much of the Court?s time, use this time to
take care of the your matter before the Court.
7. Before beginning argument of your motion, address the Court, state
your name, and state the number that your motion appears on that day?s
docket. (Friday dockets posted on bulletin boards on Tuesday.)
8. The Bench is gender neutral. Address the Bench as "Your
Honor", not "Ma'am" or "Sir".
9. File motions and responses timely. See Davidson County Local Rule
26.03. See Appendix. Send courtesy copy of any Reply filed late
Thursday afternoon or Friday morning to Chambers to ensure that the
Judge has an adequate time to review the Reply.
10. If you plan to rely on exhibits and cases from other
jurisdictions, make a table of contents and tab your exhibits.
The Court would appreciate any suggestions or changes from the Bar
that would improve our system of justice.
Top
JUDGE MURIEL ROBINSON
4th Circuit Court
Room 409
I. BRIEF BIOGRAPHY
Judge Muriel Robinson is Judge of the Fourth Circuit Court in the 20th
Judicial District serving Davidson County, Tennessee. She was first
elected in 1982 and is the first woman to be elected by popular vote
to a court of record in Davidson County. She received her Bachelor of
Laws degree from the Nashville School of Law in 1968 and her Doctor of
Jurisprudence in 1971 from the same school. Before her election, she
engaged in the general practice of law for 14 years in the law office
of Jack Norman, Sr. Much of her practice related to different areas of
domestic relations law. Judge Robinson was the first woman to serve as
Presiding Judge of the 13 Trial Courts of Davidson County. In addition
to her duties on the bench, she is a faculty member at the Nashville
School of Law and is a licensed funeral director and co-owner of
Phillips-Robinson Company Funeral Home.
II. PRELIMINARY GENERAL MATTERS
A. Scheduling
Refer to section IV for procedures regarding scheduling of cases.
B. Correspondence with Court
Judge Robinson prefers that all matters be communicated to the Court
in pleadings, notices, memoranda, or in open court. Letters from
parties will be returned to sender or filed with the Circuit Clerk if
appropriate.
C. Telephone Conference with Court
Judge Robinson generally does not hold telephone conferences
concerning pending litigation. She prefers all communication occur in
open court.
D. Telephone Conference with Clerks
Telephone conferences are allowed concerning administration and
procedure, but not the merits of any litigation.
III. PRETRIAL MATTERS
A. Scheduling Orders
Judge Robinson does not require scheduling orders, but rather, expects
attorneys to prepare their lawsuits and bring them to a conclusion in
a timely and efficient manner. She will set the case if the same has
been pending for an unreasonable length of time and will notify the
attorneys of record.
B. Continuances and Extensions
1. General Policy
The general policy of the court is that trials shall not be continued
without the permission of the court.
2. Requests
All requests for the continuation of a trial shall be made to Judge
Robinson in open court.
C. Pretrial Motions
1. Scheduling
Motions are heard each Friday at 10:00 a.m. In order to be heard, the
motion must be filed with the Circuit Court Clerk by 4:30 p.m. on the
Friday preceding the hearing date.
2. Oral Argument
Oral argument is not required in support of or in opposition to all
motions. Briefs, responses, and affidavits may be filed. However,
attorneys are required to appear before the court to offer evidence by
witnesses or exhibits.
3. Orders
Generally, Judge Robinson requires attorneys to submit orders setting
forth her rulings. All orders shall be filed with the Circuit Court
Clerk within 48 hours.
D. Discovery
1. Discovery Period
Discovery shall proceed in accordance with the Tennessee Rules of
Civil Procedure and the Local Rules.
2. Resolution of Discovery Disputes
Discovery disputes shall be resolved by filing the appropriate motion
which will be heard during the court?s regular motion docket.
3. Confidential Documents
All confidential documents shall be filed under seal with the Circuit
Court Clerk and shall remain under seal until such time as Judge
Robinson decides to unseal the documents.
4. Expert Witness
The use of expert witnesses shall be left to the discretion of
attorneys. The court requires counsel to follow the appropriate rules
of civil procedure.
E. Settlement Conferences
Judge Robinson does not usually hold settlement conferences.
F. Pretrial Briefs
Judge Robinson does not require pretrial briefs.
G. Temporary Restraining Orders
Temporary restraining orders remain in effect until further orders of
the court. TRO?s concerning pending litigation may be requested
through petitions or when accompanied by an affidavit.
IV. TRIAL PROCEDURE
A. Scheduling
1. Contested Cases
Trials are held Monday through Wednesday from 9:00 a.m. to 4:30 p.m.
Trial dates may be set through the Judge?s secretary only after the
filing of a Certificate of Readiness for Trial.
2. Uncontested Cases
Uncontested trials are held every day except Thursday at 9:00 a.m.
Trial dates may be set by any of Judge Robinson?s clerks. An order to
set for trial must be filed with the Circuit Court Clerk no later than
7 days prior to the hearing date.
3. Default Cases
Default divorces are heard Monday through Wednesday at 9:00 a.m. Judge
Robinson requires the testimony of the plaintiff and two corroborating
witnesses. An order to set for trial must be filed with the Circuit
Court Clerk no later than 10 days prior to the hearing date.
4. Show Causes and Contempts
The court hears these matters on Thursdays at 9:00 a.m. Cases
involving Child Support Services are held at 1:00 p.m. on the 20th
floor of Parkway Towers. Trial dates are set by the Circuit Court
Clerk.
5. Uncontested Adoptions
Judge Robinson hears uncontested adoption cases at 9:00 a.m. on the
first Monday of every month. Dates for hearings are set through the
Circuit Court Clerk.
B. Out-of-Town Parties
Judge Robinson does allow out-of-town parties to testify by
interrogatories in uncontested matters if cleared by the court upon
motion. In all contested matters, parties are required to appear
before the court.
C. Motions in Limine
Motions in limine are left to the judgment and discretion of the
attorneys.
D. Courtroom Decorum
Judge Robinson expects attorneys to be appropriately attired and to
conduct themselves with proper respect. Women attorneys may appear in
professional pantsuits. Attorneys may move about the courtroom as they
like during examination of witnesses. Judge Robinson does not allow
litigants to wear shorts, tank-tops, cut-up shirts, or sunglasses.
Also, no chewing gum, food, or drinks are allowed in the courtroom.
Attorneys are responsible for making their clients aware of these
regulations.
E. Opening Statements
Judge Robinson has no set time limits. However, she does prefer
opening statements be concise, give a brief history of the case, and
set out the relief requested by the parties.
F. Exhibits
Exhibits are to be handed to the court officer who will then pass them
to the witness. They will be marked by the court reporter.
G. Proposed Property and Debt Division
Judge Robinson requires proposals of property and debt divisions.
H. Court Reporters
Judge Robinson requires court reporters in all contested trials.
Top
JUDGE WALTER C. KURTZ
5th Circuit Court
Room 509
I. Biography
Judge Walter C. Kurtz received his B.A. from The Citadel in 1965. He
served in the United States Army from 1966-1969 including a tour in
Vietnam with an armored cavalry squadron. After his Army service he
attended Vanderbilt Law School, graduating with a J.D. in 1972. Judge
Kurtz then served as Director of Legal Services of Nashville from
1973-1976 and as the elected Metropolitan Public Defender from
1978-1982. He has taught law at both Vanderbilt Law School and The
University of Tennessee Law School.
Judge Kurtz has served continuously as a Circuit Judge since his
election in 1982 and was Presiding Judge 1987-1989. During his tenure
as judge, he has presided over both civil and criminal cases including
seven death penalty cases. Presently, he hears both civil and criminal
cases. By November of 1999, Judge Kurtz will return to presiding over
civil matters predominately.
Judge Kurtz is married to Ellen Hobbs Lyle and has three children
(Douglas, Ryan and Elizabeth), one step daughter (Amaryllis Lyle) and
four grandchildren (Sofia, Emma, Harrison and Evan).
II. Preliminary General Matters
A. Scheduling
Trial dates for all jury and non-jury trials should be obtained from
the Assignment Clerk, Holly Russell at (615) 862-5181. All other
scheduling should be done with the Judge Kurtz's Judicial Assistant,
Kelli Olin at (615) 862-5915.
Judge Kurtz requires minor settlements and workers' compensation
settlements to be scheduled. These are usually held at 8:30 AM, Monday
through Thursday.
B. Correspondence with the Court
Judge Kurtz prefers that all matters be communicated to the Court in
pleadings, notices, memoranda and briefs. Letters sent to the Court
will be placed in the case file.
C. Telephone Conference with the Court
Judge Kurtz will conduct status conferences or pre-trial conferences
by telephone when the involvement of out-of-town counsel is required
and the physical presence of counsel is not necessary.
D. Pro Hac Vice Admission
Judge Kurtz is vigilant in requiring out-of-state counsel to comply
with the requirements of Supreme Court Rule 19 prior to participating
in a case.
III. Pretrial Matters
A. Pretrial Motions
Motions should be scheduled pursuant to Local Rule ?26.03.
Judge Kurtz will allow a motion to be heard earlier than the minimum
notice if all parties agree. However, a waiver of Local Rule ?26.01
(i.e. scheduling a dispositive motion within thirty (30) days of a
trial date) will require permission from the Court.
In order to schedule a motion on an expedited basis without the
agreement of all parties, a party must file a motion for an expedited
hearing, along with the underlying motion. An order granting the
motion for an expedited hearing shall be filed as well. The motion for
an expedited hearing should fully explain why Local Rule ?26.03(a) or
(b) should be waived. If Judge Kurtz grants the motion for an
expedited hearing, he will schedule a hearing on the underlying motion
and counsel will be notified.
Oral argument of a motion may be waived if the parties wish to submit
the motion on briefs.
Parties are not required to appear on Friday mornings if no response
to their motion has been timely filed. Simply submit an order granting
the motion to the Court.
Late responses are not considered by the Court. If the parties agree
to allow a non-movant to respond to a motion late, the Court will
consider the late response so long as the Court has been notified of
the agreement in advance.
Judge Kurtz does not call the no response docket, nor motions for
summary judgment when no response has been filed. However, prior to
calling the response docket Judge Kurtz will address questions and
comments about the no response docket.
B. Settlement Conferences/ADR
To schedule a settlement conference for a case that has been assigned
to Fifth Circuit, contact Megan Gregory, the case coordinator, at
880-2554. Judge Kurtz participates as a settlement conference judge in
the rotation order established by the trial judges. Megan Gregory will
notify the attorneys by letter of materials that the Court needs prior
to the conference. All materials submitted for the settlement
conference are confidential and should be delivered directly to
Chambers. DO NOT file settlement conference materials with the Clerk's
office. It is imperative that all parties attend the conference and
have authority to settle the case.
IV. Trial Procedure
A. Courtroom Decorum
Please use the podium.
Do not bring gum, food or drink (other than water) in the courtroom.
B. Voir Dire
Counsel should keep in mind that voir dire is not an opening
statement. Fact specific questions are discouraged.
Please address your questions only to the jurors seated in the jury
box.
Please do not ask potential jurors the verdict rendered in other cases
on which they have served.
Once you have addressed the first group in the box, only address the
newly seated jurors who replace the excused jurors.
You may use your challenges against any juror until your challenges
are exhausted.
Please do not use voir dire as an opening statement.
C. Note Taking By Jurors
Jurors are welcome to take notes during trials. Pen and paper are
provided by the Court when needed.
D. Opening Statement
Counsel should keep in mind that an opening statement is not a time
for argument, but rather a presentation of anticipated facts. An
opening statement should not exceed ten (10) minutes. If more time is
necessary, please make a specific request.
E. Examination of Witness
If you plan to introduce evidence or cross examine about evidence
admissible under T.R.E. 404(b), 405(a), 608(b) or 609, please obtain
permission from the judge beforehand, out of the presence of the jury.
F. Exhibits
A witness who wishes to use a diagram or drawing shall prepare the
diagram or drawing prior to trial or at a recess or break prior to the
testimony.
Counsel admitting documentary evidence which he or she wants the jury
to read in court shall provide a sufficient number of copies to enable
each juror in court to have his or her own copy plus one copy for the
Court.
G. Closing Statement
Judge Kurtz will set a time limit for closing argument based upon the
length and complexity of the case. This limit will be decided at the
time when jury instructions are discussed.
H. Jury Instructions and Verdict Forms
If counsel wishes to submit them, proposed jury instructions and a
verdict form should be given to Judge Kurtz's law clerk as soon as
practicable during a trial.
In complex cases, a charge conference will be held in chambers to
discuss the instructions and verdict form. Such conferences are held
off the record, however counsel will be given an opportunity to make
objections on the record.
In simple civil cases, a single printed copy of the jury instructions
is given to the jury as they begin deliberations. In complex cases and
in all criminal cases, a printed copy of the instructions is provided
for each juror to follow along as Judge Kurtz reads them. Each juror
is then allowed to bring their copy of the instructions back to the
jury room.
I. Jury Deliberation and Verdict
All counsel shall inform the court officers of where they will be and
how they can be contacted throughout the jury deliberations. All
appropriate exhibits are given to the jury as they begin their
deliberations.
All questions from and requests by the jury are submitted in writing
to Judge Kurtz. Judge Kurtz will meet with counsel before making any
replies.
Transcripts of audio and video testimony are not given to the jurors
with other exhibits. If the jurors request to see a transcript or
rehear such testimony, Judge Kurtz will take up the request with
counsel.
After the verdict has been announced by the foreperson, the jury will
be polled at the request of counsel.
After the jury has announced its verdict and court has recessed, Judge
Kurtz speaks with the jurors and answers their questions to the extent
that is appropriate.
V. Other Comments
If counsel or a party expects that they will be late to court, please
notify the Court as soon as possible. If a civil motion is called on a
Friday morning and the movant is not present without having notified
the Court, the motion will be stricken. If a non-movant is not present
without having notifying the Court, the motion will be granted.
Top
JUDGE THOMAS BROTHERS
6th Circuit Court
Room 404
I. Brief Biography
Thomas White Brothers was appointed to a term on the Tennessee Circuit
Court beginning in February 1989 and was elected in 1990 to continue
in the Twentieth Judicial District, and reelected in 1998.
His parents were Mack and Susan White Brothers. He is married to Lura
Bainbridge.
He attended Parmer Elementary School and Montgomery Bell Academy. He
received a Bachelor of Arts Degree with Honors in 1973 from the
University of Tennessee at Knoxville. He received his J.D. from
Vanderbilt University School of Law and was admitted to the Tennessee
Bar in 1977. He served as Chief Warrant Officer for the Davidson
County Sheriff's Department immediately after graduation from law
school. Judge Brothers practiced law in Nashville as a solo
practitioner (1978-89) in the law offices of Jack Norman.
Judge Brothers was Presiding Judge for the 20th Judicial District for
two terms (1991-93), and has been assignment judge from 1990 to
present. He is a member of the Tennessee, Nashville and American Bar
Associations and L.A.W. He is a member of the ABA Judicial Division's
Technology Committee. He is a member of the Board of Directors of the
Nashville Bar Association (NBA), and has served as chairman of the
Minorities Opportunities Committee of the NBA. He is an emeritus
Master of the Bench of the Harry Phillips American Inn of Court.
As a member of the Tennessee Judicial Conference, he serves as
Chairman of the Technology for the Courts Committee. He is also a
member of the Pattern Jury Instructions Committee and the Delay
Reduction Committee. He is a past Secretary for the Conference.
He is the Chair for the Justice Information System (JIS) of the
Metropolitan Government of Nashville, as well the Circuit Court
Representative on the Policy and Operations Committee of JIS. He is a
member of the Advisory Commission on Technology reporting to the
Tennessee Supreme Court.
II. Preliminary General Matters
A. Scheduling
All scheduling is handled by Judge Brothers' deputy clerk, Lori
Stratton, at 862-5917.
B. Correspondence with the Court
Judge Brothers prefers that all matters be communicated to the court
in pleadings, notices, memoranda, and briefs. If letters are
absolutely necessary, the parties should file them in the Clerk's
Office and they must indicate that all parties have received copies.
C. Telephone Conferences with the Court
In extraordinary situations, motions to continue and disputes that
arise during the course of depositions may be handled by telephone
conference.
D. Telephone Conferences with Law Clerk
Allowed for administration, not for legal advice.
E. Pro Hac Vice Admission
Pro Hac Vice Admission permitted by Motion.
III. Pretrial Matters
A. Scheduling Orders
Parties are encouraged to enter Scheduling Orders when setting cases
for trial, if not already done.
B. Continuances and Extensions
Extensions of scheduling order deadlines are generally granted if
requested before the deadline has passed and there is no unfair
prejudice to the opponent.
Trial continuances are granted only upon a showing of just cause
supported by affidavit. Parties may not agree to continue without
Court permission.
C. Pretrial Motions
1. Motions is Limine
If numerous, contact the court about setting up a hearing to have them
heard before the morning of trial. This will allow for prompt jury
selection on the morning of trial.
2. Reply briefs
Allowed
3. Late Filings
Sometimes accepted, never encouraged
D. Discovery
1. Discovery Period and Extensions
SEE III(B) above. Discovery should commence as soon as the case is at
issue.
2. Interrogatory Responses
Clear questions warrant clear answers.
3. Resolution of Discovery Disputes
Parties must submit a statement that the parties have attempted in
good faith to resolve the dispute, in accordance with Local Rule
22.08, before the Court will hear any discovery dispute. Genuine
effort to resolve any dispute is required.
4. Depositions
Should be set by agreement. Notice should then be sent to confirm.
IV. Trial Procedure
A. Scheduling
Central Assignment System unless otherwise exempted.
B. Out-of-Town Parties, Witnesses or Attorneys
Out-of-Town witnesses can be heard out of order with permission of
Court.
C. Motions in Limine
Only on Evidentiary matters
D. Courtroom Decorum
Attorneys must stand when speaking. Attorneys must ask permission
before approaching a witness for any purpose. Attorneys are not
required to stand at the podium.
E. Voir dire
Challenges for cause must be made orally before peremptory slips are
submitted. A juror will be subject to questioning only during the
round of voir dire in which they are seated. Any side may back strike.
F. Note Taking by Jurors
Encouraged. Not allowed during opening or closing. Juror questions are
allowed.
G. Exhibits
The use of technology is encouraged. The Court normally marks
exhibits, unless there are more than twenty. They are numbered
consecutively.
H. Side Bar Conferences
True sidebars are done, in lowered tones, but are not encouraged. The
Court prefers jury out hearings.
I. Deposition Reading
The entire deposition does not have to be read. When reading a
deposition, cite page and line number.
J. Exhibits / Handouts for Jurors
The use of technology encouraged. Providing copies of documents for
jurors is encouraged. All exhibits/ documents should be Bates
numbered.
K. Proposed Jury Instructions and Verdict Forms
Submit on first day of trial or as directed by the Court.
L. Jury Deliberation
1. Copy of Instructions
Given to jury.
2. Access to Exhibits
If any are asked for, all are made available to the jury.
3. Access to Video Transcript
Allowed if asked for, the request must be for a specific piece of
testimony. Jury will review the video transcript in jury room.
4. Availability of Counsel
Counsel and parties must be available within five minutes. If outside
the courthouse, leave a phone number with law clerk.
5. Polling the jury
Allowed.
6. Interviewing the Jury
Allowed after Judge Brothers has spoken with jurors after the trial.
If a juror expresses a desire to not talk, that ends the conversation.
Top
JUDGE FRANK CLEMENT
7th Circuit Court
Room 410
I. Name and Brief Biography
Frank Clement is Judge of Division VII of the Circuit Court for
Davidson County. He was first elected to office in November, 1995, by
unanimous vote of the Metro Council. Though he is frequently
identified as the Probate Judge, for he is the only judge who hears
probate matters in Davidson County, he also has Circuit Court,
Chancery Court and Criminal Court jurisdiction. Judge Clement presides
over conservatorships and the administration of decedents? estates,
and, by agreement with the other trial judges, he also hears criminal
cases which involve vehicular homicide, vehicular assault and multiple
offenses for driving under the influence.
While attending law school, Judge Clement worked for the Tennessee
Supreme Court. Following graduation from law school in 1979, he
entered the private practice of law. After working for an established
civil trial firm for four years, he formed a partnership in 1983,
where he remained until taking office in 1995. Judge Clement practiced
law in Nashville for 16 years prior to taking the bench.
His civic and professional activities have included service as
president of the Nashville Bar Association in 1995, President of the
Nashville City Club in 1992, President of the Nashville Kiwanis Club
in 1987, and Chair of the Nashville Area American Red Cross and
Tennessee Valley Blood Region in 1984-86. In 1972, while in college,
he was president of the Student Government Association of Memphis
State University and Governor of the Intercollegiate State
Legislature.
Judge Clement is a charter member of the Nashville Chapter of the
American Inn of Court. He is also a member of the Tennessee Bar
Association, the American Judges Association, the National College of
Probate Judges and is a fellow of the Nashville Bar Foundation.
II. Preliminary General Matters
A. Scheduling
Scheduling of matters that will require less than a 20 minute hearing
are scheduled with Gay Parker or Ruth Lester (862-5980) in the Probate
Clerk's Office for Probate matters and Ray Akers (862-5600) in the
Criminal Court Clerk's Office for Criminal Matters. Matters requiring
more than a 20 minute hearing are scheduled through Judge Clement's
Secretary, Sandra Jones (862-5990).
B. Correspondence with Court
Judge Clement does not consider ex parte communications. Letters
addressed to the Court will be file stamped and placed in the case
file. Issues requiring the Court's intervention or assistance should
be brought to the attention of the Court by the appropriate motion or
petition with notice/summons to the Interested Parties as is
appropriate.
C. Telephone Conferences with the Court
Judge Clement will entertain telephone conferences when out of town
counsel or parties are involved, or when necessary because of the
facts of the case. Ex parte conferences of any kind will not be
entertained.
D. Telephone Conference with Law Clerks
Telephone conferences with law clerks regarding routine matters is
permitted. Law clerks are not permitted to give advice regarding
strategy or an opinion of how the Judge will rule on a particular
matter.
E. Pro Hac Vice Admission
Judge Clement follows the requirements of the Tennessee Rules of Civil
Procedure and Tennessee Rules of Criminal Procedure.
F. Motion to Ascertain Status
Inquiry regarding the status of an Order or matter taken under
advisement may be made by motion but inquiry may be made simply by
calling the Probate Court Clerk's Office or Criminal Court Clerk's
Office first. If status of the matter cannot be ascertained in this
way, the inquiry may be made through the Judge's law clerk. On matters
where a quick response from the Court is requested be prepared to
inform the law clerk of why the matter is urgent. If some time has
passed since an order was submitted inquiry is welcomed particularly
to ascertain that the order has not been misfiled or lost. Judge
Clement follows Local Rule of Court Davidson County ? 33.02 which
requires a 3 day waiting period on orders bearing only the signature
of the attorney who prepared the order.
III. Pretrial Matters - Civil Cases
A. Scheduling Orders
See "Scheduling Letter" (Appendix IV).
B. Continuances and Extensions
1. General Policy
The Court looks favorably upon continuances by agreement unless
exigencies of the case require prompt resolution of the matter.
2. Requests
If the parties cannot agree to continue a matter, the request for a
continuance must be made by motion. The Court must approve
continuances related to show cause hearings or accounting reviews in
Probate matters.
C. Pretrial Motions
1. Motions for Summary Judgment
In accordance with Tennessee Rule of Civil Procedure 56.03, Judge
Clement requires that each side provide a statement of disputed and
undisputed facts.
2. Motions, Responses, Replies and Briefs
Judge Clement follows the Local Rules of Court, Davidson County with
respect to time frames and filing deadlines, but allows some
flexibility because a Probate Court must protect the best interest of
its wards irrespective of filing deadlines.
Also see "Scheduling Letter."
3. Chamber Copies of Filings
Chamber or courtesy copies are not required. If submitted, such copies
must be filed with the clerk first before being delivered to the
Judge's office.
4. Proposed Orders
Proposed orders are welcomed and are not considered presumptive.
5. Orders
Orders should state the date on which the matter was heard. Orders
that have no date or "blanks" for the Court to "fill
in" the date increase the Court's workload and delay processing
of the order. This is because the Judge's law clerks review each order
and verify it against their notes. When there is no date the clerks
must determine the date before the order can be verified. A
certificate of service should be attached to the order.
Orders should be written so as to be self-explanatory. For example,
instead of saying "Bond is waived" a more specific statement
is preferred such as, "Bond is waived in accordance with Section
IV of the will."
6. Automatic Granting of Motions When No Response Filed
Local Rule of Court, Davidson County 26.04 (f) which provides that
motions which are not responded to are automatically granted is seldom
followed because of a Probate Court's duty to protect its wards.
Ultimately, the Court is the adversary even if a motion is unopposed.
7. Expedited Orders
An attorney or party requesting that an order be signed immediately
should be prepared to inform the Judge's law clerk of the 1) the
urgency and 2) whether there is any opposition to the order.
8. Emergency Petitions
The petition should indicate plainly that it is a request for
emergency relief such as "PETITION FOR APPOINTMENT OF AN
EMERGENCY TEMPORARY CONSERVATOR." The petition should be filed
first with the Probate Clerk. Next, counsel should inform the clerk
that it is an emergency and ask the clerk to walk it up to the Judge's
office for processing.
D. Discovery
1. Discovery Period and Extensions
The parties may extend discovery deadlines by agreement.
2. Discovery Responses
Judge Clement holds litigants at trial to the responses made in
discovery.
3. Resolution of Discovery Disputes
Judge Clement believes in compliance with the letter and spirit of the
Tennessee Rules of Civil Procedure. If the attorneys cannot resolve a
discovery dispute, Judge Clement will resolve the dispute by hearing
upon an appropriate motion. Also see "Scheduling Letter."
4. Exhibits, Witnesses and Subpoenas
See "Scheduling Letter."
E. Pretrial Briefs
See "Scheduling Letter."
F. Temporary Restraining Orders
1. Filing
Temporary restraining orders should be filed with the Probate Clerk.
The attorney or party should then advise the clerk to take the matter
to the Judge's office for it to be acted upon immediately. The
temporary restraining order should be identified clearly as such.
2. Requirements
Judge Clement follows Tennessee Rules of Civil Procedure 65 and Rule
19.02 of the Local Rules of Court strictly. It is essential that
subsection (a) of 19.02 providing for notice to the opposing party or
an affidavit indicating why notice could not be given.
IV. Pretrial Matters - Criminal Cases
A. Motions
See REVISED Pre-Trial SCHEDULE (Appendix V).
B. Pretrial Conferences
See "REVISED Pre-Trial SCHEDULE."
V. Trial Procedure
A. Scheduling
See "REVISED Pre-Trial SCHEDULE."
B. Courtroom Decorum
Attorneys are allowed to move about the Courtroom freely during the
course of the trial. Judge Clement does not have a specific dress code
other than attorneys should be dressed professionally, however, the
Judge will allow exceptions when necessary. Judge Clement will take
whatever steps are necessary to insure that attorneys and litigants
act with civility during hearings.
All cellular phones and beepers should be turned off or switched to an
inaudible tone during Court proceedings. After a matter has been heard
or the parties need to discuss a matter, they are requested to do so
outside the Courtroom so as not to interfere with other hearings.
Judge Clement will usually allow parties to use the jury room for such
discussion if it is available.
C. Voir Dire
Usually 25 jurors are selected from the jury pool. Judge Clement fills
the jury box with 12 jurors plus 6 chairs in front of the jury box.
Judge Clement will initially conduct his own voir dire of a general
nature. When Judge Clement is finished, the attorneys may begin voir
dire. As jurors are excused the box is filled from the six chairs in
the front. Usually one alternate is chosen from the chairs in front of
the box and the attorneys may vote on the alternate.
D. Note Taking By Jurors
Jurors are allowed to take notes during the course of the trial and
are allowed to take the notes to the jury room when they retire.
E. Opening Statements
1. Length
Judge Clement expects opening statements to be relatively brief.
F. Side Bar Conferences
Side bar conferences are allowed.
G. Deposition Reading
Is allowed; two readers are encouraged.
H. Exhibits
Exhibits will be marked by the Judge or the Clerk. In cases involving
documents or the like it is extremely helpful for the Judge and
opposing counsel to have a copy of the documents so they can follow
along with the witness.
I. Motions for Judgement as a Matter of Law
These are heard on Friday morning Motion Docket.
J. Proposed Jury Instructions and Verdict Forms
In cases involving numerous issues, Judge Clement often submits a
proposed charge on the issues that he is aware of before the trial
begins to both counsel. Counsel are encouraged to reach a consensus on
as many issues in the Jury Instructions as possible so that the charge
can be prepared in large part before the trial begins.
The jury charge and verdict form is modified during the trial if and
when necessary. Counsel are given an opportunity to comment.
K. Proposed Findings of Fact and Conclusions of Law
They are provided when requested.
L. Offers of Proof
They are permitted when requested.
M. Jury Deliberation
1. Copy of Instructions
Each juror is give a copy of the instructions so they can read along
while the charge is being read to the judge. The jurors are allowed to
take their copy of the charge to the jury room and are allowed to take
the charge home at the conclusion of the trial.
2. Access of Exhibits
All exhibits are provided to the jury during deliberation.
3. Access to Transcript of Testimony or Videotaped Testimony
Not available.
4. Availability of Counsel
Counsel must remain in court unless granted leave to return to their
office. In such event, counsel should leave their office phone number
and cellular phone and pager numbers with the Judge's secretary so
that they can be reached if the jury has a question or returns a
verdict.
5. Taking the Verdict and Special Interrogatories
Special interrogatories are used when appropriate.
6. Polling the Jury
Judge Clement does not automatically poll the jury. He does ask
counsel if they want the jury polled.
7. Interviewing the Jury
Judge Clement has no prohibition about interviewing jurors after the
trial. He does make it clear to jurors that they are welcome to be
interviewed by counsel after the trial but they are in no way
obligated to do so.
VI. Sentencing in Criminal Cases
A. On Guilty Pleas
The defendant is usually taken into custody after the plea and
sentence are accepted. A delayed report date may be allowed depending
on the circumstances and history of the case. But see "REVISED
Pre-Trial SCHEDULE".
B. After Verdict
A separate sentencing hearing is scheduled in felony matters. The
defendant is usually taken into custody following the sentencing
hearing. See "REVISED Pre-Trial SCHEDULE" which is attached.
VII. Other Comments
A. General Flow of Cases
Mondays are usually reserved for jury trials in criminal cases.
Tuesdays and Wednesdays are usually reserved for Probate matters. The
docket is called first for announcements. Counsel whose announcement
requires more than one minute should estimate the length of the
hearing and matters are usually handled shortest first, longest last.
When a jury trial has been started on Monday but is not finished,
Judge Clement will often hold an expedited Probate docket before
reconvening the jury trial.
Thursdays are reserved for arraignments, settlements, probation
violations and motions in criminal cases.
Friday mornings are reserved for motions in probate matters. Status
conferences and pre-trial conferences are held on Friday afternoons.
While fee motions do appear on the docket they are usually not called
unless there is opposition or counsel appears to explain a fee. Fee
motions are typically taken under advisement.
B. Status Conferences
Judge Clement will set status conferences sua sponte or upon request
of the parties.
C. Office Decorum
Because of the limited space, Judge Clement asks that
"visiting" not take place in the Court's offices. He simply
asks that counsel realize that when he is not on the bench he and his
staff still have work to do in their office.
D. Local Rules of Court Davidson County-Rule 39 et seq
Counsel should consult Rule 39 et seq before appearing in Court on a
probate matter. These rules which are a result of the efforts of the
Probate Court Committee of the Nashville Bar Association and Judge
Clement are very detailed and are of critical importance. These rules
fill in important gaps in the statutes and in some instances impose
more stringent requirements than the statutes particularly in areas
involving notice and due process. An amendment to Rule 39.03 can be
found at Appendix VI.
E. Show Cause Hearings and Accounting Reviews
The Court will order fiduciaries to show cause or set an accounting
review on the docket when fiduciaries have failed to provide
accounting, provided an irregular accounting, or for other acts of
misconduct. It is critical that the fiduciary appear at the show cause
hearing or review because the Court will take immediate action to
resolve the matter when no one shows up. This action may consist of
"Retiring" the case which results in an order that puts the
case on retired status but holds the fiduciary personally liable for
their improper administration of the case, or removing the fiduciary,
or submitting the matter to the District Attorney's Office for
investigation.
F. Bond
Bond is required of every fiduciary regardless of professional or
social standing with 3 exceptions: 1) a fiduciary may eliminate the
need for bond or reduce the bond needed by freezing all or a portion
of the funds through a "letter agreement" with a financial
institution which provides that the frozen funds will not be disbursed
without Court approval, 2) the funds may be paid into the Probate
Clerk's office, 3) the fiduciary is covered under a blanket bond for
cases on which they are appointed by the court.
G. Name Changes
Judge Clement is very reluctant to change minor's names and will not
do so when the name change appears to be used to effect an adoption.
Names of foreign citizens are not changed. Judge Clement discourages
changing birth certificates.
H. Sample Probate Petition
Please find a sample probate petition at Appendix VII.
Top
JUDGE CAROL SOLOMAN
8th Circuit Court
Room 10
I. Brief Biography
Judge Carol Soloman was elected Judge of Eighth Circuit Court, the
newest of the Circuit Courts, in August, 1998, and began her term on
September 1, 1998. Judge Soloman was born on June 29, 19?? (she?s not
telling), in Ashland, Kentucky. She received her undergraduate degree
from Peabody/Vanderbilt, 1974, and a Doctor of Jurisprudence Degree
from Nashville School of Law, 1979. Judge Soloman worked as a Law
Clerk and Special Prosecutor in the 23rd Judicial Circuit which
included the counties of Cheatham, Dickson, Humphreys, Houston and
Stewart from 1975-1980. In 1980, she went into private practice and
continued this practice until she took the bench September 1, 1998.
II. Preliminary General Matters
A. Scheduling
All scheduling for status conferences, pre-trial conferences,
specially set motions, personal appointments and speeches is handled
by Judge Soloman's Judicial Assistant, Linda Jackson, 880-2591. Trial
dates are obtained from Holly Russell in the Circuit Court Clerk's
Office.
B. Correspondence with Court
Judge Soloman prefers that all matters be addressed to the Court in
pleadings, notices, memoranda and briefs. If letters are absolutely
necessary, the parties should file same in the Circuit Court Clerk's
Office.
C. Telephone Conferences with Court
Telephone conferences should be used sparingly, but same may be
arranged for status meetings if the matter involves out-of-town
attorneys. The Judge is available by telephone to resolve discovery
disputes.
D. Telephone Conferences with Law Clerks
Telephone conferences with Judge Soloman?s Judicial Assistant or Law
Clerk are allowed concerning only the administration of a case, but
absolutely not concerning the merits.
If a case is taken under advisement, the Law Clerk will notify the
attorneys of the Judge?s decision by telephone unless the Judge is
drafting an opinion.
III. Pretrial Matters
A. Scheduling Order
Every file assigned to Eighth Circuit Court is set for status
conference approximately six months from the date of filing. A
Scheduling Order may be entered into at the first status conference.
Status conferences will typically be held on a Monday, and are
scheduled and/or rescheduled by Linda Jackson, Judicial Assistant, to
Judge Soloman. Each attorney and/or party (if pro se), are notified by
copy of an Order setting the status conference on a date and time
certain. Judge Soloman?s law clerk will usually handle the first
status conference and any subsequent status conference will be set by
the law clerk.
B. Continuances and Extensions
Continuances are granted very sparingly. Judge Soloman expects one to
be serious when choosing a trial date, and will only grant a
continuance of the date under extreme circumstances. Attorneys may not
enter into an Agreed Order for a continuance or extension prior to
appearing before the Court for same on the regular Friday Motion
Docket. If this is not possible, contact Linda Jackson to ascertain
when the Judge might specially hear the Motion.
C. Pretrial Motions
1. Hearing Dates
Pre-trial Motions are heard on Fridays at 9:00 A.M. throughout the
year. Any date not available for Motions will be posted with the
Circuit Court Clerk?s Office well in advance of the date.
Judge Soloman requires appearance at all dispositive motions
regardless of whether or not they appear on the non-response docket.
Before beginning argument of your Motion, address the Court, state
your name and the style of your case.
2. Oral Argument
Judge Soloman generally believes oral argument will be helpful in
reaching a decision and moving a case along. However, in certain
circumstances, such as a case where a party is incarcerated, it may be
necessary to rule without the presentation of oral argument.
3. Briefs
Local Rules require that Briefs be filed, and Judge Soloman is very
appreciative of briefs which aid her in her decision. Briefs should be
concise and to the point with all cited cases attached. Judge Soloman
requires strict compliance with Rule 56.
4. Chamber Copies of Filing
Judge Soloman does not want extra copies of filings. The originals
which are filed in the Circuit Court Clerk?s Office are sufficient.
5. Proposed Orders
Generally, there is no need to submit a proposed Order with any
Motion. Judge Soloman prefers that no Orders be filed until after the
Motion has appeared on the docket.
D. Discovery
Judge Soloman prefers that discovery matters be resolved among
attorneys without the necessity of the intervention of the Court.
However, in matters which just cannot be resolved, Judge Soloman will
make a ruling.
Telephone Depositions are permitted.
1. Discovery Period and Extensions
See III.B. above
2. Interrogatories
Motions seeking leave to serve interrogatories in excess of the amount
allowed by the Local Rules should be timely filed, and Judge Soloman
will usually grant them if unopposed. Her ruling, however, will depend
on the subject matter of the case.
Instructions and definitions are acceptable as far as Judge Soloman is
concerned.
3. Resolution of Discovery Disputes
Judge Soloman does not like discovery disputes and believes lawyers
should always try to work them out in good faith before asking the
Court to intervene. Judge Soloman will treat any request for sanctions
as a discretionary matter and award sanctions only if the party?s
conduct is egregious. If Judge Soloman believes that the dispute is an
attempt to delay the case, sanctions may very well be imposed.
4. Confidentiality Agreements
These agreements and discovery matters submitted under seal should be
in an envelope marked with a label bearing the inscription ?TO BE
FILED UNDER SEAL AND HANDLED ACCORDINGLY.? The envelope should be
accompanied by a Motion to seal. Once these matters are filed, they
remain under seal until such time as Judge Soloman rules on same.
E. Settlement Conferences
Settlement conference requests are handled through Megan Gregory,
880-2554, pursuant to the previous agreement of the Judges, and
pursuant to their instructions regarding same.
F. Pre-trial Filings
Pre-trial filings should be in accordance with the Local Rules
governing same. This applies to both jury and non-jury cases.
G. Injunctions
1. Scheduling
Scheduling of injunctions should be coordinated with Judge Soloman?s
Judicial Assistant, Linda Jackson if the case is pending. If a TRO is
requested at the time the case is filed, every effort must be made to
notify opposing counsel for any hearing on the TRO.
2. Expedited Discovery
This will be handled on a case by case basis.
IV. Trial Procedure
A. Scheduling
Trial dates are coordinated by the Circuit Court Clerk?s Office. Court
will begin at 9:00 A.M. unless otherwise specified by the Judge.
Jurors are asked to arrive at 8:30 A.M. Generally, a trial will
continue as late in the afternoon as the jurors wish to stay, taking
into consideration child care issues, elder care, medical
appointments, etc. There is no specified time for lunch which may
range from 30 minutes to one hour depending on the particular case,
the progression of the trial and the various schedules of the jury,
Judge and attorneys.
B. Out of Town Parties, Witnesses or Attorneys
Judge Soloman will try to accommodate these individuals where
possible, and may take witnesses out of order.
C. Motions in Limine
Judge Soloman feels that any Motion in Limine should be filed as soon
as possible before trial, and never the afternoon prior to or the
morning of trial. Judge Soloman believes when the Judge receives a
file for trial, all motions should be in the file in order for the
trial Judge to review same well in advance of the beginning of the
trial. These Motions are being filed to alert the Judge to evidentiary
issues which may arise during the trial.
Judge Soloman admonishes the non-moving party not to go into a matter
that is the subject of any Motion in Limine until such time as she has
made a ruling. Regarding insurance, same shall not ever be mentioned
unless prior permission has been granted by Judge Soloman.
D. Decorum
Counsel should begin proceedings behind the podium, but may ask
permission to move from behind the podium. An attorney should never
approach a witness or the Judge directly, but should pass items to the
Judge or witness through the Court Officer.
Judge Soloman is particularly disturbed when attorneys make derogatory
remarks about opposing counsel. There is simply no place for such
conduct in the Courtroom. Judge Soloman does not allow lawyers to make
comments to each other, but rather through her. All parties, witnesses
and lawyers are to be addressed using last names. It goes without
saying that attorneys should conduct themselves in a civil manner in
the courtroom and avoid excessive argument with the Court regarding
objections, jury instructions, etc.
E. Voir Dire
Judge Soloman requires that everyone stand when the jurors are
entering or leaving the courtroom.
1. Lawyer Voir Dire
Judge Soloman gives attorneys a fair amount of latitude in conducting
voir dire. It is appropriate to use voir dire only to get information
and not to try the case.
2. Selection Method
For a jury of twelve, thirteen persons are seated with their names
being called randomly from the pool. (Fourteen are seated if two
alternates are desired). The attorneys may question only those persons
seated and not those who remain in the audience. They will be
questioned if they are seated. An attorney may not back- question once
a round of voir dire is completed. However, back-striking of a seated
potential juror is permitted. All thirteen (or 14) persons remaining
seated at the end of voir dire become jurors. The alternate is chosen
at the end of the trial by drawing of a seat number.
F. Note taking by Jurors
Judge Soloman permits taking of notes by jurors. However, she gives a
special instruction regarding the use of such notes to the jurors. She
also permits limited questions by jurors regarding any matter on which
they may be confused or could not hear so long as the witness is still
on the stand. The juror is to write his/her question on a piece of
paper and hand same to the Court Officer.
G. Opening Statements
1. Length
Judge Soloman places a 20 minute time limit per side on opening
statement and reminds you that a concise opening statement is a mark
of good advocacy.
2. Use of Exhibits
Judge Soloman permits the use of stipulated exhibits during voir dire
and opening statement, but permission should be obtained in advance.
H. Side Bar Conferences
These are permitted.
I. Videotaped Testimony
Videotaped testimony is very much discouraged, however, it is
permitted. Inasmuch as Eighth Circuit Court does not have a permanent
home, you will need to request the use of a VCR/TV from Holly Russell
in the Circuit Court Clerk?s Office. Attorneys should become familiar
with the equipment prior to the beginning of trial and have an edited
tape already wound to the beginning of the appropriate testimony.
J. Deposition Reading
This is permitted. The Judge urges counsel to confer and strike any
surplusage. To avoid confusion for the jury, Counsel may use a
paralegal or co-counsel to sit in the witness box to act as the
deponent.
K. Exhibits
Upon request, Judge Soloman will allow the parties to pass copies of
stipulated exhibits to each juror. Sufficient copies should be brought
to trial as it is disruptive to make copies during trial.
She does not mind the use of visual aids during trial, but again,
arrangements for equipment should be made in advance of the trial
date. In some cases, such as those involving important documents, it
may be very helpful to use an enlarged copy of a document to highlight
the critical language. However, she prefers a smaller copy of same be
submitted to the Clerk to be marked as an exhibit.
L. Motions for Judgment as a Matter of Law
Judge Soloman will usually allow counsel to make a motion and rule
upon same immediately, rather than waiting until the jury returns its
verdict.
M. Closing Argument
Judge Soloman allows 20 minutes per side for closing argument and 5
minutes for rebuttal.
Judge Soloman finds it very offensive for lawyers to make personal
references to other lawyers during closing. She believes that the
utmost respect for everyone should be displayed in the courtroom.
N. Proposed Jury Instructions and Verdict Forms
Counsel are advised to follow the Local Rules of Court. Judge Soloman
prefers all jury instruction requests be filed prior to trial but will
entertain special requests during the trial.
O. Proposed Findings of Fact and Conclusions of Law
These should be submitted pursuant to the Court?s instructions.
Citations to any transcript should be included for ease in reading.
P. Offers of Proof
These may be made where necessary.
Q. Jury Deliberation
1. Copy of Instructions
Judge Soloman provides copies of the jury charge to each juror to
follow along as she reads. The jurors take the charge to the jury
room.
2. Access to Exhibits
Exhibits are taken to the jury room upon request, absent any
objection. Any exhibit containing a mention of insurance is redacted
by the attorneys prior to being taken to the jury room.
3. Access to Transcript of Testimony or Videotaped Testimony
Judge Soloman does not allow jurors to have access to such
transcripts, because they unduly emphasize the portion of the
testimony which is transcribed.
4. Availability of Counsel
During jury deliberations, counsel need not be present in the
courtroom. However, they should be available on short notice.
5. Polling the Jury
After the foreperson reads the verdict, the attorneys are asked if
they wish the jury to be polled. If so, each juror is properly asked
whether or not the verdict represents his/her verdict.
6. Interviewing the Jury
If counsel wishes to interview the Jury, a Motion for Leave to
Interview the Jury should be filed. Judge Soloman does not allow any
juror to be interviewed unless they are at the end of their jury
service.
V. Sentencing in Criminal Cases.
On guilty pleas and after-conviction, sentencing is determined by the
sentencing guidelines. Judge Soloman expects the parties to follow the
Local Rules of Court on the use of the pre-sentence report and insure
the defendant is fully aware of the contents of any pre-sentence
report. She always considers objections by either side to the report.
VI. Other Comments
1. Please spell Judge Soloman's name correctly. It is spelled SOLOMAN,
not Solomon.
2. General Sessions Appeal Cases should be set immediately upon filing
the appeal, whether jury or non-jury.
3. Judge Soloman looks very favorably upon the expeditious handling of
all cases, especially through the use of alternative dispute
resolution.
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JUDGE STEVE DOZIER
Criminal Court Division I
Room 601
I. Brief Biography
Judge Steve R. Dozier is a lifelong resident of Davidson County,
Tennessee. He is an honor graduate of David Lipscomb High School and
attended Vanderbilt University, where he received his Bachelor of Arts
degree in 1979. In 1984 he received his Doctor of Jurisprudence degree
from Nashville School of Law, where he graduated fourth in his class.
He is married to Lisa Dozier, and they have three children.
Following law school, Judge Dozier was hired as an Assistant District
Attorney with Metropolitan Davidson County and remained in that
position from 1984 to 1990. He left the District Attorney's office in
1990 and became a partner in the firm of Williams, Smith & Dozier,
P.C. In 1995 Judge Dozier returned to the District Attorney's office,
where he remained until he was appointed as Judge by Governor
Sundquist on December 12, 1997. He was elected to that position in
August 1998. He has served as Chairman of the Nashville Bar
Association's Criminal Justice Committee; he is a member of the
Tennessee Supreme Court District 5 Investigating Committee for New
Attorneys; he has served on the Mayor's Commission on Crack Cocaine;
he is part of the Governor's Alliance for a Drug Free Tennessee; and
was inducted in 1998 as a Fellow in the Nashville Bar.
II. Preliminary General Matters
A. Scheduling
Initial scheduling is set out in the pretrial order which is provided
at the time of arraignment. Rules pertaining to this order are set out
on the back of the order. Scheduling is dependent on many factors such
as discovery. Therefore, continuances are often unavoidable.
Continuances must however be approved by the Court.
B. Correspondence with the Court
Correspondence with the Court is handled by Sharon Pool, the Judge's
secretary. Ms. Pool insures that there is no misunderstanding as to ex
parte communication with the Court.
C. Pro Hac Vice Admission
Out of state attorneys are welcome so long as they comply with
applicable rules and are associated with a local attorney.
III. Pre-Trial Matters
A. Motions
The dates for suppression hearings and other motions are set out in
the pre-trial order. Because motions are often dependent on other
factors, the scheduling is often amended. Any changes in scheduling
are handled by the Clerk of the Court, Stephanie Mosley. She may be
reached at 862-5600 ext. 641. The clerk must be provided written
notice of all witnesses to be subpoenaed for motion hearings far
enough in advance for the subpoena to be executed.
B. Status
The Court will often set a case on the docket for a status check prior
to trial in order to insure the case will be ready for trial, or to
work out other dispositions. This provides the attorneys an
opportunity for further discussions and time to address preliminary
trial matters.
IV. Trial Procedure
A. Scheduling
Trial dates are selected on the earliest date convenient to both the
attorneys and the Court. Cases will be set by giving preference to
jail cases, older cases, or other cases with special circumstances.
B. Out of Town Parties, Witnesses or Attorneys
The Court will attempt to accommodate all parties involved, with the
understanding that the Court must control the docket so as to insure
the orderly and efficient disposition of cases.
C. Courtroom Decorum
Common sense dictates that all attorneys should dress professionally,
and that men should remove hats while in the courtroom. Cell phones
and pagers should be turned off before entering the courtroom or will
be subject to confiscation during court proceedings.
D. Addressing the Court
Attorneys should use the podium when addressing the Court.
E. Voir Dire
Prior to voir dire, counsel is to provide the Court with a written
list of prospective witnesses. The Court generally lets the attorneys
question the prospective jurors as they deem appropriate. The voir
dire questions must deal with issues pertaining to the jurors? ability
to follow the law and to be fair and impartial. It is not appropriate
to announce in open court the jurors? addresses unless relevant to
issues in the case. If motions in limine are under advisement, the
Court will generally ask the attorneys not to discuss the subject
matter of the motion under advisement. During the voir dire process,
once you have addressed the first group in the box, only address the
newly seated jurors who replace the excused jurors. Of course, you may
use your preemptory challenges against any juror until your challenges
are exhausted.
F. Note Taking by Jurors
This is allowed and the jury is instructed appropriately prior to
deliberation.
G. Fine Waiver
If the defendant intends to waive the jury imposing the fine in the
event of a conviction, please complete the written waiver prior to the
voir dire process.
H. Opening and Closing Statements
The length of the opening statement is up to the individual attorney.
Opening statements can be waived if so desired. Closing statements may
be limited in time based on the nature of the case.
I. Prior Statements of Witnesses
Lengthy ?Jencks? material such as audio and video recordings should be
made available to opposing counsel prior to trial. Copies of
transcripts, redacted and unredacted, should be made available to the
Court for review prior to trial.
J. Exhibits
Upon proper foundation being laid and acceptance by the Court, the
exhibits are numbered by the clerk and made a part of the record in
the cause. Items marked for identification will be retained by the
Clerk but not introduced into evidence.
K. Side Bar Conferences
Side bar conferences are usually conducted at the Bench unless
extended issues need to be addressed.
L. Jury Out Hearings
If a jury out hearing is necessary, they are conducted before the
witness is to testify at the trial. Sometimes, in the interest of
time, the hearings may be conducted prior to trial or at a similarly
convenient time.
M. Exhibits and Handouts
These are usually passed to the jury before a break in the trial or at
the close of the offering side?s proof. It is best to finish all
questioning of a witness prior to asking that exhibits be passed to
the jury. Documents and other reports or transcribed statements should
be copied in sufficient number for all jurors.
N. Motions for Judgment of Acquittal
These motions are heard and ruled upon at the close of the State?s
case-in-chief. The motions are often renewed at the close of all
proof.
O. Proposed Jury Instructions and Verdict Form
Requests for special jury instructions should be submitted to the
Court prior to trial or at the earliest convenient time. The Court
generally discusses the proposed jury instructions at the close of all
proof. At this time any special requests for jury instructions are
considered as well as any lesser included offenses which the Court
will instruct the jury.
P. Offers of Proof
Offers of proof are conducted outside the presence of the jury. They
are allowed and are necessary under certain circumstances. Any
questionable areas of inquiring should be brought to the Court?s
attention prior to being raised in the jury?s presence.
Q. Jury Deliberation
1. Copy of Instructions
The original instructions are handed to the jury with the verdict
form. Attorneys requesting copies should inquire with the Court before
closing arguments.
2. Access to Exhibits
The jury takes all practical exhibits to the jury room. Tape
recordings are listened to in the courtroom with all parties present.
3. Availability of Counsel
Counsel must be available while the jury is out. Phone and pager
numbers should be left with the judge?s secretary, Sharon Pool.
4. Jury Questions and Verdict
Jury questions are addressed in the courtroom with all parties
present. The jury?s verdict is also read in the courtroom with all
parties present.
5. Polling the Jury
The jury is polled upon request, except in the case of murder 1st
degree.
6. Interviewing the Jury
Upon completion of service, jurors are permitted to talk to the media
or attorneys. If the jurors do not wish to speak with anyone, then
this must be respected.
V. Sentencing
A. Guilty Plea
If the sentence is not predetermined, then the sentencing hearing is
scheduled for a date after which the pre-sentence report is to be
completed. Pre-sentence reports are generally completed within
forty-five (45) days. Attorneys should make sure that their client
completes a pre-sentence report and gets in contact with the
pre-sentence report officer, Bruce Langsdon. He may be reached at
963-1143.
B. After Verdict
The sentencing hearing is scheduled for a date after which the
pre-sentence report is to be completed. Pre-sentence reports are
generally completed within forty-five (45) days. Capital cases and
other cases which call for special sentencing procedures are conducted
in accordance with the applicable statute.
V. Other Comments
A. Court Schedule (jury weeks)
Monday through Wednesday: trial dates
Wednesday: arraignments; special set hearings
Thursday: settlement docket; minimal motions or sentencing hearings
Guilty pleas are handled on the Thursday settlement docket. They are
handled in the order in which they are received by the Clerk subject
to the attorney?s presence. Any cases involving theft related offenses
must address the issue of restitution if applicable.
Friday: motions and probation violations; sentencing hearings
B. General
Questions with scheduling should be directed to Stephanie Mosley.
All other questions should be directed to Sharon Pool at 862-5930.
Attorneys who wish to be considered for appointments should see Sharon
Pool in order to insure their name is placed on the Court?s list of
attorneys available for appointment.
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JUDGE J. RANDALL WYATT
Criminal Court Division II
Room 602
I. Brief Biography
Judge J. Randall Wyatt, Jr., a lifelong resident of Nashville,
Davidson County, Tennessee, was born on December 9, 1937, to the late
James R. Wyatt, Sr. and Clyde Kiningham Wyatt. He is a 1955 graduate
of Father Ryan High School and upon completing high school he spent
four years of active duty with the United States Marine Corps,
1955-59. He subsequently received a B. S. degree from Middle Tennessee
State University and his law degree from Vanderbilt University. He is
married to Kay Kohl Wyatt and they have five children and six
grandchildren.
Judge Wyatt?s adult life has been involved in and around the criminal
justice system. He served as a police officer with the
Nashville-Metropolitan Police Department from 1959 to 1966, while a
full-time student at M.T.S.U. and Vanderbilt Law School. He served as
a Special Agent with the Federal Bureau of Investigation from 1966 to
1968 working primarily out of the Minneapolis and Detroit Divisions.
He was an Assistant District Attorney for Davidson County and the
Legal Advisor for the Nashville-Metropolitan Police Department from
1968 to 1974. In 1974 he was elected to the position of Judge,
Division V, of the Metropolitan General Sessions Court, where he
served until 1982. In 1982 he was elected Judge, Division II, Criminal
Court of Nashville-Davidson County and continues to serve in that
position. Additionally, Judge Wyatt served as a member of the evening
faculty of Aquinas Junior College from 1969 to 1992, where he taught
Criminal Law and Evidence.
II. Preliminary General Matters
A. Scheduling
Initial scheduling is set out in the pretrial order, which is provided
at the time of arraignment. Scheduling is dependent on many factors
such as discovery; therefore continuances are often unavoidable.
B. Correspondence with the Court
Correspondence with the Court is handled by Linda Hoffman the Judge?s
secretary. Ms. Hoffman insures that there is no misunderstanding as to
ex parte communication with the Court.
C. Telephone Conferences with the Court
Telephone conferences with the Court are handled by Linda Hoffman, the
Judge?s secretary. Ms. Hoffman insures that there is no
misunderstanding as to ex parte communication with the Court.
D. Telephone Conferences with Law Clerks
Telephone conferences with Law Clerks are handled by Linda Hoffman,
the Judge?s secretary. Ms. Hoffman insures that there is no
misunderstanding as to ex parte communication with the Court.
E. Pro Hac Vice Admission
Out of state attorneys are welcome so long as they comply with
applicable rules and are associated with a local attorney.
III. Pre-Trial Matters
A. Motions
The dates for suppression hearings and other motions are set out in
the pre-trial order. Because motions are often dependent on other
factors, the scheduling is often amended. Any changes in scheduling
are handled by the Clerk of the Court, Ms. Barbara Wise 862-5600 ext.
638.
B. Status
The Court will often set a case on the docket for a status check prior
to trial in order to insure the case will be ready for trial, or to
work out other dispositions. This provides the attorneys an
opportunity for further discussions and time to address preliminary
trial matters.
IV. Trial Procedure
A. Scheduling
Trial dates are selected on the earliest date convenient to both the
attorneys and the Court.
B. Out of Town Parties, Witnesses or Attorneys
The Court will attempt to accommodate all parties involved, with the
understanding that the Court must control the docket so as to insure
the orderly and efficient disposition of cases.
C. Courtroom Decorum
Common sense dictates that all attorneys be dressed professionally,
and that men should remove hats while in the courtroom. Cell phones
and pagers should be turned off before entering the courtroom.
D. Voir Dire
The Court generally lets the attorneys question prospective jurors as
they deem appropriate. If motions in limine are under advisement, the
Court will generally ask the attorneys to not discuss the subject
matter of the motion under advisement.
E. Note Taking by Jurors
This is allowed and the jury is instructed appropriately prior to
deliberation.
F. Opening Statements
1. Length
The length of the opening statement is up to the individual attorney.
Opening statements can be waived if so desired.
2. Exhibits
Upon proper foundation being laid and acceptance by the Court, the
exhibits are numbered by the clerk and made a part of the record in
the cause.
G. Side Bar Conferences
Side bar conferences are usually conducted in the Judge?s chambers.
H. Jury Out Hearings
If a jury out hearing is necessary, they are conducted before the
witness is to testify at the trial. Sometimes, in the interest of
time, the hearings may be conducted prior to trial or at a similarly
convenient time.
I. Exhibits and Handouts
These are usually passed to the jury before a break in the trial or at
the close of the offering side?s proof.
J. Motions for Judgment of Acquittal
These motions are heard and ruled upon at the close of the State?s
case-in-chief. The motions are often renewed at the close of all
proof.
K. Proposed Jury Instructions and Verdict Form
Requests for special jury instructions should be submitted to the
Court prior to trial or at the earliest convenient time. The Court
generally discusses the proposed jury instructions at the close of all
the proof. At this time any special requests for jury instructions are
considered as well as any lesser included offenses which the Court
will instruct the jury.
L. Offers of Proof
Conducted outside of the presence of the jury, they are allowed and
necessary under certain circumstances.
M. Jury Deliberation
1. Copy of Instructions
The original is handed to the jury with the verdict form. Copies are
available to the jurors upon request, but must be taken from the
original.
2. Access to Exhibits
Jury takes all practical exhibits to the jury room. Tape recordings
are listened to in the courtroom with all parties present.
3. Availability of Counsel
Counsel must be available while a jury is out. Phone and pager numbers
should be left with the Judge?s secretary, Ms. Linda Hoffman.
N. Taking the Verdict and Jury Questions
These are done in the courtroom with all parties present.
O. Polling the Jury
The jury is polled upon request.
P. Interviewing the Jury
Upon completion of service, jurors are permitted to talk to the media
or attorneys. If the jurors do not wish to speak with anyone, then
this must be respected.
IV. Sentencing
A. Guilty Plea
If the sentence is not predetermined, then the sentencing hearing is
scheduled for a date after which the pre-sentence report is to be
completed. Pre-sentence reports are generally completed within
forty-five (45) days.
B. After Verdict
The sentencing hearing is scheduled for a date after which the
pre-sentence report is to be completed. Pre-sentence reports are
generally completed within forty-five (45) days. Capital cases and
other cases which call for special sentencing procedures are conducted
in accordance with the applicable statute.
V. Other Comments
Questions with scheduling should be directed to Ms. Barbara Wise
862-5600 ext.638.
All other questions should be directed to Ms. Linda Hoffman 862-5934.
Attorneys who wish to be considered for appointments should see Ms.
Hoffman in order to insure their name is placed on the Court's list of
attorneys available for appointment.
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JUDGE CHERYL BLACKBURN
Criminal Court Division III
Room 609
I. Pretrial Matters
A. Dockets
Copies of the weekly docket will be made available to the Court,
District Attorney's Office, and Public Defender's Office by no later
than noon on the preceding Thursday.
Supplemental pages (labeled "add-on") will be made available
by Friday afternoon or no later than Monday morning.
The Judge's bench copy will be completed before close of business on
Friday and left with the Judge's office.
An updated master docket of all cases set in Division III will be
available in Court at all times. A copy of the master docket will be
kept for the Judge and updated weekly.
Judge Blackburn's dockets follow the following schedule:
Monday Tuesday Wednesday Thursday Friday Trial Trial Arraignments 1st
Setting PV PV Hearing (special nonjury settings) Informations
Discussion Dkts Motions Post convictions Hearings 9:00 Jail Sentencing
Hearings Habeas Corpus Hearings 1:00 Bond Trial Status Check
Competency Hearings Commitment Hearings NGRI Hearings Specially set
Motions Specially set Sentencing Hearings B. Arraignments
All jail indictments will be set for arraignment the second Wednesday
after the case is reported by the Grand Jury.
All bond indictments will be set as soon as feasible to allow
notification to the bonding companies.
No more than twenty (20) arraignments will be set on any Wednesday
without prior approval of the Judge. Settlement dates will also be
coordinated to avoid unreasonable settlement dockets. Where there are
co-defendants, with one or more in jail, all co-defendants will be set
as if all are in jail.
The bond indictments will be used to even out the docket length.
Information will be set on the next Wednesday arraignment docket after
filing of the information.
C. Pretrial Motions
All motions filed by Wednesday by 3:00 p.m. will be set on the next
Friday?s docket except those specially set by the Judge for Wednesday
afternoon at 1:00 p.m.
All motions will be reviewed by the Judge or her designee to determine
whether a special setting is necessary for motions requiring a lengthy
hearing.
After setting of the motions, the clerk will notify the parties and
send a blank subpoena form to the DA?s office with the date of the
motion noted on the subpoena.
All motions requiring proof and witness testimony must contain the
wording "Counsel anticipates that witnesses will be called"
or "Motion will require proof".
All motions must contain a statement of facts and legal authority
supporting the position of the motion. Copies of the motion must be
left with the Judge. This copy is in addition to the original filed in
the Clerk's office as part of the file.
D. Commitment/Competency/NGRI Hearings
All commitment/competency/NGRI hearings will be scheduled for
Wednesday after the arraignment docket or Wednesday at 1:00 p.m.
E. Probation/ Community Corrections Violations
Defendant's arrested for probation/community corrections violations by
Friday 4:00 p.m. will be set on the next Thursday's 9:00 a.m. docket,
if the defendant remains in jail. Those defendants' posting bond may
be scheduled as soon as possible allowing time for notice to the
bonding companies.
Copies of all probation violations/community corrections warrants will
be made by the court clerk and sent to the Public Defender's Office.
Pursuant to the Local Rules of Court, attorneys representing the
defendants at the time the defendant was placed on probation, will be
expected to continue the representation. The clerk shall notify the
attorney of the defendant's arrest on the probation/community
corrections violation and the hearing date.
After the initial Thursday setting if a hearing is necessary on the
probation/community corrections violation, the hearing will be set on
the next available Friday 9:00 a.m. docket.
F. Pretrial Status Conferences
All cases set for trial will automatically appear on the Friday docket
preceding the Monday/Tuesday trial date for status. All parties are
expected to attend. In the event of a holiday or judicial conference
the trial cases will be added to the last docket before trial. The
clerk will automatically add the jail defendants to the jail list,
bring in defendants from Tennessee Department of Corrections and
notify the bonding companies of the status docket.
Motions in Limine should be filed at least seven (7) days prior to
trial, to allow discussion at the pre-trial conference.
G. Sentencing Hearings
Sentencing hearings will be scheduled for Friday 9:00 a.m. docket. No
more than five (5) sentencing hearings will be scheduled on any day
without approval of the Judge. Lengthy sentencing hearings will be
scheduled for the Wednesday 1:00 p.m. docket or other dates as set by
the Court.
H. Post Conviction/ Habeas Corpus Petitions
Post convictions/habeas corpus petitions will be set for hearing by
court order for the Wednesday 1:00 p.m. docket. Upon the filing and
assignment of post conviction/habeas corpus petitions the court clerk
will immediately bring the petition to the Judge for review,
assignment of attorney and entry of a scheduling order, if necessary.
I. Notice of Enhanced Punishment
The Court shall be provided a copy of all notices filed by the State
to seek the death penalty, life without the possibility of parole, or
repeat violent offenders.
II. Trial Procedures
A. Courtroom Decorum
Please use the podium.
B. Preliminary matters
Prior to voir dire counsel is to provide the court with a written list
of potential witnesses and a brief written statement of the facts
agreed to by both parties. Parties are to notify the court of the
approximate length of the trial.
Any known evidentiary issues must be discussed prior to trial.
If the defendant intends to waive the jury imposing the fine in the
event of a conviction, please complete the written waiver prior to the
voir dire process.
Lengthy ?Jencks? material such as audio and video recordings should be
made available to opposing counsel prior to trial. Copies of
transcripts, redacted and unredacted, should be made available to the
Court for review prior to trial.
It is the responsibility of counsel to see that a television, VCR,
projector, etc. are available and in the courtroom when needed.
It is the responsibility of counsel to make arrangements for the ?head
set? and equipment for playing audio tapes for the jury.
C. Voir Dire
During the voir dire process, please address your questions only to
the jurors seated in the jury box.
During the voir dire process, once you have addressed the first group
in the box, only address the newly seated jurors who replace the
excused jurors. Of course, you may use your preemptory challenges
against any juror until your challenges are exhausted. During the voir
dire process do not repeat questions covered by the court. Do not
repeat questions previously asked by opposing counsel. Ask only
questions which are related to a jurors qualification. Do not ask open
ended questions such as "tell me a little about yourself",
"What did you feel when you came today".
During the voir dire process, please do not ask potential jurors the
verdict rendered in other cases on which they have served.
D. Examination of Witnesses
If you plan to introduce evidence under T.R.E. 404(b), 608(b), 609 or
cross examination under Rule 405(a), please obtain permission from the
judge beforehand, out of the presence of the jury.
E. Exhibits
A witness who wishes to use a diagram or drawing shall prepare the
diagram or drawing prior to trial or at a recess or break prior to the
testimony.
Counsel admitting documentary evidence which he/she wants the jury to
read shall provide a sufficient number of copies to enable each juror
to have his/her own plus one copy for the court.
F. Objections
The reasons for objections and responses to objections should be made
at the bench and out of the hearing of the jury.
G. Closing Statements
Closing arguments should last no longer than fifteen (15) minutes per
side in misdemeanor cases; thirty (30) minutes per side in felony
cases. Time may be extended depending on the complexity of the case
with permission of the Judge.
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CHANCELLOR IRVIN H. KILCREASE, JR.
Chancery Court Part I
Room 401
I. Brief Biography
Chancellor Irvin H. Kilcrease, Jr. has been the Chancellor for Part I
of the Chancery Court since September, 25, 1980. He attended Tennessee
State University and the Nashville School of Law. Before becoming a
judge, he maintained a private practice, was an Assistant Metropolitan
Public Defender and an Assistant United States Attorney.
II. Practice and Procedure
All scheduling concerns should be directed to Calender Clerk Cindy
Hodge, Deputy Clerk and Master.
All other matters concerning Chancery Court Part I practice and
procedure are governed by the Local Rules of Practice and Procedure,
the Tennessee Rules of Evidence and the Tennessee Rules of Civil
Procedure.
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CHANCELLOR CAROL MCCOY
Chancery Court Part II
Room 401
I. PRELIMINARY GENERAL MATTERS
A. Scheduling
Mrs. Tanuverne Ligon handles all scheduling for Chancery Court Part
II. All correspondence should be directed to Mrs. Ligon. Telephone
conferences are not generally encouraged, but counsel can check with
Mrs. Ligon to determine if such a conference is appropriate. If so,
telephone conferences should be coordinated with the Chancellor?s
assistant, Lindy Hunter, who will connect with the Chancellor only
when all parties are on the line. Mrs. Ligon is aware of the status of
all cases and can advise counsel if there are any questions.
B. Workers Compensation Settlements
Workers? Compensation Settlements are heard every morning before 9:00
a.m., or at any other time arranged in advance. Contested Workers?
Compensation cases are generally heard on Thursdays in Part II.
C. Pro Hac Vice Admissions
These are permitted if documentation is in order. Local counsel?s
signature on the pleadings means that the individual is prepared to
prosecute the case. Local counsel should take this commitment very
seriously with regards to compliance with the Rules of Civil
Procedure, the Local Rules, agreements and other orders of the Court.
Local counsel will not be able to justify failure to comply with the
rules or Court orders by claiming that the duty to comply rested with
the out-of-state lawyer.
D. Scheduling Orders
Scheduling Orders which contain a trial date are preferred. Counsel
should set forth the discovery deadlines and include a date certain
for hearing dispositive motions that complies with the Local Rules.
Continuances are discouraged, but no general policy has been adopted.
The older the case, the less likelihood a continuance will be granted.
E. Pretrial Motions
Procedure on oral motion: Movant presents motion, opposing counsel
responds, movant replies. All further discussion ends and all counsel
sit down while the Court rules. This procedure also applies to
objections and is affectionately called "The Sit Down Rule."
If attaching case law to a brief, please highlight the portion you
wished read by the Chancellor.
Pretrial Motions such as motions to dismiss or summary judgments are
heard at the end of the docket. Each side is allowed 20 minutes unless
additional time is requested. Motions for summary judgments require
the submission of a Statement of Undisputed Material Facts with each
fact individually numbered and containing a citation to the record. If
a fact is disputed, the response should cite to the portion of the
record which demonstrates the conflict.
Local Rule 26.01, Dispositive Motions must be scheduled to be heard at
least 30 days before a trial date unless the Court otherwise orders.
The motion needs to be heard 30 days or more before trial - not filed
30 days before.
F. Discovery Disputes
Discovery disputes should be brought to the attention of the Court
only after efforts have been made to resolve them between counsel.
When seeking the Court?s assistance in discovery disputes, a summary
which reflects that efforts between counsel have been unproductive
should accompany the request. Discovery disputes should be set so as
to be resolved 30 days prior to trial. (Don't let discovery be the
last thing done before trial.)
G. Confidentiality Agreements
Confidentiality Agreements may be submitted to the Court with an order
that states ?Under Seal? in the caption of the case. Also see Local
Rule 7.
H. Expert Witnesses
Prepare Expert Witnesses' written reports to describe what the expert
intends to testify to at trial. If the report is properly
discoverable, the report will be produced. If appropriate, a motion to
take a trial expert's deposition pursuant to the Rules will be
granted. Upon application, the deposing party may be required to pay
the expert's fee. If the expert's fee is too high, the Court may set a
reasonable fee.
I. Settlement Conferences
Settlement Conferences are scheduled by Megan Gregory. Chancellor
McCoy participates as a Settlement Conference Judge in the rotation
order established on an annual basis by agreement of the trial judges.
J. Pre-Trial Briefs
Pre-Trial Briefs are required in all non-jury cases 72 hours before
trial. The statement of facts portion is very important and helpful.
In jury cases, a brief statement (one or two paragraphs) of the case
and the issues is helpful to the Court.
K. Injunctions
Injunctions are issued in accordance with the Rules of Civil Procedure
and Local Rules. See Local Rule 19. All applications for a TRO must be
presented to Mrs. Ligon so that she can present them to the
Chancellor. No communications between the Court and counsel will occur
in the absence of counsel for the other party(ies). Notice MUST be
given to the other side when applying for an ex parte order unless it
is adequately explained in the application why such notice was not
given. Any affidavit in support of the relief should be based on
personal knowledge of the affidavit, not on information and belief.
Temporary Injunction hearings are heard on affidavits or depositions
only, unless prior permission has been granted to have oral testimony.
(See Local Rule 19.04) Counsel for a prevailing party at a temporary
injunction hearing may be requested to submit written proposed
Findings of Fact and Conclusions of Law in keeping with the Court's
Ruling.
L. Pretrial Conference Order
About 30 days prior to trial, a letter is sent to counsel for each
party setting forth policies and procedures on subpoenas, exhibits,
witnesses, briefs, discovery and the awarding of expenses. A Pretrial
Conference Order is sent to counsel in a jury case prior to the
scheduled pretrial conference, setting out matters to be discussed.
M. Motions in Limine
Motions in Limine are NOT heard the morning of trial. Set your motion
to be heard on the Friday before the jury trial is scheduled. See also
Local Rule 12.03.
II. Trial Procedure
A. Courtroom Decorum
Please stand behind the podium when addressing the Court, the jury, or
witnesses, unless permission is requested to stand elsewhere for a
particular reason.
B. Voir Dire
Voir dire of the entire panel will be conducted before prospective
jurors are called. To assist counsel, the clerk will attempt to sit
the jury pool in the back of the courtroom in the order the jurors
were numbered by the computer. After voir dire is completed, the first
twelve prospective jurors and two alternates will be seated. Counsel
will submit their strikes. No back-striking is allowed. Alternate
jurors are not moved into the jury box if they are not struck on the
first challenge. Any potential juror struck by both/all counsel will
be counted as a strike for each party which indicated the strike. Each
prospective juror excused due to a strike will be replaced by calling
the next prospective juror in numerical order. Counsel will then
submit any strikes without additional voir dire. This process
continues until the jury is selected.
C. Note taking by jurors
Note taking by jurors is permitted and appropriate instructions will
be given. Generally, each party?s opening statements to a jury should
be 15 to 20 minutes in length unless the case is unusual. In bench
trials, you might need even less time.
D. Offers of Proof
Side bar conferences and offers of proof are permitted. In a jury
trial, offers of proof may be made during breaks.
E. Depositions
In bench trials, please file depositions the Court is to read 72 hours
before trial.
F. Jury Instructions and Verdict Forms
In jury trials, each proposed jury instruction (with supporting case
law for special instructions) should be filed with the Court (not the
Clerk) the morning of trial.
Any proposed jury verdict forms should also be filed with the Court
(not the Clerk) the morning of trial.
G. Jury Deliberation and Verdict
Jurors are allowed copies of the jury instructions while they are
read. Jurors may take copies of the instructions into deliberations if
no party objects.
Please do not interview jurors immediately after the trial.
III. Other Comments
1. Please introduce yourself.
2. Please follow TRO Procedure (repeated elsewhere, ad nauseam, in
Local Rule, T.R.C.P. and case law);
Give Notice to opposing side or explain why you didn?t (it should be a
good reason);
Only use Affidavits/Depositions based on PERSONAL KNOWLEDGE, not
information and belief; and Spell out what specific harm will happen;
please don?t make a general reference that harm will occur.
3. Please refrain from saying "I think" or "I
believe" which is improper (See DR7-106 - Code of Professional
Conduct). Instead, try using phrases like "I suggest" or
"I submit".
4. Proof of Damages appears to be a weakness for many attorneys. Have
a computation prepared and documentation to support the damages
requested or other calculations that are credible and realistic and
introduce the evidence through your witnesses.
5. If you are filing a document or pleading to be considered by the
Court the next day (not that anyone would do that), PLEASE ADVISE THE
FRONT DESK TO FLAG the document with a HOT PINK TAG to get it rushed
upstairs to chambers. If you don"t tell them, it will meander
through the bowels of the bureaucracy.
6. During trial or motions, if sirens are going by, please just
breathe quietly until relative peace is restored and then proceedings
will resume.
7. During lengthy trials, the Court typically takes a 10 minute recess
at 10:30 and 3:30. Lunch is generally from Noon to 1:00 and
adjournment is between 4:30 and 5:00.
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CHANCELLOR ELLEN HOBBS LYLE
Chancery Court Part III
Room 401
I. Brief Biography
Ellen Hobbs Lyle was appointed by the Governor as a chancellor in 1995
and 1996, and was then elected Part III chancellor in 1998.
She is a native Nashvillian and a fifth generation Nashvillian. She is
a graduate of the Harpeth Hall School and the University of Tennessee
where she served on the Law Review and Moot Court Board.
From 1981-1984 she practiced law in Houston, Texas, with Fulbright
& Jaworski. From 1984-1995, she practiced law with Trabue,
Sturdivant & DeWitt in Nashville where she was a partner from 1986
to 1995.
II. Applicable Rules
The practice and procedure of Part III Chancery Court of Davidson
County are dictated by the rules contained in the West Group's
Compilation Tennessee Rules of Court, including specifically the Local
Rules of Davidson County.
III. Some Part III Practices
A. Preparation by Court: Prior to hearing or trial, Chancellor Lyle
reads the papers and cases submitted to her, reviews the Court's file,
sometimes conducts her own research, and, in worker's compensation
cases, she reads the depositions of the physicians.
B. Friday Motions: To provide everyone time to be heard and
participate but so as not to cause others to wait, Chancellor Lyle
frequently staggers her motion docket for 9:00, 10:00, 11:00 and so
on. If your motion is not to be heard at 9:00, her staff will call you
and tell you the specific time to be present. If you do not receive a
call, your motion will be called at 9:00.
C. Jury Instructions: Because jury instructions frame and inform the
verdict returned by the jury and chancery matters often require
customized jury instructions, Chancellor Lyle spends a lot of time
with the lawyers working on these. Also, she instructs the jury, after
voir dire but in the introductory instructions concerning their duties
as jurors before opening statements and proof, on some of the law they
will ultimately consider. This "pre-instruction" on the law
assists the jury in perceiving and analyzing the evidence as they hear
it. Because of these practices, Chancellor Lyle requires proposed jury
instructions and a verdict form to be filed by both sides prior to the
pretrial conference. She then discusses the instructions and verdict
form at the conference to assure that counsel all agree on the law
which governs the case and to determine disputes as to the applicable
law. By ironing out the applicable law prior to trial, the Court
provides a structure for ruling on subsequent motions and evidentiary
disputes. The trial letter the attorneys receive from the Court tells
them to bring to the pretrial conference proposed jury instructions
and a proposed verdict form. A final charge conference is held at the
conclusion of the proof. At that charge conference the Court submits
to counsel for review and objections on the record the instructions
and verdict form the Court has determined to submit to the jury.
D. Workers' Compensation Settlements: Each week a member of one of the
chancery staffs is assigned the task of checking the chancery hallway,
before court begins, to route settlements to the available
chancellors. The staff member will direct you to a chancellor.
IV. Closing Note
The Court appreciates the skill and conscientiousness of those who
have appeared in Part III.
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SPECIAL MASTER MARY ASHLEY NICHOLS
Room 23
I. Brief Biography
Mary Ashley (Marsh) Nichols was appointed Special Master for the
Davidson County Circuit Courts in January, 1998. She was born
September 9, 1956 in Jackson, Mississippi. She holds a B.A. in
Communication from Mississippi State University (1979) and a J.D. from
the Nashville School of Law (1988). She practiced with the law firm of
Parker & Allen from 1988 to 1995 when she took maternity leave.
She served as law clerk to the Honorable Hamilton Gayden from August,
1996 to the time she received this appointment.
II. Preliminary General Matters
The special master position was created by T.C.A. section 17-2-123
(Full-time master in certain counties), which confers the powers set
out in Rule 25 and T.C.A. section 17-2-118 (Substitute judges).
The special master, essentially, wears three hats:
1. Substitute Judge
2. Special Judge
3. Special Master
The Special Master will sit as substitute judge for the circuit court
judges from time to time. The Special Master is appointed as
Substitute Judge pursuant to T.C.A. section 17-2-118 and order of the
particular court. All orders must reflect that the case came on to be
heard by the Honorable Mary Ashley Nichols, Substitute Judge for the
Honorable (FILL IN THE BLANK) pursuant to T.C.A. section 17-2-118 and
upon Order of Judge (FILL IN THE BLANK).
The Special Master also may sit as special judge by agreement of the
parties. All orders must reflect that she is sitting by agreement of
the parties.
As Special Master, recommendations are made to the trial judge.
Pursuant to Rule 25, upon Order of Reference, she makes findings of
facts and conclusions of law for the court.
The Special Master also calls the non-jury docket each month. The
non-jury docket call is held in the Third Circuit Court and begins
promptly at 9:00 a.m. Upon the call of your case, please stand,
identify yourself, inform the court of the number of witnesses, the
number of depositions, if any, whether all witnesses are present, the
expected length of trial and whether there is any reason that this
case cannot go to trial immediately. Cases will be assigned to the
available courts. Workers Compensation cases always receive priority
in daily scheduling.
The Special Master conducts status conferences for Second and Eighth
Circuit Courts. [See V. below].
III. Correspondence
All pleadings, notices, motions, etc. should be filed with the Circuit
Court Clerk's office, which will direct the document to the secretary
of the appropriate court, who then will contact the special master.
Please note that the special master is hearing the case. DO NOT
DELIVER THE ORIGINAL TO THE SPECIAL MASTER'S OFFICE. The special
master appreciates complimentary copies delivered to her office.
The Special Master's mailing address is 23 Metro Courthouse,
Nashville, Tennessee 37201 (located across the hall from the Jury
Assembly Room on the east wing, ground floor).
IV. Telephone Conferences
The Special Master's telephone number is 880-2548. Her pager is
518-3864. Please contact her directly to schedule any matters EXCEPT
matters which she is hearing as special or substitute judge. To
schedule those matters, contact the secretary of the particular court
for which she is sitting. Assume the matter will be heard in the
courtroom to which it is assigned unless you are notified differently.
The Special Master strongly encourages members of the Bar to contact
her with any matters pertaining to the Circuit Courts. If she cannot
assist you directly, she may be in the position to refer you to the
proper person. Do not hesitate to call.
V. Case Management/Status Conferences
The Special Master conducts case management/status conferences for
Second and Eighth Circuit Courts. Attendance is mandatory unless prior
arrangements have been made with the Special Master. Out of county
attorneys are permitted to attend by telephone so long as arrangements
are made prior to the conference. You may not enter an agreed
scheduling order to avoid the status conference.
The first conference is held four to six months after filing the
complaint. You will receive an initial notice from the court
scheduling the conference. Please make every effort to accommodate the
Court by keeping this schedule. If you cannot attend, please do not
send an associate unless the associate is familiar with the file and
can agree upon scheduling, trial v. Mediation track, etc. A follow-up
conference will be scheduled at an agreed time after the initial
conference. If you must reschedule the INITIAL conference, this is the
procedure for the individual court:
Second Circuit: Contact the Special Master at 880-2548. She will give
you a new date and time. It is your responsibility to notify opposing
counsel and to draw the order. Please place a signature line for Judge
SHIPLEY and a signature line for the Special Master on the document.
Eighth Circuit: Contact Linda Jackson, administrative assistant to
Judge Soloman, at 880-2591, to change the date IF IT IS THE FIRST
CONFERENCE ONLY. Any follow up conferences should be rescheduled
directly with the special master. Please place a signature line for
Judge Soloman and a signature line for the Special Master on the
document.
The procedure during the informal conferences is as follows:
The Special Master will ask the procedural history of the case and the
status of discovery. She will want to know the issues as to liability,
causation and damages. She will want to know whether the attorneys
believe the case should be on an ADR or a trial track and if there is
any reason the case cannot be resolved within 12 months of filing. She
will seek to enter a scheduling order with an eye to ADR unless
counsel disagrees. Counsel who disagree with the recommendation of the
Special Master to the court are encouraged to file a motion to place
the issue before the court.
Please do not fail to appear at a status conference. Always assume the
conferences will be held in the jury room of the individual courts
unless notified differently by notice placed outside the courtroom.
All conference calls should be placed to the particular judge's
chambers and not to the special master's office, unless advance
arrangements are made. Never wait until the date and time of the
conference to notify the special master you cannot attend as this
inconveniences opposing counsel.
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APPENDIX I
IN THE CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE
______________ )
)
)
vs. ) Case No.____ C-_________
)
)
______________ )
ALTERNATIVE DISPUTE RESOLUTION QUESTIONNAIRE
Alternative Dispute Resolution ("ADR") procedures are
now available to assist in the resolution of civil cases. ADR may
considerably reduce the amount of time and money spent in resolving
conflicts, as well as, providing the parties with choices,
confidentiality, and a degree of control in the outcome of their
case.
Some of the more common forms of ADR that have been officially
approved by the TN Supreme Court are:
1. Judicial Settlement Conference
2. Mediation
3. Non-Binding Arbitration
4. Case Evaluation
Each party should review this questionnaire with their attorney. The
Plaintiff(s) (or the Pro Se litigant (s) and the defendant (s)
should sign it and return it to First Circuit Court within 30 days
of receipt of the notice.)
1. Are you willing to consider using ADR in this case ?
Yes________No_________
2. The available forms of ADR are listed below. Please indicate your
willingness:
No Yes Maybe
Judicial Settlement Conference _____ ______ ________
Mediation _____ ______ ________
Case Evaluation _____ ______ ________
Non-Binding Arbitration _____ ______ ________
After this case is at issue the Court directs you to contact your
adversary and enter into an agreed scheduling order. If any of the
parties agree to one or more forms of ADR, please include the form(s)
of ADR in the scheduling order. Please note that at any time during
the pendency of this case, the Court will entertain motion(s) to refer
the case to ADR. A pamphlet is available through the Nashville Bar
Association or the Clerk entitled "Settle Your Dispute Through
Mediation" that provides further information about ADR
procedures.
I have reviewed the above questionnaire and have indicated my
preference this the _____ day of _______________, _______.
____________________________________
Signature of party or representative
CERTIFICATE OF COUNSEL I have furnished a copy of this Questionnaire
to the party represented by me (including any insurance company
assisting with the cost of defense), have made available to such
person(s) information about the various forms of ADR, and have
discussed with my client responses to the above questions. I have
served opposing counsel a completed copy of this Questionnaire this
the _____ day of _______________, _______.
____________________________________
Signature of party or representative
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APPENDIX II
NOTICE
In December l995, the Supreme Court of Tennessee established Rule
31 regarding Alternative Dispute Resolution. Pursuant to this Rule, a
court may order parties in a civil action to participate in an
alternative dispute proceeding. Likewise, parties to a lawsuit may
agree to Alternative Dispute Resolution. The Rule provides for the use
of various methods of ADR. Often Alternative Dispute Resolution of
pending cases may save time and expense. Litigants in the Circuit
Court may wish to use one of these procedures to assist in the speedy
and efficient resolution of civil cases. Some of the more common forms
of ADR are:
Judicial Settlement Conference- mediation conducted by a Judge other
than a Judge before whom the case will be tried.
Non Binding Arbitration- process in which a neutral person or panel,
called an arbitrator or an arbitration panel, considers the facts and
arguments presented by the parties and renders a decision which is
non-binding.
Mediation- an informal process in which a neutral person called a
mediator conducts discussions among the disputing parties designed to
enable them to reach a mutually acceptable agreement among themselves
on all or any part of the issues in dispute.
Case Evaluation- a process in which a neutral person called an
evaluator or evaluation panel after receiving brief presentations by
the parties summarizing their positions, identifies the central issues
in dispute as well as areas of agreement, provides the parties with an
assessment of the relative strengths and weaknesses of their case, and
may offer a valuation of the case.
Summary jury trial- an abbreviated trial with a jury in which the
litigants present their evidence in an expedited fashion. The
litigants and the jury are guided by a presiding neutral person. After
an advisory verdict from the jury, the presiding neutral person may
assist the litigants in a negotiated settlement of their controversy.
Mini-trial- a settlement process in which each side presents an
abbreviated summary of its case to the parties or representatives of
the parties who are authorized to settle the case. A neutral person
may preside over the proceeding. Following the presentation, the
parties or their representatives seek a negotiated settlement of the
dispute.
The Judges of the trial courts of Davidson County unanimously support
ADR and questionnaires are provided to all litigants at the beginning
of a lawsuit. The questionnaire asks litigants to answer whether that
litigant will be voluntarily agreeable to one or more of the ADR forms
described above. (Please fill out this questionnaire and return it to
the Circuit Court Clerk's Office)
Sincerely,
______________________________ ______________________________
Hamilton V. Gayden, Jr., Judge Marietta M. Shipley, Judge
______________________________ ______________________________
Barbara N. Haynes, Judge Walter C. Kurtz, Judge
______________________________ ______________________________
Thomas W. Brothers, Judge Carol L. Soloman, Judge
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APPENDIX III
FOR
SECOND CIRCUIT COURT
FAMILY CASES
Hon. Marietta M. Shipley, Judge
Lisa Smith, Admin. Asst.
Children Cope with Divorce
Barbara Eddings, Trouble Shooter
Law Clerk, Randi Greene 1998-99
501 Metro Courthouse
Nashville, TN 37201
862-5905
Fax 862-5983
E-Mail:
mariettashipley@jis.nashville.org
GUIDELINES FOR SECOND CIRCUIT COURT FAMILY CASES
Second Circuit Court handles 25% of all newly filed divorce cases and
Orders of Protection where custody or support is requested, in
addition to modification petitions on old cases.
I. TIME FOR HEARINGS
Motions: Motions are heard at 11:00 a.m. on Friday mornings. Check in
with the Clerk beforehand to give the approximate duration of your
motion. Show Cause Hearings: All Show Cause Hearings, Temporary
Injunctions and Temporary Parental Responsibility Hearings are set at
1:30 on Thursday afternoons. Check in with the Clerk beforehand.
Shortest cases are heard first. Orders of Protection: These are heard
on Thursday show cause dockets at 1:30. Maximus Cases: All cases in
which Maximus represents a client will be heard on the 2nd or 4th
Friday of the month at 9:00 a.m. Check in with the Maximus attorney.
Contested Divorces, Petitions to Change Parental Responsibility and
Contested Motions to Modify Support: These are heard during non-jury
weeks, at a date and time arranged with the clerk.
II. SIGNING OF ORDERS
When you submit a Notice of Submission, MDA , Parenting Plan and Final
Order, attach a stamped envelope so Barbara will send you a copy of
the first page and signed final page of the Final Decree. For all
other orders, there are two easy ways to find out if an order has been
signed. Attach a self-addressed stamped post card, that clearly lists
the style of the case and the order submitted. The Clerk's Office will
stamp that postcard simultaneously with the original order. The second
super easy way is to sign up for a modem connection to the Circuit
Clerk's Office. In this way you can download any case and determine
the date an order was signed. The Clerk's Office will be happy to
connect you for a small fee. After September 1, 1998 we will no longer
accept calls about orders, unless they have been filed 10 days prior
to your call. Remember that an order, which is not agreed to by all
parties, is held for three days. If you disagree with an order, submit
a different proposed order, with differences highlighted.
Show Cause Orders
We will return postcards with date and time of show cause hearings, if
you include a stamped, self-addressed postcard.
III. SCHEDULING AND CONTACT WITH SECOND CIRCUIT COURT
Friday Motion Dockets
Motions are set pursuant to Local Rule 26. Motions filed two weeks or
more before the scheduled date will be automatically set by computer.
A response must be filed by the Monday before the Friday hearing, in
order to be heard in court on the following Friday. If no response is
filed, the motion is automatically granted. If a default motion is
filed with no response, the court will notify you if a pro se party
appears. Family motions are set most every Friday, officially starting
at 11 a.m. You are to check in prior to that time with Barbara or
Betty . Please tell us where you will be and how long the motion will
take. We'll come and find you if we run out of cases.
Setting and Hearing Default Judgment Divorces
T.R.C.P. 55.01 requires 30 days notice prior to the date for a hearing
on a default judgement motion. [Remember if no response, you do not
need to appear.] Default Judgment hearings are set every Thursday at 9
AM. You do not need to call to set the hearing, but you do need an
order, which gives notice to the other party. Only one witness is
necessary to substantiate a party's testimony. Witness testimony may
also be submitted through interrogatories.
Setting Contested Divorces
In order to set a case for trial that was filed after December 1,
1998, you must have had a Status Conference. If the case is not set at
the Status Conference or the case was filed prior to December 1, 1998,
both parties must be present in person or by telephone to obtain dates
and set the case for trial. No setting is final until an order is
entered.
IV. IRRECONCILABLE DIFFERENCES DIVORCE
Pursuant to T.C.A. 36-4-103, a divorce alleging grounds of
irreconcilable differences must be on file for sixty (60) days prior
to the granting of the divorce if there are no children and ninety
(90) days if the parties have unmarried minor children. At the end of
the prescribed time, if the parties have entered into a signed,
notarized Marital Dissolution Agreement, the parties may submit to the
Court, hand-delivered or by mail, the Marital Dissolution Agreement,
the Final Decree and the Certificate of Divorce for Court for
approval. A Notice of Submission must be filed and sent to the other
party seven days in advance of the date of submission, unless both
parties or attorneys sign the Final Decree.
A COURT APPEARANCE IS WAIVED UNLESS THE PARTIES REQUEST THAT THE
DIVORCE BE HEARD IN OPEN COURT.
If the documents are in order, the Court will sign the decree and
return a copy of the signed last page of the decree to to the
submitting attorney. If there is some deficiency in the documents, the
Court will notify the attorney by letter and request a resubmitted
document. It is necessary to send a stamped, self-addressed envelope
in order to receive a signed copy.
V. FORMAT AND CONTENT OF MDA AND FINAL DECREE
Content of MDA
An MDA to be filed in 4th Circuit or 2nd circuit is identical with the
exception of a divorce case with children. The MDA must state (1) that
either defendant was properly served or (2) make a specific reference
to a pending divorce by court and docket number or (3) that the
defendant is aware that a divorce will be filed in this state and that
the defendant waives further service and waives filing an answer to
the complaint. Second Circuit Court is part of the Pilot Parenting
Plan Legislation, found in T.C.A. 36-6-401. Second Circuit Court is
bound by all the provisions of that Parenting Plan Legislation. If
there are minor children, then a Parenting Plan must be referred to in
the MDA and attached to the MDA, with such or similar language. All
provisions concerning the minor children of this marriage are
contained in the attached Parenting Plan. Do not repeat the provisions
regarding the parental responsibility, residential placement, and
support in the MDA or the entire package will be sent back to you to
redo. You may get a disk with the latest Parenting Plan from the
Second Circuit Office, if you provide us with a blank disk.
Format of Final Decree
The format shall be as follows:
a. Page One shall contain the caption, designation of final decree,
and the statement ?The court finds affirmatively that the parties have
made adequate and sufficient provision for the custody and maintenance
of any children of that marriage and for the equitable settlement of
any property rights between the parties.? The final clause on page one
shall state ?...that the parties have entered into a Marital
Dissolution Agreement which is as follows:?
b. Page Two is the original Marital Dissolution Agreement which shall
be inserted between the first and last pages of the final decree. The
Parenting Plan is attached to the MDA if there are minor children in
the divorce.
c. Final page of Final Decree shall state how the costs are to be
apportioned between the parties, the addresses of the parties if
applicable, the restoration of a maiden name if not included in the
Marital Dissolution Decree, signature block and certificate of
service.
d. The Child Support Inventory Sheet must be attached to the Final
Decree, if one party pays child support into the Circuit Clerk's
office. This form is available from the Circuit Court Clerk?s Office.
This form contains valuable information that may be helpful for
Maximus in enforcing child support in the future.
VI. UNCONTESTED DIVORCES - STIPULATED GROUNDS
Many attorneys are able to settle a divorce at non-standard times,
such as at a pre-trial conference, at a motion hearing, several days
before a trial date or on the trial date. The court has encouraged
this practice of orally announcing an agreement with the parties
present. This agreement becomes an order of the court, without signing
an MDA. The following should be observed to protect the order and to
be sure that your client and you are protected.
1. The court will try to tape-record or videotape the announcement of
the agreement, in case of future disagreement. This process is quite
similar to taking a "guilty plea" in its importance.
2. The parties stipulate grounds per T.C.A. 36-6-129. The court
declares the parties divorced.
3. Each party and attorney must state that they have full knowledge of
all assets. It would be advisable for the parties to execute a sworn
stipulation of assets.
4. If there is a list of the agreements, each party should sign the
list.
5. If either party has any questions or problems, the process will be
interrupted until those questions are answered fully.
6. There is no requirement that the parties sign the final decree. If
a party later says they do not wish to be bound by the agreement
announced orally, it will still be entered as an order of the court,
even without the their attorney's signature.
VII. PETITIONS FOR EXTRAORDINARY RELIEF
Ex parte orders concerning property, assets or prevention of violence
Restraining Orders will be closely scrutinized and not routinely
granted, pursuant to T.R.C.P. 65. The primary difference between a
restraining order and temporary injunction is that, "A
restraining order shall only restrict the doing of an act. An
injunction may restrict or mandatorily direct the doing of an
act." (Rule 65.01). Rule 65.07 gives some elasticity to domestic
relations orders which is helpful. The court grants ex parte temporary
restraining orders per T.R.C.P. 65, if there are sufficient facts to
warrant the granting of such an emergency restraining order. The court
also schedules a temporary injunction hearing for each temporary
restraining order, usually in conjunction with a show cause hearing if
requested. The following restraining orders will not require a
temporary injunction hearing, so long as there are facts to support
the order in the complaint:
1. Harassing or threatening to harass, harm or molest the opposite
party or child at home or at work or by telephone.
2. Disposing of, dissipating, selling, mortgaging of property,
separate or marital that is not used in the normal course of business
or in the normal course of the household.
All other temporary restraining orders, will require a temporary
injunction hearing within approximately fifteen days. No Temporary
Restraining Orders will be granted to the Counter-Plaintiff in a
divorce except for the two orders listed above except in a dire
emergency. If there is an emergency, both parties may arrange to see
the judge as soon as possible.
Ex Parte Orders concerning Parental Responsibility for Children
The goal that the court has for parents is to enter a Temporary
Parenting Plan and eventually a Permanent Parenting Plan. There are
revised disks as of December 1, 1999 in the office. The language in
the Temporary and Permanent Parenting Plan uses the words ?residential
time spent with each parent? or ?parental responsibility? and an
allocation of ?decision making.? Thus, restraining orders requesting
"temporary possession" will be very closely scrutinized, and
rarely granted. The complaint must allege sufficient facts of danger
to the child or other special circumstances, before any temporary
order will be granted. If residential placement is contested, the
parties will be sent to mediation, if appropriate prior to or at the
temporary injunction hearing. If appropriate, the court will determine
where the child should reside and how decisions will be made. If there
is no objection, then the parent who plans to have the child[ren] the
majority of the time may enter a Temporary Parenting Plan. The status
quo is very important during the pendency of a divorce or post-divorce
for the children. Generally the child remains in the marital
residence, absent special circumstances.
Temporary injunction hearings or hearings to determine temporary
parental responsibility will be heard on Thursday afternoons at 1:30
with the Show Cause Hearings. The court will expect that pursuant to
the statute, T.C.A. 36-6-407 both parties will present Temporary
Parenting Plans. Oral testimony will be allowed so long as notice is
given to the other side. The time limit is set at 30 minutes maximum
per side. If such time is not possible, it may be that the parties
would rather have a pre-trial conference during their allotted time
with the parties present. Remember that actual notice is essential,
but service by the Sheriff's Office is not. Keep in mind that these
hearings are truly of a temporary nature and that the Court will not
be able to hear all proof and have full knowledge of the case until a
final hearing. A mediator is presently available on all Thursday
afternoons. You may reserve time with the mediator.
VIII. OTHER PENDENTE LITE MATTERS
A. Motions (Time of Filing/Hearing)
All motions filed follow Rule 26 of the Local Rules of Davidson
County. There is a two-week time lapse between time of filing and
hearing. If you oppose a motion, a response must be filed, or the
motion will not appear on the Response Docket and the court may
dispose of the motion as unopposed. Clearly, if you state the relief
sought in your motion, your opponent may agree to the relief sought
and avoid a court appearance. This rule has severely shortened the
motion docket. Don?t put your client at risk or have to beg for mercy
with your opponent or the court. RESPOND!
Temporary Child Support and Alimony Hearings
Temporary child support and/or family support may be set by motion or
show cause attached to the complaint. Show Causes are typically set
approximately 30 days after filing to allow for service. Motions are
set pursuant to Local Rule 26 or specially pursuant to 26.07 The Clerk
will give you written notice of the Show Cause date and time, if you
include a self-addressed stamped postcard with your order.
Child Support
If there is only one attorney, typically the represented spouse?s
attorney may simply ask the other spouse what his/her income is and
child support may be set according to the Child Support Guidelines. If
there are two attorneys, child support is again easy to compute,
unless the other spouse is self-employed, which may require a short
hearing. Remember gross income includes all income from every source,
including wages, salaries, commissions, bonuses, overtime, dividends,
severance pay, pensions, interest, trust income, annuities, capital
gains, Social Security benefits, workers comp benefits, judgments for
personal injuries, unemployment, gifts, lottery, alimony,
self-employments. Reasonable expenses are deducted from business
income, except depreciation, home office, excessive travel, car
expenses, personal expenses, but fringe benefits as a company care,
on-base lodging and meals are included. The amount of child support
paid for another child pursuant to a prior order is deducted from
gross income.
Spousal or Family support
If additional support or support for spouse only is sought, usually
this will require a short hearing. Both attorneys will fill out an
Income and Expense sheet and give them to the judge at the beginning
of the hearing. The judge will then ask each side to summarize what
the testimony would be. The court will ask each party if there is
anything to add. If there are some disputed facts or the case is
non-routine, then the parties may be asked for short testimony, no
longer than five minutes each. The court?s primary interest here is to
determine what the status quo is, not determine future support.
Generally that will mean that the spouse who paid certain bills prior
to the separation will still be responsible for the same bills. If the
husband or wife moves out of the marital residence, without evidence
of abuse, that person will be responsible for any additional housing
cost. The court will ask specifically for this information, so please
have your clients ready to answer the question of who paid what prior
to the separation. This is not a time for free discovery, so advise
your clients of the time limitations. Also, if a spouse worked
primarily at home, he/she is not expected to immediately obtain
outside employment, nor is a spouse who is chronically un or
underemployed suddenly supposed to be a model employee. The final
hearing or agreement is of course far different. If the court is
considering family support, it may well be that one or the other party
is ordered to pay the house note, various bills, etc. Child support
may or may not be ordered in a specific amount during this initial
separation period, as the parties are not yet ready to determine who
is finally responsible for various expenses.
IX. PARENTING PLAN LEGISLATION REQUIREMENTS
1997-1998 was a year of change not only in Davidson County but in
Tennessee as well. Six pilot programs for families started in
Murfreesboro, Chattanooga, Knoxville, one court in Memphis, Upper East
Tennessee and Second Circuit here in Nashville. All of the judges have
met regularly since last summer to gather and share information and
statistics, in attempts to be as consistent as possible. There are
four main components.
1. All divorcing parents are automatically ordered to attend Families
First, Children Cope With Divorce - a 4 hour educational seminar.
2. Parents who are unable to come to their own Temporary or Permanent
Parenting Plan are sent to mediation, unless there is family violence.
3. Parents and attorneys are ordered to attend a Status Conference, if
they have not entered an MDA, four months from the filing of the
divorce complaint.
4. Parents must sign a Parenting Plan, which designates parental
responsibility, child support, health and life insurance, and future
dispute resolution.
At Time of Filing Complaint
Filing of MDA
There is presently nothing in place to determine in which court your
divorce will be placed at the time of filing. If an MDA is filed with
the complaint, the court would suggest that two MDA?s be ready to be
attached to the complaint, one that refers all matters concerning
children to the Parenting Plan and the other containing such matters
within the MDA.
Order for Educational Seminar
When an attorney or party files a complaint, an Order that orders the
parties to attend Children Cope with Divorce at a specific date and
time is sent to the plaintiff or attorney and served on the defendant.
It is accompanied by an Instruction Sheet and brochure. Any person who
cannot comply with the court's orders or is unable to pay for the
class may file a waiver for consideration by the court. If a parent
fails to attend the seminar, they are given one reminder. Thereafter,
they are served with a show cause petition. If they fail to sign up
and pay for the next class they will be found in contempt. If they
fail to show for court, they will be attached. In addition parental
responsibility will be suspended until they do comply.
The Court will forward all copies of its orders to Vanderbilt Child
and Adolescent Center or to whomever the provider may be in the future
to monitor the attendance and report to the court. Certificates of
attendance will be sent directly to the Court.
The court will not withhold the granting of a divorce for failure to
attend the program. However, the court does have continuing
jurisdiction over the parties until the children are 18 and intends to
enforce its orders.
Order for Status Conferences
The Order will also tell the attorneys to appear at a Status
Conference at a specific date and time. If you have an ID divorce with
an MDA filed by the 120 day limit, you do not need to appear. If you
do not have that completed, you must appear. The court now requires
clients to attend. This is an opportunity. It is designed to save time
and money and provide an opportunity to avoid needless discovery. You
cannot set a trial without this conference. At this conference, the
case will likely be referred to mediation for any outstanding issues.
We will discuss any necessary discovery , and if necessary. You should
also bring the Joint Stipulation Sheet which lists the assets and
debts of the parties.
Request for Mediation and Temporary Parenting Plan
You and your client or the other party will also receive a Request for
Mediation. If the two parents have not agreed informally on who will
be responsible for the minor children or the amount of support, the
court will likely send you to mediation at the beginning of the case.
Only the most egregious cases will have a temporary hearing to develop
a Temporary Parenting Plan. The new form order is only two pages long.
Permanent Parenting Plan
This document is the heart of the Pilot Plan Legislation. This
document will eventually be filed along with your MDA or your Final
Decree. It includes a very detailed plan for the responsibility given
to the parents, how they will make decisions, where the child[ren]
will reside, how child support is paid, who takes the tax deductions,
health and life insurance and how future disputes will be resolved.
Here are some suggestions as to its use
1. Give the plan to your clients. It gives them some homework and will
often uncover that what they want is decision-making opportunity, to
express specific times with child or children, etc. It should preclude
a fight over the old vocabulary of sole custody, joint custody,
?possession? They will also be available at Families First.
2. You can present the plan in its hand-written form attached to the
MDA.
3. You can use the disk of the Parenting Plan. If you revise or add to
the plan, it should still remain in its basic form including all
provisions.
4. The MDA should refer to the Parenting Plan for all aspects of the
agreement that are contained in the Parenting Plan. Provisions
concerning children, and financial matters should not be repeated in
the MDA. Simply refer to the Parenting Plan.
5. The Parenting Plan should be signed the same time as the MDA. If
your client signs one before filing, you will have to sign two MDAs,
as you do not know the assigned court. You will find that the
Parenting Plan often focuses the parents on what is really important
to each of them.
6. Unless there are extraordinary circumstances, "reasonable
visitation" will not be approved. It is important to avoid future
disputes by specifying the time that the child[ren] spend with each
parent. 7. If you do not do the Parenting Plan or it is incomplete,
the MDA will be sent back to you.
X. CONTESTED HEARINGS
All contested cases will be set during the non-jury weeks in Second
Circuit Court, Monday through Wednesday. The court usually sets four
cases per day. It is rare that a case is continued due to lack of time
of the court. We try to get cases set within 90 days at a maximum.
Contested Cases with children - Scheduling Order and Setting of Cases
At the time that you file a divorce complaint with children, you will
receive an order which orders your client or the other parent to
attend a Parenting Seminar. In addition it orders the attorneys and/or
parties to attend a Scheduling Conference, which is approximately four
months from the date of the filing of the complaint. At that
conference, if the case has not been settled, the court will discuss
with you whether the case can be mediated, whether there needs to be a
home study or residential placement evaluation or other experts, what
discovery is necessary and set a court date or additional status
conference. You may not set a court date without this conference. The
attorneys for the parties or the parties will generate a form order
following this conference, which will include a date for a pre-trial
conference, if necessary.
Contested Cases with no children
Cases filed after January 1, 1999 are automatically sent to a
Scheduling Conference, just as in those cases with children. For all
other cases, the attorneys may set a case by agreement or by motion.
It is not necessary that all discovery be completed at the time of
setting the cases. The order setting the case should also include a
time for a pre-trial conference, which will be about 30 days before
trial. It is advisable to have your client present.
Pretrial Conferences
The purpose of the pre-trial conference is to narrow all issues, to
define all evidentiary problems, schedule any additional discovery,
such as appraisals, etc. Unless you have a hardship case, or difficult
scheduling, it is advisable to have your clients present. More often
than not, this conference results in an on the spot divorce, if the
parties have settled all the issues. Even if the divorce does not
happen on that day, it is essential that the parties and attorneys are
face to face and meet the judge, since settlement may occur shortly
after this time.
If you wish to have a true settlement conference, notify the Deputy
Clerk and either Judge Shipley, Judge Solomon or Magistrate Nichols
will conduct the conference. The same judge will not hear the trial
and conduct the settlement conference.
Financial Information necessary for the Scheduling or Pre-trial
Conference
The attorneys will sign a joint statement of assets at or prior to the
conference. In the event that the parties obtain a divorce at the
Pre-trial or at another time [as on a motion docket], it would be
advisable to have the clients sign this statement. That lets the
attorney off the hook that the client or the other party has fully
disclosed all their assets.
XII. MEDIATION PROGRAM
Mediation is a process of conflict resolution in which people work
together with the assistance of a trained mediator to discuss problems
and reach agreements that fit their particular circumstances,
particularly where children are concerned. The Court strongly
encourages parties to use mediation as a method to help solve many
problems in the divorce process. It may be particularly effective in
helping resolve problems such as moving out, deciding on parental
responsibility and deciding on temporary support matters, all of which
may help resolve the thornier issues of division of property and final
alimony payment of bills, pension division, etc. Mediation referral
has been a part of Second Circuit court since 1992, when the first
cases were referred to Second Circuit law clerks. Since December 1995,
the Supreme Court instituted Rule 31, which set up a structured plan
to educate attorneys and non-attorneys and determine who should be a
Rule 31 Mediator. Presently a list of Rule 31 mediators is available
at the office of our Alternative Dispute Resolution Coordinator, Megan
Gregory. Her office is located on the ground floor of the courthouse.
Her phone number is 880-2554.
Since December 1, 1997, Second Circuit is also under the Pilot
Program, which includes mediation as one way for the parties to
resolve their disputes presently and in the future. At the time that a
complaint is filed, the parties may request or the court may refer
parties, who have not determined where the parties will reside, or
where the children will reside, to mediation. If the court or the
coordinator determines that mediation would be inappropriate in this
particular case, then the parties will not be ordered to mediation. No
referral usually results where there has been violence in the family,
either spousal or child abuse. The court provides mediation on a
sliding scale, depending on the family or party?s salary as follows:
Pauper's Oath Filing - $ 5.00 per session/per person
$7500 to $15,000 - $ 5.00 per hour/ per person
$15,000 to $25,000 - $10.00 per hour/per person
$25,000 to $35,000 - $20.00 per hour/per person
$35,000 to $50,000 - $25.00 per hour/per person
Over $50,000 - $37.50 per hour/per person
Upon agreement or upon order of the court, the parties may choose
their mediator from the list of Rule 31 mediators. A mediator is
always available on Thursday afternoons at 1:30 or upon request of the
parties. If the parties have no preference, the mediator of the week
will be assigned. The mediation sessions usually last 1 ? hours with a
maximum of 6 hours at the lower court fee. Sessions in excess of 6
hours are at the mediator?s normal fee.
The court receives reports from the mediation only as to whether the
parties attended the mediation session and whether mediation has
resolved all or part of the parties? disputes. The court and Megan
Gregory are always evaluating the mediators? performance and
satisfaction of the parties.
XIII.Keys to Judge's Decisions in Contested Cases Which May Aid You in
Settling or Presenting Your Cases
Contested Grounds for divorce
This court believes that there is little to be gained from having a
trial based upon contested grounds. Usually this just brings only more
bitterness into the divorcing process. If it is necessary for one
party to ?have their day in court? by telling a neutral party what
they have suffered through the divorce, a more effective method would
be for the parties to go to mediation. In that setting, the story is
listened to sympathetically by the neutral with appropriate comments
on what the person has suffered. I can?t do that in court. Also,
property is not divided based upon fault. If an attorney believes that
it is necessary to bring some fault information to the court for the
purposes of establishing alimony, the court will allow some brief
testimony even though the parties stipulate they have grounds for
divorce. In the vast majority of hearings that are contested, the
parties will use T.C.A. ?36-6-129, which allows the court to declare
the parties to be divorced.
Parental Responsibility and residential placement
[Original or modification]
The Court will try all methods of diverting cases from trial. Last
year the court heard only three or four cases with contested custody.
The reason for this philosophy is very simple. The parents have raised
the child[ren] for as many years as the child is old. Even in a
one-day trial, the court can only catch a glimpse of this beloved
child. The parents are the experts on the child. As outlined above,
the parents have already attended ?Families First, Children Cope With
Divorce.? If appropriate, the court will send the parties to mediation
at least once, if not more often. If the parents cannot come to an
agreement, the court will usually order that there be a residential
placement evaluation by a psychologist or social worker, or appoint a
guardian ad litem or attorney for the child. Competing experts are
usually a waste of time. The parties should agree upon an expert, or
the court will appoint an expert. Only in rare situations would
individual parties engage an expert for the purpose of evaluation. Of
course treating physicians or psychologists or social workers may be
called as regular witnesses. The court may also order a home-study, if
the residences are in question. The court will often set up objective
testing of drugs or alcohol if there are serious allegations of such
use. The court will also order the viewing of videos, such as
?Children, Experts on Divorce or Don?t Forget the Children.? However,
if all else fails or if the case is of such serious proportions, such
as allegations of domestic violence, physical or mental abuse, drug or
alcohol abuse or a totally dysfunctional family, or one in which the
parents just cannot make a decision, the court will make a decision
for the parents. The court will pay particular attention to witnesses
such as the parties themselves, teachers, day-care workers or other
objective persons. The court assumes that relatives support their side
of the family. If you have a parade of proposed witnesses, the court
will hear the parties first and then non-relatives. Usually by that
time, the remaining testimony is cumulative and the other side will
allow you to summarize their testimony. Remember that I am looking at
this testimony as if I were the child. Where will I feel the most
comfortable? Where will I be nurtured? Where will I grow to become a
successful adult? Who will create a conflict less situation so that I
can love both my parents without hearing disparaging remarks about the
other parent? How can I live so that the divorce does not consume my
life, after all, I am just a kid? Remember that just as kids change as
they grow up, a Parenting Plan might often change due to the normal
changed circumstances of the children or the parents. The criteria
listed in T.C.A. ?36-6-108 are helpful. The decision may be that only
one parent makes all important decisions or the decision may be that
the parents share decision making. The Parenting Plan only requires
the court to determine where the child will spend more than 50% of the
time for federal or state tax or insurance purposes. That may mean
that parents share residential time, but ordinarily when parents do
not agree on a plan, the court will instill stability of week and
week-end placement of the child, with holiday and summer time spelled
out in the Parenting Plan. Please remember that per the statute, you
are to file a Proposed Parenting Plan ten days before the scheduled
trial.
Contested Property Issues and Alimony
In all but very unusual cases, the court divides marital property
50/50. There are very few exceptions to this rule. As you know, fault
is not an issue in property division. It is important for the parties
to execute a Joint Stipulation of Assets. If there is a serious
disagreement on values of real or personal property , there should be
an appraisal which is agreed upon by the parties. If the division of
pensions is necessary, have as much information as necessary to
effectively divide the pensions. A QUADRO is usually the easiest way,
with the exception of state and Metro pensions. In those situations,
either one party will have to pay the other party at the time of
retirement directly or the value is computed and credited against
another marital asset.
Remember the date of value is the date of the divorce, not date of
separation.
Alimony
Temporary alimony was discussed in Section VII. Although in certain
circumstances, temporary and permanent alimony may be the same amount,
alimony ordinarily changes at a final hearing. The court bases it?s
determination on alimony primarily on need and ability to pay. Fault
is only one of fifteen statutory factors. Fault is generally more
important when the party with the greater fault has dissipated the
assets or has deliberately chosen to decrease his/her income.
Therefore, the court looks first to the assets that were awarded to
the party seeking alimony in the property division to determine
whether any of these earn income or whether they provide for
inexpensive or paid-up housing. Then the court looks at the income of
both parties. The court adds up the incomes to determine the total
family resources. Child support is added to the residential parent
party?s income and subtracted from the paying party?s income. Then the
incomes are evened out, taking into account the number of parties
living in the household. For example, mother earns net $1000. Father
earns net $4000. Child support is set at $800 per month. Alimony would
probably be set at $1000 per month. The number of years depends on the
length of marriage, the possibility of rehabilitation and higher
income for the payee spouse, how old the children are, possibility of
additional income for the mother from assets and of course the need of
the payee spouse and family members. Usually actual need exceeds
ability to pay. Both sides are usually in much worse financial straits
after the divorce, but if the payor spouse was paying all of his/her
salary out during the separation, permanent alimony will change that.
The court is also considering using alimony guidelines so there will
be more uniform alimony determination, but none have yet been adopted.
Attorneys Fees
The court rarely receives requests for attorneys fees pendente lite,
but is happy to entertain such motions, when there is a disparity in
income. In final hearings, affidavits or bills may be introduced as
evidence or by request to submit an affidavit. If there are sufficient
assets, both parties will pay their own attorneys fees. Since this
court offers so many low cost ways to resolve the dispute, such as
conferences and mediation at low cost, the court rarely awards
attorneys fees for the other side to pay the full amount requested.
The court scrutinizes closely the time spent on the litigation, before
making a determination.
QUALIFIED MEDICAL CHILD SUPPORT ORDER
A "Qualified Medical Child Support Order" means any
judgment, decree or order (including approval of a Marital Dissolution
Agreement), issued by a court of competent jurisdiction which provides
for child support with respect to a child of a participant under a
group health plan or provides for health benefit coverage to such a
child. A "Qualified Medical Child Support Order" ("QMCSO")
is a medical child support order which creates or recognizes the
existence of an alternate recipient's right to, or assigns to an
alternative recipient the right to receive benefits for which a
participant or beneficiary is eligible under a group health plan. An
?alternate recipient? means any child of a participant who is
recognized under a medical child support order as having a right to
enrollment under a group health plan. Section 609 of ERISA, signed by
the President on August 10, 1993, creates a "QMCSO" which is
a method by which benefits for which a participant or beneficiary
eligible under a group health plan can be required by State court
order to be provided to a child of a participant. The procedures that
have to be followed are the same as for a Qualified Domestic Relations
Order (QDRO). In addition, an adopted child cannot be denied coverage
based on preexisting conditions. The QMSCO must specify the following
information: (A) the last known mailing address of the participant and
the name and mailing addresses of each alternate recipient covered by
the order; (B) a reasonable description of the type of coverage to be
provided by the plan to each alternate recipient, or the manner in
which such type of coverage is to be determined; (c) the period to
which such order applies; and (D) each plan to which such order
applies. Under a QMCSO, the plan is obligated to reimburse the
custodial parent. In the event an employer leaves his or her
employment, COBRA can kick in as a qualifying event.
BEST WISHES IN RESOLVING FAMILY PROBLEMS.
DO NOT HESITATE TO CALL FOR ALL REASONABLE QUESTIONS.
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APPENDIX IV
August 17, 1999
Mr. Bill Climton 400 Pennsylvania Avenue Washington, D.C.
Re: Estate of Paul Jones 99P-666
Dear Bill:
This case is set for non-jury trial in Probate Court for Tuesday,
September 7, 1999, at 9:00 a.m. Though your case is set for 9:00
a.m., other cases, if brief, may be heard prior your trial. A period
of two hours has been allotted for this trial. Please advise Sandra
Jones at 862-5990 if the estimated trial time should change.
1. Pre-Trial Conference. Pursuant to Rule 16, a pre-trial conference
is scheduled for ____________________.
[Or alternatively]
1. Pre-Trial Conference. No pre-trial conference is scheduled for
this matter.
2. Subpoenas. Local Rule 28 requires the issuance of subpoenas
ten (10) days prior to trial for local witnesses and fourteen (14)
days prior to trial for out-of-county witnesses (as a minimum);
however, this Court encourages the issuance of subpoenas at the
earliest reasonable opportunity. This is a courtesy to the witnesses
and provides greater certainty that the trial will proceed as
scheduled. This Court disfavors requests for continuances due to the
absence of a witness whose subpoena was issued at the last moment.
3. Exhibits and Witnesses. Pursuant to Rule 29, at least 72 hours
before the trial (excluding weekends and holidays), counsel shall
meet or shall hold a telephone conference:
(a) to exchange names, addresses and phone numbers of witnesses,
including anticipated impeachment or rebuttal witnesses; and
(b) to discuss proposed exhibits and whether viewing of same is
necessary or whether they can be faxed or mailed to opposing
counsel. In the absence of a face to face meeting, exhibits shall be
made available for viewing at least 72 hours before the trial.
Unless the exhibits are voluminous or bulky, counsel shall make
appropriate copies for use at trial. There should be one copy for
each attorney, one for the witness and one for the Court.
4. Discovery Disputes. All discovery disputes including
inadequate responses and/or failure to supplement discovery shall be
resolved, and any rulings required of the Court shall be ruled upon
no less than 72 hours prior to the trial, excluding weekends and
holidays.
5. Pretrial Motions. All pretrial motions, except for those that
can be handled in a minimal amount of time, shall be resolved and
ruled upon by the Court no less than 72 hours prior to trial,
excluding weekends and holidays.
6. Trial Briefs. Trial briefs are required in all non-jury cases
and must be filed at least 72 hours prior to the trial, excluding
weekends and holidays.
Sincerely,
Frank G. Clement, Jr.
FGC/sj
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APPENDIX V
IN THE CRIMINAL COURT FOR DAVIDSON COUNTY, TENNESSEE
SEVENTH CIRCUIT COURT
STATE OF TENNESSEE )
)
vs. ) NO. ____________
)
______________________________ )
REVISED PRE-TRIAL SCHEDULE
Pursuant to Rule 14.02 of the Local Rules, the following pre-trial
schedule is established.
1. PRE-TRIAL MOTIONS- FILING DATE: ____________________, 1999.
All pre-trial motions must be filed and served upon opposing counsel
no later than this date. Motions pertaining to an issue of law or
evidence shall be accompanied by a brief statement of facts and legal
authority pursuant to Rule 12.04. Responses to motions must be filed
seven (7) days after receipt.
2. HEARING DATE FOR MOTIONS: Thursday, _______________ at 1:00 p.m.
3. PRE-SETTLEMENT CONFERENCE: Wednesday, _____________ at 9:00 a.m. On
this date the defendant?s attorney shall discuss this case with the
Assistant District Attorney. This will be held in the District
Attorney?s Office at 222 Second Avenue, North, Suite 500, Washington
Square, Nashville, Tennessee 37201.
4. SETTLEMENT DATE: Thursday, ____________________ at 9:00 a.m.
On this date the defendant and his/her attorney and the Assistant
District Attorney handling the case will be in court. Should an
agreement be reached as to the settlement of the case, it should be
submitted on this date to the Court for approval. Any case not
disposed of on this date will be set for trial. Negotiated pleas will
NOT be accepted by the Court on the jury trial date absent a
compelling justification which convinces the Court that the case
should be negotiated down from the indictment; otherwise, cases may
only be resolved as authorized by Local Rule 14.02.
5. REPORT DATE AND WORK RELEASE: Defendants pleading guilty to a
multiple DUI offense shall go into custody immediately and shall not
be given a delayed report date due to ?take care of things? or to be
approved for work release. Such matters must be attended to well in
advance of the settlement date.
6. WITNESSES- NOTICES AND SUBPOENAS:
a) Informal Notice to Witnesses of Trial Date. The prosecuting
attorney and defense counsel are expected to promptly notify all
necessary witnesses of the trial date (even if the trial is months
off), i.e., call or write the witnesses to advise them of the trial
date.
b) Subpoenas. Subpoenas shall be issued no less than twenty (20) days
prior to the scheduled trial date.
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APPENDIX VI
IN THE PROBATE COURT OF DAVIDSON COUNTY, TENNESSEE
IN RE: ORDER AMENDING PROCEDURE FOR PROBATE MATTERS
AMENDMENT TO RULE 39.03
Due to confusion caused by the variety of ways petitioners are
providing the information required in a petition to admit a
testamentary instrument to probate as required by Rule 39.03(a), the
Court finds that it would be beneficial to clarify the rule to require
that certain pertinent information be set forth in separate
paragraphs. It is therefore Ordered that Rule 39.03(a) is amended to
read as follows:
Rule 39.03 - Estates of Decedents:
a. Petitions to Probate Wills, Codicils and other Testamentary
Instruments: A verified Petition to probate a will, codicil, other
testamentary instrument or to administer an intestate estate shall set
forth such information as is required by statute and these Rules.
1. Furthermore, in a petition to probate a will, codicil or other
testamentary instrument, the petition shall specify in two separately
numbered paragraphs (emphasis added) the names, and if known,
addresses and relationships of:
a) all legatees and devisees under the testamentary instrument(s),
and
b) the next of kin/heirs at law who would inherit from the decedent if
there were no will, including the surviving spouse (even though not
named in the will).
2. Furthermore, in an intestate estate, the petition shall specify the
names, and if known, addresses and relationships of the next of
kin/heirs at law, including specifically the surviving spouse.
The value of real and personal property to be administered need not be
stated if bond is expressly waived and the named executor or alternate
executor is willing to serve.
This order shall take effect immediately.
Dated: September 16, 1998.
_________________________________
Frank G. Clement, Jr., Judge
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APPENDIX VII
IN THE SEVENTH CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE
PROBATE DIVISION
IN RE: )
)NO. 98P-XYZ
ESTATE OF WILLIAM CLIMTON )
PETITION
1. Petitioner, Babie Ruth Lester, is nominated as Executrix in the
Last Will and Testament of the deceased. Petitioner resides at 10
Hallelujah Highway, Nashville, TN 37000.
2. The decedent, William Climton, died on August 16, 1998. He was
fifty-two (52)
years of age. He was a resident of Nashville, Davidson County,
Tennessee, residing at 10 Hallelujah Highway, Nashville, TN 37000.
3. A paper writing purporting to be the Last Will and Testament of
William Climton is dated November 21, 1996. The subscribing witnesses
are Robert Bradshaw and Ricky Deatherage. A copy of the Will is
attached as Exhibit A to this Petition.
4. The Petitioner is not aware of any instrument revoking the document
being offered for probate and believes this document is the decedent?s
Last Will and Testament.
5. Bond, inventory and accountings are waived pursuant to Item V of
the Will.
6. In that the Will waives bond for the Petitioner in the event Babie
Ruth Lester serves as Executrix, the value of the estate is not
included in this petition.
7. The legatees and devisees under the Will are:
| Name |
Age |
Relationship |
Address |
| Kim Jackson |
Adult |
None |
191 Jacks Rd.
Nashville, TN 37200 |
| Will Cripps |
Adult |
None |
35 Rand Ave.
Nashville, TN 37200 |
8. The next of kin/heirs at law of the decedent are:
| Name |
Age |
Relationship |
Address |
| Janelle McGuire |
Adult |
Sister |
50 Mac Street
Nashville, TN 37200 |
| Teresa Covington |
Adult |
Niece |
10 Cove Street
Nashville, TN 37200 |
There is no surviving spouse for the decedent was not married at the
time of his death and there are no surviving issue.
9. The Petitioner has provided reasonable notice of this hearing to
the decedent?s next of kin/heirs at law and beneficiaries along with a
copy of this Petition.
PREMISES CONSIDERED, PETITIONER REQUESTS:
1. That said Last Will and Testament be admitted to probate.
2. That Letters Testamentary issue, without bond and without the
necessity of filing any accounting or inventory.
____________________________
Babie Ruth Lester, Petitioner
(Acknowledgment, Notice and Attorney's signature also required)
|