Notice to Appellate Lawyers: The Tennessee Court of Appeals Will Call You Out for Poorly Written Briefs

This is not what you want to see as a lawyer: “Because Appellants failed to construct more than a skeletal argument in support of their issues on appeal, we deem them waived. . . . Costs of this appeal are taxed to the appellants . . . for which execution may issue if necessary.”  Yet, that is what one Tennessee attorney is facing.

Under Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure, an appellant’s brief requires an argument that sets forth “the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on.”  It is not the court of appeals’ job to construct your argument, and in all but a few cases, they won’t do it for you.  Perhaps, if you have a thorough argument section but just missed something, the court may sua sponte consider an issue if it’s needed to prevent a manifest injustice, deals with subject matter jurisdiction, etc.  But I wouldn’t count on it.  And, I definitely would not count on it if you half–ss the brief.

Now, there is part of me that gets it.  It’s tough to write a brief making horrible arguments without sounding like an idiot.  That’s one skill I wish they would teach in law school.  Forget these 50/50 grey area assignments.  Give future lawyers something horrible to defend.  Here, go defend rape, slavery, or the holocaust.  Have at it.  Because in the real world, some clients have appeals as of right and one day you’ll end up having to explain to the court of appeals why a guy who raped his kids deserves his kids back.  It’s just part of the job.

If you’re too busy to draft a brief, consider delegating the job to an attorney that enjoys appellate law.  We’re out there.  If you’re in the Upper Cumberland and Sequatchie Valley, I would be happy to talk with you about your appeal.  If you’re in another part of the state, I’m sure that if you ask around enough, you’ll find some nerdy lawyer that loves making horrible arguments a bit less horrible.

But whatever you do, please do not submit a brief to the Tennessee Court of Appeals that lacks an argument, citations, etc.  That is a good way to be the subject of a malpractice suit or an ethical complaint.  At the very least, there will be an online record of the court of appeals telling everyone that you didn’t do your job.

Gomez v. Sable-Imagination on Sand, No. E2017-00107-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2017)

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