Reflections After Arguing A Case in the Supreme Court

I argued a case before the Tennessee Supreme Court yesterday, and reflecting on that experience last night gave rise to several thoughts that I would like to share.

First, although I have had the opportunity to argue cases before the Court in the past, yesterday is a particularly memorable experience. June 8th was the Chief Justice’s last day of hearing oral arguments, and our argument was the 2nd to last argument he heard as a judge with 35 years on the Bench. Those of you from Tennessee know that Chief Justice Drowota is a good man who has served our State in exceptional fashion. His presence will be missed, his absence felt. I hope that his successor will bring the same sense of honor, compassion and commitment to excellence to the Bench.

Second, the Court’s first order of business yesterday was to swear in a new lawyer who could not attend the group ceremony the day before. I had not attended one of these ceremonies in many years, and it moving to hear the Chief Justice administer the oath. Those of you who have not heard it in a few years need to find an opportunity to hear it. Those words give us strength to fight the good fight.

Third, I thought about the preparation for the argument, specifically the amount of time it took for me to get ready. We were serving as amicus counsel for the Tennessee Trial Lawyers Association; counsel for the Plaintiff graciously allowed us to make the argument on behalf of the Plaintiff. At issue are four certified questions from a
Federal judge in Memphis; the questions are as follows:

1) Does a minor child have a personal claim for medical expenses arising from an injury caused by the fault of another when the claim of the child’s parent for such medical expenses is barred by a statute of limitation or repose?
2) Does a minor child who is injured have a personal claim for medical expenses accruing after the age of majority?
3) Is the three year statute of repose for medical malpractice in Tennessee Code Annotated 29-26-116, which contains no exception for minority, tolled during a Plaintiff’s minority?
4) Is a physician defendant denied equal protection of the law wherein an exception of the statute of repose contained in Tennessee Code Annotated 29-26-116 is created for minority in medical malpractice cases, while no similar exception exists in product liability and construction cases?

The Plaintiff briefed the case before we got involved and, in fact, her reply brief was days from being due. The Tennessee Medical Association filed a 32-page Amicus brief several weeks later, relying heavily on a new decision, Mills v. Wong, that had just been released on February. Our 50-page brief was filed several weeks later; the research and writing of that brief consumed approximately 200 hours of lawyer time.

I spent approximately 20 hours preparing for oral argument, spending 70% of that time on Issue 3 – the one arguably impacted by Mills v. Wong. I am sure I drove my wife and my partners crazy talking about the case and trying out new arguments on them.

My point of telling you about the work effort on this appeal is not to either complain or brag about it. I do so to give you some idea of the amount of time it takes to prepare for an oral argument in an important case. (Note: preparation did not involve a review of the record; there is not a record. These are certified questions.) Nobody tells us this stuff in law school, and unless we are fortunate enough to have a good mentor or uncommon good sense we don’t know how much effort we need to put into this process.

I have read every tort opinion that has been issued by a Tennessee appellate court since December, 1993. I don’t remember them all. Hell, I don’t remember 5% of them, but I feel like I have a good working knowledge of the Tennessee law in my field. However, there is a significant difference between a good working knowledge of the law and being fully prepared to ask and convince five judges to advance the law in some particular way. Despite previous efforts, I did not think about one argument until Sunday afternoon – it resulted in 3 or 4 hours of computer research to explore the issue and confirm my working-knowledge belief.

It would be a mistake to assume that an appellate court knows the law and will fill in holes in your research. It might do so, but it probably will not. Why? Think about it. You have one, two, six, whatever issues in one or two areas of law that make up your appeal. The judges on the court write opinions about every area of law every week or two. While these judges know the law, they cannot be expected to remember every area in detail and think about it with the intensity that can reasonably be expected from a lawyer who has a client who has a vested interest in the case. You can expect appellate judges not to miss any big points or even any medium points, but the fine points are for you – you simply cannot rely on judges to identify them. They do so – I heard of stories from judges on this subject and read in opinions the words “although not raised by the parties …” but my point is that you cannot rely on judges to hit the fine points because that is not their job.

Justice is best served when the lawyers in the case fully educate the judges and are fully prepared to answer the questions that the judges have after reading (at least) the briefs and looking at appropriate portions of the record. (And, for those of us who are advocates, we are more likely to prevail when at least we have done so.)

I was prepared for yesterday’s argument and so were my adversaries. The Court has the benefit of good work product from all; my adversaries made the right arguments and cited the right cases in support of their position. (I said the right arguments; I did not say they made what I believe should be the winning arguments.)

The correct resolution of these issue is extremely important. One lawyer has told me that 20 of his clients will have their cases dismissed if we lose on Issue Three. These are not insignificant claims; these are claims of children who are brain-damaged or otherwise seriously injured who will lose their right to present evidence against a health care provider if the 1975 three-year statute of limitation (which we now call a statute of repose) is determined to trump the historic right of a minor to file suit until the age of 19.

The resolution of the medical expense issues is also extremely important. The cost of providing health care to children injured by negligence of others in all types of cases will be put on health insurers or governments if the Court holds that only parents can file actions to recover medical expenses from negligent parties and that they must do so within one year of the injury.

It was an honor to work on this case. I appreciate the plaintiff’s counsel contacting us and asking us to get involved.

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