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Preface
What appears below, without any significance to the order, are points for consideration when determining what changes could enhance the administration of justice in Tennessee. These are talking points suggested by Larry E. Parrish without research, other than life experiences in courts throughout the United States for over 37 years and informal discussions with hundreds of informed lawyers, judges and others involved in the administration of justice. These are little more than thoughts placed on the table for discussion without the research needed to determine viability of the thoughts and without all of the "yeah, buts ...," "what ifs ..." banter that must precede reasonable decision making. That having been said, these thoughts are posited for discussion.
Points
1. Make unethical and publically sanctionable, by formal intervention, result-oriented judicial decision-making, by all trial judges, appellate judges and supreme court justices, the object being to guard rule of law as the standard from which there shall never, for any reason, be any deviation; so, every adjudication must be justifiable by the adjudicator with controlling precedent (accounting for apparently conflicting precedent) or by documentation that the question is one of first impression.
2. Create, statewide, small claims courts readily accessible to litigants without representation (by attorneys or otherwise) and presided over by adjudicators who need not be attorneys.
3. Create, statewide, a divorce court with exclusive original jurisdiction over divorces and all issues thereto related.
4. Create a system by which all new civil actions are initiated in courts for the purpose of identifying all facts that are not genuinely contested and all law that is not genuinely contested, to assess, sua sponte or otherwise, whether the suit has been filed in compliance with Rule 11 standards of good faith, as a prerequisite to discovery and otherwise, to eliminate a catch-me-if-you-can, hide-and-seek and cat-and-mouse approach to civil litigation (dispute resolution of civil disputes, by litigation, need not be anything like criminal litigation); so, all "uncontested matters" will be reduced to stipulation before the suit will be assigned to a court of record for litigation of only genuinely contested issues of law and fact.
5. Eliminate result-oriented adjudications.
6. Public subsidy of binding alternative dispute resolution that affords a limited right of appeal for de novo review as to matters of law.
7. The entire criminal justice system needs to be revamped, more or less, following the model of the United States Department of Justice and the United States Grand Jury system.
8. Eliminate concurrent sentencing or suspended sentences or other probation and require imposition of the maximum sentence, reducing therefrom in increments and only based on meeting predetermined criteria, but never to a level less than half the maximum.
9. Eliminate the possibility of bail for any person previously convicted of any crime that was not a civil or petit offense.
10. Enforced mentoring of new lawyers as a prerequisite to admission to practice as an advocate in court.
11. On a showing of probable cause that a civil action exists to be filed at the election of a prospective party, expansive use of sworn pre-suit requests to admit, hopefully avoiding the necessity to file suit, at least, until the truly contested issues have been surfaced and the uncontested issues eliminated from the litigation.
12. Conduct trials by three-judge panels (as part of an overall plan to reduce the number of trials and to revamp appellate practice).
13. Vastly expand the jurisdiction of courts to give litigants more access to more fora to resolve disputes more expeditiously without being tied to a single courtroom with the same judge.
14. Eliminate result-oriented adjudications.
15. A three-judge trial panel shall not be constituted until pretrial issues, other than dispositive motions, have been finally concluded, and the trial panel shall include no judge theretofore involved in the case.
16. Dispositive motions to dismiss can be made once only and no later than 15 days after service of a summons and be disposed of (no later than 45 days after such a motion is served) by a three-judge panel, constituted for no other purpose, prior to any pretrial discovery.
17. Pretrial issues shall be resolved based on a pretrial scheduling order issued within 20 days after service of a summons on all parties, unless a dispositive motion to dismiss is filed, in which case said order shall be entered within 10 days after motion to dismiss is overruled.
18. Pretrial scheduling shall be monitored, sua sponte, and enforced by the judge assigned for the purpose.
19. Three-judge panels at the trial level shall (1) pre-hearing, have no discussion between or among themselves about the merits of the dispute and, during the hearing and post-hearing, refrain from discussion about merits until, simultaneously, each has delivered (without any consultation, deliberation or any other interaction with any other judge or party) a definitive opinion, in writing, as to what he/she believes the ruling should be, citing authorities, findings of fact, evidence relied on to make each finding of fact and all of the reasoning for each conclusion; (2) the judges, formally, shall deliberate and distill, without any judge changing his or her decision (unless convinced beyond a reasonable doubt that he/she made a patent and objectively discernible error), from the three opinions, a recommended decision and submit same to the parties, with each party having the right, for a week, to respond in writing; and (3) thereafter, the judges (without changing his/her prior opinion except as stated) shall issue what the judges distill to be the ruling, if distillation is possible.
20. If the three separate opinions required from the members of a three-judge trial panel are unable to be distilled into a single opinion, the point/s of law and/or fact that divide the panel members shall be resolved, as a matter of highest priority, directly by the Tennessee Supreme Court.
21. Enlist, with a reasonable stipend, the most highly principled, qualified and experienced (15 years or more) lawyers with heavy trial and appellate experience to serve in a pool of special judges, for one-year stints, and require that one member of each three-judge panel be such a special judge.
22. Reallocate all or most of the resources of the court of appeals by reallocation to the trial level and, thereby, reduce to a comparatively miniscule level the need for appeals.
23. Reallocate all or most of the resources being expanded on general session courts exercising criminal jurisdiction.
24. Requirement that all judges fill out simultaneously recorded timesheets, submitted by midnight every day, accounting, under oath, for use of each minute of each day by itemization of activity (comparable to that required by insurance companies' accounting by attorneys as a prerequisite for payment services), with the timesheets being publicly accessible online each day, remembering that judges have no work attendance requirements because the responsibilities of their office appertain 24 hours a day, every day.
25. Install a monitoring procedure, by use of computer analysis of judges' timesheets and dockets, that constantly equalizes, by automatic reassignments or otherwise, the workload of all judges, all of whom shall be qualified to preside on any bench in any court, without regard to which court the judge was elected and without regard to the Judicial District where the judge was elected.
26. Expanded use of expedited interlocutory appeals and creation of an expedited certified issues procedure to reduce necessity for plenary appeals.
27. Expanded use of expedited extraordinary appeals.
28. Sua sponte invocation of jurisdiction by the Court of the Judiciary to intervene in proceedings to halt known or suspected judicial misconduct before the misconduct adversely impacts litigants.
29. All pretrial motions, where an issue of constitutional law or an issue of first impression is presented, without discretion to do otherwise, must be decided by the Supreme Court only and immediately.
30. Eliminate per curiam opinions.
31. Eliminate Court of Appeals Rule 10 permitting disposition by memorandum opinion.
32. Require all appellate decisions to be published in the national reporter system and given full stare decisis effect as binding precedent, the object being to eliminate the mechanism by which an appellate court, if it wishes, can adjudicate an appeal in a way inconsistent with rule of law without disturbing rule of law, and the Tennessee Supreme Court can opt to let the ruling stand, without rule of law being changed, by a "we are not an error-correcting court" regimen and reliance on Supreme Court Rule 4H(1); the combination of an unpublished opinion (i.e., a ruling with no stare decisis value as precedent), the constitutionally unjustifiable approach of the Tennessee Supreme Court declaring itself not to be an error-correcting court and Supreme Court Rule 4H(1) provides a mechanism for appellate courts (both the court of appeals and the supreme court) to violate Judicial Canon 3B(2), by deviating from rule of law, with an air of legitimacy, thereby, making result-oriented adjudication an alternative in any case the court of appeals and the supreme court arbitrarily chose to use it.
33. Provide each party (or set of parties with the same interests) to a lawsuit one preemptory strike of the randomly-selected judges to serve on panels to hear matters at trial or on appeal.
34. Organized and systematic public monitoring of judicial performance with quarterly report cards.
35. Eliminate result-oriented adjudications.
36. Professional auditing of judicial performance by the Comptroller, with quarterly report cards.
37. Collect, organize and make readily accessible prior written opinions by all trial judges on a subject matter-indexed basis.
38. Build stare decisis at the trial level to force either consistency or very clearly articulated and cogent reasoning sufficient to justify a departure from prior trial court rulings on the same subject at the same level, e.g., Chancellor Goldin must follow Judge Childers' prior ruling on what constitutes "willfulness" unless Chancellor Goldin can justify in writing, by cogent reasoning, why what Judge Childers ruled is not law that determines the issue for Chancellor Goldin; likewise, Chancellor Goldin, in the same way, must be bound by Chancellor Goldin's prior rulings on the same subject.
39. Mandatory jury trials of all contested matters.
40. Abolish summary judgments and/or other judge-made rulings on the basis of "no reasonable juror could find ..." or any other weight of the evidence rationale.
41. Abolish interrogatories.
42. Strict enforcement of revamped rules pertaining to requests to admit at trial (with no exceptions permitting refusals to answer except on grounds of privilege).
43. Minimum jurisdictional amounts restricting access to courts of record.
44. Strict time deadlines for intermediate appellate court rulings and case conclusions.
45. Courts required to draft own orders on contested matters, each of which must include findings of fact and conclusions of law drafted exclusively by judges showing, in writing, a legal basis for each conclusion, the logic (minor premises, major premise and conclusions) and justification for the logic, with citation of authority on which each conclusion is based and, if any plausible authority that could have justified a different conclusion, a discussion explaining the legal basis for why the other authority was not followed.
46. Abolish the Thirteenth Juror Rule.
47. Abolish the additures and remitturs.
48. Require counsel to submit briefs of law, to support every position taken, that evidence scholarship and research (copying TCA annotations or merely citing Am. Jur. or CJS will not do) so that a request for relief sought without an adequately prepared brief, will be denied for lack of adequate briefing.
50. Total non-involvement of all judges presiding in a case from all settlement suggestions or talks.
51. Non-presiding judges available (after special training) as mediators under non disclosure and privileged communication strictures.
52. Strict temperament and deportment standards of conduct, closely monitored with all attorneys duty-bound to report (as with ethical violation of attorneys), for all judges with sua sponte immediate intervention by the Court of the Judiciary to correct any deviation.
53. Use of recusal, to avoid even slight appearance of partiality and even if there is zero evidence of actual partiality, readily invoked sua sponte.
54. High respect for and understanding of the common law, with a required explanation thereof in the required opinion that accompanies each order and, if the explained common law is not followed, a written explanation (e.g., common law replaced by statute) for the deviation.
55. If there is an apparent conflict in controlling authority with respect to a dispositive issue in a case, the trial judges shall devote a substantial portion of the opinion discussing what it is about the authority not followed that caused the court to opt for or prefer the contrary authority over the rejected authority.
56. Eliminate result-oriented adjudications.
57. Make failure voluntarily to produce to the adversary, without necessity for prior request, any document or information relevant to the case a ground for default judgment, if the unproduced document/s or information subsequently is ruled to be relevant to the issues joined.
58. Constant reevaluation to perfect means by which to eliminate a cat-and-mouse or catch-me-if-you-can mentality and sparing over irrelevant technicalities for obstructionist purposes from civil litigation .
59. Make perjury, suborning perjury or aiding and abetting perjury a Class A felony, including perjury in deposition testimony, including false statements of "I don't know" or "I can't recall;" cushioned by a warning from the judge to every witness, prior to testimony in court, and by the court reporter, in depositions, leaving beyond doubt, in the mind of the witness, that imprisonment is a real likelihood if the witness perjurers himself or herself or suborns perjury.
60. As to all documents or other information that can be reduced to a tangible form (e.g., electronically stated emails) that are withheld from production, on the ground that production of same could not lead to relevant evidence, said documents and information shall be produced to the court in camera for an independent judgment of merit of the claim by the court and, if a document so withheld is ruled by the court to be producible, a penalty of $100 per document shall be assessed against the withholding party for each of the first 50 documents withheld, $200 per document for each of the next 50 such documents and $500 per document for each such document over 100; and, with respect to documents requested that the court determines (1) are not producible and (2) are determined have been sought without likelihood that the requested document was relevant or could lead to relevant evidence, unless the requesting party is able to persuade the court to the contrary, shall require imposition of a per document penalty half the amount of the penalty for unjustly withholding production.
61. All documents or other information that can be reduced to a tangible form that are withheld from production, on the ground that production of same is unduly burdensome, shall be accompanied by precise specification as to the quantity of the items involved, the process necessary to retrieve the items, how a request by the board of directors or chief executive of the entity to produce the same items or information would be accommodated and why it is not possible to permit the requesting adversary to undertake the burden of retrieval, if the burden is too great for the respondent; so, a refusal to produce because of unduly burdensome will be a per se violation of Rule 11 if not thoroughly justified as stated.
62. Install methods designed to make judicial discretion a last resort basis for any ruling and able to be employed only with an explanation by the court as to why there is no other basis on which to decide.
63. Repeal Tennessee Rules of Appellate Procedure, Rule 11 and replace it with a new approach to appellate practice.
64. Empower the Court of the Judiciary with expanded self-activating and externally invoked jurisdiction.
65. Staff trial courts with full time law-graduate law clerks and law student or professionally-trained paralegals, who shall be dispersed for assistance to all judges, on a case-by-case basis, enabled by the wherewithal to recruit for such personnel nationally and in serious competition with federal courts.
66. Provide courts and support staff cutting-edge technology.
67. Eliminate result-oriented adjudications.
68. Auto-video recording of every court proceeding, including sidebars and chamber's conferences, with simultaneous transmission for real time monitoring at remote location.
69. Required sabbaticals for judges with assigned research projects and scholarly papers for purposes of subsequent publication.
70. Periodic judicial fitness evaluations by the Court of the Judiciary or some other like and similar review board.
71. Eliminate result-oriented adjudications.
72. Putting in place a requirement among judges that mandates self-reporting and peer-reporting of deviations from high standards expressed in Judicial Canons.
73. Institute a cross-pollination system by which judges throughout the State, at least 40% of the time, hold court in districts outside the district in which they were elected.
74. Eliminate the unwritten rule: "That's just the way we do it around here," i.e., local customs and practices at a particular bar; so, if a practice cannot be substantiated, then and there, by a written rule, subject to understanding by a complete stranger in advance, the practice, neither officially nor unofficially, shall be given no credence as controlling conduct and/or local practice, e.g., eliminate all traces of home-cooking.
75. Require every sitting judge, at least every three years, to retake and successfully pass the Bar Exam (with the answers given and the grading to be publically accessible online) as a prerequisite to continue to be assigned cases.
76. Remove every vestige of "politics" from the Judicial Selection Commission or, if depoliticizing is impossible, abolish the Judicial Selection Commission and return judicial selection exclusively to the electorate.
77. Devise and implement a means by which supreme court justices, intermediate appellate judges and all trial court judges are held accountable to the public (i.e., genuinely subject to public censure or more harsh discipline) for deviation from the dictates of Judicial Canon 3B(2) (first sentence).
78. A recommendation to the General Assembly to make changes so that impeachment is a genuine remedy to remove supreme court justices and all other judges and chancellors from office for inability and/or refusal to perform adequately the responsibilities undertaken by this oath as a justice, judge or chancellor and vitalize impeachment as an effective means to assure accountability to the public for faithful and skillful performance as a servant (not a ruler) in whom the public has vested the most sacred trust the public has to vest.
79. Eliminate result-oriented adjudication.
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