By Daniel A. Horwitz:

“[E]ffective July 1, 2024,” Tennessee has a new set of rules for filing amicus briefs in appellate cases.  The new rules apply to amicus briefs filed in the Tennessee Supreme Court, the Tennessee Court of Appeals, and the Tennessee Court of Criminal Appeals.  The new version of Tennessee Rule of Appellate Procedure 31 now reads as follows:

(a) Leave or Request of Court Necessary. A brief of an amicus curiae may be filed only by leave of court granted on motion or at the request of the appellate court. A motion for leave shall identify the interest of the applicant and shall state how a brief of an amicus curiae will assist the appellate court. The brief shall be conditionally filed with the motion for leave.

(b) Form; Time; Conditions. A brief of an amicus curiae shall follow the form prescribed for the brief of an appellee. An amicus curiae shall file its brief, accompanied by a motion for leave to file, no later than 7 days after the brief of the party being supported has been filed. An amicus curiae that does not support either party shall file its brief and motion for leave to file no later than 7 days after the appellant’s brief has been filed. If an appellant serves and files its brief with its application for permission to appeal as permitted under Rule 11(b), an amicus curiae supporting the appellant shall file its brief no later than 7 days after the appellant has filed its supplemental brief as permitted under Rule 11(f) or, if the appellant elects not to file a supplemental brief, the amicus curiae shall file its brief no later than 7 days after the appellant files notice of its election not to file a supplemental brief as required under Rule 11(f). Consistent with Tenn. R. App. P. 21(b), for good cause shown the appellate court may enlarge the time to file the motion for leave and accompanying brief, specifying the time within which an opposing party may respond.

(c) Oral Argument. An amicus curiae may participate in oral argument only by leave of court granted on motion or at the request of the appellate court.

(d) Costs of Amicus Curiae Filing. The court in its discretion may assess the costs of filing the motion for leave to file an amicus curiae brief and all related filings against the amicus curiae, to be paid to the Appellate Court Clerk at the time of entry of the order granting or denying the motion.

Attorneys and litigants who are accustomed to filing amicus briefs under the old version of Tenn. R. App. P. 31 should take note of two important changes:

  1. Amicus briefs must now be filed with the motion for leave. Tennessee’s old amicus rules provided that an amicus brief “may be conditionally filed with the motion for leave.” That allowed prospective amici to (first) file a motion for leave and then (second) file an actual brief later on after the motion for leave was granted.  Under the new amicus filing rules, though, a proposed amicus brief “shall be conditionally filed with the motion for leave.”  Among other things, this change allows parties an opportunity to respond to amicus briefs based on the new timing rules set forth below.
  2. Amicus briefs must (generally) be filed no later than seven days after the brief of the party being supported. Tennessee’s old amicus rules provided that “[t]he court shall fix the time and conditions for the filing of the amicus curiae brief.”  Because Tennessee’s appellate courts did not typically limit the time for filing amicus briefs, though, the deadline to file an amicus brief—to the extent one existed at all—was determined on an ad hoc basis.  Thus, amici were permitted to file briefs after party briefing concluded and, in some cases, even after oral argument was held.  Predictably, efforts to participate as an amicus late in the briefing process led to skirmishes between parties who wanted the last word and amici who wanted to respond after having the benefit of reviewing complete briefing and had no firm filing deadline.

Tennessee’s new amicus rules now address the issue, bringing Tennessee’s amicus timing rules in line with federal amicus timing rules.  In particular, amicus briefs must now be filed “no later than 7 days after the brief of the party being supported has been filed.”  Note that seven days means seven calendar days under the Tennessee Rules of Appellate Procedure, not seven business days.  See Tenn. R. App. P. 21(a) (“When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded from the computation.”).  That time computation differs from the way that time is computed under the Tennessee Rules of Civil Procedure, so it is easy to get confused.  See Tenn. R. Civ. P. 6.01 (“When the period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.”).

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Outside of especially high-profile Tennessee Supreme Court cases, amicus briefs are largely underutilized in Tennessee’s appellate court system.  That is especially true in the Tennessee Court of Appeals, which adjudicates close to one thousand cases each year that touch on nearly every practice area imaginable.  Because amicus briefs are so rare in the Tennessee Court of Appeals, they receive significant attention from the Tennessee Court of Appeals in the rare event that they are filed.  One recent Tennessee Court of Appeals decision, for instance, adjudicated a high-profile dispute on two grounds that were only advanced by amicus curiae represented by Horwitz Law, PLLC.  In adjudicating the case favorably to Horwitz Law, PLLC’s clients, the Court of Appeals’ opinion cited the two amicus briefs repeatedly and quoted one of them at length.

Litigants who are opposing positions advanced by amici in Tennessee should be familiar with the new rules surrounding amicus briefs, too.  In addition to establishing new filing criteria and deadlines, Tennessee law has enforced party-presentation rules since the Tennessee Supreme Court’s 2022 decision in State v. Bristol, 654 S.W.3d 917, 923–25 (Tenn. 2022).[1]  That enables litigants to contest certain arguments taken in amicus briefs on the ground that they were not fairly raised by the parties themselves, as one of Horwitz Law, PLLC’s clients has done in a pending Tennessee Supreme Court case in which the Tennessee Attorney General’s Office attempted to inject a new and different issue as amicus after party briefing concluded.

Done properly, amicus briefs can provide enormous value and assistance to Tennessee’s appellate courts.  By filing them alone, amicus briefs serve a vital signaling function and communicate to a reviewing court that the case is important to people outside the parties themselves.  The best amicus briefs do not merely recite the positions of the party they are supporting, though, which is substantively valueless. Instead, amicus briefs should explain with specificity why the subject matter is so important to outside observers and bring something new to the table for the court to consider, such as a knowledgeable perspective on how a particular rule of law functions in practice.  If written effectively—and, ideally, in tandem with the party being supported as part of a broader litigation strategy—amicus briefs can help courts better understand why issues under review matter to litigants beyond the parties themselves and generate questions from the bench during oral argument on the points in controversy.

Prospective clients with questions about filing amicus briefs in Tennessee can email the author at Daniel [at] horwitz.law.  Some sample amicus briefs are linked below.

Brief of Amicus Curiae the Nashville Area Chamber of Commerce: https://horwitz.law/wp-content/uploads/Brief-of-Amicus-Curiae-Nashville-Area-Chamber-of-Commerce.pdf

Brief of Amicus Curiae Save Nashville Now here: https://horwitz.law/wp-content/uploads/Save-Nashville-Now-Amicus.pdf

Brief of Amicus Curiae Horwitz Law, PLLC: https://horwitz.law/wp-content/uploads/Brief-of-Amicus-Curiae-Horwitz-Law-PLLC.pdf

[1] Though the rule is routinely enforced when violated in lower courts, members of the Tennessee Supreme Court recently chastised their colleagues for arguably departing from this rule themselves.  See Clardy v. State, No. M2021-00566-SC-R11-ECN, 2024 WL 3157350, at *16–17 (Tenn. June 25, 2024) (Bivins, J., concurring) (“the standard adopted by the majority regarding the burden necessary for tolling the error coram nobis statute of limitations was not addressed by either party in their briefs or at oral argument. Likewise, the Court asked no questions at oral argument about this standard, nor did it require supplemental briefing on this issue. . . .  [J]ust as we have cautioned the intermediate appellate courts to exercise restraint in addressing issues not squarely presented by the parties and to afford the parties an opportunity to be heard on the issues, see State v. Bristol, 654 S.W.3d 917, 926–27 (Tenn. 2022); City of Memphis v. Edwards ex rel. Edwards, ––– Tenn. ––––, ––– S.W.3d ––––, ––––, No. W2022-00087-SC-R11-CV, 2023 WL 4414598, at *2 (Tenn. July 5, 2023) (per curiam order), I would choose restraint here and elect not to exercise our discretion to reach the question of the applicable burden.”).