Varying Local Rules Pose Challenges to Unwary Trial Lawyers

All Tennessee trial lawyers from time to time face the challenge of operating under an unfamiliar set of local rules of court.  For those with simultaneously pending cases in many judicial districts, it is a challenge to keep track of the various timing and other procedural traps that await the unwary.  The consequences of failing to do so, however, may be disastrous.  The Tennessee Bench/Bar Committee is currently seeking ways to "encourage uniformity of local rules within each judicial district" to eliminate "judge shopping" and "lawyer ambush."  However, that uniformity is not yet a reality.  Hopefully, a new online collection of the local rules from each of Tennessee's 31 judicial districts will make the baseline task of retrieving copies of the rules easier.¹  However, one must remain diligent in checking the operative set of rules at every step of the litigation process or risk suffering unpleasant consequences.  The following overview reveals some of these consequences, as well as important limitations on the application of local rules in Tennessee.

Rule 18 of the Rules of the Supreme Court of Tennessee requires all trial courts to adopt, in writing, local rules prescribing procedures for setting cases for trial, obtaining continuances, disposition of pre-trial motions, settlement or plea bargaining deadlines for criminal cases, and preparation, submission and entry of orders and judgments.  Williams v. Tecumseh Products Co., 978 S.W.2d 932, 937 n.6 (Tenn. 1998).  When the judges within a judicial district adopt or amend the local rules of practice, copies of those rules must be published and circulated to the practicing members of the bar and filed with the administrative office of the courts.  Tenn. Code. Ann. § 16-2-511.  In addition, trial courts may adopt "other rules not inconsistent with the Rules of Civil Procedure and Rules of Criminal Procedure."  Tenn. R. Sup. Ct. 18.

Even so, local Rules cannot conflict with applicable statutes or generally applicable rules issued by the Tennessee Supreme Court.  Hackman v. Harris, 475 S.W.2d 175, 177 (Tenn. 1972); see also Brown v. Daly, 884 S.W.2d 121, 123 (Tenn. Ct. App. 1994) ("[N]o rule of court is ever effective to modify a substantive rule of law").  Thus a Local Rule cannot confer authority upon either the parties or the trial courts that has not already been conferred by state law or the rule of the Tennessee Supreme Court.  Team Designer v. Gottlieb, 2002 WL 1579837, at 10 n.44 (Tenn. Ct. App. July 18, 2002).  The trial court, however, has the authority to make its own rules and accordingly may waive or abolish the local rules of practice if it chooses.  The Tennessee appellate courts will not reverse a Trial Judge for waiving a local rule absent the clearest showing of abuse of discretion and that such waiver was the clear cause of a miscarriage of justice.  Killinger v. Perry, 620 S.W.2d 525, 525 (Tenn. Ct. App. 1981).  Likewise, the trial court does not have to enforce the local rules even in the absence of an express waiver.  Crumbley v. Crumbley, 1999 WL 1015565, at *2 (Tenn. Ct. App. Nov. 10, 1999). 

The burden of complying with rules and protecting the interests of a client rests squarely on the attorney.  Id.  The appellate courts will not find error in a trial court's refusal to enforce compliance with the applicable local rules.  Id.  The argument that "everybody else does it too" is not a valid defense against failure to comply with the Rules of Civil Procedure.  Wilson v. Wilson, 877 S.W.2d 271, 275 (Tenn. Ct. App. 1993).  Furthermore, agreements between counsel to ignore the local rules of practice are not binding upon the courts.  Tuck v. State, 1996 WL 310012, at *3 (Tenn. Ct. App. June 11, 1996)

The following cases are illustrative of the power of and the limitations upon local courts to make and enforce local rules of practice:

• A local rule (such as Davidson County Local Rule § 26.04(f)) which provides that a motion shall automatically be granted if a response is not timely filed is not effective where granting the motion would result in a conflict with the substantive law of the state.  For example, a motion seeking attorney fees cannot be automatically granted under such a rule since the substantive law of Tennessee requires that attorney fees are recoverable only when a statute, rule, contract, or recognized ground of equity provide for their recovery.  Matter of Vaughn v. Heimbach, 1995 WL 546954, *4 (Tenn. Ct. App. Sep. 15, 1995).
• A Davidson County local rule, stating that "the parties are responsible for providing a court reporter in order to preserve rights to object before the trial judge" and that "[t]he master is not required to file a transcript of proof with the master's report" is in conflict with Rule 53 of the Civil Rules of Procedure, which requires the preparation of a transcript unless the master "is otherwise directed by order of reference."  Therefore the local rule is invalid.  O'Connell v. Metropolitan Government of Nashville & Davidson County, 99 S.W.3d 94, 97 n.2 (Tenn. Ct. App. 2002).
• A Sumner County local rule (9.02) which requires written responses to motions, including counter-affidavits and briefs, to be filed and served on the parties no later than seventy-two hours in advance of a hearing is unenforceable to the extent that it conflicts with the 5-day deadline in Tenn. R. Civ. P. 56.04.  The trial court, therefore, should measure the timeliness of a response to a summary judgment motion against Tenn. R. Civ. P. 56.04's deadline, not the deadline found in the local rule.  Kenyon v. Handal, 2003 WL 934242, at *5 (Tenn. Ct. App. March 10, 2003).
• Local rules are not "rules of general application in the courts of Tennessee" for the purpose of Tenn. R. Evid. 4.02.  The trial court therefore erred in excluding deposition testimony based on failure to comply with Williamson County local rule 9, requiring the filing of depositions to be used in evidence at least 72 hours before a trial on the merits. Mangrum v. Spring Industries, 2001 WL 337815, at *3 (Tenn. Sup. Ct. Sp. Workers Comp. Panel April 9, 2001).
• A Shelby County local rule requiring that a jury demand be made by endorsement of the words "Jury Demand" has twice been held invalid by the Court of Appeals on the basis that a trial court can not limit by local rule the means provided for by Tenn. R. Civ. P. 38.02, i.e., by making the demand in any Rule 7 pleading.  Craven v. Dunlap, 1993 WL 137584, at *3 (Tenn. Ct. App. May 3, 1993); First Citizens Bank of Cleveland v. Cross, 1999 WL 76079, at *3 (Tenn. Ct. App. January 28, 1999).
• A Davidson County local rule which prohibited interviews of jurors by counsel after trial except with the permission of the trial court was found invalid as in conflict with Rule 8 of the Rules of the Supreme Court.  State v. Thomas, 813 S.W.2d 395, 396 (Tenn. 1991).
• A Shelby County local rule providing that a party would automatically waive the right to a jury trial by failing to comply with a local rule demanding the filing of issues of fact within 20 days after "the case be at issue" was deemed invalid in Brown v. Daly, 884 S.W.2d 121 (Tenn. Ct. App. 1994).
• A Davidson County local rule allowing the judge or chancellor to whom a case had been assigned for trial to conduct a judicial settlement conference "when requested and agreed upon by the parties" or when the judge or chancellor deemed that the "exigencies of the case so required" was held invalid under former Supreme Court Rule 31.  Team Design v. Gottlieb, 2002 WL 1579837, at *10 n.44 (July 18, 2002).  However, an amendment to Rule 31 now appears to permit the trial judge to conduct a settlement conference in the case with the consent of the parties.  See Tenn. S. Ct. R. 31, § 20.