Have you ever argued a motion and had the court rule directly from the bench awarding you your requested relief? Didn’t you feel like the cool kid that day? Chest puffed out a little bit while you tried to restrain yourself out of respect for opposing counsel? And after winning your motion, did the court dump the task of drafting the order on you? Of course it did. No court has time to actually draft orders, right? That’s the least you could do after the court was gracious enough to rule in your favor. And even though it was another tick on your to-do list, you secretly welcomed that chore, because it meant you got to tweak the wording of the order precisely to your client’s advantage. Am I off here? No. You know this drill.

Well, hold your horses, cowboy. A recent case from Tennessee illustrates the possible dangers that may lie ahead up in them there hills. Here’s how the Honorable Kay Robilio of Tennessee’s Thirtieth Judicial District divvied up the order-writing responsibilities after disposing of a host of motions over a marathon hearing day:

I’m going to rule in favor of the [Appellant] on the EMTALA issue; the false imprisonment, I’m going to rule in favor of [Lakeside]; outrageous conduct, I’m going to rule in favor of the [Appellant]; negligent infliction of emotional distress is awfully close, awfully close, but I’m going to rule in favor of the [Appellant]; agency [i.e. vicarious liability] is the one that’s left and I’m going to rule in favor of [Lakeside] on the question of agency…. Some of these issues are awfully close, highly contested and you all want to think about how you want to proceed….

* * *

Now the appellate court is going to want a rationale from our rulings, so in the case of agency I’m going to let the, on the ones for which you were successful, I’m going to let you make proposed orders…. As far as a basis for the ruling, I’m going to let you make those.

Smith v. UHS of Lakeside, Inc., No. W2011-02405-COA-R3CV, 2013 WL 210250, at *6 (page 8) (Tenn. Ct. App. Jan. 18, 2013), appeal granted (June 11, 2013), aff’d, 439 S.W.3d 303 (Tenn. 2014) (insertions supplied in Smith). In a later hearing the court ruled in Lakeside’s favor on all summary judgment issues and announced that it was “directing [Lakeside] to prepare the order and to establish the rationale for the Court’s ruling in quite specific detail, and let this go forward as quickly as possible to the Appellate Court.” Smith (COA) at *7 (page 9). The Defense obliged (wrote the orders for the court), and so did the Plaintiff (off they went to the Court of Appeals).

In round two, the plaintiff argued that the trial court had “abrogat[ed] its responsibilities” and “deferred its Rule 56.04 duty to state the legal grounds for granting summary judgment to Lakeside’s counsel who, at best, speculated at the trial court’s reasoning in drafting the orders.” Smith (COA) at *8 (page 10). The Court of Appeals agreed. It noted that even though “the trial court engaged in colloquy” with the lawyers at the hearings, it “nevertheless failed to articulate what arguments it ultimately credited in its final rulings.” Smith (COA) at *11. For this transgression, the COA vacated Robilio’s (Lakeside’s) orders.

Lakeside weren’t havin’ none of that, so they took it upstairs. Enter the Big Dogs. The Tennessee Supreme Court dredged through the case’s whole tortured procedural history and quoted several eyebrow-raising concessions made from the trial bench. One example is when the court said this: “I tell you what … [counsel for Ms. Smith] is saying she would like to protect the integrity and reputation of the Court, but I’m going to risk it and sign [Lakeside’s] order and let you all argue the way you want to when you get up [to the appellate court].” Really? You’re going to “risk” the integrity of the bench? Maybe that was sarcasm. They say sarcasm doesn’t translate well from speech to writing…

Anywho, as the Supreme Court duly noted, here’s the rub:

The trial court did not state the legal grounds for its decisions to grant Lakeside’s motions for summary judgment when it announced its rulings from the bench on March 17, 2010, and on September 6, 2011. However, the orders filed by the trial court on April 8, 2010, and October 3, 2011, contain detailed statements of the factual and legal grounds upon which the order was based. The question we must answer is whether these grounds were Lakeside’s or the trial court’s.

Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 312 (Tenn. 2014). Short answer: Lakeside’s. The Supreme Court spent several paragraphs quite rightly exalting the high office and fundamental purpose of the judiciary. With that in mind, “a court’s decisions must be, and must appear to be, the result of the exercise of the trial court’s own judgment.” Id. (emphasis added). Such goals are inevitably frustrated by “the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor.” Smith (SCT) at 315, quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 1572 (1985).

In other words, “no conclusion can be drawn other than that the trial court failed to comply with Tenn. R. Civ. P. 56.04” in Smith v. Lakeside (317):

The trial court failed to state its grounds when it decided to grant Lakeside’s motions for summary judgment, and the record provides no basis for imputing the reasons included in the orders prepared by Lakeside’s counsel to the trial court. In this case, we find that the trial court failed to perform the “high judicial function” required by Tenn. R. Civ. P. 56.04. It did not provide the parties with the grounds for its decision, which would have demonstrated that it had exercised its own independent judgment in reaching the decision ultimately reflected in the summary judgment orders.

Smith (SCT) at 317-18 (Tenn. 2014).

Although I don’t recall the opinions ever using this phrase, writers and speakers for the Tennessee Bar Association later tossed around the notion of “judicial plagiarism” in reference to the trial court’s particular offense in Smith v. Lakeside. Under the circumstances, that label is befitting, IMHO.

Judge Robilio retired in August of 2013, not too long after the Court of Appeals vacated her orders in Smith v. Lakeside. By the time the Supreme Court slapped this scarlet “P” on her chest, she was already off the bench. Nonetheless, Smith should serve as a warning to lawyers and judges alike: When people ask you to do their homework for them, just say no. Or in the case of a lawyer addressing a judge’s request for a draft order, politely and respectfully nudge the judge to state his/her specific legal grounds on the record first. That way, you can more likely avoid the swirling vortex of reversal that is Smith v. Lakeside.

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