Tennessee Rules of the Supreme Court

RULES OF THE SUPREME COURT OF THE
STATE OF TENNESSEE
(Rules 25-End)

EFFECTIVE JANUARY 28, 1981

Rule 25. Tennessee Lawyers' Fund for Client Protection.

Sec. 1. Tennessee Lawyers' Fund for Client Protection.

1.01 There is hereby established the Tennessee Lawyers' Fund for Client Protection to reimburse claimants for losses caused by any dishonest conduct committed by lawyers duly licensed to practice in this state.

1.02 The purpose of the Tennessee Lawyers' Fund for Client Protection is to promote public confidence in the administration of justice and the integrity of the legal profession as a whole by reimbursing at least a portion of losses caused by the rare instances of dishonest conduct of lawyers licensed to practice law in the courts of this state.

1.03 As used in these rules, "dishonest conduct"means the misappropriation or willful misapplication of a person's money, securities or other property.

1.04 The scope of this rule shall apply to dishonest conduct meeting the following criteria:

(a) The dishonest conduct occurred on or after the 1st day of July, 1991.

(b) The attorney was acting as an attorney.

Sec. 2. Funding.

2.01 The fund shall consist of monies or other properties obtained by the following:

(a) Payments of $10 per year from attorneys collected annually with the yearly registration fees by the Board of Professional Responsibility of the Supreme Court of Tennessee; attorneys exempted under Rule 9, Section 20.2 are also exempted from this rule; attorneys who became life members of the fund on or before December 7, 1993, shall also be exempted from this rule.

(b) Recoveries by subrogation or from attorneys or former attorneys or their estates reimbursed to the Fund for payments made by the Fund;

(d) Earnings on investments of the Fund. [As amended by order entered December 7, 1993.]

Sec. 3. Funds.

3.01 All monies or other assets allocated to the Fund shall be held in a separate account in the name of the Fund, subject to written direction of the Board.

Sec. 4. Composition of Board.

4.01 The Board shall consist of six lawyers and three non-lawyers appointed for initial terms as follows:

(a) One lawyer from the Grand Division of East Tennessee to be appointed by the Supreme Court of Tennessee for a three year term;

(b) One lawyer from the Grand Division of Middle Tennessee to be appointed by the Supreme Court of Tennessee for a two year term;

(c) One lawyer from the Grand Division of West Tennessee to be appointed by the Supreme Court of Tennessee for a one year term;

(d) One non-lawyer from the Grand Division of East Tennessee to be appointed by the Supreme Court of Tennessee for a three year term;

(e) One non-lawyer from the Grand Division of Middle Tennessee to be appointed by the Supreme Court of Tennessee for a two year term;

(f) One non-lawyer from the Grand Division of West Tennessee to be appointed by the Supreme Court of Tennessee for a one year term;

(g) One lawyer from the Grand Division of East Tennessee to be appointed by the Supreme Court of Tennessee for a one year term;

(h) One lawyer from the Grand Division of Middle Tennessee to be appointed by the Supreme Court of Tennessee for a two year term;

(i) One lawyer from the Grand Division of West Tennessee to be appointed by the Supreme Court of Tennessee for a three year term.

4.02 Subsequent appointments shall be for a term of three years. Bar associations within the State of Tennessee may recommend individuals for appointment to the Board.

4.03 No appointee who has served two full terms of three years shall be eligible for reappointment to the Board until three years after the termination of the most recent term.

4.04 Vacancies shall be filled by appointment by the Supreme Court of Tennessee, whether said vacancies exist due to expiration of a member's term, death, or disability.

4.05 The Supreme Court of Tennessee shall select a chairperson, vice-chairperson, secretary-treasurer and such other officers as the Court deems appropriate.

4.06 The Board members shall be bonded in such manner and amount as the Supreme Court of Tennessee may determine.

4.07 Board members shall serve without compensation but shall be reimbursed for their actual and necessary expenses incurred in the discharge of their duties.

Sec. 5. Board Meetings.

5.01 The Board shall meet as frequently as necessary to carry out its duties, but no less than once per year.

5.02 The Chairperson shall call a meeting at any reasonable time, or upon the request of at least three members of the Board.

5.03 A quorum for any meeting of the Board shall be five members.

5.04 Minutes of meetings shall be taken and permanently maintained by the Board.

5.05 Meetings by telephone conference are permitted.

5.06 When the Board is hearing a claim, approval of a claim shall require the affirmative vote of a majority of members present. See Section 10.08 for the procedures for hearing claims.

Sec. 6. Duties and Responsibilities of the Board.

6.01 The Board shall have the following duties and responsibilities:

(a) To receive, evaluate, determine and pay approved claims;

(b) To promulgate rules of procedure not inconsistent with these Rules and subject to prior approved by the Supreme Court of Tennessee;

(d) To provide a full report at least annually to the Supreme Court of Tennessee and make other reports and publicize the activities to the public and the Bar;

(e) The staff and physical resources of the Commission on Continuing Legal Education will assist in the Board's performance of its functions effectively and without delay; the Board will compensate the staff for its services;

(f) To retain and compensate consultants, actuaries, agents, legal counsel and other persons as necessary; this authority to contract for professional services as needed by the board shall not be construed to authorize the board to hire employees of the board;

(g) To prosecute claims for restitution to which the Fund is entitled;

(h) To submit an annual budget for approval by the Supreme Court of Tennessee;

(i) To perform all other acts necessary or proper for the fulfillment of the purposes and effective administration of the Fund.

Sec. 7. Conflict of Interest.

7.01 A member of the Board who has or has had a lawyer-client relationship or financial relationship with a claimant or lawyer who is the subject of a claim shall not participate in the investigation or adjudication of a claim involving that claimant or lawyer.

7.02 A member of the Board with a past or present relationship, other than as provided in Section 7.01 of this rule, with a claimant or the lawyer whose alleged conduct is the subject of the claim shall disclose such relationship to the Board and, if the Board deems appropriate, that member shall not participate in any proceeding relating to such claim.

Sec. 8. Immunity.

8.01 The members, employees and agents of the Board are absolutely immune from civil liability for all acts in the course of and within the scope of their official duties.

Sec. 9. Procedures and Responsibilities for Claimants.

9.01 The Board shall prepare and approve a form of claim.

9.02 The form shall include at least the following information provided by the claimant under penalty of perjury:

(a) Name and address of claimant, home and business telephone, occupation and employer, social security number;

(b) Name, address and telephone number of the lawyer alleged to have dishonestly taken or willfully misapplied the claimant's money or property;

(d) Whether the claimant's agreement with the lawyer was in writing, and, if so, attach a copy;

(e) Specify whether the claimant's loss involves money, securities or other property;

(f) The amount of loss and the date when the loss occurred, and if documentation is available, attach a copy;

(g) The date when the claimant discovered the loss, and how the claimant discovered the loss;

(h) A description of the lawyer's alleged dishonest conduct and the names and addresses of any persons who have knowledge regarding the loss;

(i) Whether the loss has been reported to the district attorney, police, disciplinary agency or other (specify); and if so, furnish a copy of the complaint and describe what action was taken;

(j) Whether the loss potentially can be reimbursed from any other source, such as insurance, fidelity or surety agreement and, if so, specify the source of such potential recovery;

(k) Description of any steps taken to recover the loss directly from the lawyer, or any other source;

( l) Any other facts believed to be important to the Fund's consideration of the claim;

(m) How the claimant learned about the Fund;

(n) The name, address and telephone number of the claimant's present lawyer, if any;

(o) A statement that the claimant agrees to cooperate with the Board in reference to the claim or civil actions which may be brought in the name of the Board or in the name of the claimant pursuant to a subrogation and assignment which shall be contained within the claim.

9.03 The claimant shall have the responsibility of completion of the claim form and establishing that a compensable claim may exist.

9.04 The claim shall be filed with the Board in the manner and place designated in its rules of procedure.

Sec. 10. Processing Claims.

10.01 Immediately upon receipt by the Board, a copy of the claim shall be served upon the lawyer by certified mail or personal delivery directed to the address currently listed for such lawyer in the records of the Board of Professional Responsibility.

10.02 Whenever it appears that a claim is not compensable pursuant to these rules, the claimant shall be advised of the reasons why the claim is not compensable, and that unless additional facts to support eligibility are submitted to the Fund within 30 days, the claim shall be dismissed.

10.03 A certified copy of an order disciplining a lawyer for the same conduct alleged in a claim, or a final judgment imposing civil or criminal liability therefor, shall be evidence that the lawyer committed such conduct.

10.04 The Board of Professional Responsibility of the Supreme Court of Tennessee shall be promptly notified of the claim and requested to furnish a report of its investigation on the matter to the Board. Upon receipt of the report of investigation of the disciplinary board, the Board shall evaluate whether the investigation is complete and determine whether the Board shall conduct additional investigation. The Board may withhold final action on any claim until disciplinary proceedings involving the same act or conduct has been concluded, or may proceed before disciplinary proceedings are concluded, in its discretion.

10.05 The Board may conduct its own investigation when it deems it appropriate.

10.06 The Board may request that testimony be presented to complete the record. Upon request, the claimant and lawyer, or either of their personal representatives, will be given an opportunity to be heard. Attendance of witnesses and production of evidence may be compelled by a subpoena.

10.07 When the record is complete the claim shall be determined on the basis of all available evidence. Determinations shall be made upon the basis of a preponderance of the evidence.

10.08 Hearings may be held in the Grand Division of the State where the claimant and/or the accused lawyer resides. The Chairperson may designate the Board to sit in panels of three Board members as assigned by the Chairperson. A concurrence of all three panel members sitting shall constitute a decision of the Board. If a claim is not unanimously approved by a panel of three, then the full Board shall be presented the record and approval of a claim shall require the affirmative vote of a majority of Board members present. Notice shall be given to the claimant and the lawyer of the Board's determination and the reasons therefore.

10.09 Any proceeding upon a claim need not be conducted according to technical rules relating to evidence, procedure and witnesses. Any relevant evidence may be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in court proceedings. The claimant shall have the duty to supply relevant evidence to support the claim.

Sec. 11. Judgments.

11.01 The Board may require that claimants seeking more than $1,000 obtain a judgment against the offending lawyer or former lawyer. Claimants may be eligible for payment from the Fund if the judgment shall remain unpaid after reasonable efforts to collect same.

Sec. 12. Eligible Claims.

12.01 The claim must be filed no later than one year after the loss was or reasonably should have been discovered.

12.02 Except as provided by Section 12.03 of this rule, the following losses shall not be reimbursable:

(a) Losses suffered by spouses, children, parents, grandparents, siblings, partners, associates and employees of lawyer(s) causing the losses;

(b) Losses covered by any bond, surety agreement, insurance contract to the extent covered thereby; including any loss to which any bonding agent, surety or insurer is subrogated, to the extent of that subrogated interest;

(c) Losses of any financial institution which are recoverable under a "banker's blanket bond"or similar commonly available insurance or surety contract;

(d) Loss of any business entity controlled by the lawyer or any person or entity described in Section 12.02, (a), (b) or (c) hereof;

(e) Losses of a governmental entity or agency.

12.03 In cases of special and unusual circumstances, the Board may, in its discretion, recognize a claim which would otherwise be excluded under this rule.

12.04 Paragraph 12.03 above notwithstanding, no payment from the fund shall include interest, costs or attorneys' fees accrued as a result or consequence of prosecuting the claim before the Board, except as may be allowed pursuant to Section 18.01 herein.

Sec. 13. Limitations on Amount of Reimbursements.

13.01 No payment shall exceed the sum of $100,000 for loss sustained by any one claimant nor the aggregate sum of $250,000 with respect to losses caused by any one lawyer or former lawyer. No payment shall exceed $250,000 per transaction regardless of the number of persons aggrieved or the amount of loss in such transaction. No payment shall exceed ten percent of the assets of the Fund at the time it is made, exclusive of funds received for Life Memberships. Where joint liability of wrongdoers exists, the Board has discretion to allocate payments as it deems appropriate within these limits. Payments may be in lump sum or installments as the Board may determine.

Sec. 14. Considerations on Payment of Claims.

14.01 In determining whether to pay a claim and the amount to be paid, the Board may consider any matter which, in its discretion, it deems relevant, including but not limited to the following:

(a) The conduct, including negligence, if any, of the claimant which contributed to the loss;

(b) The hardship which the claimant suffered because of the loss;

(c) The total amount of reimbursable losses of applicants on account of any one lawyer or former lawyer or association of lawyers;

(d) The total amount of reimbursable losses in previous years for which total reimbursement has not been made and the total assets of the Fund; and

(e) Other sources of funds available to compensate the claimant for the loss.

Sec. 15. Legal Rights to Payment from Fund.

15.01 No person shall have any right to payment from the Fund as a claimant, third-party beneficiary or otherwise.

15.02 Decisions of the Board shall be final and not be subject to appeal or review by any court.

Sec. 16. Subrogation.

16.01 Payments on approval claims shall be made from the Fund only upon condition that the Board receives, in consideration for any payment from the Fund, a pro tanto assignment from the claimant of the claimant's right against the lawyer involved, or his or her personal representative, his or her estate or assigns or of the claimant's right against any third party or entity concerning the dishonestly caused loss for which the claimant is receiving reimbursement from the Fund, and to the extent of such payment, a lien shall be created in favor of the Fund which shall attach to any asset that may be payable to the claimant from, or on behalf of, the person or entity who caused the claimant's loss and which resulted in the claimant's award of reimbursement from the Fund.

16.02 If the reimbursement is made, the Fund shall be subrogated in the amount of the reimbursement. The Board may bring such action as it deems advisable against the lawyer, the lawyer's estate and any other person or entity who may be liable for the loss within three years from the date of payment to the claimant.

16.03 Should the claimant bring any action for recovery or reimbursed losses directly against the lawyer, the lawyer's estate or any other person or entity who may be liable for the loss, the claimant shall notify the Board of such action and send a copy of the complaint. Any voluntary payment from the lawyer or other recovery from any source shall also be reported to the Board.

16.04 The claimant shall cooperate in any effort the Board undertakes to achieve reimbursement for the Fund.

Sec. 17. Confidentiality.

17.01 Applications, proceedings and reports involving applications for reimbursement are confidential until the Board authorizes reimbursement to the claimant, except as provided below.

17.02 If the lawyer whose alleged conduct gave rise to the claim requests that the matter be made public, or if the lawyer's alleged conduct is the subject of a public disciplinary, civil or criminal proceeding, the requirement of confidentiality is waived.

17.03 Section 17.01 shall not be construed to deny access to relevant information by professional discipline agencies or other law enforcement authorities as the Board shall authorize, or the release of statistical information which does not disclose the identity of the lawyer or the parties.

17.04 Both the claimant and the lawyer shall be advised of the status of the Board's consideration of the claim and shall be informed of the final determination and the reasons for the determination.

17.05 The Board shall have discretion to seal such parts of a file that would be damaging to a claimant or to which the claimant has a statutory right of confidentiality.

Sec. 18. Compensation for Representing Claimants.

18.01 No lawyer shall charge or accept compensation for prosecuting a claim on behalf of a claimant, unless approved by the Board.

18.02 This prohibition only pertains to proceedings before the Board and not to the seeking of civil judgments and other actions taken by lawyers on behalf of claimants.

Sec. 19. Payments to the Board.

19.01 Failure of any lawyer to pay the amounts required by Section 2.01(a) of this rule shall be grounds for the suspension of the license to practice.

19.02 The Board of Professional Responsibility shall deposit all funds collected on behalf of the Tennessee Lawyer’s Fund for Client Protection with the State Treasurer; all such funds including earnings on investments and all interest and proceeds from said funds, if any, are deemed to be, and shall be designated as, funds belonging solely to the Tennessee Lawyer’s Fund for Client Protection. Withdrawals from those funds shall only be made by the Tennessee Lawyer’s Fund for Client Protection for the purposes set forth in this rule, and for such other purposes as this Court may from time to time authorize or direct. [Amended by order filed June 28, 2002]

[Adopted November 16, 1989.]

20.01. This Rule 25 shall apply to attorneys practicing in Tennessee under authority of Tenn. Sup. Ct. R. 8, RPC 5.5(d)(l) where dishonest conduct, as defined in Section 1.03 of this Rule, meets the criteria set forth in subsections 1.04(a) and (b) thereof.

[Amended by Order filed October 23, 2009]

Rule 26. Order for Use of Videotape Equipment to Record Court Proceedings

Sec. 1. Scope of Order.

1.01 The provisions of this order shall apply to any court of record authorized by the Supreme Court of Tennessee to use videotape equipment to record court proceedings.

Rule 26. Order for Use of Videotape Equipment or CD-ROM to Record Court Proceedings

Sec. 1. Scope of Order.

1.01. The provisions of this order shall apply to any court of record authorized by the Supreme Court of Tennessee to use videotape or CD-ROM equipment to record court proceedings.

Sec. 2. Record of Trial Court Proceedings.

2.01. The term "transcript" used in Rule 24, Tennessee Rules of Appellate Procedure, shall include a videotape or CD-ROM recording of court proceedings recorded and maintained in accordance with the following procedures:

(A) Videotape and CD-ROM Recordings. In court proceedings where videotape or CD-ROM equipment is available, the official record of court proceedings shall consist of two (2) videotape or CD-ROM recordings, recorded simultaneously, of the proceedings. Upon the filing of a notice of appeal, one of the two (2) videotape or CD-ROM recordings, or a court-certified copy of a portion thereof, recording the court proceeding being appealed, shall be filed and certified by the clerk as part of the record on appeal. The second videotape or CD-ROM recording shall be retained by the clerk of the trial court.

(B) Method of Identification.

(1) Official Recordings. For identification purposes, the clerk shall designate on each of the two (2) official videotape or CD-ROM recordings, on line one, the judicial district number, the name of the court, including the division in which the proceeding is being held, the number of the videotape or CD-ROM (counting all videotapes or CD-ROMs used since the start of the current calendar year), either the letter "A," if the videotape or CD-ROM is retained by the court, or the letter "B," if the videotape or CD-ROM is to be filed as the record on appeal. On the second line, the clerk shall designate the caption and case file number of the proceeding recorded on the videotape or CD-ROM (for example: Smith vs. Jones, No. 93-325) or the nature of the proceedings before the court if those proceedings pertain to more than one case (for example: criminal motions). On the third line, the clerk shall designate the date on which the videotape or CD-ROM was recorded in the form MM/DD/YY.

(2) Certified Copies. If a court-certified copy of a portion of any tape or CD-ROM is prepared for filing as a part of the record on appeal, the first line will be marked with the judicial district number, the name of the court, including the division in which the proceeding is being held, and the word "copy." The second line will contain the caption of the case being appealed, the case file number, and the number of the source videotape or CD-ROM used to make the copy. The third line will contain the date on which the source videotape or CD-ROM was recorded.

(3) Simultaneously Made and Duplicate Copies. A party to any court proceeding may order, in advance, a simultaneously made copy of the proceeding. The cost of a simultaneously made videotape or CD-ROM shall be $15.00 per tape or CD-ROM payable to the clerk of the appropriate court at the time the order is placed. The court shall arrange for the recording of duplicate copies of videotapes or CD-ROMs for use by counsel in preparing an appeal or subsequent proceedings. The clerk shall collect from the person requesting a duplicate videotape or CD-ROM a fee of $30.00 for each duplicate videotape or CD-ROM requested. In cases involving parties declared to be indigent by the Court, the Administrative Office of the Courts will furnish the tapes or CD-ROMs for duplication and no fee will be assessed.

(C) Exhibit List and Trial Log. The trial judge or his/her designee shall keep a written exhibit list and log listing admission of each exhibit and the beginning and end of each witness's testimony by reference to the videotape or CD-ROM. The automatic logs of all video or CD-ROM recorded proceedings are to be maintained by the court clerk in an appropriate repository.

(D) Depositions. In a court proceeding in which videotape or CD-ROM equipment is being used to record the proceeding, the official record of a deposition admitted into evidence may be, in the trial judge's discretion, either the transcript of the deposition or the videotape or CD-ROM recording of the deposition.

Sec. 3. Procedure on Filing Notice of Appeal.

3.01. Upon the filing of a Notice of Appeal in any case in which the trial proceedings have been videotape or CD-ROM recorded, the clerk of the court shall within thirty (30) days cause to be filed the videotape or CD-ROM recording or recordings of the entire trial proceeding, unless otherwise agreed by the parties. Within fifteen (15) days after filing the Notice of Appeal, any party to the action shall cause to be filed a designation of any pre-trial or post-trial proceedings to be included in the trial record. If any party files such a designation, all other parties to the action shall have an additional fifteen (15) days to file a designation of any additional proceedings to be included. If any proceeding in any designation so filed was not videotaped or CD-ROM recorded, such designation shall be clearly marked "WRITTEN TRANSCRIPT REQUIRED." Where the pre-trial or post-trial proceedings were recorded, the clerk of the court shall, within thirty (30) days from the date the designation is filed, cause to be filed the videotape or CD-ROM recording of the designated proceedings or a certified copy thereof.
Once all videotapes or CD-ROMs or combination of videotapes or CD-ROMs and written transcripts, making up the record on appeal, have been assembled, each tape or CD-ROM or transcript will be given a volume number in chronological order of the proceedings recorded and transcribed. The clerk of court shall then proceed in accordance with Rule 25, Tennessee Rules of Appellate Procedure.

Sec. 4. Procedure on Appeal.

4.01. (A) References to Videotape or CD-ROM Recordings. The provisions of Rule 27, Tennessee Rules of Appellate Procedure, shall apply except that reference to a volume of the trial record which is a videotape or CD-ROM recording shall be to volume number, month, day, year, hour, minute and second at which the reference begins as recorded on the videotape or CD-ROM. For example: (Vol. 2, 10/27/92; 02:24:05p). If the recording covers only a single day, the month, day and year may be omitted.

(B) Evidentiary Appendix. Rule 28, Tennessee Rules of Appellate Procedure, allowing the optional filing of a transcription of the evidence in the form of an appendix attached to an appellate brief, remains in effect. There shall appear, however, at the beginning of each segment of evidence so transcribed and at intervals of not greater than ten minutes of court time, a videotape or CD-ROM reference which corresponds to that point of the transcription.

(C) Transcription for Appellate Court. The appellate court, in its discretion, may order the preparation of a transcript of all or any portion of the videotape or CD-ROM recording. The transcript shall be prepared and filed with the clerk of the trial court within thirty (30) days from the date it is ordered and shall be approved in accordance with Tenn. R. App. P. 24(f). Within fifteen (15) days after approval, the clerk of the trial court shall prepare and transmit a supplemental record containing the transcript to the clerk of the appellate court. The appellate court may also, in its discretion, order the preparation of supplemental briefs containing references to the transcript required by Tenn. R. App. P. 27(g). The costs of the transcript and the supplemental record shall be taxed by the appellate court consistently with Tenn. R. App. P. 40.

Sec. 5. Establishment of Local Procedures.

5.01. The judges of a judicial district in which the videotape or CD-ROM equipment is used to record court proceedings may, by order, establish further procedures relating to videotape or CD-ROM recordation of court proceedings, provided such procedures do not conflict with the provisions of this order, statutory provisions or rules adopted by the Supreme Court of Tennessee, and provided, further, such procedures are approved by the Supreme Court prior to implementation. [Amended by order filed November 13, 2001]

Rule 27. Judicial Performance and Evaluation Program

Sec. 1. Statement of Purpose.

1.01. The work of Tennessee's appellate judges touches the lives of everyone who lives and works in Tennessee. The quality of justice available in Tennessee's appellate courts hinges, in large measure, on the performance of the judges who administer the system. Accordingly, the public, the bar, and the judicial system have a vital interest in a responsive and respected appellate judiciary.

1.02. Tennessee's appellate judiciary consists of persons who strive to administer justice to the best of their abilities and to discharge the duties of their offices impartially and efficiently. Tennessee's appellate judges also share in common a commitment to improve their own judicial skills and to improve the quality of justice administered by Tennessee's appellate courts.

1.03. Improving the administration of justice in Tennessee's appellate courts can best be accomplished by instituting a program of continuous self-improvement that has the broad-based support of Tennessee's appellate judges and attorneys and empowers the appellate judges, with the assistance of their peers, to enhance and to broaden their own judicial skills.

1.04. The Tennessee General Assembly has enacted laws that establish a merit-based process for selecting and retaining the members of Tennessee's three appellate courts. To promote informed retention decisions, Tenn. Code Ann. § 17-4-20 1 (c) requires the Judicial Performance Evaluation Commission to publish reports concerning each appellate judge seeking election to an unexpired term or election or reelection to a full eight-year term. In addition to its primary purpose of self-improvement, the Judicial Performance Evaluation Program must provide information that will enable the Judicial Performance Evaluation Commission to perform objective evaluations and to issue fair and accurate reports concerning each appellate judge's performance.

Sec. 2. Judicial Performance Evaluation Program.

2.01. In accordance with this Court's inherent supervisory authority over the court system and the judges, and pursuant to Tenn. S. Ct. R. 1 1, Tenn. Code Ann. § 16-3-501 and Tenn. Code Ann. § 17-4-201(a)(1), there is hereby established a Judicial Performance Evaluation Program as part of the judicial branch of state government.

2.02. The Judicial Performance Evaluation Program shall be administered by a Judicial Performance Program Committee ("Committee") whose members shall be appointed by the Supreme Court. The Committee's membership shall be broadly based and shall be composed of persons drawn from the bench and the bar and other persons who are familiar with the judicial system. The Supreme Court shall name the chair of the Committee and shall prescribe the terms of the members.

2.03. The Committee shall have the responsibility for the design, the implementation, and the day-to-day operation of the Judicial Performance Evaluation Program. The Committee's decisions shall be consistent with this rule, and the Committee has no power to waive or to modify any provision of this rule.

2.04. The Committee shall be administratively attached to the Administrative Office of the Courts, but for all purposes other than administration, it shall be considered independent of the Administrative Office of the Courts. The Administrative Office of the Courts shall provide staff assistance to the Committee, and the Committee may, to the extent that hands are available, retain other experts and consultants to assist with any part of its duties.

2.05. The Committee shall meet at least two times per year or at the call of the chair or the request of a majority of the Committee members.

2.06. The Committee shall administer the program for the purpose of self-improvement by appellate judges and shall provide assistance to the Judicial Performance Evaluation Commission as required by these Rules.

2.07. The Committee shall provide the Judicial Performance Evaluation Commission with the appellate judge survey results which the Commission shall use to evaluate appellate judges and to publish a final report on each appellate judge except where the appellate judge has been in office less than one year before the filing deadline of a declaration of candidacy for either an unexpired term or a full eight-year term.

Sec. 3. Evaluation Criteria.

3.01. Appellate judges shall be evaluated based on the following specific criteria:

(a) Integrity —In addition to other appropriate performance measures, the Committee shall consider:

(1) avoidance of impropriety and appearance of impropriety;

(2) freedom from personal bias;

(3) ability to decide issues based on the law and the facts without regard to the identity of the parties or counsel, or the popularity of the decision and without concern for or fear of criticism;

(4) impartiality of actions; and

(5) compliance with the Code of Judicial Conduct contained in Tenn. S. Ct. R. 10.

(b) Knowledge and understanding of the law —In addition to other appropriate performance measures, the committee shall consider:

(1) understanding of substantive, procedural, and evidentiary law;

(2) attentiveness to factual and legal issues before the court; and

(3) proper application of judicial precedents and other appropriate sources of authority.

(c) Ability to communicate —In addition to other appropriate performance measures, the committee shall consider:

(1) clarity of bench rulings and other oral communications;

(2) quality of written opinions with specific focus on clarity and logic, and the ability to explain clearly the facts of the case and the legal precedents at issue; and

(3) sensitivity to the impact of demeanor and other nonverbal communications.

(d) Preparation and attentiveness —In addition to other appropriate performance measures, the Committee shall consider:

(1) judicial temperament, including courtesy to all parties and participants; and

(2) willingness to permit every person legally interested in a proceeding to be heard, unless precluded by law or rules of court.

(e) Service to the profession and the public —In addition to other appropriate performance measure, the committee shall consider:

(1) efficient administration of caseload;

(2) attendance at and participation in judicial and continuing legal education programs;

(3) participation in organizations which are devoted to improving the administration of justice;

(4) efforts to ensure that the court is serving the public and the justice system to the best of its ability and in such a manner as to instill confidence in the court system; and

(5) service in leadership positions and within the organizations of the judicial branch of government.

(f) Effectiveness in working with other judges and court personnel —In addition to other appropriate performance measures, the committee shall consider:

(1) exchanging ideas and opinions with other judges during the decision-making process;

(2) commenting on the work of colleagues;

(3) facilitating the performance of the administrative responsibilities of other judges; and

(4) working effectively with court staff.

Sec. 4. Evaluation Procedure for Appellate Judges.

4.01. The Judicial Performance and Evaluation Program shall include the regular evaluation of the performance of appellate judges. The evaluations shall be carried out using professionally accepted methods to provide objective and reliable evaluations and to reduce the risk of unfair ratings and statistical comparisons. Evaluations shall be based on sufficient data to ensure the statistical reliability of the evaluation information.

4.02. The Judicial Performance Evaluation Program for appellate judges, in addition to being used for self-improvement purposes, shall also be used for the evaluation required of appellate judges seeking election to an unexpired term or election or re-election to a full eight-year term under Tenn. Code Ann § 17-4-201(b) (1994).

Sec. 5. Evaluation Procedure for Appellate Judges for Retention Recommendations.

5.01. The Judicial Performance Evaluation Commission created by Tenn. Code Ann. § 17-4-201(b) shall perform evaluations of all appellate judges seeking election to an unexpired term or or election or reelection to a full eight (8) year term for the purpose of aiding the public in evaluating the performance of the appellate judges in accordance with the provisions of this rule. The Judicial Evaluation Commission has no power to waive or modify any provision of this Rule.

5.02. The Judicial Performance Evaluation Commission shall be administratively attached to the Administrative Office of the Courts but, for all purposes other than administration, shall be considered independent of the Administrative Office of the Courts.

5.03. The Administrative Office of the Courts shall provide staff assistance to the Judicial Performance Evaluation Commission, and the Commission may also request assistance from the Judicial Performance Program Committee. The assistance provided to the Judicial Performance Evaluation Commission shall be consistent with the funds available for the operation of the program.

5.04. (a) The Judicial Performance Evaluation Commission's evaluation shall be consistent with the criteria in Section 3.0 1 and shall be based on the results of the evaluation surveys conducted by the Judicial Performance Program Committee, on the personal information contained in an approved self-reporting form, and on such other comments and information as the Commission shall receive from any source.

(b) If, because of gubernatorial appointment, an appellate judge holds office less than one year before the filing deadline of a declaration of candidacy for either an unexpired term or a full eight-year term, and evaluation surveys are not available from the Judicial Performance Program Committee, the Judicial Performance Evaluation Commission shall conduct an evaluation and make a retention recommendation using an approved self-reporting form, the judge's application, and other reliable information.

5.05. (a) All evaluations and final reports must be approved by the Judicial Performance Evaluation Commission, but the Judicial Performance Evaluation Commission may, in its discretion, use panels to prepare interim or preliminary reports or recommendations for consideration by the Judicial Performance Evaluation Commission.

(b) Five (5) members of the Judicial Performance Evaluation Commission shall constitute a quorum for the transaction of any business to come before the Commission except for the final decision to recommend the retention or replacement of an appellate judge. With regard to the recommendation to retain or to replace an appellate judge, the quorum shall be seven (7) or more Commission members, and the recommendation either to retain or to replace an appellate judge shall require the assent of five (5) or more members.

(c) A Commission member who is unavoidably absent from any meeting of the Commission may participate by teleconference or by video conference if these facilities are reasonably available. Commission members participating by teleconference or video conference shall be considered present for the purpose of establishing a quorum.

5.06. The Judicial Performance Evaluation Commission, or a panel thereof, shall conduct a public interview with each appellate judge seeking election to an unexpired term or re-election to a full eight-year term. The Judicial Performance Evaluation Commission's meetings and deliberations shall be public.

5.07. The Judicial Performance Evaluation Commission may accept, and in its discretion, may solicit public comments concerning the performance of the appellate judges seeking election to an expired term or election or re-election to a full eight-year term. The Judicial Performance Evaluation Commission shall provide each appellate judge with a reasonable opportunity to respond to any information or comment received by the Commission regarding that judge prior to the preparation of the Commission's evaluation of that judge.

5.08. The Judicial Performance Evaluation Commission shall provide each appellate judge seeking election to an unexpired term or election or re-election to a full eight-year term with a draft of its evaluation and shall provide the appellate judge with a reasonable opportunity to comment or respond either personally or in writing before the publication of the final report or supplemental report required by Tenn. Code Ann. § 17-4-201(c).

5.09. The final public report or supplemental report required by Tenn. Code Ann. § 17-4- 201 (c) shall, at the appellate judge's request, include the judge's response to the Judicial Evaluation Commission's evaluation. The judge's response, which shall be in addition to the Commission's report or supplemental report, shall not exceed 600 words.

Sec. 6. Confidentiality.

6.01. Evaluations conducted as part of the Judicial Performance Evaluation Program must be conducted candidly and in strict confidence so that they may be based on reliable information and so that the areas for improvement may be determined fairly. The disclosure of evaluation information other than in the manner permitted by this rule or by Tenn. Code Ann. § 17-4-20 1 (c) would be counterproductive to the goals of the performance program and would reduce the free flow of information and responses.

6.02. All records and information obtained and maintained by the Judicial Performance Program Committee and the Judicial Performance Evaluation Commission concerning the performance of individual judges shall be strictly confidential and shall not be disclosed except as provided by this rule. The Judicial Performance Program Committee and the Judicial Performance Evaluation Commission shall ensure the confidentiality of information regarding the performance of all judges and shall preserve the anonymity of all persons who may be requested to furnish evaluation information.

6.03. Records and information pertaining to the performance and evaluation of judges shall not be disclosed except as follows:

(a) Except as provided by Section 6.03(4), only the individual judge being evaluated and the person or persons selected to present the data to the judge shall be permitted to know to which judge particular information applies.

(b) The committee may provide aggregate statistical information that does not identify specific judges to the Administrative Office of the Courts and the Tennessee Judicial Conference for use in the development of judicial education programs.

(c) The Judicial Performance Program Committee shall provide an annual public report to the Supreme Court concerning the operation of the program. The report may contain aggregate statistical information that does not identify individual judges and may also contain recommendations for improvements in the program.

(d) The Judicial Performance Program Committee shall provide the Judicial Performance Evaluation Commission with a tabulation of all survey responses with regard to all appellate judges, except appellate judges in office less than one year. The Judicial Performance Evaluation Commission shall treat the tabulations of the survey responses used in preparing its evaluation, final report, and supplemental report, if any, pursuant to Tenn. Code Ann. § 17-4-201 as confidential.

6.04. Except when publicly disclosed in accordance with Section 6.03, all information, questionnaires, notes, memoranda, or other data declared confidential by this rule shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency, or persons.

6.05. All records pertaining to a particular judge maintained by the Judicial Performance Program Committee or the Judicial Performance Evaluation Commission shall be destroyed six months after the judge's death or retirement. The records shall not be destroyed if the judge applies for or is certified as a senior judge in accordance with Tenn. Code Ann. § 17-2-302.

[Added by order entered June 14, 1995; as amended by order entered May 15, 1997; by order entered July 28, 1997; by order entered March 26, 1998, and by order entered October 8, 2009.]

Rule 28. Tennessee Rules of Post-Conviction Procedure.

Sec. 1. Scope and Authority of Rules

(A) Purpose —These rules supplement the remedies and procedures set forth in the Post-Conviction Procedure Act (hereinafter the "Act"), Tenn. Code Ann. § 40-30-201 et seq. (1996 Supp.).

(B) Authority —These rules are adopted pursuant to Tenn. Code Ann. § 40-30-218 (1996 Supp.) and the inherent authority of the Tennessee Supreme Court.

Sec. 2. Definitions

(A) Petition for Post-Conviction Relief —A petition for post-conviction relief is an application to the court, filed by or on behalf of a person convicted of and sentenced for the commission of a criminal offense, that seeks to have the conviction or sentence set aside or an appeal granted on the ground or grounds that the conviction or the sentence or the denial of an appeal violated the state or federal constitution. A pro se petition is one filed by a petitioner without the benefit of counsel.

(B) Answer —An answer is a response filed by the state to the petition for post-conviction relief that admits or denies every claim in the petition and which raises affirmative and specific statutory defenses.

(C) Motion to Reopen —A motion to reopen is a request filed by or on behalf of a person whose original petition for post-conviction relief has been finally ruled upon, to reopen the post-conviction proceeding to consider a new claim of constitutional error pursuant to Tenn. Code Ann. § 40-30-217.

(D) Waiver —A ground for relief is waived if petitioner or petitioner's counsel failed to present the ground for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented. A rebuttable presumption of waiver arises if a ground for relief was not raised before a court of competent jurisdiction in which it could have been raised. Waiver does not occur if the claim for relief is based upon a constitutional right not recognized at the time of the prior proceeding and if either the state or federal constitution requires retroactive application of the right.

(E) Previously Determined —A claim for relief is previously determined if a court of competent jurisdiction has ruled on the merits of the claim after a full and fair hearing at which petitioner is afforded the opportunity to call witnesses and present evidence.

(F) Post-Conviction Proceeding —A post-conviction proceeding is a proceeding filed and adjudicated in accordance with these rules of post-conviction procedure.

(G) Filing —Papers required or permitted to be filed by the rules of post-conviction procedure, when filed by an attorney or a pro se petitioner who is not incarcerated, are filed when received by the clerk of court.

If papers required or permitted to be filed by these rules are prepared by or on behalf of a pro se petitioner incarcerated in a correctional facility and are not received by the clerk of the court until after the time fixed for filing, filing shall be timely if the papers were delivered to the appropriate individual at the correctional facility within the time fixed for filing. "Correctional facility"shall include a prison, jail, county workhouse or similar institution in which the pro se petitioner is incarcerated. This provision shall also apply to service of papers by pro se petitioners pursuant to these rules. Should timeliness of filing or service become an issue, the burden is on the pro se petitioner to establish compliance with this provision. [Amended by order filed November 2, 1999.]

(H) Colorable Claim —A colorable claim is a claim, in a petition for post-conviction relief, that, if taken as true, in the light most favorable to petitioner, would entitle petitioner to relief under the Post-Conviction Procedure Act.

Sec. 3. Applicability of Other Rules

(A) Rules Applicable —The Tennessee Rules of Evidence apply in post-conviction proceedings except as otherwise provided by these rules.

(B) Rules Not Applicable —Neither the Tennessee Rules of Civil Procedure nor the Tennessee Rules of Criminal Procedure apply to post-conviction proceedings except as specifically provided by these rules.

Sec. 4. Commencement of Post-Conviction Proceeding

(A) Manner of Commencing —A post-conviction proceeding is commenced by filing a petition as defined in Section 2 in the court in which petitioner was convicted or sentenced, if the court was a court of record, or, if the conviction or sentence was not in a court of record, by filing a petition as defined in Section 2 in the court of record having criminal jurisdiction in which the conviction occurred or the sentence was imposed.

(B) Time for Commencing —A petition for post-conviction relief must be filed within the statute of limitations set forth in Tenn. Code Ann. § 40-30-202.

(C) Filing the Petition —A petition shall be filed in accordance with Section 2(G) of these rules.

(D) Filing Fees —No filing fee shall be a prerequisite for the filing of a petition for post-conviction relief.

(E) Place of Filing —A petition shall be filed in the court in which the conviction was obtained or in which the sentence was imposed. If the conviction was not obtained in a court of record, the petition shall be filed in a court of record having criminal jurisdiction in the county in which the conviction occurred or the sentence was imposed.

Sec. 5. Nature of Pleadings

(A) Nature of Pleadings —The pleading in a post-conviction case shall consist of a petition or a motion to reopen and a responsive motion or answer.

(B) Number of Petitions —Each petitioner shall be entitled to file only one petition for each conviction or sentence incurred.

(C) Limitation of Petitions —Each petition shall be limited to claims arising from the judgment or judgments entered in a single trial or proceeding. A petitioner who desires to obtain relief from judgments entered in more than one trial or proceeding must file separate petitions for each trial or proceeding.

(D) Form of Petition or Motion to Reopen —The petition for post-conviction relief shall be substantially in the form set forth in the appendix. Likewise, a motion to reopen a post-conviction proceeding shall be substantially in the form set forth in the appendix.

(E) Contents of Petition —The petition shall contain:

(1) the biographical and case identifying information contained in the form petition in the appendix;

(2) an affidavit of petitioner in the form set forth in the appendix;

(3) each and every error that petitioner asserts as a ground for relief, including a description of how petitioner was prejudiced by the error(s);

(4) specific facts supporting each claim for relief asserted by petitioner;

(5) specific facts explaining why each claim for relief was not previously presented in any earlier proceeding;

(6) the name or names of any attorney(s) who prepared or assisted in preparing the petition.

(F) Effect of Failure to Comply with Rule —A petition may be dismissed without a hearing if it:

(1) is not timely filed;

(2) is filed while another post-conviction petition or direct appeal regarding the same conviction is pending;

(3) does not contain specific factual allegations;

(4) does not state the reasons that the claim is not barred by the statute of limitations, waived, or previously determined; or

(5) does not entitle petitioner to relief even if taken as true.

(G) Contents of State's Response —The answer shall admit or deny each and every allegation set forth in the petition. The state shall file a motion to dismiss which includes the facts relied upon to support the motion to raise as a defense that:

(1) the petition is barred by the statute of limitations;

(2) the claim has been waived or previously determined;

(3) the petition is not filed in the court with jurisdictions;

(4) the petition asserts a claim for relief from judgments entered in separate trials or proceedings;

(5) a post-conviction petition or direct appeal regarding the same conviction is currently pending; or

(6) the facts alleged fail to show that petitioner is entitled to relief.

(H) Time for Filing Answer or Motion —The answer or motion to dismiss shall be filed no more than thirty (30) days after the filing of the amended petition or written notice that no amendment will be filed as required by Tenn. Code Ann. § 40-30-207(b)(2), except for good cause shown.

(I) Effect of Failure to Comply with Rule —The failure to timely file the answer or motion to dismiss within thirty (30) days of the amended petition or written notice that no amendment will be filed or the failure to detail the facts relating to the defenses enumerated in subsection (5)(G) shall not entitle petitioner to relief without proof, but may result in the imposition of sanctions in the exercise of the trial judge's discretion.

Sec. 6. Procedure After Petition Filed

(A) Clerk's Obligations —

(1) Upon receiving a petition for post-conviction relief, the clerk shall file the original document and process it pursuant to Tenn. Code Ann. § 40-30-205.

(B) Court Obligations —

(1) The presiding judge shall assign a judge to hear the case who may be the original hearing judge. Should the presiding judge fail to assign a judge, and no judge is designated by the Chief Justice, the judge who presided at the original trial shall hear the petition.

(2) Within thirty (30) days after a petition or amended petition is filed, the judge to whom the case is assigned shall review the petition and all documents related to the judgment and determine whether the petition states a colorable claim.

(3) In the event a colorable claim is stated, the judge shall enter a preliminary order which:

(a) appoints counsel, if petitioner is indigent;

(b) sets a deadline for the filing of an amended petition;

(c) directs disclosure by the state of all that is required to be disclosed under Rule 16 of the Tennessee Rules of Criminal Procedure, to the extent relevant to the grounds alleged in the petition, and any other disclosure required by the state or federal constitution;

(d) orders the state to respond and, if appropriate, to file with the clerk certain transcripts, exhibits, or records from the prior trial or hearing; and

(e) makes other orders as are necessary to the efficient management of the case.

(4)(a) In the event the court concludes after the preliminary review that a colorable claim is not asserted by the petition, the court shall enter an order dismissing the petition or an order requiring that the petition be amended.

(b) No pro se petition shall be dismissed for failure to follow the prescribed form until the court has given petitioner a reasonable opportunity to amend the petition with the assistance of counsel.

(c) In the event the court concludes that dismissal is appropriate, the court shall enter an order specifying its findings of fact and conclusions of law in support of the determination that the petition does not state a colorable claim. The order shall state specifically the facts which support dismissal including whether the petition is barred by the statute of limitation, was filed in a court without jurisdiction, or whether the petition fails to specify the grounds for relief, the facts supporting those grounds, or fails to establish that the claim(s) have not been waived or previously determined.

(5) In the event the court finds that certain claim(s) are colorable and others are not, the court shall enter an order specifying which claims are dismissed and which claims must be responded to by the state. The order shall comply with the requirements of sections (6)(B)(2) and (3) above.

(6) After the state's response is filed, the court shall again review the petition, amended petition, answer or motion, and related documents to determine whether a colorable claim has been stated. If a colorable claim has not been stated, the court shall dismiss the petition by order setting forth the findings of fact and conclusions of law. If a colorable claim is stated, the court shall enter an order requiring the state to answer the allegations, if it has not done so, and setting an evidentiary hearing. The court's order shall be filed within thirty (30) days of the state's response.

(7) The court may issue such interlocutory orders, including stays of execution, as may be required.

(8) Upon motion, in capital cases involving indigent petitioners, the court may authorize expenditure of funds for experts, investigation, or similar services in accordance with Rule 13, § 2B(10) of the Rules of the Supreme Court of Tennessee. The court's order granting or denying the motion shall include specific findings of fact and conclusions of law and shall, upon request, be filed under seal with the record.

(9) All orders issued by the court except orders of dismissal and final orders shall be served upon counsel for petitioner, or petitioner if pro se, and the district attorney general.

(10) Orders of dismissal shall be considered final orders for purposes of appeal. Orders of dismissal and all final orders shall be served upon counsel for petitioner, the district attorney general, the Attorney General and Reporter in Nashville, and any authority imposing restraint on petitioner. The clerk shall certify on each order the date of entry and the date and manner of service.

(C) Petitioner's and State's Obligations —

(1) In the event the court dismisses the petition, petitioner may appeal as of right in accordance with the Tennessee Rules of Appellate Procedure. In the event the court requires petitioner or the state to take other steps to prepare the case for trial, petitioner and the state shall comply.

(2) Appointed or retained counsel shall be required to review the pro se petition, file an amended petition asserting other claims which petitioner arguably has or a written notice that no amended petition will be filed, interview relevant witnesses, including petitioner and prior counsel, and diligently investigate and present all reasonable claims.

(3) Appointed or retained counsel shall file the certificate of counsel set forth in the appendix within 30 days of either being retained or appointed to represent petitioner, except for good cause shown.

(4) If retained counsel has prepared or assisted in preparing the initial petition and intends to represent petitioner, counsel shall sign the initial petition and shall file the certificate of counsel set forth in the appendix.

(5) Appointed counsel who fails to comply with this section may be denied compensation for services rendered.

(6) The state shall file an answer or a motion to dismiss within thirty (30) days of the filing of the amended petition or of the written notice that no amended petition will be filed. The answer or motion to dismiss shall comply with the statute and with the requirements of Section 5(G).

(7) Upon receiving the court's preliminary order, the state shall provide to petitioner discovery of all those items deemed discoverable under Rule 16, Tennessee Rules of Criminal Procedure, if relevant to the issues raised in the post-conviction petition, and shall provide any other disclosure required by the state or federal constitution.

(8) Petitioner may withdraw a petition at any time prior to the evidentiary hearing, but the withdrawn petition does not toll the statute of limitations. [Amended by order filed October 15, 1998.]

Sec. 7. Discovery & Production of Evidence

(A) Discovery —The state shall provide discovery in accordance with Section 6(C)(7).

(B) Production of Documents —The court may require any clerk of any Tennessee court to furnish copies of documents, orders, or records to petitioner or to file the documents in the clerk's office at the state's expense.

Sec. 8. Evidentiary Hearing

(A) Timing —Upon finding that the petition states a colorable claim and within thirty (30) days of the state's response, the court shall enter an order scheduling an evidentiary hearing.

(B) Continuances —The evidentiary hearing shall be conducted within four (4) months of the order scheduling the hearing. The hearing shall not be continued except by order of the court finding that unforeseeable circumstances render a continuance a manifest necessity. No continuance shall extend the hearing more than sixty (60) days beyond the original hearing date.

(C) Witnesses —

(1) Petitioner

(a) Petitioner has the right to testify unless petitioner is incarcerated in a state that will not release petitioner to the custody of Tennessee for appearance at the evidentiary hearing.

(b) Petitioner shall testify at the evidentiary hearing if the petition raises substantial issues of facts, unless petitioner is incarcerated out of state.

(c) If petitioner is incarcerated out of state, petitioner shall be allowed to offer testimony by affidavit or deposition.

(d) Under no circumstances shall petitioner be required to testify regarding the facts of the conviction which the petition attacks unless necessary to establish the allegations of the petition or necessary to the state's attempt to rebut the allegations of the petition.

(2) Affidavit and Deposition Testimony —If the judge allows affidavit or deposition testimony under the provisions of Tenn. Code Ann. § 40-30-210(a), the judge shall allow the other party sufficient time to file affidavits or depositions in response. If the state is allowed to file deposition testimony, the state shall provide to counsel for indigent petitioners or indigent petitioners if pro se a copy of the deposition at state expense.

(3) Subpoenas —Each party shall have the right to subpoena witnesses for appearance at the evidentiary hearing.

(D) Hearing Procedure —

(1) Petitioner shall be required to present petitioner's case and to establish the factual grounds alleged by clear and convincing evidence.

(2) Each party shall have the right to examine all witnesses.

(3) In the event that the petition alleges that petitioner was unconstitutionally deprived of an appeal and was also entitled to relief on other grounds, the court shall bifurcate the proceedings and determine first whether petitioner was denied an appeal, while holding the other claims in abeyance. Those claims shall be considered after the outcome of the delayed appeal if allowed, or after the appeal of the claim, if denied.

(4) The hearing shall be limited to issues raised in the petition.

(5) If evidence is objected to on the basis that it concerns issues not raised in the petition or answer, the court may allow amendments and shall do so freely when the presentation of the merits of the cause will otherwise be subserved. The court shall liberally allow a continuance in the event an amendment is allowed to enable the objecting party to meet the evidence.

(6) The hearing, and any other proceedings regarding the petition, shall be recorded.

Sec. 9. Determination & Relief

(A) Decision —The court shall enter an order granting or denying the petition within sixty (60) days of the conclusion of the proof. The order shall contain specific findings of fact and conclusions of law relating to each issue presented. The deadline for entry of the order shall not be extended unless the court finds that unforeseeable circumstances make an extension a manifest necessity. In such circumstances, the order shall not be delayed more than thirty (30) days beyond the original deadline.

(B) Availability of Relief —A petitioner shall be entitled to post-conviction relief when petitioner's conviction or sentence is void or voidable because of the violation of any right guaranteed by the state or federal constitution, including a right not recognized as existing at the time of the trial or sentencing if either constitution requires retrospective application of that right.

(C) Orders Granting Relief —If the court finds that petitioner is entitled to relief, the court shall enter an order vacating and setting aside the judgment of conviction or sentence or an order granting a delayed appeal. The court shall also enter any other appropriate supplementary orders that may be necessary and proper.

(D) Grant of a Delayed Appeal —

(1) By the Trial Court

(a) Appeal as of Right Pursuant to Rule 3, Tennessee Rules of Appellate Procedure - Upon determination by the trial court that the petitioner was deprived of the right to file an appeal pursuant to Rule 3, Tennessee Rules of Appellate Procedure, the trial court shall apply the procedures set out in Tennessee Code Annotated section 40-30-213.

(b) Appeal Pursuant to Rule 11, Tennessee Rules of Appellate Procedure -

(i) Upon determination by the trial court that the petitioner was deprived of the right to request an appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure, the trial court shall enter an order granting the petitioner a delayed appeal, staying the post-conviction proceedings pending the final disposition of the delayed appeal, and providing that the order is final for purposes of appeal under this rule.

(ii) The State may appeal to the Court of Criminal Appeals as of right from the trial court's grant of a delayed appeal by filing a notice of appeal with the trial court clerk within thirty (30) days of entry of the trial court's order granting the delayed appeal. The appeal shall then proceed in accordance with the Tennessee Rules of Appellate Procedure as in any appeal as of right. If the Court of Criminal Appeals does not reverse the trial court's order granting a delayed appeal, the State may file an application for permission to appeal under Rule 11, Tennessee Rules of Appellate Procedure, and the case shall then proceed in accordance with that rule until final disposition by the Supreme Court. If the State does not file a Rule 11 application, the petitioner has sixty (60) days from the issuance of the mandate of the Court of Criminal Appeals to file the delayed Rule 11 application with the Supreme Court. If the State files a Rule 11 application, but the Supreme Court denies the application or grants the application but does not reverse the trial court's order granting a delayed appeal, the petitioner shall have sixty (60) days from the issuance of the mandate of the Supreme Court to file the delayed Rule 11 application.

(iii) If the State chooses not to appeal the trial court's grant of a delayed appeal, the State shall file a notice of its intention not to appeal within thirty (30) days of entry of the trial court's order granting a delayed appeal. The petitioner has sixty (60) days from the date of filing of this notice to file the delayed Rule 11 application. In the event the State fails to file this notice, the delayed Rule 11 application will be considered timely if filed within ninety (90) days of entry of the trial court's order granting a delayed appeal.

(iv) Upon the filing of a delayed Rule 11 application in accordance with this rule, the Appellate Court Clerk shall immediately reinstate the original appeal on the docket and serve notice on all parties. The case shall then proceed in accordance with Rule 11, Tennessee Rules of Appellate Procedure.

(2) By the Appellate Court

(a) Appeal as of Right Pursuant to Rule 3, Tennessee Rules of Appellate Procedure - If the trial court determines that the petitioner was not deprived of the right to appeal pursuant to Rule 3, Tennessee Rules of Appellate Procedure, this ruling may be challenged as part of any Rule 3 appeal from the trial court's final judgment in the post-conviction proceedings. The Court of Criminal Appeals shall consider and resolve this issue along with any other issues raised in the post-conviction appeal. Should the Court of Criminal Appeals grant a delayed appeal, the post-conviction appeal shall not be stayed; instead, any party may challenge the decision of the Court of Criminal Appeals, or any portion thereof, by filing an application for permission to appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure.

(b) Appeal Pursuant to Rule 11, Tennessee Rules of Appellate Procedure -

(i) If the trial court determines that the petitioner was not deprived of the right to request an appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure, this ruling may be challenged as part of any Rule 3 appeal from the trial court's final judgment in the post-conviction proceedings. The Court of Criminal Appeals shall consider first the trial court's denial of the delayed appeal before resolving other issues raised in the post-conviction appeal. If the Court of Criminal Appeals determines that the trial court properly denied the request, the Court of Criminal Appeals shall dispose of the remaining issues in the post-conviction appeal. If, however, the Court of Criminal Appeals determines that the trial court erred in denying the delayed appeal, the Court of Criminal Appeals shall enter an order granting the petitioner a delayed appeal and staying the post-conviction proceedings pending the final disposition of the delayed appeal.

(ii) If the Court of Criminal Appeals grants a delayed appeal, the State may file an application for permission to appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure, within sixty (60) days from the date of the filing of the order of the Court of Criminal Appeals. The case shall then proceed in accordance with Rule 11. If the Supreme Court denies the Rule 11 application or grants the application but does not reverse the intermediate court's order granting a delayed appeal, the petitioner shall have sixty (60) days from the issuance of the mandate of the Supreme Court to file a delayed Rule 11 application. If the State does not file a Rule 11 application, the petitioner has sixty (60) days from the issuance of the mandate of the Court of Criminal Appeals to file the delayed Rule 11 application with the Supreme Court.

(iii) Upon the filing of a delayed Rule 11 application in accordance with this rule, the Appellate Court Clerk shall immediately reinstate the original appeal on the docket and serve notice on all parties. The case shall then proceed under Rule 11, Tennessee Rules of Appellate Procedure.

(3) New Issues Resulting from Delayed Appeal

(a) Where a delayed appeal is granted and the petitioner is unsuccessful on appeal, and new issues cognizable in a post-conviction proceeding result from the handling of the delayed appeal, the petitioner may amend the original post-conviction petition to include such new issues.

(b) Where the post-conviction appeal has been stayed in the Court of Criminal Appeals, the case may be remanded to the trial court for the taking of evidence on any new issues resulting from an unsuccessful delayed appeal. (Amended by order filed May 8, 2001 and by order filed October 22, 2002 and by order filed August 25, 2003.)

Sec. 10. Appeals

(A) Dismissals or Denials of Petition —An appeal from the dismissal or denial of a post-conviction petition shall be in accordance with the Tennessee Rules of Appellate Procedure.

(B) Denials of Motions to Reopen —A petitioner whose motion to reopen is denied shall have ten (10) days to seek permission to appeal by filing an application, accompanied by the order denying the motion, in the Court of Criminal Appeals. The state shall have ten (10) days to respond. The Court of Criminal Appeals may allow the parties to file additional briefs, argue the case, or both. In the event the Court of Criminal Appeals finds that the trial court abused its discretion by denying the motion to reopen, the court shall, by order, remand the case to the trial court for further proceedings.

When the Court of Criminal Appeals affirms the trial court's decision denying the motion to reopen, the petitioner shall have sixty (60) days from the date of the Court of Criminal Appeals decision to seek permission to appeal in the Tennessee Supreme Court by filing a Rule 11, application, Tenn. R. App. P. The application shall be accompanied by copies of all documents filed by both parties in the trial court and the orders denying the motion in the trial court and the Court of Criminal Appeals. The State shall have fifteen (15) days to file a response. The Supreme Court may allow the parties to file additional briefs, argue the case, or both. Permission to appeal will be denied unless it appears that the trial court abused its discretion by denying the motion to reopen. In the event the Supreme Court determines that the trial court abused its discretion by denying the motion, the Supreme Court, by Order, shall remand the case to the trial court for further proceedings.

(C) Motions for Review of Motions for Stay —Either party may request review of a trial court's ruling on a motion for stay of execution by filing a motion for review in the Tennessee Court of Criminal Appeals within five (5) days of the trial court's ruling on the stay of execution. The Court of Criminal Appeals may allow the opposing party to respond in writing within three (3) days of the service of the motion for review or may ascertain the party's position by other means. Oral argument shall not be permitted unless ordered by the appellate court. A single judge of the appellate court, or a three-judge panel, shall rule on the motion within five (5) days of the filing of the motion for review. In the event the appellate court finds that the lower court abused its discretion in ruling on the motion for a stay of execution, it shall set aside the order denying the stay and enter an order either granting or denying the stay, as appropriate. Review of the Court of Criminal Appeals' action may be sought in the Supreme Court. In the event review is sought in the Supreme Court, the procedures for filing and processing the motion shall be the same as those for review in the Court of Criminal Appeals.

[Amended by order entered August 25, 1997.]

Sec. 11. Withdrawal of Post-Conviction Petition in Capital Case.

(A) Determination of Trial Court- Before allowing a petitioner under sentence of death to withdraw the petitioner’s post-conviction petition, the trial court shall address the petitioner personally in open court and ascertain that the petitioner

(1) does not desire to proceed with any post-conviction proceedings;
(2) understands the significance and consequences of withdrawing the post- conviction petition; and
(3) is knowingly, intelligently, and voluntarily, without coercion, withdrawing the petition; and
(4) is competent to decide whether to withdraw the post-conviction petition.

The hearing at which the trial court addresses the petitioner shall be recorded. At the hearing the trial court may consider any evidence and argument relevant to items (1) through (4). The trial court shall enter an order granting or denying withdrawal of the petition and stating the court’s findings regarding items (1) through (4). An order of the trial court granting withdrawal and dismissing the petition shall become final thirty days after its entry.

(B) Competency -

(1) The standard for determining competency of a petitioner to withdraw a post- conviction petition and waive further post-conviction relief under this section is: whether the petitioner possesses the present capacity to appreciate the petitioner’s position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether the petitioner is suffering from a mental disease, disorder, or defect which may substantially affect the petitioner’s capacity.
(2) A petitioner is presumed competent to withdraw a post-conviction petition and waive post-conviction relief; however, if a genuine issue regarding the petitioner’s present competency arises during the hearing provided for in (A), supra, the trial court shall enter an order appointing at least one, but no more than two, mental health professionals from lists submitted by the State and counsel for the petitioner. The order shall direct that the petitioner be evaluated by the appointed mental health professionals to determine the petitioner’s competency and that the appointed mental health professionals file written evaluations with the trial court within ten days of the appointment unless good cause is shown for later filing. Upon filing, the trial court clerk shall forward a copy of the written evaluations to counsel for the petitioner and to the State.
(3) If a genuine issue regarding the petitioner’s present competency exists after the filing of evaluations by the appointed mental health professionals, the trial court shall hold a separate hearing on the record, allowing the introduction of testimony, exhibits and evidence, to determine the petitioner’s competency. After the hearing, the trial court shall file detailed written findings of fact regarding the court’s competency determination, which shall be included in the court’s order granting or denying withdrawal of the petition.

(C) Appeal- Whenever a trial court determines that the petitioner is competent to withdraw the petition, the order of the trial court finding the petitioner competent and dismissing the petition may be appealed under T.R.A.P. 3. If the trial court has granted a motion for dismissal of post-conviction counsel, post-conviction counsel shall nonetheless have standing to appeal the sole question of whether the petitioner was competent to withdraw the petition. The issue of competency will be reviewed as an issue of fact and the trial court’s finding will be presumed correct, unless the evidence in the record preponderates against it.[Amended by order filed November 21, 2002.]

Sec. 11. Citation

These rules may be cited as Tenn. Sup. Ct. R. 28, § _____.

[Adopted by order entered November 17, 1995; amended by order entered July 1, 1996; and by order filed October 28, 1996; and by order filed November 21, 2002.]

APPENDIX A. FORM PETITION

The following form petition shall be available without cost to a prisoner in the prisons and other places of detention and shall also be available without cost to any potential petitioner in the office of the clerk of court for any court of record with criminal jurisdiction. The standard form, together with Tenn. Code Ann. § 40-30-202(c), is designed to achieve early finality in post-conviction proceedings through one comprehensive petition and one full and fair hearing at which all grounds for challenging the validity of a conviction or sentence will be considered.

READ THESE INSTRUCTIONS CAREFULLY BEFORE PREPARING THE PETITION

(1) This petition must be legibly handwritten or typewritten. It must be signed by petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction of petitioner for perjury. All questions must be answered completely in the proper space on the form or on additional sheets submitted with the form. This form may be obtained at the place of confinement or from any clerk of a court of record with criminal jurisdiction.

(2) No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum and not as part of this form.

(3) A separate petition must be filed for each judgment you seek to challenge. If you seek to challenge judgments entered in different trials or guilty plea proceedings, either in the same county or in different counties, you must file separate petitions.

(4) YOU MUST INCLUDE IN THIS PETITION ALL GROUNDS FOR RELIEF. FAILURE TO INCLUDE A GROUND FOR RELIEF IN THIS PETITION WILL RESULT IN YOUR BEING PERMANENTLY BARRED FROM PRESENTING IT IN A FUTURE PETITION OR PROCEEDING.

(5) YOU MUST INCLUDE ALL FACTS SUPPORTING EACH GROUND FOR RELIEF. YOU MUST BE AS SPECIFIC AS POSSIBLE AS TO THE FACTS.

(6) Complete all applicable items in the petition. When the petition is fully completed, the ORIGINAL must be mailed to the appropriate clerk of court.

(7) You must comply with these instructions in order to have your petition promptly considered.

(8) REMEMBER, A PETITIONER IS ENTITLED TO FILE ONLY ONE PETITION PER CASE.

IN THE _________ COURT OF

_ COUNTY, TENNESSEE AT _

____________ )

PETITIONER (FULL NAME) )

)

) CASE NO. _______

VS. )

) (POST-CONVICTION)

)

STATE OF TENNESSEE )

PETITION FOR RELIEF FROM CONVICTION OR SENTENCE

Mailing Address of Petitioner _____________________

(including zip code) _____________________

_____________________

Place of Confinement ________________

Dep't of Corrections Number ______________

NOTICE: BEFORE COMPLETING THIS FORM, READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS.

1. Name and location (city and county) of court which entered the judgment of conviction or sentence challenged

_____________________

2. Date of judgment of conviction _____________________

3. Case Number _____________________

4. Length of sentence _____________________

5. Offense Convicted of _______________________________________________________________

6. What was your plea? (Check One)

(a) Guilty _____

(b) Not Guilty _____

(d) Not guilty and not guilty by reason of mental disease or defect _____

(e) Nolo contendere _____

(f) None _____

If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, specify.

(a) guilty plea counts: _____________________

(b) not guilty counts: _____________________

7. Kind of trial: (Check One)

(a) Jury _____ (b) Judge only _____

8. Did you testify at the trial?

Yes _____ No _____

9. Did you appeal from the judgment of conviction?

Yes _____ No _____

10. If you did appeal, answer the following:

(a) As to the state court to which you first appealed, give the following information:

(1) Name of court __________________________________________

(2) Result __________________________________________

(3) Date of result __________________________________________

(4) Grounds raised on appeal __________________________________________________________
(Attach additional sheets if necessary)

(b) If you appealed to any other court, then as to the second court to which you appealed, give the following information:

(1) Name of court __________________________________________

(2) Result __________________________________________

(3) Date of result __________________________________________

(4) Grounds raised on appeal __________________________________________
(Attach additional sheets if necessary)

(c) If you appealed to any other court, then as to the third court to which you appealed, give the following information:

(1) Name of court __________________________________________

(2) Result __________________________________________

(3) Date of result __________________________________________

(4) Grounds raised on appeal __________________________________________
(Attach additional sheets if necessary)

11. If more than one (1) year has passed since the date of final action on your direct appeal by the state appellate courts, state why the statute of limitations should not bar your claim.

____________________________________________________________________________________

12. Other than a direct appeal from the judgment(s) of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to the judgment(s) in any state or federal court?

Yes _____ No _____

13. If your answer to Question 12 was Yes, then give the following information in regard to the first such petition, application, or motion you filed:

(a) (1) Name of court _____________________
(2) Nature of proceeding _____________________
(3) Grounds raised _______________________________________________________________
______________________________________________________________________________
(Attach additional sheets if necessary)
(4) Did you receive an evidentiary hearing on your petition, application or motion?

Yes _____ No _____

(5) Result _____________________

(6) Date of result _____________________

(b) As to any second petition, application, or motion, give same information:

(1) Name of court _____________________

(2) Nature of proceeding _____________________

(3) Grounds raised _________________________________________________________________
(Attach additional sheets if necessary)
(4) Did you receive an evidentiary hearing on your petition, application, or motion?

Yes _____ No _____

(5) Result _____________________

(6) Date of result _____________________

(1) First petition, etc. Yes _____ No _____

(2) Second petition, etc. Yes _____ No _____

(d) If you did not appeal when you lost on any petition, application, or motion, explain briefly why you did not appeal: ____________________________________________________________________________________

14. If you did not raise the grounds you raised here in your original prosecution and on your appeal from that prosecution, explain why your claim in this case has not been waived for failure to raise it on appeal. If the claim was raised, explain why your claim is not previously determined.

_______________________________________________________________

15. If you have previously filed a petition, application, or motion with respect to the judgment(s) in any court, explain why your claim in this case has not been waived for failure to raise it in that prior proceeding. If the claim was raised, explain why your claim is not previously determined.

_______________________________________________________________

16. Specify every ground on which you claim that you are being held unlawfully, by placing a check mark on the appropriate line(s) below and providing the required information or by attaching separate pages.

INCLUDE ALL FACTS WHICH SUPPORT THE GROUNDS YOU CLAIM.

GROUNDS OF PETITION

Listed below are possible grounds for relief. Consider the ground(s) that apply in your case, and follow the instruction under the ground(s):

_____ (1) Conviction was based on unlawfully induced guilty plea or guilty plea involuntarily entered without understanding of the nature and consequences of the plea.

_____ (2) Conviction was based on use of coerced confession.

_____ (3) Conviction was based on use of evidence gained pursuant to an unconstitutional search and seizure.

_____ (4) Conviction was based on use of evidence obtained pursuant to an unlawful arrest.

_____ (5) Conviction was based on a violation of the privilege against self incrimination.

_____ (6) Conviction was based on the unconstitutional failure of the prosecution to disclose to defendant evidence favorable to defendant.

_____ (7) Conviction was based on a violation of the protection against double jeopardy.

_____ (8) Conviction was based on action of a grand or petit jury that was unconstitutionally selected and impaneled.

_____ (9) Denial of effective assistance of counsel.

_____ (10) Newly discovered evidence.

_____ (11) Illegal evidence.

_____ (12) Other grounds.

THE LIST ABOVE DOES NOT INCLUDE A COMPLETE LIST OF ALL CONSTITUTIONAL VIOLATIONS. YOU MAY ADD ANY OTHERS YOU DEEM APPROPRIATE. ATTACH A SEPARATE SHEET OF PAPER LISTING EACH CONSTITUTIONAL VIOLATION THAT YOU CLAIM, WHETHER OR NOT IT IS LISTED ABOVE. UNDER EACH CLAIMED VIOLATION YOU CLAIM, LIST EACH AND EVERY FACT YOU FEEL SUPPORTS THIS GROUND. EXPLAIN IN DETAIL HOW YOU ARE PREJUDICED BY THE VIOLATION AND WHY YOU ARE ENTITLED TO RELIEF. BE SPECIFIC.

IMPORTANT NOTICE REGARDING ADDITIONAL PETITIONS: TENN. CODE ANN. § 40-30-202(c) LIMITS YOU TO ONLY ONE PETITION. TENN. CODE ANN. § 40-30-202(c) PROVIDES:

This chapter contemplates the filing of only one (1) petition for post-conviction relief. In no event may more than one (1) petition for post-conviction relief be filed attacking a single judgment. If a prior petition has been filed which was resolved on the merits by a court of competent jurisdiction, any second or subsequent petition shall be summarily dismissed.

17. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack?

Yes _____ No _____

18. Give the name and address, if known, of each attorney who represented you at the following stages of the case that resulted in the judgment under attack:

(a) At preliminary hearing __________________________________________

(b) At arraignment and plea __________________________________________

(d) At sentencing __________________________________________

(e) On appeal __________________________________________

(f) In any post-conviction proceeding ___________________________________________________________

(g) On appeal from adverse ruling in a post-conviction proceeding
__________________________________________

19. Are you currently represented by counsel?

Yes _____ No _____

(a) If Yes, give name and address, if known, of the attorney representing you.

_______________________________________________________________

(b) If No, do you wish to have an attorney appointed?

Yes _____ No _____

If Yes, give name and address of attorney(s).
____________________________________________________________________________________

____________________________________________________________________________________

20. In the judgment you are attacking, were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time?

Yes _____ No _____

21. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack?

Yes _____ No _____

(a) If so, give name and location of court which imposed sentence to be served in the future: _____________________

(b) And give date and length of sentence to be served in the future:
_____________________

(c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future?

Yes _____ No _____

22. What date is this petition being given to prison authorities for mailing? ___________

Wherefore, petitioner prays that the court grant petitioner relief to which petitioner may be entitled in this proceeding.

PETITIONER'S VERIFICATION UNDER OATH
SUBJECT TO PENALTY FOR PERJURY

I swear (or affirm) under penalty of perjury that the foregoing is true and correct. Executed on _________.

(Date)

_____________

Signature of Petitioner

SWORN TO AND SUBSCRIBED before me this the _____ day of _________, 20___.

_____________________

Notary Public

My commission expires: _____________________

APPENDIX B. AFFIDAVIT OF INDIGENCY

I, _________, do solemnly swear (or affirm) that because of my poverty, I am not able to bear the expenses of the action which I am about to commence. I further swear (or affirm) that, to the best of my knowledge, I am justly entitled to the relief sought.

_____________________

Petitioner

APPENDIX C. CERTIFICATION OF COUNSEL

CERTIFICATE

I, _________________, certify that I have thoroughly investi-

(Appointed or retained counsel)

gated the possible constitutional violations alleged by petitioner, including all those in paragraph 16 petitioner's possible constitutional claims, including all those in paragraph 15 of the form petition set forth in Appendix A and any other ground that petitioner may have for relief. I have discussed other possible constitutional grounds with petitioner. I have raised all non-frivolous constitutional grounds warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law which petitioner has. I am aware that any ground not raised shall be forever barred by application of Tenn. Code Ann. § 40-30-206(g), and have explained this to petitioner.

_____________________

Counsel for Petitioner

_____________________

Board of Professional Responsibility Number

APPENDIX D. FORM MOTION TO REOPEN

The following form petition shall be available without cost to a prisoner in the prisons and other places of detention and shall also be available without cost to any potential petitioner in the office of the clerk of court for any court of record with criminal jurisdiction. The Post-Conviction Procedure Act contemplates the filing of only one (1) petition for post-conviction relief. A motion to reopen should be filed only under the limited circumstances set out in Tenn. Code Ann. § 40-30-217.

READ THESE INSTRUCTIONS CAREFULLY BEFORE PREPARING THE PETITION

(1) This petition must be legibly handwritten or typewritten and must be signed by petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered completely in the proper space on the form or on additional sheets submitted with the form. This form may be obtained at the place of confinement corrections institution where you are confined or from any clerk of a court of record with criminal jurisdiction.

(2) No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum and not as part of this form.

(3) A separate petition must be filed for each judgment you seek to challenge. Only the judgments entered in a single trial or guilty plea proceeding may be challenged in a particular petition. If you seek to challenge judgments entered in different trials or guilty plea proceedings, either in the same county or in different counties, you must file separate petitions.

(4) YOU MUST INCLUDE IN THIS PETITION ALL GROUNDS FOR RELIEF. FAILURE TO INCLUDE A GROUND FOR RELIEF IN THIS PETITION WILL RESULT IN YOUR BEING BARRED FROM PRESENTING IT IN A FUTURE PETITION.

(5) YOU MUST INCLUDE ALL FACTS SUPPORTING EACH GROUND FOR RELIEF. YOU MUST BE AS SPECIFIC AS POSSIBLE AS TO THE FACTS.

(6) Complete all applicable items in the petition. When the petition is fully completed, the ORIGINAL must be mailed to the appropriate clerk of court.

(7) You must comply with these instructions in order to have your petition promptly considered.

(8) REMEMBER, A PETITIONER IS ENTITLED TO FILE ONLY ONE PETITION PER CASE.

IN THE __ COURT OF _ COUNTY, TENNESSEE
AT _______

___________ )

PETITIONER (FULL NAME) )

)

VS. ) CASE NO. _________

)

) (POST-CONVICTION)

STATE OF TENNESSEE )

MOTION TO REOPEN POST-CONVICTION PETITION

Mailing Address of Petitioner _____________________

(including zip code) _____________________

_____________________

Place of Confinement _____________

Department of Corrections Number _________

NOTICE: BEFORE COMPLETING THIS FORM, CAREFULLY READ THE ACCOMPANYING INSTRUCTIONS.

1. Name and location (city and county) of court which entered the judgment of conviction or sentence under attack ____________________________________________________________________________________

2. Date of judgment of conviction _____________________

3. Case Number _____________________

4. Length of sentence _____________________

5. Offense convicted of ________________________________________________________________

6. What was your plea? (Check one)

(a) Guilty _____

(b) Not Guilty _____

(d) Not guilty and not guilty by reason of mental disease or defect _____

(e) Nolo contendere _____

(f) None _____

If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, specify:

(a) Guilty plea counts: _____________________

(b) Not guilty plea counts: _____________________

7. Give the following information in regard to the post-conviction proceeding(s) you seek to reopen at this time:

(a) _____________________

(1) Name and location of post-conviction trial court _____________________

(2) Grounds raised __________________________________________________________________

______________________________________________________________

(attach additional sheets if necessary)

(3) Did you receive an evidentiary hearing on your petition, application or motion?

Yes _____ No _____

(4) Result _____________________

(5) Date of result _____________________

(b) Did you appeal to any appellate court the result of the action taken on that petition?

Yes _____ No _____

_____________________ __________________________________________

8. What grounds exist under Tenn. Code Ann. § 40-30-217 to justify reopening the first post-conviction petition? Check all that apply.

_____ (a) A state or federal appellate court has issued a final ruling establishing a constitutional right that was not recognized as existing at the time of trial but now is required to be recognized and applied in your case.
(1) What was the name and style of the case establishing the constitutional right?
_____________________
(2) On what date was that opinion or ruling filed?
_____________________
(3) If more than one (1) year has passed since the appellate court ruled establishing this new constitutional right, state why the one year statute of limitations should not bar you claim.
____________________________________________________________________________________
(4) Attach a separate sheet of paper listing each constitutional right that you claim that was not recognized as existing at the time of your trial but is now required to be recognized and applied in your case. Include all facts of your case which support your claim that this right now entitles you to relief. Specify how you were prejudiced.

_____ (b) There exists new scientific evidence that establishes that you are actually innocent of the offense or offenses for which you were convicted.

(1) What is the scientific evidence consist of ? _______________________________________________________________

(2) On what date did the scientific evidence come into existence?
_____________________

(3) How and when did you become aware of the existence of this evidence? _______________________________________________________________

(4) How does the evidence establish your actual innocence?
_______________________________________________________________

_____ (c) The sentence in this case was enhanced because of a prior conviction has subsequently been held to be invalid.
(1) Name and location of court which entered the judgment of the prior conviction. _____________________
_____________________
(2) Case number of prior case. _____________________

(3) Name and location of court that held the prior conviction invalid. _______________________________________

(4) Date the conviction held invalid. __________________________________________

(5) Describe how the prior conviction was used to enhance the sentence you are now attacking. _____________________
_______________________________________________________________

(6) If more than one (1) year has passed since the date the prior conviction was set aside, state why the one year statute of limitations should not bar your claim. ______________________________________________________________________

9. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack?

Yes _____ No _____

10. Give the name(s) and address(es), if known, of each attorney who represented you on your petition for post-conviction relief.

(a) In any post-conviction proceeding _______________________________________________________________

(b) On appeal from adverse ruling in a post-conviction proceeding
_______________________________________________________________

11. Are you currently represented by counsel?

Yes _____ No _____

If Yes, give name and address, if known, of the attorney representing you.
_______________________________________________________________

If No, do you wish to have an attorney appointed?
Yes _____ No _____

12. Has any attorney assisted in drafting or given advice regarding drafting this petition for post-conviction relief?

Yes _____ No _____

If Yes, give name and address of attorney(s). __________________________________________________________________

13. In the judgment you are attacking, were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court at the same time?

Yes _____ No _____

14. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack?

Yes _____ No _____

(a) If so, give name and location of court which imposed sentence to be served in the future: _____________________
(b) And give date and length of sentence to be served in the future:
_____________________
(c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future?

Yes _____ No _____

15. What date is this motion being given to prison authorities for mailing?

Wherefore, petitioner prays that the court grant petitioner's motion to reopen the post-conviction proceedings and grant any relief to which petitioner may be entitled in this proceeding.

PETITIONER'S VERIFICATION UNDER OATH
SUBJECT TO PENALTY FOR PERJURY

I swear (or affirm) under penalty of perjury that the foregoing is true and correct. Executed on ___________.

(Date)

_____________________

Signature of Petitioner

SWORN TO AND SUBSCRIBED before me this the ___ day of _______, 20___.

_____________________

Notary Public

My commission expires: _____________________

APPENDIX E. AFFIDAVIT OF INDIGENCY

_____________________

Petitioner

APPENDIX F. FORM PRELIMINARY ORDER

IN THE ______ COURT FOR ______ COUNTY, TENNESSEE

AT ___________

___________ )

PETITIONER )

)

VS. ) POST-CONVICTION NO._____________________

)

STATE OF TENNESSEE )

PRELIMINARY ORDER
(COLORABLE CLAIM)

After examination of the (petition for post-conviction relief) or (motion to reopen) filed in this case, together with the files, records, transcripts and correspondence relating to the judgment under attack, this court finds as follows:

(1) Petitioner is indigent under the standards of Tenn. Code Ann. § 40-14-201. The court hereby appoints _________________ of the ___________ (County Bar) (_______ District Public Defender's Office) to represent the petitioner.

(2) The petition presents a colorable claim.

(3) Counsel is hereby ordered to review the petition, consult with petitioner, and investigate all possible constitutional grounds for relief for the purpose of filing an amended petition, if necessary. The amended petition shall be filed within thirty (30) days of the date of this order. In the event no amended petition will be filed, counsel shall file a notice stating that no amended petition will be filed. In any event, counsel shall file the certificate of counsel required in post-conviction cases.

(4) The District Attorney General is ordered to file an answer or other responsive pleading, together with any record or transcripts, material to the (petition) or (motion to reopen) within thirty (30) days of the filing of the amended petition or of the notice that no amended petition will be filed.

(5) The District Attorney General is ordered to provide discovery to petitioner in accordance with Rule 16, Tennessee Rules of Criminal Procedure, to the extent relevant to the grounds in the petition. The District Attorney General shall make all other disclosures required by the state and federal constitution.

(6) The District Attorney General shall file with the clerk the following items from the prior record:

______________________________________________________________

ENTERED this _____ day of ______, 20___.

_____________________

JUDGE

APPENDIX G. FORM PRELIMINARY ORDER

IN THE ______ COURT FOR ______ COUNTY, TENNESSEE

AT ___________

___________ )

PETITIONER )

)

VS. ) POST-CONVICTION NO._____________________

)

STATE OF TENNESSEE )

PRELIMINARY ORDER
(NO COLORABLE CLAIM)

After examination of the (petition for post-conviction relief) or (motion to reopen) filed in this case, together with the files, record, transcripts and correspondence relating to the judgment under attack, this court finds as follows:

(1) The petition shall be dismissed.

(2) The petition shall be dismissed for failure to assert a colorable claim based on the following findings of fact:

_______________________________________________________________; and

(3) The petition shall be dismissed for failure to assert a colorable claim based on the following conclusions of law:

__________________________________________

_____________________

ENTERED this _____ day of _______, 20___.

_____________________

JUDGE

APPENDIX H. FORM SCHEDULING ORDER

IN THE ______ COURT FOR ______ COUNTY, TENNESSEE

AT ___________

___________ )

PETITIONER )

)

VS. ) POST-CONVICTION NO._____________________

)

STATE OF TENNESSEE )

)

SCHEDULING ORDER

In this matter, the court has reviewed the (petition) or (motion to reopen) and answer filed in this case and has concluded that a colorable claim is presented. In order to determine whether the petitioner is entitled to relief, an evidentiary hearing must be conducted.

It is therefore ORDERED that such hearing shall be held at _____ ___.m. the _____ day of _______, 20___. (Within four months of scheduling order)

The sheriff of _______ County is hereby ordered to transport petitioner from the Department of Correction where he/she is presently housed to the ______ County Jail on the _____ day of ______, 20___, where he/she shall remain pending the conclusion of the evidentiary hearing in this court.

ENTERED this _____ day of ______, 20___.

_____________________

JUDGE

Rule 29. Uniform Civil Affidavit of Indigency.

Pursuant to Tenn. Code Ann. § 20-12-127(a), any civil action may be commenced by a resident of this state without giving security as required by law for costs and without payment of litigation taxes due by filing the oath of poverty set out in the statute and by filing an affidavit of indigency as prescribed by court rule. Pursuant to Tenn. Code Ann. § 20-12-127(a)(2), the uniform civil affidavit of indigency document appended to this rule is hereby adopted and shall be used in all such civil cases. The uniform civil affidavit of indigency shall also be used in all cases commenced pursuant to Tenn. Code Ann. § 20-12-128 (pertaining to the pauper’s oath in actions filed by guardians), § 20-12-129 (actions filed by next friends of infants) and § 20-12-130 (actions filed by personal representatives).

In deciding whether a civil action commenced under a pauper’s oath should be dismissed pursuant to § 20-12-132, the court shall consider the information required by the uniform civil affidavit of indigency. A person who meets the Legal Services Corporation’s poverty guidelines published annually in the Code of Federal Regulations shall be presumed to be indigent for purposes of Tenn. Code Ann. § 20-12-127, § 20-12-128, § 20-12-129, and § 20-12-130. The foregoing sentence does not preclude the court from finding that a person who does not meet the Legal Services Corporation’s poverty guidelines is indigent for purposes of the pauper’s oath statutes.

This rule shall not be interpreted to modify or repeal any provision contained in Tenn. Code Ann. §§ 41-21-801 through -818, which apply to claims filed by inmates. [Effective June 21, 2001.]

IN THE ______ COURT OF ______ COUNTY

___________ )

(PLAINTIFF) )

)

VS. ) CASE NO: _______

)

___________ )

(DEFENDANT) )

_____________________

UNIFORM CIVIL AFFIDAVIT OF INDIGENCY

_____________________

I, _______, having been duly sworn according to law, make oath that because of my poverty, I am unable to bear the expenses of this case and that I am justly entitled to the relief sought to the best of my belief. The following facts support my poverty.

1. Full Name: _____________________

2. Address: _____________________

3. Telephone Number: _____________________

4. Date of Birth: _____________________

5. Names and Ages of All Dependents:

________________ Relationship _____________________

6. I am employed by: _____________________
My employer's address is: _____________________
My employer's phone number is: _____________________

7. My present income, after federal income and social security taxes are deducted, is: $_____

8. I receive or expect to receive money from the following sources:

AFDC	$______ per month beginning ______
SSI	$______ per month beginning ______
Retirement	$______ per month beginning ______
Disability	$______ per month beginning ______
Unemployment	$______ per month beginning ______
Worker's Compensation	$______ per month beginning ______
Other	$______ per month beginning ______

9. My expenses are:

Rent/House Payment	$_________ per month
Groceries	$_________ per month
Electricity	$_________ per month
Water	$_________ per month
Gas	$_________ per month
Transportation	$_________ per month
Medical & Dental	$_________ per month
Telephone	$_________ per month
School Supplies	$_________ per month
Clothing	$_________ per month
Child Care or Court Ordered Child Support	$_________ per month
Other	$_________ per month

10. Assets:

Automobile	$_________ (Fair Market Value)
Checking/Savings Account	$_________
House	$_________ (Fair Market Value)
Other	$_________

11. My debts are:

Amount Owed To Whom

_____________________ _____________________

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete and that I am financially unable to pay the costs of this action.

_____________________

PLAINTIFF

ORDER ALLOWING FILING ON PAUPER'S OATH

It appears based upon the Affidavit of Indigency filed in this cause and after due inquiry made that the Plaintiff is an indigent person and is qualified to file case on a pauper's oath.

It is so ordered this the _____ day of _______, 20___.

_____________________

JUDGE

DETERMINATION OF NONINDIGENCY

It appearing based upon the Affidavit of Indigency filed in this cause and after due inquiry made that the Plaintiff is not an indigent person because

_____________________

IT IS ORDERED AND ADJUDGED that the Plaintiff does not qualify for filing this case on a pauper's oath.

This the ____ day of _______, 20___.

_____________________

JUDGE

_____________________

NOTICE: If the judge determines that based upon your affidavit you are not eligible to proceed under a pauper's oath, you have the right to a hearing before the judge or, in those cases that can be appealed to Circuit Court, a hearing before the Circuit Court judge.

_____________________

[Amended by order filed April 6, 2001.]

Rule 30. Media Guidelines.

A. Media Access.

(1) Coverage Generally. Media coverage of public judicial proceedings in the courts of this State shall be allowed in accordance with the provisions of this rule. The coverage shall be subject, at all times, to the authority of the presiding judge to (i) control the conduct of the proceedings before the court; (ii) maintain decorum and prevent distractions; (iii) guarantee the safety of any party, witness, or juror; and (iv) ensure the fair and impartial administration of justice in the pending cause.

(2) Requests for Media Coverage. Requests by representatives of the media for such coverage must be made in writing to the presiding judge not less than two (2) business days before the proceeding is scheduled to begin. The presiding judge may waive the two-day requirement at his or her discretion.

(3) Notification of Request. Notification that the media has requested such coverage shall be provided by the Clerk of the particular court to the attorneys of record in the case. Such notification may be waived by the judge at the clerk's request if the request is made for media coverage of all or part of a docket. If the judge waives notification, the clerk shall post a notice with the docket in a conspicuous place outside the courtroom. The notice must state that the proceedings will be covered by the media, and that any person may request a continuance when the docket is called. Such continuance shall be granted only if the person can show that he or she was prejudiced by the lack of notice, and that there is good cause to refuse, limit, terminate or temporarily suspend media coverage pursuant to section D(2).

B. Definitions.

(1) "Coverage"means any recording or broadcasting of a court proceeding by the media using television, radio, photographic, or recording equipment.

(2) "Media"means legitimate news gathering and reporting agencies and their representatives whose function is to inform the public, or persons engaged in the preparation of educational films or recordings.

(3) "Proceeding"means any trial, hearing, motion, argument on appeal, or other matter held in open court that the public is entitled to attend. For the purposes of section C of this rule, "proceeding"includes any activity in the building in which the judicial proceeding is being held or any official duty performed in any location as part of the judicial proceeding.

(4) "Presiding Judge"means the judge, justice, master, referee or other judicial officer who is scheduled to preside, or is presiding, over the proceedings.

(5) "Minor"means any person under eighteen (18) years of age.

C. Prohibitions.

(1) Minor Participants. Media coverage of a witness, party, or victim who is a minor is prohibited in any judicial proceeding, except when a minor is being tried for a criminal offense as an adult.

(2) Jury Selection. Media coverage of jury selection is prohibited.

(3) Jurors. Media coverage of jurors during the judicial proceeding is also prohibited.

(4) Closed Proceedings. Media coverage of proceedings which are otherwise closed to the public by law is prohibited.

(5) Juvenile Court Proceedings. In juvenile court proceedings, if the court receives a request for media coverage, the court will notify the parties and their counsel of the request, and prior to the beginning of the proceedings, the court will advise the accused, the parties, and the witnesses of their personal right to object, and that if consent is given, it must be in writing. Objections by a witness will suspend media coverage as to that person only during the proceeding, whereas objections by the accused in a criminal case or any party to a civil action will prohibit media coverage of the entire proceeding.

(6) Conferences of Counsel. There shall be no audio pickup, recording, broadcast, or video close up of conferences, which occur in a court facility, between attorneys and their clients, between co-counsel of a client, between counsel and the presiding judge held at the bench or in chambers, or between judges in an appellate proceeding.

D. Limitations.

(1) Discretion of Presiding Judge. The presiding judge has the discretion to refuse, limit, terminate, or temporarily suspend, media coverage of an entire case or portions thereof, in order to (i) control the conduct of the proceedings before the court; (ii) maintain decorum and prevent distractions; (iii) guarantee the safety of any party, witness, or juror; and (iv) ensure the fair administration of justice in the pending cause. Such exercise of the presiding judge's discretion shall be made following the procedures established in section D(2).

(2) Evidentiary Hearing. Before denying, limiting, suspending, or terminating media coverage, the presiding judge shall hold an evidentiary hearing, if such a hearing will not delay or disrupt the judicial proceeding. In the event that an evidentiary hearing is not possible, affidavits may be used. The burden of proof shall be on the party seeking limits on media coverage. If there is no opposition to media coverage, the presiding judge may consider matters that are properly the subject of judicial notice. Media requesting coverage shall be allowed to present proof, either at the evidentiary hearing or by affidavit. Any finding that media coverage should be denied, limited, suspended or terminated must be supported by substantial evidence that at least one of the four interests in section D(1) is involved, and that such denial, limitation, suspension, or termination is necessary to adequately reach an accommodation of such interest. The presiding judge shall enter written findings of fact detailing the substantial evidence required to support his or her order.

E. Appellate Review.

Appellate review of a presiding judge's decision to terminate, suspend, limit, or exclude media coverage shall be in accordance with Rule 10 of the Tennessee Rules of Appellate Procedure.

F. Equipment and Personnel.

(1) Limitations. At least one, but no more than two television cameras with one operator each, two still photographers using not more than two cameras each, and one audio system for radio broadcast purposes, will be permitted in any judicial proceeding.

(2) Pooling Arrangements. When more than one request for media coverage is made, the media shall select a representative to serve as a liaison and be responsible for arranging "pooling"among the media that may be required by these limitations on equipment and personnel. The identity of the person selected, including name, business address, phone and fax number, shall be filed with the clerk of the court in which the proceeding is to be held. Pooling arrangements shall be reached when the court is not in session and shall be the sole responsibility of the media without calling upon the presiding judge to mediate any dispute as to the appropriate media representative or equipment authorized to cover a particular proceeding. Such pooling arrangements shall include the designation of pool operators, procedures for cost sharing, access to and dissemination of material, and selection of a pool representative if appropriate. In the absence of advance media agreement on disputed equipment or personnel issues, the presiding judge shall exclude all contesting media personnel from a proceeding.

(3) Personal Recorders. Media personnel may use hand-held cassette tape recorders that are no more sensitive then the human ear without complying with section (A)(2) of this rule. Such recorders are to be used for the making of sound recordings as personal notes of the proceedings, and shall not be used for any other purpose, including broadcast. Usage shall not be obtrusive or distracting, and no change of tape shall be made during court sessions.

(4) Print Media. This rule does not govern the coverage of a proceeding by a news reporter or other person who is not using a camera or electronic equipment.

G. Sound and Light Criteria.

(1) Distractions. Only television, photographic and audio equipment which does not produce distracting sound or light shall be employed to cover proceedings in a court facility. Signal lights or devices to show when equipment is operating shall not be visible. Moving lights, flash attachments, or sudden light changes shall not be used.

(2) Courtroom Light Source. If possible, lighting for all purposes shall be accomplished from existing court facility light sources. If no technically suitable lighting exists in the court facility, modifications and additions may be made in light sources existing in the facility, provided such modifications and additions are unobtrusive, located in places designated in advance of any proceeding by the presiding judge, and without public expense.

(3) Audio Pickup. Audio pickup for all purposes shall be accomplished from existing audio systems present in the court facility or from a television camera's built-in microphone. If no technically suitable audio system exists in the court facility, microphones and related wiring essential for media purposes shall be unobtrusive and shall be located in places designated in advance of any proceeding by the presiding judge.

(4) Technical Difficulties. Court proceedings shall not be interrupted by media personnel because of a technical or equipment problem. If any problem occurs, that piece of equipment shall be turned off while the proceeding is in session. No attempt shall be made to correct the technical or equipment problem until the proceeding is in recess or has concluded.

H. Location of Equipment and Conduct of Media Personnel.

(1) Location of Equipment and Personnel. The presiding judge shall designate the location in the courtroom for media equipment and operators to permit reasonable coverage without disruption of proceedings.

(2) Alterations. No permanent installation shall be made nor shall any court facility be altered, unless approved in advance by the presiding judge. Expenses for alterations shall be borne by the media.

(3) Movement During Proceedings. During proceedings, operating personnel shall not move about nor make any adjustment or change of any equipment which disrupts or distracts from the proceeding. Media broadcast, photographic or audio equipment shall not be placed in or removed from the court facility except prior to commencement or after adjournment of proceedings each day, or during a recess in the proceeding.

(4) Conduct of Media Personnel. Media personnel assigned to cover a judicial proceeding shall attire and deport themselves in such a way that will not detract from the proceeding.

I. Impermissible Use of Media Material.

None of the film, videotape, still photographs, or audio recordings of proceedings under this Rule shall be admissible as evidence in the proceeding out of which it arose, any proceedings subsequent and collateral thereto, or upon any retrial or appeal of such proceeding.

J. Ceremonial Proceedings.

This Rule shall not limit media coverage of investiture, ceremonial, or nonjudicial proceedings conducted in court facilities under such terms and conditions as may be established by prior consent of the presiding judge.

K. Compliance.

Media personnel who fail to comply with this rule shall be subject to an appropriate sanction as determined by the presiding judge.

[Adopted by order entered December 14, 1995; amended by order entered December 30, 1996; amended by order entered December 6, 1999.]

Rule 31. Alternative Dispute Resolution.
GENERAL PROVISIONS

Section 1. Application. The standards and procedures adopted under this rule apply only to Rule 31 ADR Proceedings and only to Dispute Resolution Neutrals serving pursuant to this rule. They do not affect or address the general practice of alternative dispute resolution in the private sector outside the ambit of Rule 31. Pursuant to the provisions of this Rule, a court may order the parties to an eligible civil action to participate in certain alternative dispute resolution proceedings.

Section 2. Definitions.

(a) "Alternative Dispute Resolution Commission" or "ADRC" is the Alternative Dispute Commission established by the Supreme Court pursuant to this Rule.

(b) "Baccalaureate degree" and "graduate degree" are only those degrees awarded by an institution of higher education accredited by an agency recognized by the Council for Higher Education (CHEA) and approved or listed by the United States Department of Education as a recognized accrediting agency. A law degree from an educational institution recognized by the Tennessee Board of Law Examiners for the purpose of allowing its graduates to be eligible to take the Tennessee bar examination shall be deemed a graduate degree for the purpose of this rule. [Amended April 24, 2009]

(c) "Case Evaluation", as set forth in sections 16 and 22 herein, is a process in which a neutral person or three-person panel, called an evaluator or evaluation panel, after receiving brief presentations by the parties summarizing their positions, identifies the central issues in dispute, as well as areas of agreement, provides the parties with an assessment of the relative strengths and weaknesses of their case, and may offer an evaluation of the case.

(d) "Court" includes the Tennessee Supreme Court, the Tennessee Court of Appeals, Circuit, Chancery, Law & Equity and Probate Courts, General Sessions Courts, Juvenile Courts, and Municipal Courts.

(e) "Days," for purposes of the deadlines imposed by this Rule, means calendar days.

(f) "Eligible Civil Action" includes all civil actions except forfeitures of seized property, civil commitments, adoption proceedings, habeas corpus and extraordinary writs, or juvenile delinquency cases. The term "Extraordinary writs" does not encompass claims or applications for injunctive relief.

(g) "Judicial Settlement Conference" is a mediation conducted by a judicial officer as set forth in section 20 herein.

(h) "Mediator" is a neutral person who conducts discussions among disputing parties to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute.

(i) "Mediation" is an informal process in which a neutral person conducts discussions among the disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute.

(j) "Mini-Trial", as set forth in sections 15 and 23 herein, is a settlement process in which each side presents an abbreviated summary of its case to the parties or representatives of the parties who are authorized to settle the case. A neutral person may preside over the proceeding. Following the presentation, the parties or their representatives seek a negotiated settlement of the dispute.

(k) "Neutral" is an impartial person who presides over alternative dispute resolution proceedings as defined in this Rule.

(l) "Non-Binding Arbitration" is a process in which a neutral person or a panel, called an arbitrator or an arbitration panel, considers the facts and arguments presented by the parties and renders a decision which is non-binding as set forth in sections 14 and 21 herein.

(m) "Order of Reference" is an order of a court entered in an eligible civil action in accordance with Section 3 (Initiation), directing the parties to participate in a Rule 31 ADR Proceeding.

(n) "Rule 31 ADR Proceedings" are proceedings initiated by the court pursuant to this Rule, including "Case Evaluations", "Mediations", "Judicial Settlement Conferences", "Non-Binding Arbitrations", "Summary Jury Trials", "Mini-Trials", or other similar proceedings.

(o) A "Rule 31 Mediator" is any person listed by the ADRC as a mediator pursuant to section 17 herein.

(p) A "Rule 31 Neutral" is any person who acts as a Neutral in a Mediation, Case Evaluation, Mini-Trial, Non-Binding Arbitration, Summary Jury Trial, or any other similar proceeding initiated by the court pursuant to this Rule. Rule 31 Neutrals, other than Rule 31 Mediators, are required to be licensed attorneys.

(q) A "Summary Jury Trial" as set forth in section 24 herein, is an abbreviated trial with a jury in which litigants present their evidence in an expedited fashion. The litigants and the jury are guided by a presiding neutral person. After an advisory verdict from the jury, the presiding neutral person may assist the litigants in a negotiated settlement of their controversy.

GENERAL PROVISIONS APPLICABLE TO ALL RULE 31 PROCEEDINGS

Section 3. Initiation/Order of Reference.

(a) Rule 31 ADR Proceedings will be initiated by the entry of an Order of Reference.

(b) Upon motion of either party, or upon its own initiative, a court, by Order of Reference, may order the parties to an Eligible Civil Action to participate in a Judicial Settlement Conference or Mediation. With the consent of the parties, trial courts are also authorized to order the parties to participate in a Case Evaluation.

[amended by order filed December 17, 2009, effective January 1, 2010.]

(c) Any Order of Reference made on the court's own initiative shall be subject to review on motion by any party and shall be vacated should the court determine in its sound discretion that the referred case is not appropriate for ADR or is not likely to benefit from submission to ADR. Pending disposition of any such motion, the ADR proceeding shall be stayed without the need for a court order.

(d) Upon motion of a party, or upon its own initiative and with the consent of all parties, a court, by Order of Reference, may order the parties to participate in Non-Binding Arbitration, Mini-Trial, Summary Jury Trial, or other appropriate alternative dispute resolution proceedings.

(e) The Order of Reference shall direct that all Rule 31 ADR Proceedings be concluded as efficiently and expeditiously as possible given the circumstances of the case.

Section 4. Selection of Neutrals.

(a) Within 15 days of the date of an Order of Reference, the parties must notify the court of the Rule 31 Neutral or Rule 31 Neutrals agreed to by the parties or of their inability to agree on a Rule 31 Neutral or Rule 31 Neutrals.

(b) In the event the parties cannot agree on the selection of a neutral or neutrals, the court shall nominate a neutral or neutrals in accordance with the following procedure:

(1) In the case of Mediations, Mini-trials, Non-Binding Arbitrations, Case Evaluations and any other appropriate alternative dispute resolution proceeding in which a single Rule 31 Neutral will serve, the court shall designate three Rule 31 Neutrals from the appropriate list or having the appropriate qualifications as set forth in Sections 14 - 18, and one additional Rule 31 Neutral for each additional party over two.

(2) In the matter of a Case Evaluation or Non-Binding Arbitration before a panel of three or more Rule 31 Neutrals, the court shall designate three Rule 31 Neutrals, meeting the qualifications noted in Sections 14 or 16, for each seat on the panel and one additional Rule 31 Neutral for each seat on the panel for each additional party over two.

(3) After receiving the court's nominations, each party shall strike one name for each Neutral being selected from the court's nominations. The court then shall appoint the remaining Rule 31 Neutral or Neutrals unless a valid and timely objection is made and upheld. In the event the designated Rule 31 Neutral cannot serve, the process will be repeated to the extent necessary.

(4) The court's nomination of Rule 31 Neutrals shall be random unless the matter requires particular expertise not possessed by all Rule 31 Neutrals.

(c) The clerks for each judicial district shall maintain and make available to the public, upon request, a list of Rule 31 Mediators listed by the ADRC, the date of their approval, and their qualifications and experience.

Section 5. Reports.

(a) The Order of Reference shall require the Rule 31 Neutral to file a final report pursuant to Rule 5.06, Tenn. R. Civ. P., with the court at the conclusion of the Rule 31 ADR Proceeding. The final report shall state only: (i) which parties appeared and participated in the Rule 31 ADR Proceeding; (ii) whether the case was completely or partially settled; and (iii) whether the Rule 31 Neutral requests that the costs of the Neutral's services be charged as court costs. The report shall be filed within the time specified by the court in the Order of Reference. In the event the Order of Reference does not specify a deadline, the final report shall be filed within 60 days of the initial meeting with the parties.

(b) Unless otherwise directed by the Order of Reference, the Rule 31 Neutral shall file status reports with the court every 30 days until the Rule 31 ADR Proceeding is concluded.

Section 6. Participation of Attorneys. Attorneys may appear with clients during alternative dispute resolution proceedings.

Section 7. Inadmissible Evidence. Evidence of conduct or statements made in the course of Rule 31 ADR Proceedings and other proceedings conducted pursuant to an Order of Reference shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408.

Section 8. Costs. The costs of any Rule 31 ADR Proceeding, including the costs of the services of a Rule 31 Neutral may, at the Rule 31 Neutral's request, be charged as court costs. The request to charge the costs of the services of the Rule 31 Neutral(s) should be submitted to the court as set forth in Section 5 of this Rule. If an appeal of the case is filed, the parties shall advise the court in their appellate briefs whether the Rule 31 Neutral(s) requested that the cost of the Rule 31 Neutral's services be included in the court costs.

The court may, in its sound discretion, waive or reduce the costs of a Rule 31 ADR Proceeding.

GENERAL PROVISIONS APPLICABLE TO ALL NEUTRALS

Section 9. Standards of Professional Conduct for Rule 31 Neutrals.

(a) Rule 31 Neutrals shall avoid the appearance of impropriety.

(b) Rule 31 Neutrals shall comply with all rules and procedures promulgated by the Tennessee Supreme Court regarding qualifications, compensation, and participation in Rule 31 ADR Proceedings, including but not limited to the Standards of Professional Conduct for Rule 31 Neutrals attached as Appendix A hereto. Under Tenn. Sup. Ct. R. 8, RPC 2.4(c)(9), violation of any of these rules and procedures by any Rule 31 Neutral who is an attorney constitutes a violation of the Rules of Professional Conduct.

(d) Ethics Advisory Opinion Committee.

(1) The Ethics Advisory Opinion Committee shall provide written advisory opinions to Rule 3 1 Neutrals and alternative dispute resolution organizations in response to ethical questions arising from Rule 3 1 and the Standards of Professional Conduct.

(2) The Ethics Advisory Opinion Committee shall be composed of three Commissioners, one from each Grand Division, appointed on a rotating basis by the Chair when a request for an opinion is received and reviewed by the Programs Manager. The Chair may also appoint a Committee, from time to time, to issue advisory opinions as to areas of concern to the Commission.

(3) All requests for advisory opinions shall be in writing and shall be submitted to the Programs Manager.

(4) The Committee shall meet in person or by telephone conference as necessary to consider the request for an advisory opinion. Upon due deliberation, and upon the concurrence of a majority of the Committee, the Committee shall issue an opinion. The opinion shall be signed by each member of the Committee, filed with the Programs Manager, published in the ADR News, and be made available upon request.

(5) Prior to publication, all references to the requesting Neutral or any other real person, firm, organization, or corporation shall be deleted from any request for an opinion, any document associated with the preparation of an opinion, and any opinion issued by the Committee.

(6) Reliance by aNeutral on an opinion of the Committee shall not constitute a defense in any disciplinary proceeding; such reliance, however, shall be evidence of good faith and may be considered by the Commission in relation to any determination of guilt or in mitigation of punishment. If the requesting Neutral later is brought before the Grievance Committee on allegations of misconduct in the same mediation for which the mediator requested and received an opinion, the Commissioners who served on the Ethics Advisory Opinion Committee will be precluded from participating in the grievance procedure.

[amended by Order filed December 17, 2009, effective January 1, 2010.}

Section 10. Obligations of Rule 31 Neutrals.

(a) Before the commencement of any Rule 31 ADR Proceeding, Rule 31 Neutrals shall:

(1) Make a full and written disclosure of any known relationships with the parties or their counsel which may affect or give an appearance of affecting the Neutral's neutrality.

(2) Advise the parties regarding the Rule 31 Neutral's qualifications and experience.

(3) Discuss with the parties the rules and procedures which will be followed in the proceeding.

(b) During Rule 31 ADR Proceedings, Rule 31 Neutrals shall:

(1) Advise the court before which the proceeding is pending if the ADR proceeding is, or is likely to become, inappropriate, unfair, or detrimental in the referred action.

(2) Maintain impartiality toward all parties. Impartiality means freedom from favoritism or bias in favor of or against any party, issue, or cause.

(3) Refrain from giving legal advice to the parties to the Rule 31 ADR Proceeding in which the Neutral is participating. However, while a Rule 31 Neutral should not offer a firm opinion as to how the court in which a case has been filed will resolve the case, a Rule 31 Neutral may point out possible outcomes of the case and may indicate a personal view of the persuasiveness of a particular claim or defense. Moreover, an "Evaluation" pursuant to a Case Evaluation, an "award" pursuant to a Non-Binding Arbitration, or an "advisory verdict" pursuant to a Summary Jury Trial will not be considered to be "legal advice" for purposes of this Rule.

(1) Refrain from participation as attorney, advisor, judge, guardian ad litem, master, or in any other judicial or quasi-judicial capacity in the matter in which the Rule 31 ADR Proceeding was conducted.

(2) Provide a timely report as required under section 5 of this Rule.

(3) Avoid any appearance of impropriety in the Neutral's relationship with any member of the judiciary or the judiciary's staff with regard to the Rule 31 ADR Proceedings or the results of Rule 31 ADR Proceedings.

(d) Rule 31 Neutrals shall preserve and maintain the confidentiality of all information obtained during Rule 31 ADR Proceedings and shall not divulge information obtained by them during the course of Rule 31 ADR Proceedings without the consent of the parties, except as otherwise may be required by law.

Section 11. Proceedings for Discipline of Rule 31 Mediators.

(a)(l) All complaints against an active Rule 31 Mediator must be post-marked no later than 180 days after the date of the final mediation session and must be submitted to the Programs Manager of the Administrative Office of the Courts. Any complaint post-marked later than 180 days after the date of the final mediation will not be accepted and the complainant will be barred from bringing a complaint with the ADR Commission. This statute of limitations only applies to the ADR Commission's exercise of its own procedures contained within this Rule.

(2) Any gr.ievance against an active Rule 31 Mediator who is an attorney that raises a substantial question as to the attorney's honesty, trustworthiness, or fitness as a lawyer in other respects shall be filed with the Board of Professional Responsibility. If the.ADRC Chair determines that a complaint filed with the ADRC sets out such a grievance, the ADRC shall promptly refer the complaint to the Board of Professional Responsibility. If the complaint is filed with both the ADRC and the Board of Professional Responsibility, the ADRC will defer to the Board of Professional Responsibility. If the Board of Professional Responsibility imposes a sanction on the attorney for misconduct as a Rule 3 1 Mediator, the Grievance Committee may also conduct a hearing and impose sanctions pursuant to Section (b)(8) of this Rule.

(3) All complaints setting out a grievance against an active Rule 31 Mediator who is an attorney that do not raise a substantial question as to the attorney's honesty, trustworthiness, or fitness as a lawyer shall be filed with the Programs Manager of the Administrative Office of the Courts. The Programs Manager will then forward the complaint to the ADRC Chair. The complaint shall be processed in accordance with Section (b) of this Rule.

(b)(l) Any complaint setting out a grievance against an active Rule 3 1 Mediator regarding the failure of the Rule 31 Mediator to comply with the provisions of this Rule or any standard promulgated under this Rule shall be filed with the Programs Manager of the Administrative Office of the Courts. The Programs Manager will then forward the complaint to the ADRC Chair.

(2) The complaint shall be reviewed in the first instance by a Grievance Committee of three Commissioners, appointed by the Chair and, where possible, from the Grand Division in which the alleged act or failure to act giving rise to the allegations contained in the complaint took place.

(3) The Grievance Committee shall determine whether the allegations contained in the complaint, if true, would constitute a violation of Rule 31. If the Grievance Committee finds that the conduct that is the subject of the complaint does not constitute a violation of Rule 31, the Grievance Committee shall dismiss the complaint without prejudice and the Programs Manager shall notify the complainant and the mediator of the dismissal. If the Grievance Committee determines that the allegations, if true, could constitute a violation of Rule 3 1, the Committee shall prepare a list of any rule(s) which the mediator may have violated. The Programs Manager will provide a copy of the list, a copy the complaint, and a copy of Rule 3 1 to the mediator.

(4) Within 10 days of the receipt of the list of alleged violations prepared by the Grievance Committee and the complaint, the mediator shall send a written response to the Programs Manager by registered or certified mail. If the mediator does not respond, the allegations shall be deemed admitted. The Programs Manager shall forward a copy of the mediator's response to the complainant. The complainant will then have 10 days to respond in writing to the mediator's response.

(5) The Grievance Committee will then review the complaint, the mediator's response, and the complainant's counter-response. The Committee may find that no violation has occurred and dismiss the complaint. The Committee may also resolve the issue pursuant to subdivision (6) of this rule.

(6) Notwithstanding any other provision in this Rule, at any time while the Grievance Committee has jurisdiction, it may meet with the complainant and the mediator, jointly or separately, in an effort to resolve the matter. The resolution may include sanctions if agreed to by the mediator. If sanctions are accepted, all relevant documentation shall be forwarded to the ADRC Chair. These meetings may be in person, by video-conference or teleconference at the discretion of the Committee.

(7) If there is no disposition, the Grievance Committee shall review the complaint, the mediator's response, the complainant's counter-response, and the result of any investigation directed by the Committee Chair, including any documentation, to determine whether there is probable cause to believe that the alleged misconduct occurred and would constitute a violation of this rule. If there is no probable cause, the Committee shall dismiss the complaint in a written opinion. The Programs Manager will forward a copy of the opinion to the complainant and the mediator.

(8) Upon a finding of probable cause, the Grievance Committee shall notify the complainant and the mediator that either the mediator or the complainant is entitled to a hearing before the Committee. The Committee will conduct a hearing within 30 days of finding probable cause at a place to be determined by the Committee. If, after the hearing, the Committee finds that the mediator has violated Rule 31 and that such violation warrants sanctions, it shall impose appropriate sanctions, such as a private admonition, a public reprimand, additional training, suspension or disqualification. The Committee shall issue a written opinion containing its findings. The Programs Manager will forward a copy of the opinion to the complainant and the mediator.

(9) Subpoenas for the attendance of witnesses and the production of documentary evidence for discovery and for the appearance of any person before the Grievance Committee, the ADRC, or any member thereof, may be issued by the chair of the Committee or the ADRC. Such subpoenas may be served in any manner provided by law for the service of witness subpoenas in a civil action.

(10) Any person who, without adequate excuse, fails to obey a duly served subpoena may be cited for contempt of the Grievance Committee or ADRC. Should any witness fail, without justification, to respond to the lawful subpoena of the Committee or ADRC, or having responded, fail or refuse to answer all inquiries or to turn over evidence that has been lawfully subpoenaed, or should any person be guilty of disorderly or contemptuous conduct before any proceeding, the Chair of the Committee or ADRC may cause a petition to be filed before the circuit court of the county in which the contemptuous act was committed. The petition shall allege the specific failure on the part of the witness or the specific disorderly or contemptuous act of the person which forms the basis of the alleged contempt of the Committee or ADRC. Such petition shall pray for the issuance of an order to show cause before the circuit court why the circuit court should not find the person in contempt of the Committee or ADRC and the person should not be punished by the court therefore. The circuit court shall issue such orders and judgments therein as the court deems appropriate.

(11) Any party who desires to obtain a review of the decision of the Grievance Committee may appeal to the full ADRC by filing a written notice of appeal with the ADRC through the Programs Manager, within thirty (30) days following the Committee's decision.

(12) The ADRC will then hear the complaint de novo sitting without those members who served on the Grievance Committee that initially heard the complaint.

(13) The ADRC will hear and determine the complaint and then issue a written decision stating whether the complaint has merit. If the ADRC determines that the complaint has merit, it shall impose appropriate sanctions on the Rule 31 Mediator, including a private admonition, a public reprimand, additional training, suspension, or disqualification. The decision of the ADRC is final.

(14) All matters, investigations, or proceedings involving allegations of misconduct by the mediator, including all hearings and all information, records, minutes, files or other documents of the ADRC, the Grievance Committee, and staff shall be confidential and privileged, and shall not be public records, until or unless:

(i) a recommendation for the imposition of public discipline, without the initiation of a hearing, is filed with the ADRC by the Grievance Committee; or

(ii) the Grievance Committee determines that a hearing must take place; or

(iii) the mediator requests that the matter be public; or

(iv) the complaint is predicated upon conviction of the mediator for a crime.

(15) All work product and work files (including internal memoranda, correspondence, notes and similar documents and files) ofthe ADRC, Grievance Committee, and staff shall be confidential and privileged and shall not be public records.

(16) All participants in any matter, investigation, or proceeding shall conduct themselves so as to maintain confidentiality. However, nothing in this rule shall prohibit the complainant, the mediator, or any witness from disclosing the existence or substance of a complaint, matter, investigation, or proceeding under this rule or from disclosing any documents or correspondence filed by, served on, or provided to that person.

(17) The confidentiality of a mediation is deemed waived by the parties to the extent necessary to allow the complainant to fully present his or her case and to allow the mediator to fully respond to the complaint. The waiver relates only to information necessary to deal with the complaint. The ADRC, the Grievance Committee, and staff will be sensitive to the need to protect the privacy of all parties to the mediation to the fullest extent possible commensurate with fairness to the mediator and protection of the public.

(18) Once the Grievance Committee has issued an opinion, a synopsis of the case may be published in the ADRC quarterly newsletter. If the mediator is not publicly sanctioned, the name of the complainant and mediator will not be included in the synopsis.

(19) Members of the Grievance Committee, the ADRC and staff shall be immune from civil suit for any conduct in the course of their official duties.

Section 12. Immunity. Activity of Rule 31 Neutrals in the course of Rule 31 ADR proceedings shall be deemed the performance of a judicial function and for such acts Rule 31 Neutrals shall be entitled to judicial immunity.

Section 13. Compensation. Rule 31 Dispute Resolution Neutrals are entitled to be compensated at a reasonable rate for participation in court-ordered alternative dispute resolution proceedings, except pro bono proceedings pursuant to Section 18 of this Rule.

PROVISIONS REGARDING QUALIFICATIONS AND TRAINING OF NEUTRALS

Section 14. Rule 31 Neutrals in Rule 31 Non-Binding Arbitration.

(a) The Parties may select any lawyer in good standing to act as an arbitrator in a non-binding arbitration.

(b) Where the court, pursuant to Section 4, appoints a Rule 31 Neutral to act as an arbitrator in a general civil case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years.

(c) Where the court, pursuant to Section 4, appoints a Rule 31 Neutral to act as an arbitrator in a family case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years, during which time a substantial portion of the lawyer's practice shall have been family cases.

Section 15. Rule 31 Neutrals Presiding in Mini-Trials.

(a) The Parties may select any lawyer in good standing and admitted to practice to act as a Neutral in a Mini-Trial.

(b) Where the court, pursuant to Section 4, appoints a Rule 31 Neutral to act in a Mini-Trial in a general civil case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years.

(c) Where the court, pursuant to Section 4, appoints a Rule 31 Neutral to serve in a Mini-Trial in a family case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years, during which a substantial portion of the lawyer's practice shall have been in family cases.

Section 16. Rule 31 Case Evaluators.

(a) The parties may select any lawyer in good standing to act as an evaluator in general civil or family cases.

(b) Where the court, pursuant to Section 4, appoints a Rule 31 Neutral to act as an evaluator in a general civil case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years.

(c) Where the court, pursuant to Section 4, appoints a Rule 31 Neutral to act as an evaluator in a family case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years, during which a substantial portion of the lawyer's practice shall have been in family cases.

Section 17. Rule 31 Mediators. No person shall act as a Rule 31 Mediator without first being listed by the ADRC. To be listed, Rule 31 Mediators must pay application fees set by the ADRC and must comply with the qualification and training requirements set forth in this section. All training must have been approved by the ADRC as set for in section (f) below and must have been completed within the fifteen years immediately preceding the application seeking Rule 31 Mediator listing. [Amended April 24, 2009]

(a) Rule 31 Mediators in General Civil Cases.

(1) To be listed by the ADRC as a Rule 31 Mediator in general civil cases, one must:

(A) be of good moral character and certify in writing an intention to comply with the conditions and obligations imposed by Rule 31, including those requirements related to pro bono obligations;

(B) have a graduate degree plus four years of practical work experience, or a baccalaureate degree plus six years of practical work experience; and

(C) complete 40 hours of general mediation training which includes the curriculum components specified by the ADRC for Rule 31 Mediators in general civil cases.

(2) If the applicant's profession requires licensing, the applicant shall also:

(A) be in good standing with the Board or Agency charged with issuing licenses to practice in the applicant's profession. The failure to take or pass an examination required by the Board or Agency will not affect the applicant's standing to apply for certification as a Rule 31 Mediator. A disbarred lawyer or any other professional with a suspended or revoked license may reapply when the applicant has been readmitted to practice.

(B) not be the subject of three or more open complaints made to the Board or Agency charged with hearing complaints about the applicant's professional conduct. If there are three or more open complaints with the relevant Board or Agency, the application will be deferred by the ADRC until the applicant has advised the ADRC that three or more open complaints no longer exist.

(b) Rule 31 Mediators in Family Cases.

(1) To be listed as a Rule 31 Mediator in family cases, one must:

(A) comply with the requirements set forth in Section 17(a)(1)(A) and 17(a)(2)(A) and 17(a)(2)(B) above; and

(B) be a Certified Public Accountant, have a graduate degree, or have a baccalaureate degree with ten years practical experience in family mediation;

(C) have four years of practical work experience in psychiatry, psychology, counseling, social work, education, law, or accounting;

(D) complete 40 hours of training in family mediation which includes the curriculum components specified by the ADRC for Rule 31 Mediators in family cases and which also includes four hours of training in screening for and dealing with domestic violence in the mediation context; and

(E) complete six additional hours of training in Tennessee family law and court procedure. It is provided, however, that the ADRC may waive this requirement for lawyers who have completed at least six hours of ADRC-approved training devoted to Tennessee family law and/or procedure within the three-year period immediately prior to the completion of the requirements of Section 17(c)(3)(A) through (I).

(1) Before being listed either as Rule 31 General Civil Mediators or as Rule 31 Family Mediators, applicants shall complete a course of training consisting of not less than 40 hours, including the following subjects:

(A) Rule 31 and procedures and standards adopted thereunder;

(B) conflict resolution concepts;

(D) court process;

(E) mediation process and techniques;

(F) communication skills;

(G) standards of conduct and ethics for Rule 31 Neutrals;

(H) community resources and referral process;

(I) cultural and personal background factors;

(J) attorneys and mediation;

(K) the unrepresented party and mediation; and

(L) confidentiality requirements, and any exceptions thereto as required by law.

(d) Waiver of Training Requirements for Certain Rule 31 Mediators.

(1) Upon petition to and acceptance by the ADRC, the following persons may be qualified as Rule 31 Mediators without first complying with the qualification and training requirements set forth in Section 17(a), (b), or (c): (i) graduates of accredited law schools who have passed a law school mediation course which awards at least three semester hours credit and which includes the curriculum components set forth in this Rule or their substantial equivalent as determined by the ADRC and who have four years of practical work experience; (ii) trained mediators who substantially comply with the qualifications set forth for Rule 31 Mediators in general civil cases or Rule 31 Mediators in family cases as may be determined by the ADRC with the assistance of the AOC Programs Manager, provided that their training be the substantial equivalent of that required under this Rule and that the training has been completed within fifteen years prior to the application. If a trained mediator has complied with the qualifications for approval as a mediator by another state and such approval has been granted, and if the mediator is in good standing in such state at the time of the application for approval in Tennessee, the ADRC may, upon review of the qualifications of the applicant, waive such training requirements as required by Section 17. [Amended April 24, 2009]

(2) Applicants for qualification as a Rule 31 Mediator under this subsection will be assessed an additional application fee for this review of their applications by the ADRC.

(e) Procedure for Dual-Listing Rule 31 Mediators. The ADRC may dually list an individual listed as a Family Mediator or as a General Civil Mediator if that individual has met the requirements of Section 17(a), (b) or (c) and has obtained such additional training in general civil or family mediation as in the judgment and discretion of the ADRC qualifies that individual to be dually listed as a General Civil Mediator and as a Family Mediator.

(f) Trainer Procedure for Obtaining Curriculum Approval. Prior to offering their courses for initial listing training, or training to be listed as a Rule 31 Family Mediator with the designation of "specially trained in domestic violence issues", all trainers are required to obtain ADRC approval of their curricula. The trainers shall apply to the ADRC for curricula approval on forms approved by the ADRC.

(g) Procedure for Rule 31 Family Mediator's Additional Designation as "Specially Trained in Domestic Violence Issues." To obtain a designation as "Specially Trained in Domestic Violence Issues", the Rule 31 listed Family Mediator must have completed a twelve-hour course on domestic violence issues approved by the Training Committee of the ADRC and shall provide to the ADRC proof of attendance at the approved course. The listed Rule 31 Family Mediator may request a waiver of course attendance based upon training and/or experience determined by the ADRC to be substantially equivalent to the course approved by the Training Committee.

(h) Application By Retiring or Resigning Judge or Court Clerk for Listing as Rule 31 Mediator. A sitting judge or sitting court clerk whose retirement or resignation is pending may apply to be listed as a Rule 31 Mediator. For purposes of this Rule, a sitting judge includes a full-time judge, full-time referee, a full-time administrative law judge, or a senior judge. For the purpose of this Rule, a sitting court clerk includes a clerk and master, circuit court clerk, criminal court clerk, juvenile court clerk, or general sessions court clerk. Upon the ADRC’s determination that a judge-applicant or a clerk-applicant meets the qualifications and training requirements set forth in this Rule, the ADRC shall notify the judge-applicant or clerk-applicant in writing that the requirements for being listed have been met. The Commission shall not list a judge-applicant or clerk-applicant as a Rule 31 Mediator until the effective date of the judge-applicant’s or clerk-applicant’s retirement or resignation, at which time the judge-applicant or clerk-applicant may request in writing to be listed by the ADRC as a Rule 31 Mediator. The ADRC shall then place the judge-applicant or clerk-applicant on the list of Rule 31 Mediators. This provision does not affect the status of any judge who has been granted inactive status as a Rule 31 Mediator prior to the adoption of this provision. [Section 17(h) amended April 24, 2009]

(i) Listing of Part-time Judicial Officers. The part-time judicial officers designated below may be listed as active Rule 31 Mediators, subject to the following limitations, if they otherwise meet the requirements of this Rule. For the purpose of this provision, "part-time judicial officer" means a judicial officer who serves by election or continuing appointment in a judicial office created as a part-time position.

(1) Part time Municipal Judge. A part-time municipal judge listed as a Rule 31 Mediator shall not conduct a mediation in any proceeding in which the mediator has served as a judge or in any other proceeding related thereto.

(2) Part-time Juvenile Referee. A part-time juvenile referee listed as a Rule 31 Mediator shall not conduct a mediation in (A) any proceeding in which the mediator served as a referee or in any other proceeding related thereto, or (B) any proceeding in which a party was or is involved in a case in any like manner before the referee.

(3) Part-time Divorce Referee. A part-time divorce referee listed as a Rule 31 Mediator shall not conduct a mediation in (A) any proceeding in which the mediator has served as a referee or in any other proceeding related thereto, or (B) any other proceeding in which a party was or is involved in a case pending in any manner before the referee.

(4) Part-time Referee. A part-time referee listed as a Rule 31 Mediator shall not conduct a mediation in (A) any proceeding in which the mediator has served as a referee or in any other proceeding related thereto, or (B) any other proceeding in which a party was or is involved in a case pending in any manner before the referee.

(5) Part-time General Sessions Judge. A part-time general sessions judge listed as a Rule 31 Mediator shall not conduct a mediation in any proceeding in which the mediator served as a judge or in any proceeding related thereto.

(6) Part-time Juvenile Judge. A part-time juvenile judge listed as a Rule 31 Mediator shall not conduct a mediation in (A) any proceeding in which the mediator has served as a judge or in any other proceeding related thereto, or (B) any other proceeding pending before a court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves.

(7) Part-time Special Master. A part-time special master listed as a Rule 31 Mediator shall not conduct a mediation in (A) any proceeding in which the mediator has served as a special master or in any other proceeding related thereto, or (B) any other proceeding in which a party was or is involved in a case pending in any manner before the special master.

(8) Part-time Administrative Law Judge. A part-time administrative law judge listed as a Rule 31 Mediator shall not conduct a mediation in (A) any proceeding in which the mediator served as an administrative law judge or in any other proceeding related thereto, or (B) any other proceeding in which a party was or is involved in a case pending in any manner before the administrative law judge. [Section 17(i) amended April 24, 2009]

Section 18. Additional Obligations of Rule 31 Mediators. Rule 31 Mediators must maintain a current address with the Programs Manager of the Administrative Office of the Courts. Any change of address must be provided within thirty days of such change.

(a) To remain listed by the ADRC, Rule 31 Mediators shall comply with the following continuing mediation education requirements:

(1) Courses approved for continuing education under this Rule include but are not limited to, courses approved by the Commission on Continuing Legal Education & Specialization, programs approved by professional licensing agencies, programs provided by not-for-profit community mediation centers and not-for-profit mediation associations.

(2) Rule 31 Mediators must complete six hours of continuing mediation education every two years.

(A) General Civil Mediators - The six hours shall consist of: (i) Three hours in mediation continuing education, of which at least one hour shall be related to ethics, and (ii) Three hours general continuing education.

(B) Family Mediators - The six hours shall consist of: (i) Three hours in mediation continuing education, of which at least one hour shall be related to ethics, and (ii) Three hours continuing education in family law.

(C) For dually listed Rule 31 Mediators who were initially listed in the same year, meeting the Rule 31 Family Mediator Listing continuing education requirements will also meet the Rule 31 General Civil Mediator listing requirements.

(3) Rule 31 Mediators who are attorneys are not exempt from the continuing mediation education requirements of Rule 31 Section 18(a) as a result of the age exemption for continuing legal education pursuant to Supreme Court Rule 21, Section 2.04(a).

(b) Annual Renewal of Rule 31 Mediator Status. As a condition of continued listing, each Rule 31 Mediator must file an annual report with the AOC Programs Manager attesting that he/she is in good standing with any professional licensing agency or organization, if applicable, and must pay the annual registration fee set by the ADRC.

(1) Any Rule 31 Mediator who is prohibited by reason of employment from practicing mediation during such employment may apply to the ADRC for inactive status. If approved by the ADRC, such Rule 31 Mediator shall be placed on inactive status during such employment. While on inactive status, the Rule 31 Mediator will not be required to pay the annual fee but must comply with the continuing education requirements.

(2) Any Rule 31 Mediator requesting inactive status or failing to comply with the Rule 31 Mediator's annual renewal requirements will be placed on inactive status.

(3) A Rule 31 Mediator placed on inactive status may apply to the ADRC for reactivation. To be approved for reactivation, the Rule 31 Mediator must complete all the continuing mediation education required by Rule 31 during the period of inactive status and must pay the renewal fee for the year in which the Rule 31 Mediator reactivates. The Programs Manager will review the request, determine if requirements have been met and, if met, place the Rule 31 Mediator on active status. If the Program Manager denies reactivation, that decision may be appealed to the ADRC.

(d) Pro Bono Service. As a condition of continued listing, each Rule 31 Mediator must be available to conduct three pro bono mediations per year, not to exceed 20 total hours. At the initiation of a mediation, the court may, upon a showing by one or more parties of an inability to pay, direct that the Rule 31 Mediator serve without pay. No Rule 31 Mediator will be required to conduct more than three pro bono proceedings or serve pro bono for more than 20 hours in any continuous 12-month period.

(e) Reports Required of Rule 31 Mediators. In addition to compliance with Section 5 of this Rule, Rule 31 Mediators shall be required to submit to the ADRC reports of any data requested by the ADRC consistent with the requirements of Section 19(a)(8) as to any mediation conducted by a Rule 31 Mediator, including those mediations which are not subject to Rule 31. The report forms will be available on the AOC website and from the AOC.

(f) Procedure Upon Revocation or Suspension.

(1) All listed Rule 31 Mediators subject to the provisions of this Rule, upon being subjected to revocation or suspension by any professional licensing agency or organization, within or outside the State of Tennessee, shall promptly inform the ADRC of such action in the manner prescribed herein.

(2) The listed Rule 31 Mediator, within 14 days of receipt of being advised of such revocation or suspension by the professional licensing agency or organization, shall provide notification of such action to the ADRC. Such notification to the ADRC shall include a copy of any order or directive by the professional licensing agency or organization setting forth the nature and duration of such revocation or suspension.

(3) In the event the discipline imposed by the professional licensing agency or organization has been stayed, any discipline imposed by the ADRC shall be deferred until such stay expires.

(4) Thirty days after notification as provided above the ADRC shall impose identical discipline unless the listed Rule 31 Mediator appeals to the ADRC the imposition of such discipline. The ADRC shall impose identical discipline unless it finds upon the face of the record upon which the discipline is predicated:

(A) That the procedure clearly was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(B) That there clearly was such an infirmity of proof establishing the misconduct as to give rise to the conviction that the ADRC could not, consistent with its duty, accept as final the conclusion on that subject; or

Where the ADRC determines that any of said elements exist, the ADRC shall enter such other order as it deems appropriate.

(5) In all other respects, a final adjudication by the professional licensing agency or organization that the listed Rule 31 Mediator has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding by the ADRC.

(6) If the professional licensing agency or organization rescinds or otherwise terminates the revocation or suspension of a formerly listed Rule 31 Mediator, a certified copy of the agency's or organization's rescission or termination order shall constitute clear and convincing evidence of the same. Upon the removal of such revocation or suspension, an individual formerly listed as a Rule 31 Mediator under this Rule shall be entitled to apply to the Credentials Committee of the ADRC for listing, under the then applicable criteria for listing.

PROVISIONS FOR ADMINISTRATION OF THE RULE

Section 19. Alternative Dispute Resolution Commission.

(a) The ADRC shall be appointed by the Supreme Court which shall name one of the ADRC's members as the Chair. The ADRC shall have the responsibility for:

(1) Reviewing and revising, if appropriate, the standards for listing Rule 31 Mediators;

(2) Determining the procedure for listing Rule 31 Mediators;

(3) Preparing and disseminating appropriate publications containing details regarding Rule 31 ADR Proceedings;

(4) Reviewing and revising, as and when appropriate, the standards of professional conduct that shall be required of Rule 31 Neutrals;

(5) Reviewing the content of training programs to determine whether they meet the standards for qualification under Rule 31;

(6) Assuring that all listed Rule 31 Mediators have participated in approved training, have complied with qualification requirements, and have certified their agreement to follow the guidelines and applicable standards and their understanding of the sanctions for failure to comply;

(7) Reviewing and, where appropriate, approving applications for listing of Rule 31 Mediators;

(8) Evaluating the success of Rule 31 ADR Proceedings based on participant satisfaction, quality of results, and effect on case management;

(9) Evaluating and reviewing each listed Rule 31 Mediator for continued compliance with the established standards;

(10) Suggesting to the Supreme Court rules and amendments of rules regarding alternative dispute resolution proceedings; and

(11) Setting and collecting appropriate training and registration fees.

(b) The day-to-day work of the ADRC shall be conducted by the Programs Manager of the Administrative Office of the Courts who shall be responsible for:

(1) Processing applications for inclusion on lists of Rule 31 Mediators in accordance with procedures recommended by the ADRC and approved by the Supreme Court;

(2) Processing annual reports from Rule 31 Mediators and approving their continued qualification for Rule 31 listing;

(3) Taking such steps as may be necessary to provide lists of Rule 31 Mediators to the appropriate clerks of court;

(4) Coordinating, approving, or providing training to Rule 31 Mediators;

(5) Processing grievances against Rule 31 non-attorney Mediators;

(6) Coordinating the work of and assisting the ADRC;

(7) Assisting in the evaluation of Rule 31 alternative dispute resolution programs; and

(8) Taking such other steps in conjunction with the Supreme Court and the ADRC as may be reasonably necessary to establish, maintain and improve the court-annexed dispute resolution program in Tennessee.

PROVISIONS RELATIVE TO PARTICULAR RULE 31 ADR PROCEEDINGS OTHER THAN MEDIATION

Section 20. Judicial Settlement Conferences. Trial courts are authorized to conduct Judicial Settlement Conferences. Without the consent of the parties, no judge presiding over a matter may preside over a Judicial Settlement Conference respecting that matter.

Section 21. Non-Binding Arbitration. Trial courts, with the consent of the parties, are authorized to order Non-Binding Arbitration. Attached as Appendix B is a form order for use by parties and courts in fashioning their own orders for Non-Binding Arbitration. Neutrals serving in Non-Binding Arbitrations will be subject to Appendix A, Standards of Conduct for Rule 31 Neutrals.

Section 22. Case Evaluation. Trial courts, with the consent of the parties, are authorized to order a Case Evaluation. Attached as Appendix C is a form order for use by trial judges in fashioning orders directing participation in Case Evaluations. Neutrals serving in Case Evaluations will be subject to Appendix A, Standards of Conduct for Rule 31 Neutrals.

Section 23. Mini-Trial. Mini-Trials may be ordered only with the consent of the parties. It is intended that this ADR process be flexible so that counsel, in consultation with the court, design a procedure which is suited for the Eligible Civil Action. Attached as Appendix D is a form order for use by the parties in fashioning an order for a Mini-Trial. Neutrals serving in Mini-Trials will be subject to Appendix A, Standards of Conduct for Rule 31 Neutrals.

Section 24. Summary Jury Trial. Summary Jury Trials may be ordered only with the consent of the parties. It is intended that this ADR process be flexible so that counsel, in consultation with the court, can design a procedure which is suited for the Eligible Civil Action. Attached as Appendix E is a form order for use by the parties and trial judge in fashioning an order for Summary Jury Trial.

APPENDIX A

Standards of Professional Conduct for Rule 31 Neutrals

Section 1. Preamble

(a) Scope; Purpose

These rules are intended to instill and promote public confidence in the Alternative Dispute Resolution process under Tennessee Supreme Court Rule 31 and to be a guide to Neutrals serving under Rule 31. As with other forms of judicial system activity, Rule 31 proceedings must be built on public understanding and confidence. Persons serving as Neutrals are responsible to the parties, the public, and the courts to conduct themselves in a manner which will merit that confidence. These rules apply to all Neutrals who participate in court-annexed dispute resolution proceedings, regardless of whether they are listed under Rule 31, and are a guide to Neutral conduct in discharging their professional responsibilities under Supreme Court Rule 31.

(b) Neutral's Role

In dispute resolution proceedings, decision-making authority rests with the parties. The role of the Neutral includes but is not limited to assisting the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives, and helping the parties reach voluntary agreements.

A dispute resolution proceeding under Rule 31 is based on principles of communication, negotiation, facilitation, and problem-solving that emphasize:

(1) the needs and interests of the participants;

(2) fairness;

(3) procedural flexibility;

(4) privacy and confidentiality;

(5) full disclosure; and

(6) self-determination.

Section 2. General Standards and Qualifications

(a) General

Integrity, impartiality, and professional competence are essential qualifications of any Neutral. A Neutral shall adhere to the highest standards of integrity, impartiality, and professional competence in rendering their professional service.

(1) A Neutral shall not accept any engagement, perform any service, or undertake any act which would compromise the Neutral's integrity.

(2) A Neutral shall maintain professional competence in dispute resolution skills including but not limited to:

(A) staying informed of and abiding by all statutes, rules, and administrative orders relevant to the practice of Rule 31 ADR Proceedings;

(B) continuing to meet the requirements of these rules; and

(3) A Neutral shall decline appointment, withdraw, or request technical assistance when the Neutral decides that a case is beyond the Neutral's competence.

(b) Concurrent Standards

Nothing herein shall replace, eliminate, or render inapplicable relevant ethical standards not in conflict with these rules which may be imposed by the Code of Responsibility with respect to lawyers, or similar sets of standards imposed upon any Neutral by virtue of the Neutral's professional calling.

Section 3. Responsibilities to Courts

A Neutral shall be candid, accurate, and fully responsive to the Court concerning the Neutral's qualifications, availability, and all other pertinent matters. A Neutral shall observe all administrative policies, local rules of court, applicable procedural rules, and statutes. A Neutral is responsible to the judiciary for the propriety of the Neutral's activities and must observe judicial standards of fidelity and diligence. A Neutral shall refrain from any activity which has the appearance of improperly influencing the Court to secure appointment to a case, including gifts or other inducements to court personnel.

Section 4. The Dispute Resolution Process

(a) Orientation Session

On commencement of the Rule 31 ADR proceeding, a Neutral shall inform all parties that settlements and compromises are dependent upon the consent of the parties, that the Neutral is an impartial facilitator, and that the Neutral may not impose or force any settlement on the parties.

(b) Continuation of a Rule 31 ADR Proceeding

A Neutral shall not unnecessarily or inappropriately prolong a dispute resolution session if it becomes apparent that the case is unsuitable for dispute resolution or if one or more of the parties is unwilling or unable to participate in the dispute resolution process in a meaningful manner.

A Neutral shall plan a work schedule so that present and future commitments will be fulfilled in a timely manner. A Neutral shall refrain from accepting appointments when it becomes apparent that completion of the dispute resolution assignments accepted cannot be done in a timely fashion. A Neutral shall perform the dispute resolution services in a timely and expeditious fashion, avoiding delays wherever possible.

Section 5. Self-Determination

(a) Parties' Right to Decide

A Neutral engaged in mediation shall assist the parties in reaching an informed and voluntary settlement. Decisions are to be made voluntarily by the parties themselves.

(b) Prohibition of Neutral Coercion

A Neutral shall not coerce or unfairly influence a party into a settlement agreement and shall not make substantive decisions for any party to a Rule 31 ADR Proceeding.

A Neutral shall not intentionally nor knowingly misrepresent material facts or circumstances in the course of conducting a Rule 31 ADR Proceeding.

(d) A Balanced Process

A Neutral shall promote a balanced process in Mediation and shall encourage the parties to conduct the mediation in a nonadversarial manner.

(e) Mutual Respect

A Neutral shall promote mutual respect among the parties throughout the dispute resolution process.

Section 6. Impartiality

(a) Impartiality

A Neutral shall be impartial and advise all parties of any circumstances bearing on possible bias, prejudice, or impartiality. Impartiality means freedom from favoritism or bias in word, action, and appearance. Impartiality implies a commitment to aid all parties, as opposed to an individual party conducting Rule 31 ADR processes.

(1) A Neutral shall maintain impartiality while raising questions for the parties to consider as to the reality, fairness, equity, and feasibility of proposed options for settlement.

(2) A Neutral shall withdraw from the Rule 31 ADR Proceeding if the Neutral believes that he or she can no longer be impartial.

(3) A Neutral shall not give or accept a gift, request, favor, loan, or any other item of value to or from a party, attorney, or any other person involved in and arising from any Rule 31 process.

(b) Conflicts of Interest and Relationships; Required Disclosures; Prohibitions

(1) A Neutral must disclose any current, past, or possible future representation or consulting relationship with any party or attorney involved in the Rule 31 proceeding. Disclosure must also be made of any pertinent pecuniary interest. Such disclosures shall be made as soon as practical after the Neutral becomes aware of the interest or the relationship.

(2) A Neutral must disclose to the parties or to the court involved any close personal relationship or other circumstance, in addition to those specifically mentioned earlier in these standards, which might reasonably raise a question as to the mediator's impartiality. All such disclosures shall be made as soon as practical after the Neutral becomes aware of his or her candidacy as a Rule 31 Neutral in a given proceeding or becomes aware of the interest or the relationship.

(3) The burden of disclosure rests on the Neutral. After appropriate disclosure, the Neutral may serve if all parties so desire. If the Neutral believes or perceives that there is a clear conflict of interest, he or she should withdraw, irrespective of the expressed desires of the parties.

(4) A Neutral shall not provide counseling or therapy to either party during the dispute resolution process, nor shall a Neutral who is a lawyer represent any party in any matter during the dispute resolution proceeding.

(5) A Neutral shall not use the dispute resolution process to solicit, encourage, or otherwise incur future professional services with either party.

Section 7. Confidentiality

(a) Required

A Neutral shall preserve and maintain the confidentiality of all dispute resolution proceedings except where required by law to disclose information.

(b) When Disclosure Permitted

A Neutral conducting a Rule 31 Mediation shall keep confidential from the other parties any information obtained in individual caucuses unless the party to the caucus permits disclosure.

A Neutral shall maintain confidentiality in storing or disposing of records and shall render anonymous all identifying information when materials are used for research, training, or statistical compilations.

Section 8. Professional Advice

In addition to complying with Rule 31, Section 10(b)(3):

(a) Generally

A Neutral shall not provide information the Neutral is not qualified by training or experience to provide.

(b) Independent Legal Advice

When a Neutral believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the Neutral shall advise the participants to seek independent legal counsel.

If one of the parties is unable to participate in a Rule 31 process for psychological or physical reasons, a Neutral should postpone or cancel the proceeding until such time as all parties are able and willing to resume. Neutrals may refer the parties to appropriate resources if necessary (social service, lawyer referral, or other resources).

Section 9. Fees and Expenses

(a) General Requirements

A Neutral occupies a position of trust with respect to the parties and the courts. In charging for services and expenses, the Neutral must be governed by the same high standards of honor and integrity that apply to all other phases of the Neutral's work. A Neutral must endeavor to keep total charges for services and expenses reasonable and consistent with the nature of the case. If fees are charged, a Neutral shall give a written explanation of the fees and related costs, including time and manner of payment, to the parties prior to the Rule 31 ADR proceeding. The explanation shall include:

(1) the basis for and amount of charges, if any, for:

(A) Rule 31 ADR sessions;

(B) preparation for sessions;

(D) postponement or cancellation of Rule 31 ADR sessions by the parties and the circumstances under which such charges will normally be assessed or waived;

(E) preparation of any written settlement agreement;

(F) all other items billed by the Neutral; and

(2) the parties' pro rata share of Rule 31 ADR fees and costs if previously determined by the court or agreed to by the parties.

(b) Records

A Neutral shall maintain adequate records to support charges for services and expenses and shall make an accounting to the parties or to the court upon request.

No commissions, rebates, or similar remuneration shall be given or received by a Neutral for referral of clients for dispute resolution or related services.

(d) Contingent Fees

A Neutral shall not charge a contingent fee or base a fee in any manner on the outcome of the process.

(e) Principles

A Neutral should be guided by the following general principles:

(1) Time charges for a Rule 31 ADR session should not be in excess of actual time spent or allocated for the session.

(2) Time charges for preparation should be not in excess of actual time spent.

(3) Charges for expenses should be for expenses normally incurred and reimbursable in dispute resolution cases and should not exceed actual expenses.

(4) When time or expenses involve two or more sets of parties on the same day or trip, such time and expense charges should be prorated appropriately.

(5) A Neutral may specify in advance a minimum charge for a Rule 31 ADR session without violating this rule.

(6) When a Neutral is contacted directly by the parties for dispute resolution services, the Neutral has a professional responsibility to respond to questions regarding fees by providing a copy of the basis for charges for fees and expenses.

Section 10. Concluding a Dispute Resolution Proceeding

(a) With Agreement

(1) The Neutral shall request that the terms of any settlement agreement reached be memorialized appropriately and shall discuss with the participants the process for formalization and implementation of the agreement.

(2) When the participants reach a partial settlement agreement, the Neutral shall discuss the procedures available to resolve the remaining issues.

(3) The Neutral shall not knowingly assist the parties in reaching an agreement which for reasons such as fraud, duress, overreaching, the absence of bargaining ability, or unconscionability would not be enforceable.

(b) Without Agreement

(1) Termination by Participants. The Neutral shall not require a participant's further presence at a mediation when it is clear the participant desires to withdraw.

(2) Termination by Neutral. If the Neutral believes that the participants are unable to participate meaningfully in the process, the Neutral shall suspend or terminate the Rule 31 ADR proceeding. The Neutral should not prolong unproductive discussions that would result in emotional and monetary costs to the participants. The Neutral shall not continue to provide dispute resolution services where there is a complete absence of bargaining ability.

Section 11. Training and Education

(a) Training

A Neutral is obligated to acquire knowledge and training in the dispute resolution process, including an understanding of appropriate professional ethics, standards, and responsibilities.

(b) Continuing Education

It is important that Neutrals continue their professional education throughout the period of their active service. A Neutral shall be personally responsible for ongoing professional growth, including participation in such continuing education as may be required by law.
(c) New Neutral Training

An experienced Neutral should cooperate in the training of new Neutrals, including serving as a mentor.

Section 12. Advertising

All advertising by a Neutral must represent honestly the services to be rendered. No claim of specific results or promises which imply favoritism to one side should be made for the purpose of obtaining business. A Neutral shall make only accurate statements about the dispute resolution process, its costs and benefits, and the Neutral's qualifications.

Section 13. Relationships With Other Professionals

(a) The Responsibility of the Neutral Toward Other Neutrals

(1) Relationship With Other Neutrals. A Neutral should not preside over an ADR Proceeding without first endeavoring to consult with the person or persons conducting any such dispute resolution proceeding occurring simultaneously in the same case.

(2) Co-Mediation. In those situations where there is more than one mediator in a particular case, each mediator has a responsibility to keep the others informed of developments essential to a cooperative effort. The wishes of the parties supersede the interests of the mediator.

(b) Relationship With Other Professionals

(1) Cooperation. A Neutral should respect the relationship between dispute resolution and other professional disciplines including law, accounting, mental health, and the social services and should promote cooperation between Neutrals and other professionals.

(2) Prohibited Agreements. A Neutral shall not participate in offering or making a partnership or employment agreement that restricts the rights of a Neutral to practice after termination of the relationship, except an agreement concerning benefits upon retirement.

Section 14. Advancement of Dispute Resolution

(a) Pro Bono Service

Neutrals have a professional responsibility to provide competent services to persons seeking their assistance, including those unable to pay for such services. As a means of meeting the needs of the financially disadvantaged, a Neutral should provide dispute resolution services pro bono or at a reduced rate of compensation whenever appropriate.

(b) Support of Dispute Resolution

A Neutral should support the advancement of dispute resolution by encouraging and participating in research, evaluation, or other forms of professional development and public education.

APPENDIX B

IN THE _________________ COURT
FOR ________________ COUNTY, TENNESSEE

)
)
Plaintiff, )
)
v. ) NO.
)
)
)
Defendant. )

AGREED ORDER FOR
NON-BINDING ARBITRATION

By agreement of the parties, this case has been scheduled for Non-Binding Arbitration ("NBA") pursuant to Tennessee Rule of Civil Procedure 16 and Tennessee Supreme Court Rule 31.

The entry of this order does not affect the parties' rights to proceed to trial in accordance with applicable law. Unless otherwise ordered by the Court, discovery shall proceed as scheduled by the parties. Unless otherwise ordered by the Court, this order shall not preclude the parties from proceeding with discovery or from filing appropriate motions with the Court.

It is accordingly ORDERED

1. NBA Session

An NBA Session shall be conducted in this case within sixty (60) days of the date of this memorandum and order. The session will be conducted in accordance with the procedure, directions and conditions noted in this memorandum and order.

2. Appointment of Arbitrator

The Court hereby appoints [____________] as Arbitrator(s).

For purposes of determining whether the Arbitrator has or represents any conflicting interests, the standards set forth in ____ TCA ____ for disqualification of any justice, or judge will be applied. If the Arbitrator believes that he or she has or represents conflicting interests, that fact shall promptly be disclosed to all counsel and to the Clerk in writing. Any party who believes that the assigned Arbitrator has or represents conflicting interests shall provide written notice to the Clerk of same within ten (10) calendar days of learning of the potential conflict, or shall be deemed to have waived any opposition.

3. Written Pre-NBA Statements

(a) Form of Pre-NBA Statements

No later than ten (10) calendar days prior to the NBA Session, each party shall submit directly to the Arbitrator, and shall serve on all other parties, a written Statement. Such Statement shall be double spaced and shall not exceed fifteen (15) pages (not counting exhibits and attachments).

(b) Required Contents of Pre-NBA Statements

While the Statements may and should include any information that would be useful, they must: (1) identify the person(s), in addition to counsel, who will attend the NBA Session as the representative of the party with full decision-making authority; (2) describe briefly the substance of the suit and; (3) delineate the primary disputed factual issues and legal issues; (4) identify witnesses to be called at the NBA hearing and; (5) identify exhibits to be presented at the hearing.

The parties may identify in these Pre-NBA Statements persons connected to a party opponent (including a representative of the party opponent's insurance carrier) whose presence at the NBA Session would improve substantially the prospects for making the NBA Session productive; the fact that a person has been so identified, however, shall not, by itself, result in an instruction compelling that person to attend the NBA Session.
Persons other than the parties, their representatives, their counsel, representatives of their insurance carriers, and the Arbitrator may attend the Session only with the consent of the Arbitrator.

The Arbitrator will have the ability to request the presence of non-parties but does not have the authority to compel their attendance.

(d) Attachments to Pre-NBA Statements

The parties shall attach to their written Pre-NBA Statements copies of documents out of which the suit arose, e.g., contracts, or the availability of which would materially advance the purposes of the Session, e.g., medical reports or documents by which special damages might be determined.

(e) Filing of Pre-NBA Statements Prohibited

The written Pre-NBA Statements shall not be filed with or provided to the Court or clerk, and the judge assigned to this case shall not have access to them. Instead, the Pre-NBA Statements shall be sent directly to the Arbitrator with copies to adversary counsel.

4. Attendance at the NBA Session

(a) Parties to Attend

The parties themselves shall attend the NBA Session unless excuse is provided in this section. This requirement reflects the Court's view that one of the principal purposes of the NBA Session is to afford litigants an opportunity to articulate their positions and to hear, first hand, both their opponent's version of the matters in dispute and a neutral assessment of the relative strengths of every party's case. A party other than a natural person (e g, a corporation or association) satisfies this attendance requirement if it is represented at the NBA Session by a person (other than outside counsel) with authority to enter stipulations (of fact, law, or procedure) and to bind the party to terms of a settlement. A party that is a governmental or unit need not have present at the NBA Session the persons who would be required to approve a settlement before it could become final (e.g., the members of a city council or the chief executive of a county or major agency), but must send to the session a representative, in addition to trial counsel, who is knowledgeable about the facts of the case and the party's position and is the person who has the authority and responsibility to make recommendations to the ultimate decision-making body. . In cases involving insurance carriers, representatives of the insurance companies, with authority, shall attend the NBA Session.

(b) Attorneys to Attend

Each party shall be accompanied at the NBA Session by the lawyer expected to be primarily responsible for handling the trial of the matter.

A party or lawyer will be excused from attending the NBA Session only after a showing that attendance would impose an extraordinary or otherwise unjustifiable hardship. A party or lawyer seeking to be excused must petition the Arbitrator in writing, no fewer than 15 calendar days before the date set for the NBA Session. Any such petition shall be in the form of a letter to the Arbitrator, a copy of which shall be sent to all parties, and which shall set forth all considerations that support the Request and shall state realistically the amount in controversy in the case. The Arbitrator shall rule on obligations for excuse for non-attendance. A party or lawyer who is excused from appearing in person at the NBA Session shall be available to participate by telephone.

5. Procedure at the NBA Session

The Arbitrator shall schedule the actual date, time and place of the hearing after consultation with the clerk and the parties, _______ days before the hearing. The hearing will be held generally in a lawyer's conference room or courtroom within the courthouse at which the action is pending, except that the Arbitrator may designate another location upon agreement of the parties.

Arbitration hearings are intended to be brief, evidentiary outlines of the case and not formal trials. Each side will be limited to an opening statement not to exceed ten minutes, unless there is a conflict of interest between the parties of such sides, in which event each party with a conflict of interest may make a separate opening statement of ______ minutes. Closing argument shall be ____ minutes per side, unless there is a conflict of interest between the parties of such sides, in which event such party with a conflict of interest may make a separate argument of _____ minutes. Rebuttal is allowed as a part of plaintiffs' allotted time. In the event that a party fails to appear, argument will be heard and evidence received from those parties appearing.

The Arbitrator shall have considerable discretion in structuring and conducting the NBA Session, and the NBA Session shall proceed informally. Rules of Evidence shall not apply, and there shall be no formal examination or cross-examination of witnesses.

6. Discovery

Discovery shall proceed as in any other civil action. The court will require that discovery be completed in a diligent and expeditious fashion. Except in exceptional circumstances, no additional discovery will be permitted when a trial de novo has been demanded after an Arbitration award.

7. Ex Parte Communication

There shall be no ex parte communication between an Arbitrator and any counsel or party on any matter relating to the action except for purposes of scheduling or continuing the hearing.

8. Record

No official record of the Arbitration hearing will be made. Any party desiring the attendance of a reporter shall make the necessary arrangements with a reporting agency. The costs of the reporter's attendance fee, record, and all transcripts thereof, shall be prorated equally among all parties ordering copies, unless they shall otherwise agree, and shall be paid for by the responsible parties directly to the reporting agency.

9. Testimony

All witnesses shall testify under oath or affirmation administered by the Arbitrator or any other duly qualified person. Fed.R.Civ.P. 45 shall apply to subpoenas for attendance of witnesses under these rules.

10. Attendance of Parties

Individual parties or authorized representatives of corporate parties shall attend the Arbitration hearing unless excused in advance by the Arbitrators for good cause shown.

11. Failure of Parties to Attend

The Arbitration hearing may proceed in the absence of a party who, after due notice, fails to be present; but an award of damages shall not be based solely upon the absence of a party.

12. Failure to Proceed
If a party fails to participate in the Arbitration process in a meaningful manner, the Arbitrator may impose appropriate sanctions against the party or his attorney.

13. Authority of Arbitrators

The Arbitrator or Arbitration Panel shall swear witnesses and receive evidence. At the Arbitration hearing, the Arbitrator or Chief Arbitrator shall rule on all objections, motions and admissions of evidence.

14. Arbitration Award

The Arbitrator shall issue and mail to the parties an award within 15 days of the date of the closing of the hearing or the receipt of posthearing briefs, whichever is later. The original copy of the award shall be mailed to the prevailing party.

15. Award Procedure

If the parties have stipulated in writing that the award shall be final and binding, the clerk shall enter the judgment on the award when filed. Otherwise, the award shall be a nullity.

16. Sealing the Award

The issuance of award must be confidential and remain so. Binding the parties to confidentiality must be done by means of completing a form prior to the Arbitration commencing.

17. Entry of Judgment on Award

Upon stipulation of the parties, the clerk shall, in accordance with Rule 58, Tennessee Rules of Civil Procedure, enter the award as the judgment of the court. The judgment so entered shall have the same force and effect as a judgment of the court in a civil action, except that the judgment shall not be subject to review in any other court by appeal or otherwise.

18. Limitation on Evidence

At the trial de novo, the court shall not admit evidence that there has been an Arbitration proceeding, the nature or amount of the award, nor any other matter concerning the conduct of the Arbitration proceeding, except that testimony given at an Arbitration hearing may be used for any purpose permitted by the Federal Rules of Evidence, or the Federal Rules of Civil Procedure.

19. Costs

Unless permitted to proceed in forma pauperis, the party demanding the trial de novo, other than the United States or its agencies or officers, shall deposit with the clerk a sum equal to the Arbitrator fees and expenses (or the maximum fees payable to the Arbitrator if the Arbitrator has not yet submitted a voucher), which shall constitute advance payment of such fees and expenses.

The clerk shall tax as costs against the party who demanded trial de novo the fees and expenses paid to the Arbitrator, unless:

(a) the party demanding the trial de novo obtains a final judgment, exclusive of interests and costs, more favorable than the Arbitration award, or

(b) the case is settled prior to trial, but only if the clerk is notified of settlement 10 days or more before the date set for trial, or

ENTER:

JUDGE

APPENDIX C

IN THE _________________ COURT
FOR ________________ COUNTY, TENNESSEE

)
)
Plaintiff, )
)
v. ) NO.
)
)
)
Defendant. )

ORDER FOR
CASE EVALUATION

This case has been scheduled for Early Neutral Evaluation ("ENE") pursuant to Tennessee Rule of Civil Procedure 16 and Tennessee Supreme Court Rule 31.

The Court, by entering this memorandum and order, is not depriving the parties of their right to proceed to trial in accordance with the applicable law. The pendency of ENE shall not interfere with the right and obligation of the parties to proceed with discovery and/or to make such motions to the Court as they may deem appropriate with respect to the preparation of their cases for trial.

It is accordingly ORDERED

1. Evaluation Session

An Evaluation Session shall be conducted in this case within 60 days of the date of this memorandum and order. The Evaluation Session shall be conducted in accordance with the procedure, directions and conditions noted in this memorandum and order.

2. Appointment of Evaluators

The Court hereby appoints [__________], [___________] and [__________] as Evaluators. The Evaluators shall serve as a panel, with [________________] acting as Chair. The Evaluators shall be subject to the Standards of Conduct for Rule 31 neutrals, incorporated into Rule 31 as Appendix A.

For purposes of determining whether the Evaluators have or represent any conflicting interests, the standards set forth in [____] TCA [____] for disqualification of any justice, or judge have, and shall be, applied. If any of the Evaluators believe that they have or represent conflicting interests, they shall promptly disclose that circumstance to all counsel and to the Clerk in writing. Any party who believes that the assigned Evaluators have or represent conflicting interests shall provide written notice to the Clerk of same within 10 calendar days of learning of the potential conflict, or shall be deemed to have waived any opposition.

3. Written Evaluation Statements

3.1 Form of Evaluation Statements

No later than 10 calendar days prior to the Evaluation Session, each party shall submit directly to the Evaluators, and shall serve on all other parties, a written Evaluation Statement. Such Evaluation Statement shall be double-spaced and shall not exceed 15 pages (not counting exhibits and attachments).

3.2 Required Contents of Evaluation Statements

While the Evaluation Statements may, and should, include any information that would be useful, they must: (1) identify the person(s), in addition to counsel, who shall attend the Evaluation Session pursuant to 4.1 below as the representative of the party with full decision-making authority; (2) describe briefly the substance of the suit; (3) delineate the primary disputed factual and legal issues; (4) address whether there are factual and legal issues, the early resolution of which might appreciably reduce the scope of the dispute or contribute significantly to settlement negotiations; and (5) identify the discovery that promises to contribute most to equipping the parties for meaningful settlement discussions.

3.3 Identification of Other Persons Whose Presence is Thought to be Desirable

The parties may identify in these Evaluation Statements persons connected to a party opponent (including a representative of the party opponent's insurance carrier) whose presence at the Evaluation Session would improve substantially the prospects for making the Evaluation Session productive. The fact that a person has been so identified, however, shall not, by itself, result in an instruction compelling that person to attend the Evaluation Session.

3.4 Attachments to Evaluation Statements

The parties shall attach to their written Evaluation Statements copies of documents out of which the suit arose, e.g., contracts, or the availability of which would materially advance the purposes of the Evaluation Session, e.g., medical reports or documents by which special damages might be determined.

3.5 Filing of Evaluation Statements Prohibited

The written Evaluation Statements shall not be filed with or provided to the Court or clerk, and the judge assigned to this case shall not have access to them. Instead, the Evaluation Statements shall be sent directly to the Evaluators with copies to adversary counsel.

4. Attendance at the Evaluation Session

4.1 Parties to Attend

The parties themselves shall attend the Evaluation Session unless excused as provided in this section. This requirement reflects the Court's view that one of the principal purposes of the Evaluation Session is to afford litigants an opportunity to articulate their positions and to hear, first hand, both their opponent's version of the matters in dispute and a neutral assessment of the relative strengths of every party's case. A party other than a natural person (e.g., a corporation or association) satisfies this attendance requirement if it is represented at the Evaluation Session by a person (other than outside counsel) with authority to enter stipulations (of fact, law, or procedure) and to bind the party to terms of a settlement. A party that is a governmental unit need not have present at the Evaluation Session the persons who would be required to approve a settlement before it could become final (e.g., the members of a city council or the chief executive of a county or major agency), but must send to the session a representative, in addition to trial counsel, who is knowledgeable about the facts of the case and the party's position and is the person who has the authority and responsibility to make recommendations to the ultimate decision-making body. In cases involving insurance carriers, representatives of the insurance companies, with authority, shall attend the Evaluation Session.

4.2 Attorneys to Attend

Each party shall be represented at the Evaluation Session by the lawyer expected to be primarily responsible for handling the trial of the matter.

4.3 Excuses for Non-Attendance

A party or lawyer shall be excused from attending the Evaluation Session only after showing that attendance would impose an extraordinary or otherwise unjustifiable hardship. A party or lawyer seeking to be excused must petition the Evaluators, in writing, no fewer than 15 calendar days before the date set for the Evaluation Session. Any such petition shall be in the form of a letter to the Chair of the panel of Evaluators, a copy of which shall be sent to all parties, and which shall set forth all considerations that support the Request and shall state realistically the amount in controversy in the case. The Chair of the panel of Evaluators shall rule on any such petition and may do so without consulting the other Evaluators. A party or lawyer who is excused from appearing in person at the Evaluation Session shall be available to participate by telephone.

4.4 Attendance of Non-Parties

The Evaluators may request the presence of non-parties but do not have the authority to compel their attendance.

4.5 Persons Entitled to Attend

Persons other than the parties, their representatives, their counsel, representatives of insurance carriers, and the Evaluators may attend the Evaluation Session only with the consent of the Chair.

5. Procedure at the Evaluation Session

The Evaluators shall have considerable discretion in structuring and conducting the Evaluation Session, and the Evaluation Session shall proceed informally. Rules of Evidence shall not apply, and there shall be no formal examination or cross-examination of witnesses.

In each case, however, the Evaluators shall, at least: (a) permit each party (through counsel or otherwise) to make an oral presentation of its position; (b) help the parties identify areas of agreement and, where feasible, reach stipulations; (c) assess the relative strengths and weaknesses of the parties' contentions and evidence, and explain as carefully as possible the reasoning by the Evaluators that support these assessments; (d) if the parties are interested, help them, through private caucusing or otherwise, explore the possibility of settling the case; (e) estimate, to the extent feasible, the likelihood of liability and the dollar range of damages; (f) help the parties devise a plan for sharing the important information and/or conducting the key discovery that shall equip them as expeditiously as possible to enter meaningful settlement discussions or to posture the case for disposition by other means; and (g) determine whether some form of follow-up to the Evaluation Session would contribute to the case development process or to settlement.

6. Follow-Up Session(s)

At the close of the Evaluation Session, the Evaluators may determine whether it would be appropriate to schedule some kind of follow-up to the Session. Such follow-up sessions could include, but need not be limited to, written or telephonic reports that the parties might make to one another or to the Evaluators, the exchange of specified kinds of information, and/or a second evaluation or settlement session. If appropriate, the Evaluators may direct that written follow-up reports be signed not only by counsel, but also by the parties themselves.

7. Confidentiality and Admissibility

The Court, and all counsel and parties, shall treat as confidential all written and oral communications made in connection with or during the ENE process including, but not limited to, the Evaluation Session. The Court hereby extends to all such communications all the protections afforded by Tennessee Rule of Evidence 408. In addition, no communication made in connection with or during any ENE may be disclosed to anyone not involved in the litigation, nor may any such communication be used for any purpose (including impeachment) in any pending or future proceeding in this Court. The privileged and confidential status afforded to communications made in connection with the ENE process is intended to include not only matters emanating from parties and counsel, but also the Evaluators' comments and assessments, as well as any recommendations made by the Evaluators about case development, discovery and/or motions. There shall be no communication about such matters between the Evaluators and the presiding judge. Nothing in this paragraph, however, shall be construed to prevent parties, counsel or the Evaluators from responding, in absolute confidentiality, to inquiries by any person duly authorized by this Court to analyze the utility of the ENE program, nor shall anything in this paragraph be construed to prohibit parties from entering and filing procedural or factual stipulations based on suggestions or agreements made in connection with an ENE session.

8. Limits on Powers of Evaluators

Within limits imposed by this memorandum and order, and as it may be modified by further order, the Evaluators shall have authority to fix the time and place for, and to structure, Evaluation Sessions and follow-up events. The Evaluators shall have no power other than those described here, and in sections 5 and 6 of this memorandum and order. The Evaluators shall have no authority to compel parties to conduct or respond to discovery or to file motions. The Evaluators shall have no authority to determine the issues in any case, to impose limits on parties' pretrial activities, or assess costs.

9. Fees of the Evaluators

The Evaluators shall be compensated at an hourly rate not to exceed [___] per hour. Unless by agreement otherwise, Evaluator fees shall be shared equally by the parties, and, if necessary, shall be taxed as costs.

10. Evaluators Not Witnesses

Evaluators shall be disqualified as counsel, witnesses, consultants or experts for any party as to this dispute and as arbitrators between the parties, and their oral and written opinions shall be inadmissible for all purposes in this or any other dispute involving the parties thereto.

ENTER:

JUDGE

APPENDIX D

IN THE _________________ COURT
FOR ________________ COUNTY, TENNESSEE

)
)
Plaintiff, )
)
v. ) NO.
)
)
)
Defendant. )

AGREED ORDER
FOR MINITRIAL

This action has been scheduled for Minitrial by agreement of the parties and pursuant to Tennessee Rule of Civil Procedure 16 and Tennessee Supreme Court Rule 31. The Court, by entering this order, is not depriving the parties of their right to proceed to trial in accordance with the applicable law. The pendency of Minitrial shall not interfere with the right and obligation of the parties to proceed with discovery and/or to make such motions to the Court as they may deem appropriate with respect to the preparation of their cases for trial.

It is accordingly ORDERED

1. Institution of Proceeding

The parties shall conduct a Minitrial on or before [____________] in accordance with this Order.

2. The Minitrial Panel

2.1 The Minitrial panel shall consist of one member of management from each party (the "Management Representative"), who shall have authority to negotiate a settlement on behalf of the party represented, and a Neutral Advisor (the "Neutral Advisor").

2.2 Each party shall name its Management Representative within [___] days from the date of this order by written notice to the other party and the Neutral Advisor. Each party thereafter may designate a different Management Representative by written notice to the other party and the Neutral Advisor. Such representative shall not, however, be changed within [___] days before the Information Exchange.

3. The Neutral Advisor

3.1 The Neutral Advisor, who shall be independent and impartial, shall perform the functions stated in this procedure and any additional functions on which the parties may hereafter agree. The Neutral Advisor shall be subject to the Standards of Conduct for Rule 31 neutrals, incorporated into Rule 31 as Appendix A.

3.2 The parties shall attempt to select a Neutral Advisor by mutual agreement.

3.3 If the parties have not agreed on a Neutral Advisor within 15 days from the date of this order, the Court shall appoint the Neutral Advisor from the list of Rule 31 mediators maintained by the ADRC.

3.4 Each party shall promptly disclose to the other party any circumstances known to it which would cause justifiable doubt regarding the independence or impartiality of an individual under consideration or appointed as Neutral Advisor. Any such individual shall promptly disclose any such circumstances to the parties. If any such circumstances have been disclosed, the individual shall not serve as Neutral Advisor unless all parties agree.

3.5 No party, nor anyone acting on its behalf, shall unilaterally communicate with the Neutral Advisor on any matter of substance, except as specifically provided for herein or agreed between the parties.

3.6 The Neutral Advisor shall identify, and the parties shall promptly send to the Neutral Advisor, such materials requested for the purpose of familiarizing the Neutral Advisor with the facts and issues in the dispute. The parties shall comply promptly with any requests by the neutral Advisor for additional documents or information relevant to the dispute.

3.7 The parties may jointly seek the advice and assistance of the Neutral Advisor in interpreting this procedure and on procedural matters.

3.8 The Neutral Advisor's per diem or hourly charge shall be established at the time of appointment. Unless the parties otherwise agree, (a) the fees and expenses of the Neutral Advisor and any other expenses of the proceeding shall be borne equally by the parties, and (b) each party shall bear its own costs of the proceeding.

4. Briefs and Exhibits

Before the Information Exchange, the parties shall exchange and submit to the Neutral Advisor briefs, as well as all documents or other exhibits, upon which the parties intend to rely during the Information Exchange. The parties shall agree upon the length of such briefs and the date upon which such briefs, documents and other exhibits are to be exchanged.

5. Information Exchange

The "hearing" is expected to take the form of an Information Exchange.

5.1 The Information Exchange shall be held before the Minitrial panel at a place and time stated in the initiating agreement or thereafter agreed to by the parties and the Neutral Advisor.

5.2 Each party shall make a presentation of its best case, and each party shall be entitled to a rebuttal. The order and permissible length of presentations and rebuttals shall be determined by agreement between the parties or, failing such agreement, by the Neutral Advisor.

5.3 The Neutral Advisor shall moderate the Information Exchange.

5.4 The presentations and rebuttals of each party may be made in any form and by any individuals as desired by such party. Presentations by fact witnesses and expert witnesses shall be permitted.

5.5 Presentations may not be interrupted except that during each party's presentation, and following such presentation, any member of the panel may ask clarifying questions of counsel or other persons appearing on that party's behalf. No member of the panel may limit the scope or substance of a party's presentation. No rules of evidence, including rules of relevance, shall apply at the Information Exchange.

5.6 If the parties agree, each party and counsel may ask questions of opposing counsel and witnesses during scheduled, open question and answer exchanges and during that party's rebuttal time.

5.7 The Information Exchange shall be not be recorded by any means.

5.8 In addition to counsel, each Management Representative may have advisors in attendance at the Information Exchange, provided that the other party and the Neutral Advisor shall have been notified of the identity of such advisors at least five days before commencement of the Information Exchange.

6. Negotiations Between Management Representatives

6.1 At the conclusion of the Information Exchange, the Management Representatives shall meet one or more times, as necessary, by themselves and shall make all reasonable efforts to agree on a resolution of the dispute. By agreement, other members of their teams may be invited to participate in the meetings.

6.2 At the request of either Management Representative, the Neutral Advisor shall meet with the Management Representatives jointly or separately at the Neutral Advisor's discretion and shall give an oral opinion as to the issues raised during the Information Exchange. The Management Representatives may then attempt to resolve the dispute once again. At the joint request of the Management Representatives, the Neutral Advisor may at any time mediate their negotiations.

6.3 The terms of any settlement are to be set out in a written agreement which is to be signed by the Management Representatives as soon as possible after conclusion of the negotiations and shall, once signed, be legally binding on the parties.

7. Confidentiality and Admissibility

7.1 The entire process is a compromise negotiation. All offers, promises, conduct and statements, whether oral or written, made in the course of the proceedings by any of the parties, their agents, employees, experts and attorneys, and by the Neutral Advisor are confidential. Such offers, promises, conduct and statements are privileged under any applicable mediation privilege, are subject to Tennessee Rule of Evidence 408, and are inadmissible and not discoverable for any purpose, including impeachment, in litigation between the parties to the Minitrial or other litigation. However, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or nondiscoverable as a result of its presentation or use at the Minitrial.

7.2 The Neutral Advisor shall be disqualified as counsel, witness, consultant or expert for any party and as an arbitrator between the parties as to this dispute, and his or her oral and written opinions shall be inadmissible for all purposes in this or any other dispute involving the parties hereto.

ENTER:

JUDGE

APPENDIX E

IN THE _________________ COURT
FOR ________________ COUNTY, TENNESSEE

)
)
Plaintiff, )
)
v. ) NO.
)
)
)
Defendant. )

AGREED ORDER FOR
SUMMARY JURY TRIAL

This action has been scheduled for Summary Jury Trial by agreement of the parties and pursuant to Tennessee Rule of Civil Procedure 16 and Tennessee Supreme Court Rule 31 and by agreement of the parties. The Court, by entering this order, is not depriving the parties of their right to proceed to trial in accordance with the applicable law. The pendency of Summary Jury Trial shall not interfere with the right and obligation of the parties to proceed with discovery and/or to make such motions to the Court as they may deem appropriate with respect to the preparation of their cases for trial.

It is accordingly ORDERED

1. Summary Jury Trial

A Summary Jury Trial is set for [_________________], at [____] a.m. to be conducted before a 12-member advisory jury and Judge [________], being a judge other than the judge who shall preside at trial, should trial be necessary.

2. Challenges

Plaintiff(s) shall be entitled to exercise three challenges, and defendant(s) collectively shall be entitled to exercise three challenges after a brief voir dire examination to be conducted by counsel. There shall be no alternate jurors.

3. Jury Instructions

Counsel shall submit proposed jury instructions along with briefs on any novel issues of law presented by the case on or before [_______________].

4. Attendance

4.1 Parties to Attend

The parties themselves shall attend the Summary Jury Trial unless excused as provided in this section. This requirement reflects the Court's view that one of the principal purposes of the Summary Jury Trial is to afford litigants an opportunity to articulate their positions and to hear, first-hand, both their opponent's version of the matters in dispute and a neutral assessment of the relative strengths of every party's case. A party other than a natural person (e.g., a corporation or association) satisfies this attendance requirement if it is represented at the Summary Jury Trial by a person (other than outside counsel) with authority to enter stipulations (of fact, law, or procedure) and to bind the party to terms of a settlement. A party that is a governmental unit need not have present at the Summary Jury Trial the persons who would be required to approve a settlement before it could become final (e.g., the members of a city council or the chief executive of a county or major agency) but must send to the session a representative, in addition to trial counsel, who is knowledgeable about the facts of the case and the party's position and is the person who has the authority and responsibility to make recommendations to the ultimate decision-making body. In cases involving insurance carriers, representatives of the insurance companies, with authority, shall attend the Summary Jury Trial.

4.2 Attorneys to Attend

Each party shall be represented at the Summary Jury Trial by the attorney expected to be primarily responsible for handling the trial of the matter.

4.3 Excuses for Non-Attendance

A party or lawyer shall be excused from attending the Summary Jury Trial only after a showing that attendance would impose an extraordinary or otherwise unjustifiable hardship. A party or lawyer seeking to be excused must petition the judge, in writing, no fewer than 15 calendar days before the date set for the Summary Jury Trial. Any such petition shall be in the form of a letter to the judge, a copy of which shall be sent to all parties, and which shall set forth all considerations that support the Request and shall state realistically the amount in controversy in the case. The Judge shall rule on such petitions. A party or lawyer who is excused from appearing in person at the Summary Jury Trial shall be available to participate by telephone.

4.4 Attendance of Non-Parties

With approval of the judge, subpoenas may be issued to compel the presence of non- parties.

5. Evidence

All evidence shall be presented through attorneys for the parties with the exception that video presentations by experts or others shall be permitted. The attorneys may summarize and comment on the evidence and may summarize or quote directly from depositions, interrogatories, requests for admissions, documentary evidence and sworn statements of potential witnesses. However, no witness's testimony may be referred to unless the reference is based upon one of the products of the various discovery procedures, or upon a written, sworn statement of the witness, or upon representation of counsel that the witness would be called at trial, and that counsel has been told the substance of the witness's proposed testimony by the witness.

6. Bifurcation

6.1 This Summary Jury Trial shall be bifurcated into a liability phase and a damages phase. Plaintiff(s) shall (collectively) be allotted [_______] to make a presentation to the jury regarding the facts of the case regarding liability. Defendants shall (each) be allotted [_______] for their presentation of the facts of the case regarding liability. Plaintiffs and defendants (collectively) shall each be allotted [____________] to make a final presentation, which shall include any rebuttal on the question of liability. Plaintiffs may divide their presentation so as to speak last.

6.2 Regardless of whether the jury returns a verdict of liability, the Summary Jury Trial shall contain a damage phase. Plaintiff(s) shall be allotted [________] for a presentation on damages. Defendants shall be allotted [_________] for a presentation on damages. Plaintiffs may divide their presentation so as to speak last.

7. Exhibits

Before the Summary Jury Trial, counsel shall confer with regard to physical exhibits, including documents and reports. The parties shall make a list from all available exhibits they intend to use at the Summary Jury Trial for inspection by opposing counsel on or before [_____________]. Additionally, the parties shall jointly prepare and submit to the Court and courtroom deputy at the outset of the trial a list of the exhibits which have been marked, tagged and numbered by the parties. The parties, prior to the Summary Jury Trial date, shall endeavor to stipulate the admissibility of the exhibits. If the parties cannot stipulate the admissibility of any exhibit, the Court shall rule, if practical, on its admissibility prior to the commencement of the Summary Jury Trial.

8. Objections

Objections shall be received if, in the course of a presentation, counsel goes beyond the limits of propriety in presenting statements as to evidence or argument thereon. After presentations by counsel, the jury shall be given an abbreviated charge on the applicable law.

9. Form of Verdict

The jury may return either a consensus verdict or a special verdict consisting of an anonymous statement of each juror's findings on the issues submitted. The jury shall be encouraged to reach a consensus verdict. Counsel are encouraged to agree upon a verdict form. If agreement cannot be reached, each party desiring to submit a proposed verdict form must do so by [_______________], and the judge shall then prepare a verdict form.

10. Record

Unless specifically authorized by the Court, the proceedings shall not be recorded.

11. Stipulation for Binding Determination

Counsel may stipulate that a consensus verdict by the jury shall be deemed a final determination on the merits and that judgment be entered thereon by the Court, or may stipulate to any other use of the verdict that shall aid in the resolution of the case. Any such stipulations may be made at any time before, during or after the proceedings.

12. Confidential Admissibility of Statements

The Court and all counsel and parties shall treat as confidential all written and oral communications made in connection with or during the Summary Jury Trial process. The Court hereby extends to all such communications all the protections afforded by Tennessee Rule of Evidence 408. No communication made in connection with any summary judgment should be used for any purpose (including impeachment) in any pending or future proceeding in this Court, nor shall anything in this paragraph be construed to prohibit parties from entering and filing procedural or factual stipulations based on suggestions or agreements made in connection with a Summary Jury Trial session.

13. No Judicial Admission

No statements of counsel or of any party during the course of the Summary Jury Trial shall be construed as a judicial admission.

14. Discussion With Jurors

Counsel shall have an opportunity to question jurors in an informal manner following the termination of the Summary Jury Trial. However, no Summary Jury Trial juror may be called as a witness at a subsequent hearing or proceedings in this litigation as to any matter that is stated or emerges during the Summary Jury Trial, nor may any statement made by any such juror(s) be admitted in any subsequent hearing or proceeding in this litigation.

15. Costs

Unless counsel [___________] otherwise, the costs shall be assessed by the Court.

ENTER

JUDGE

[Amended by order filed January 2, 2007]

Rule 32. Term of the Chief Justice

At the beginning of each eight (8) year term the Court shall by majority vote elect the chief justice. The term of the chief justice shall be two (2) years. The chief justice may be removed for good cause upon the vote of four (4) justices.
[Amended by order filed November 1, 2006.]

Rule 33. Tennessee Lawyer Assistance Program

33.01 Establishment of Tennessee Lawyer Assistance Program (TLAP)

A. Establishment. There is hereby established a state-wide lawyer assistance program to be known as Tennessee Lawyer Assistance Program (or "TLAP") which shall provide immediate and continuing help to lawyers, judges, bar applicants and law students (hereinafter "members of the legal profession") who suffer from physical or mental disabilities that result from disease, disorder, trauma or age and that impair their ability to practice or serve.

B. Purpose. TLAP has three purposes:

(1) to protect the interests of clients, litigants and the general public from harm caused by impaired lawyers or judges;

(2) to assist impaired members of the legal profession to begin and continue recovery; and

(3) to educate the bench and bar to the causes of and remedies for impairments affecting members of the legal profession.

C. Funding and Administration.

(1) The Board of Professional Responsibility shall collect annually and deposit with the State Treasurer a twenty dollar ($20.00) annual fee from every attorney, except those exempt under Rule 9, Section 20.2, for the purpose of funding the program established under the rule. [Amended by order filed June 28, 2002 and by order filed December 2, 2003.]

(2) All funds received by TLAP from gifts or bequests from any source shall be deposited with the State Treasurer. [Amended by order filed June 28, 2002.]

(3) All funds deposited with the State Treasurer pursuant to subparagraphs (C)(1) and (C)(2), and all earnings on investments and all interest and proceeds from said funds, if any, are deemed to be, and shall be designated as, funds belonging solely to TLAP. Withdrawals from those funds shall only be made by TLAP for the purpose of funding the program established under this rule, and for such other purposes as this Court may from time to time authorize or direct. [Amended by order filed June 28, 2002.]

33.02 TLAP Commission

A. Members. The Tennessee Supreme Court shall appoint commission members to administer the TLAP. Officers of the commission shall consist of a chair, vice chair and secretary treasurer. The chair shall be appointed by the Supreme Court. Each of the other officers shall be elected by the members of the commission annually.

B. Composition. The commission shall consist of fifteen (15) members, chosen on the basis of geography and diversity and shall include three (3) citizens who are not members of the legal profession. The members shall have diverse experience, knowledge and demonstrated competence in the problems of addiction and other common difficulties that impair members of the legal profession.

C. Terms. Members shall be appointed for a three-year term. Appointments shall be staggered so that the number of terms expiring shall be the same each year. No member shall be appointed for more than two consecutive, full three (3) year terms.

D. Duties of the Commission. The commission shall have the following powers and duties:

(1) To establish TLAP policy and procedures consistent with this rule. Such policies and procedures shall be established after reasonable notice to the Tennessee bench and bar and opportunity for comment.

(2) To operate the program to achieve its purposes.

(3) To assure the duties listed under Rule 33.03 are carried out in the absence of a director of the program.

(4) To establish and administer a revolving loan fund as provided under Rule 33.09.

(5) To make reports to the Tennessee Supreme Court annually or as otherwise required.

E. Meetings. The commission shall meet quarterly, upon call of the chair or upon the request of five (5) or more members.

33.03 Director of the Program

A. Appointment/Hire.The Court shall appoint the TLAP director, who shall serve at the pleasure of the Court. Following his or her appointment by the Court, the director shall report to the commission, which shall conduct regular performance evaluations of the director and report such evaluations to the Court.

B. Qualifications. The director shall have sufficient experience and training to enable the director to identify and assist impaired members of the legal profession and to work well with the volunteers.

C. Duties and Responsibility. The director shall:

(1) Provide initial response to help line calls.

(2) Help lawyers, judges, law firms, courts and others to identify and intervene with impaired members of the legal profession.

(3) Help members of the legal profession and their families to secure expert counseling and treatment for chemical dependency and other illnesses, maintaining current information on available treatment services, both those that are available without charge as well as paid services.

(4) Establish and maintain regular contact with other bar associations, agencies and committees that serve either as sources of referral or resources in providing help.

(5) Establish and oversee monitoring services with respect to recovery of members of the legal profession for whom monitoring is appropriate under Rules 33.05(E) or 33.07.

(6) Plan and deliver educational programs for the legal community with respect to all sources of potential impairment as well as treatment and preventative measures.

(7) Provide information about TLAP services to members of the legal profession and their families.

(8) Recruit, select, train and coordinate the activities of volunteer counselors.

33.04 Volunteer Counselors

The program shall enlist volunteer counselors whose responsibility may include:

A. Assisting in interventions planned by TLAP;

B. Acting as twelve-step program sponsors;

C. Acting as a contact between TLAP and law schools, courts, bar organizations and local committees;

D. Providing compliance monitoring when appropriate; or

E. Performing any other function deemed appropriate and necessary by the commission to fulfill its purposes.

33.05 Services

TLAP shall provide the following services:

A. Immediate and continuing assistance to members of the legal profession who suffer from physical or mental disabilities that result from disease, disorder, trauma or age and that impair their ability to practice;

B. Planning and presentation of educational programs to increase the awareness and understanding of members of the legal profession to recognize problems in themselves and in their colleagues; to identify the problems correctly; to reduce stigma; and, to convey an understanding of appropriate ways of interacting with affected individuals;

C. Investigation, planning and participation in interventions with members of the legal profession in need of assistance;

D. Aftercare services upon request, by order, or under contract that may include the following: assistance in structuring aftercare and discharge planning; assistance for entry into appropriate aftercare and professional peer support meetings; and assistance in obtaining a primary care physician or local peer counselor; and

E. Monitoring services under Rule 33.07 or under contract that may include the following: alcohol and/or drug screening programs; tracking aftercare, peer support and twelve step meeting attendance; providing documentation of compliance; and providing such reports concerning compliance by those participating in a monitoring program as may be required by the terms of that program.

33.06 Referrals

A. Self-referral. Any member of the legal profession may seek assistance from TLAP.

B. Other Referrals. TLAP shall receive referrals concerning any member of the legal profession from family members, colleagues, friends, law firms or any other source.

33.07 Referrals From Board of Professional Responsibility, Court of the Judiciary, Board of Law Examiners or Other Disciplinary Agencies

A. Referrals. TLAP may accept referral of lawyers, judges or bar applicants under investigational, provisional or probational status with the Tennessee Board of Professional Responsibility, Tennessee Court of the Judiciary, Tennessee Board of Law Examiners or any disciplinary agency with disciplinary authority.

B. Progress Reports. When TLAP accepts a referral under Rule 33.07(A), TLAP may provide progress reports or reports of non-compliance. Notwithstanding Rule 33.10, these reports may be used as evidence in any proceeding or appeal relating to such referral from the Tennessee Board of Professional Responsibility, the Tennessee Court of the Judiciary, the Tennessee Board of Law Examiners or a disciplinary agency with disciplinary authority.

33.08 Local Impaired Lawyer Assistance Programs

Subject to this rule and approval by TLAP, any bar association or other approved entity may establish an impaired lawyer program for the purpose of assisting lawyers with substance abuse problems, mental illness, or other impairments that may affect the lawyer's professional conduct. These programs are not agents of TLAP and have no authority to bind TLAP by their actions. Such approved programs shall operate as follows:

A. The program shall be governed by a committee which consists of not less than five (5) members, one of whom shall be designated as chair and one as vice-chair.

B. No member of the impaired lawyer program shall be a member of a district committee of the Board of Professional Responsibility of the Tennessee Supreme Court.

C. The program may investigate and evaluate allegations of substance abuse or mental impairment brought to its attention. Should the investigation or evaluation indicate that the lawyer does in fact suffer from substance abuse or mental impairment, the program may confer with the lawyer who is the subject of such allegation and make a recommendation to such lawyer. Such recommendation may include the sources of help for such problems.

D. The program may create and facilitate lawyer support groups and meetings.

E. The program shall provide peer assistance only and shall not accept referrals for monitoring as a probationary or provisional condition imposed upon a lawyer by any court or disciplinary authority. The program shall refer lawyers in need of monitoring to TLAP. However, any monitoring contract executed by a local impaired lawyer program prior to the effective date of this amendment may continue until the end of the term of the contract.

F. The program shall maintain statistics of the number of referrals it receives. These statistics shall be reported in writing to the Director of the Tennessee Lawyers Assistance Program not later than July 31 of each calendar year.

33.09 Revolving Loan Fund

From the funds received under Rule 33.01(c)(2), TLAP may establish a revolving loan fund. Such fund shall be made available to impaired lawyers and judges under rules and regulations established by the commission, as a low interest loan either for the purpose of maintaining client obligations or for defraying the cost of treatment.

33.10 Confidentiality.

A. Information and actions taken by TLAP or by local impaired lawyer assistance programs approved under Rule 33.08 shall be privileged and held in strictest confidence and shall not be disclosed or required to be disclosed to any person or entity outside of TLAP or the local impaired lawyer assistance program approved under Rule 33.08, unless such disclosure is authorized by the member of the legal profession to whom it relates or as provided in Rule 33.07(B). Except as provided in Rule 33.07(B), such information and actions shall be excluded as evidence in any complaint, investigation or proceeding before the Tennessee Board of Professional Responsibility, Tennessee Court of the Judiciary, Tennessee Board of Law Examiners or other disciplinary agency with jurisdiction.

B. Commission members, employees, and agents, including volunteers recruited under Rule 33.04, and committee members, employees, and agents, including volunteers of local impaired lawyer assistance programs approved under Section 33.08, shall be deemed to be participating in "a lawyers assistance program approved by the Tennessee Supreme Court" as provided in Tenn. Code Ann. § 23-4-103(1), and all information furnished to the program shall be governed by Tenn. Code Ann. §§ 23-4-104 and 23-4-105.

33.11 Immunity.

A. Any person reporting information to commission members, employees or agents, including volunteers recruited under Rule 33.04, or to committee members, employees, or agents, including volunteers of local impaired lawyer assistance programs approved under Rule 33.08, shall be entitled to the immunities and presumptions under Tenn. Code Ann. §§ 23-4-101, 23-4-102 and 23-4-103 and the immunity provided under Rule 9, Section 27.

B. Commission members, employees and agents, including volunteers recruited under Rule 33.04, as well as committee members, employees, and agents, including volunteers of local impaired lawyer assistance programs approved under Rule 33.08, shall be entitled to the immunities and presumptions under Tenn. Code Ann. §§ 23-4-101, 23-4-102 and 23-4-103 and the immunity provided under Rule 9, Section 27.

C. Commission members, employees and agents, including volunteers recruited under Rule 33.04, and committee members, employees, and agents, including volunteers of local impaired lawyer assistance programs approved under Rule 33.08, are relieved of any duty of disclosure of information to authorities imposed by Tennessee Supreme Court Rule 8, RPC 8.3(a).. [Amended by order filed September 17, 2002.]

33.12 Facility

The TLAP office shall be so located as to be consistent with the privacy and confidentiality requirements of this rule.

33.13 Program review

TLAP shall be reviewed annually by the Tennessee Supreme Court and shall remain in full force and effect until otherwise ordered by the Tennessee Supreme Court. [Added by order filed January 7, 1999, and amended by order filed April 25, 2006. Effective July 1, 2006 and by order filed December 7, 2006.]

Rule 34. Policies and Guidelines Regarding Appellate Judicial Records.

(1) The public has a statutory right to inspect public records maintained by agencies of state government. Accordingly, the public has the right to inspect public records maintained by the clerk of the appellate courts unless the record has been submitted under seal or is the subject of a protective order. Requests to inspect public records maintained by the clerk of the appellate courts are, however, subject to reasonable requirements and restrictions intended to preserve the integrity of the record, the parties' right to the record for the purpose of preparing their appellate papers, and the efficient operation of the appellate courts.

(2)(A) For the purposes of these guidelines, a "record" includes any record defined as a "public record"in Tenn. Code Ann. § 10-7-301(6)(1992) that has not been submitted under seal or that is not the subject of a protective order.

(B) The following judicial records are not public records:

(i) Unpublished drafts of judicial orders and opinions;

(ii) Written or electronic conference records, notes, memoranda, or other documents of a similar nature prepared by judges as part of the judicial decision-making process unless filed as part of the court record;

(iii) Copies, other than the original, of motions, petitions, briefs, and other similar documents filed with the clerk of the appellate courts that have been furnished to individual appellate judges for their personal use;

(iv) Written or electronic conference records, notes, memoranda, reports, or other documents of a similar nature prepared by an appellate court's or judge's staff on behalf of or at the direction of the court or judge as part of the judicial decision-making process unless filed as part of the court record;

(v) All internal case management information except for information concerning the composition of panels assigned to consider a particular case;

(vi) Information maintained by individual judges with regard to their recusal from particular appeals unless the information is filed as part of the court record or unless it is subject to disclosure pursuant to Tenn. Code Ann. §§ 8-50-501, 8-50-506 (1993 & Supp. 1998) or Tenn. S. Ct. R. 10;

(vii) Documents protected from disclosure by order or rule of court; and

(viii) Any other record the disclosure of which would frustrate or interfere with the judicial function of the courts.

(3)(A) All requests to inspect a public record maintained by the clerk of the appellate courts shall be in writing and shall be submitted to the office of the clerk of the appellate courts in the grand division where the case is pending or was filed. Requests to inspect all or any part of an appellate record in a case that has been submitted for disposition shall also contain a brief statement of the basis or reason for the request.

(B) Inspection of all or any part of an appellate record in a case that has been submitted for disposition shall be subject to such conditions as the court deems necessary to prevent undue delay and may be deferred until the matter currently pending before the court has been decided or resolved.

(C) The clerk of the appellate courts may dispense with the written request requirement in Section (3)(A) for persons requesting readily available case history and docketing information maintained in the clerk's office, such as the date of oral argument, the identities of the parties' lawyers, and other similar information.

(4)(A) The clerk of the appellate courts shall provide timely, supervised access to public records maintained by the clerk during the regular business hours of the clerk's office. No person requesting to inspect a public record, except for persons entitled to the appellate record under Tenn. R. App. P. 25(c), shall be permitted to remove the record from the clerk's direct custody and control.

(B) The clerk shall not be required to produce a public record that is not in the clerk's possession or to request the return of all or any part of an appellate record from any person to whom the record has been transmitted in accordance with Tenn. R. App. P. 25(c).

(5) Any person dissatisfied with the clerk's disposition of a request to inspect a public record may submit a request for review of the clerk's decision to the appropriate appellate court. The clerk shall transmit the request for review to the appropriate appellate court in a timely manner and shall promptly inform the requesting party of the court's disposition of the request for review.

(6)(A) All requests to inspect a public record maintained by the clerk of the appellate courts and requests for review of the clerk's disposition shall be treated as administrative matters for which no filing fee shall be collected.

(B) Parties requesting to inspect a public record maintained by the clerk of the appellate court may request a copy of the requested record. Copies shall be provided within a reasonable time, taking into consideration the number of copies requested and the clerk's other duties and responsibilities. The clerk shall charge a fee for preparing or copying records maintained in the clerk's office in accordance with Tenn. Code Ann. § 8-21-501 (1993). [Added by order filed August 26, 1999.]

Rule 35. Standard Format for Appellate Court Opinions and Orders

(a) All papers prepared for filing by the Supreme Court, the Court of Appeals, and the Court of Criminal Appeals, or any justice or judge thereof, shall be on 8 1/2 by 11 inch paper. This requirement applies to opinions, orders, judgments, mandates, and other similar documents.

(b) In addition to the requirements in Section (a), all opinions and orders prepared for filing by the Supreme Court, the Court of Appeals, and the Court of Criminal Appeals, or any justice or judge thereof, shall use the standard format approved by this Court for use by all appellate courts. The introductory paragraph, prepared by the appellate court and included at the beginning of an opinion issued in the standard format, is an official part of the opinion.

(c) The briefs and other papers filed by the parties in the appellate courts shall continue to be governed by Tenn. R. App. P. 30.

(d) This rule shall apply to all papers prepared by Tennessee's appellate courts for filing on or after April 1, 2000. [Added by order filed December 20, 1999; amended by order filed September 25, 2000.]

Rule 36 - Standard Paper Size for Tennessee State Courts.

(a) All pleadings, motions, and other papers presented for filing with the clerk or intended for the use of the court shall be upon letter size (8½ X 11 inches) opaque, unglazed white paper, and

(1) shall be clearly and legibly handwritten in blue or black ink or shall be typewritten or printed in black ink using type not smaller than 12 points in type face essentially equivalent to Times New Roman or Helvetica;

(2) shall be handwritten or printed on one side of the paper only with a top margin of at least one inch, and the lines on each page shall be at least 1½ spaced except for descriptions of real property, quotations, footnotes, and similar items, which may be single spaced and indented; and

(3) shall, if consisting of more than one page, have each consecutive page numbered at the bottom center of the page.

(b) Pre-printed forms used by the court shall comply with the requirements stated in subparagraph (a) except that such forms may be single spaced, may be printed on both sides of the paper, and may use type smaller than 12 points so long as the print is clearly legible.

(c) Any exhibit or attachment filed with a pleading, motion, or other paper may be submitted in its original size; however, parties are encouraged to reduce or enlarge exhibits or attachments to letter size (8½ X 11 inches) paper if doing so does not impair legibility or clarity.

(d) No pleading, motion, or other paper shall be refused for filing because it does not comply with this rule. However, the clerk may require that a noncomplying pleading, motion, or other paper be resubmitted in compliance with this rule. The filing party shall submit the substituted pleading, motion, or paper within fifteen (15) days after its original filing and shall certify that the substituted pleading, motion, or paper is identical in content to the pleading, motion, or paper originally filed.

(e) This rule shall become effective on July 1, 2003 and shall apply to all state courts, including, without limitation: general sessions court, juvenile court, probate court, circuit court, chancery court, criminal court and the respective appellate courts. Prior to that date, pleadings, motions, and other papers presented for filing with the clerk or intended for the use of the court may be filed either on letter size (8½ X 11 inches) or legal size (8½ X 14 inches) paper. [Adopted by order filed March 14, 2002.]

Rule 37. Workers' Compensation Appellate Mediation

Section 1. Purpose. Rule 37 envisions the use of mediation to make the resolution of workers' compensation appeals more efficient, economical, and fair. It is not the intent of this Rule to extend the length of time required for final resolution of workers' compensation cases.

Section 2. Definitions. As used in this Rule, unless the context otherwise requires:

(a) "Presiding justice" is any member of the Supreme Court hearing workers' compensation appeals in the grand division in which the workers' compensation case is filed.

(b) "Motions justice" is that member of the Supreme Court assigned on a rotating basis to hear motions.

(c) "Special Workers' Compensation Appeals Panel" is that panel authorized in Tennessee Code Annotated, §§ 50-6-225(e)(3) through 50-6-225(e)(7) to hear workers’ compensation appeals on behalf of the Supreme Court.

(d) "Workers' compensation appeals" are workers' compensation cases appealed from the trial court to the Supreme Court and referred to the Special Workers' Compensation Appeals Panel for findings of fact and conclusions of law.

(e) "Rule 31 Mediator" is any mediator who has met all the requirements to be listed as a general/civil mediator under Tennessee Supreme Court Rule 31.

Section 3. Standing Order of Reference. This section shall be considered a standing Order of Reference to mediation. Subject to the limiting provisions in Section 4 below, all workers' compensation appeals as of right are ordered to mediation. Rule 37 does not apply to interlocutory appeals pursuant to Rule 9, Tenn. R. App. P., or to extraordinary appeals pursuant to Rule 10, Tenn. R. App. P.

Section 4. Objection to Mediation.

(a) Any party may file a motion with the Clerk of the Supreme Court objecting to mediation within seven (7) days of the filing of the notice of appeal of the workers' compensation case.

(b) Any party may object to the mediation required by this rule if:

(1) Mediation (not including a benefits review conference) was conducted prior to the trial of the case; or,

(2) The appeal involves an unsettled question of law that cannot be resolved through the mediation process, in which case counsel for all parties must file a joint motion stating the question of law presented and requesting that the appeal proceed without mediation. For purposes of this paragraph, "question of law" does not include routinely disputed workers’ compensation issues, including the sufficiency of notice, causation, the permanence or extent of disability, and similar issues.

The foregoing two grounds are the only grounds upon which the mediation requirement under this rule may be suspended.

Section 5. Selection of a Rule 31 Mediator.

(a) List of Rule 31 Mediators. The Programs Manager of the Administrative Office of the Courts shall maintain a list of qualified Rule 31 Mediators. The list shall be posted on the Supreme Court’s website at www.tncourts.gov. Upon request, the Programs Manager shall provide the list to the parties via electronic mail, telefax, or U.S. Mail.

(b) Selection of a Rule 31 Mediator. Within fifteen (15) days of either the entry of the notice of appeal or the entry of an order denying a motion to suspend the requirement for mediation, whichever occurs last, the parties shall:

(1) Agree upon a mutually acceptable Mediator and advise the Clerk of the Supreme Court in writing of the name of the Mediator selected; or

(2) Notify the Clerk of the Supreme Court that the parties cannot agree upon a mutually acceptable Mediator. The Clerk of the Supreme Court shall assign at random a Rule 31 Mediator from the list of Rule 31 Mediators. The parties and/or the Mediator shall promptly notify the Clerk of any ground for disqualification of the Mediator selected. See Section 6.

(c) Initial Contact with the Rule 31 Mediator. The parties shall contact the Rule 31 Mediator directly to arrange for the time and place of the mediation session or sessions and to arrange for payment of costs associated with the mediation.

Section 6. Mediator Disqualification. A Rule 31 Mediator shall be subject to the Standards of Professional Conduct for Rule 31 Mediators as set forth in the Appendix to Tennessee Supreme Court Rule 31 regarding disqualification for partiality or conflict of interest. Any party may move the motions justice to disqualify a Rule 31 Mediator for good cause. In the event a Rule 31 Mediator is disqualified, the parties or the Clerk of the Supreme Court shall select a replacement in accordance with Section 5(b)(1) and (2).

Section 7. Evidence. Mediation shall be conducted in accordance with Rule 31, Section 7, with regard to the inadmissibility of evidence of conduct or statements made during the mediation.

Section 8. Confidentiality. Mediation shall be conducted in accordance with Section 10(d) of Rule 31, and Section 7 of the Standards of Professional Conduct for Rule 31 Neutrals, Appendix A of Rule 31, with regard to confidentiality of mediation.

Section 9. Scheduling the Mediation.

(a) Unless otherwise agreed by the parties and the Mediator, or ordered by the motions justice, a mediation session shall be conducted within forty-five (45) days of the filing of the notice of appeal. The Mediator is authorized to set the date and time of all mediation sessions, upon giving reasonable notice to the parties.

(b) Continuances of oral argument before the Special Workers' Compensation Appeals Panel for the sole purpose of conducting the mediation will not be liberally granted.

Section 10. Costs. The parties are encouraged to arrange for the payment of the costs of the services of the Rule 31 Mediator. At the Mediator's request, however, the costs of any mediation, including the cost of the services of the Rule 31 Mediator, may be charged as costs in the case. The presiding justice may in his or her sole discretion waive or reduce costs of a mediation.

Section 11. Post-mediation Filings.

(a) Report of the Rule 31 Mediator. Upon completion or termination of the mediation, the Rule 31 Mediator shall file a final report with the office of the Clerk of the Supreme Court in the grand division in which the case is filed. The final report shall be made on a form prescribed by the Administrative Office of the Courts and shall state: (i) whether all parties appeared and participated in the Rule 37 mediation; (ii) whether the case was completely settled, partially settled, or not settled; and (iii) whether the Rule 31 Mediator requests that the costs of the mediation services be charged as court costs. The final report shall not contain any detail of the nature or substance of the mediation or any agreement reached therein.

(b) Post-mediation filing by the Parties.

(1) Agreement on all issues. If mediation results in an agreement on all of the issues on appeal, parties' counsel shall file in the Supreme Court a motion to remand the case to the trial court for approval of the settlement, which motion shall provide for the payment of costs in the case.

(2) Agreement on some but not all issues. If mediation results in an agreement on some, but not all, of the issues on appeal, counsel shall file with the Clerk of the Supreme Court a stipulation as to those matters no longer in controversy. The stipulation shall be included in the record and relied upon by the parties and the Court.

(3) Agreement on none of the issues. If mediation results in agreement on none of the issues on appeal, counsel shall file with the Clerk of the Supreme Court a non-specific notice of termination of mediation without settlement; the notice shall not disclose the nature or substance of the mediation.

(1) Each party shall complete an evaluation form supplied by the Clerk of the Supreme Court and shall forward the evaluation to the Clerk’s office in the grand division in which the case is filed within ten (10) days of the completion of mediation. The evaluation shall be maintained as confidential and shall not be entered into the case file.

(2) The completed evaluation form shall be placed in an evaluation envelope supplied with the evaluation form, and the evaluation envelope shall be sealed. The sealed evaluation envelope shall then be placed in a cover envelope and mailed to the office of the Clerk of the Supreme Court in the grand division in which the case is filed. The case name and number shall be noted on the cover envelope ONLY.

(3) Upon receipt of the cover envelope, the Clerk shall note the receipt of the evaluation envelope in the case file, open the cover envelope, remove the sealed evaluation envelope, and forward the unopened evaluation envelope to the Programs Manager of the Administrative Office of the Courts for processing.

(4) The Programs Manager of the Administrative Office of the Courts shall receive the evaluation envelopes, remove the evaluations, and compile the results of the evaluations; the Programs Manager shall provide information to the Court on the results of the evaluations on a periodic basis set by the Court.

Section 12. Evaluation of the Appellate Mediation Program. The results in the cases affected by this Rule 37 and the efficacy of the procedures outlined herein shall be subject to evaluation by the Court.

Section 13. Effective Dates. This Rule 37 shall apply to cases in which a notice of appeal is filed on or after September 1, 2001.

[Amended by Order filed September 4, 2001, and by Order filed August 31, 2004, and by order filed January 18, 2005, and by order filed August 31, 2005.]

Rule 38: Divorcing Parent Education and Mediation Fund

Preamble. The Tennessee Legislature enacted Title 36, Chapter 6, Part 4 of the Tennessee Code Annotated to promote continuing parenting arrangements for families involved in divorce, legal separation, annulment, or separate maintenance proceedings, and for families that are involved in any other custody matters.. Such arrangements reinforce the fundamental importance of the parent-child relationship to the welfare of the child. In order to help parents receive the necessary education and alternative dispute resolution services, the Tennessee Legislature established the Divorcing Parent Education and Mediation Fund (T.C.A. § 6-6-413). The Administrative Office of the Courts is charged with the distribution of the moneys in the Fund to or for the benefit of each judicial district to provide education and mediation for indigent parents and the administration of those services. The present Rule sets forth the qualifications and processes for the appointment, compensation, and payment of the reasonable expenses of alternative dispute resolution neutrals and education providers serving indigent parents involved in absolute divorce, legal separation, annulment, or separate maintenance proceedings, and any other custody matters.

Section 1. Application. The following Rule shall be applicable to the distribution of moneys in the Divorcing Parent Education and Mediation Fund established and funded under Title 36, Chapter 6, Part 4 of the Tennessee Code Annotated. The moneys shall be used to reimburse the providers of parenting education and alternative dispute resolution services where those services have been provided to indigent parents and to pay for the costs of administering the parenting plan law in the various judicial districts. The moneys distributed in accordance with this Rule shall come solely from those moneys in the Divorcing Parent Education and Mediation Fund.

The Administrative Office of the Courts has neither the authorization nor the means for supplementing the moneys in the Divorcing Parent Education and Mediation Fund beyond the processes set forth under Title 36, Chapter 6, Part 4 of the Tennessee Code Annotated. Upon depletion of the Divorcing Parent Education and Mediation Fund, and until additional moneys become available under Title 36, Chapter 6, Part 4 of the Tennessee Code Annotated, no further moneys will distributed under this Rule.

Section 2. Alternative dispute resolution services.

(a) Qualified Neutrals. Qualified Neutrals are those alternative dispute resolution neutrals who meet the requirements of Tennessee Supreme Court Rule 31. Qualified Neutrals shall be selected by the parties or the court in accordance with Rule 31 and Title 36, Chapter 6, Part 4 of the Tennessee Code Annotated.

(b) Reimbursement. Qualified Neutrals shall be reimbursed for those reasonable alternative dispute resolution services rendered and expenses incurred provided by court order under Title 36, Chapter 6, Part 4 of the Tennessee Code Annotated to indigent parents.

(c) Maximum fee.

(1) Services Rendered. Qualified Neutrals who receive moneys under this Rule shall be limited to a maximum fee of $50.00 per hour ($25.00 per parent per hour) for time reasonably spent in actual alternative dispute resolution sessions with the parents ("in-session time") and $40.00 per hour ($20.00 per parent per hour) for time reasonably spent in preparation for the alternative dispute resolution sessions and for time reasonably spent in preparing agreements or proposed agreements reached during the alternative dispute resolution sessions ("out-of-session time"), a portion of which may be reimbursed from the Divorcing Parent Education and Mediation Fund. The total number of hours that may be reimbursed from the Divorcing Parent Education and Mediation Fund shall not exceed ten (10) hours in aggregate for both in-session and out-of-session time.

(2) Expenses Incurred. A Qualified Neutral shall be reimbursed for certain necessary expenses incurred directly in the rendering of the alternative dispute resolution process.

(i) Expenses for long distance telephone calls, copying, printing, and travel within the state, approved by the court as reasonably necessary, will be reimbursed. Claims for reimbursement for long distance telephone calls must be supported by a log showing the date the call was made, the person or office called, the purpose of the call, and the duration of the call stated in one-tenth (1/10) hour segments. Travel within the state will be reimbursed in accordance with Judicial Department travel regulations.

(ii) A Qualified Neutral may not be reimbursed for the services of a lawyer, other Qualified Neutral, other alternative dispute resolution neutral, paralegal, law clerk, secretary, legal assistant or other administrative assistants.

(d) Referral to alternative dispute resolution. Upon motion by either of the parties or upon its own motion, the court may refer the parties to an alternative dispute resolution process as set forth in Title 36, Chapter 6, Part 4 of the Tennessee Code Annotated.

(e) Motion for reduced fee alternative dispute resolution. At the time of referral to the alternative dispute resolution process, either party may move to pay no fee or a reduced fee for the alternative dispute resolution process. Whenever a party informs the court that such party is financially unable to afford the alternative dispute resolution process, the court may conduct a full and complete hearing as to the financial ability of the party to afford the alternative dispute resolution process, and, thereafter, make a finding as to the indigency of the party. All statements made by the party seeking to pay no fee or a reduced fee for the alternative dispute resolution process shall be by sworn testimony in open court or written affidavit sworn to before the judge. When making a finding as to the indigency of a party, the court shall take into consideration:

(1) the nature of the services to be rendered;

(2) the usual and customary charges of a Qualified Neutral in the community for rendering like or similar services;

(3) the income of the party regardless of source;

(4) the poverty level income guidelines compiled and published by the United States department of labor;

(5) the ownership or equity in any real or personal property; and

(6) any other circumstances presented to the court which are relevant to the issue of indigency.

(f) Determination of fee reduction. The court shall then evaluate the motion, its accompanying statement, documentation, and affidavit, and sworn testimony to determine whether the parties shall pay no fee or a reduced fee for the alternative dispute resolution process. If the court finds the party is financially able to defray a portion or all of the cost of either party's alternative dispute resolution process, the court shall enter an order directing the party to pay to the Qualified Neutral or into the registry of the clerk of such court such sum as the court determines the party is able to pay. Such sum shall be subject to execution as any other judgment. The court may provide for payments to be made at intervals, which the court shall establish, and upon such terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances of the party.

(g) Referral to pro bono alternative dispute resolution. Upon determination by the court that a no fee alternative dispute resolution process is appropriate for both parties, the court shall refer the parties by an Order of the court to the clerk of the court for referral to the appropriate Legal Service office as set forth in Tennessee Supreme Court Rule 11, Section VI, to arrange for a pro bono alternative dispute resolution process. In the event there is no Qualified Neutral available for the pro bono alternative dispute resolution process, the appropriate Legal Service office shall notify the court and the court shall refer the parties to a no fee or reduced fee alternative dispute resolution process as set forth below in this Rule.

(h) Referral to alternative dispute resolution where one party is not determined to be indigent. Upon determination by the court that a no fee or reduced fee alternative dispute resolution process is appropriate for one party, but is not appropriate for the other party, the court shall refer the parties by an Order of the court to a Qualified Neutral, chosen by the parties or the court, for alternative dispute resolution. The court may require that the second party shall pay all or a portion of the fee of the first party as well as all of the fee of the second party to the Qualified Neutral. The Order shall be forwarded to the Qualified Neutral and it shall state the amount to be paid to the Qualified Neutral or into the registry of the clerk of such court by the each of the parties.

(i) Referral to reduced fee alternative dispute resolution. Upon determination by the court that a no fee or reduced fee alternative dispute resolution process is appropriate for either party, the court shall refer the parties by an Order of the court to a Qualified Neutral, chosen by the parties or the court, for alternative dispute resolution. The Order shall be forwarded to the Qualified Neutral and it shall state the amount to be paid to the Qualified Neutral or into the registry of the clerk of such court by the parties. Further, the Order shall have a claim form attached thereto for submission to the court by the Qualified Neutral for reimbursement of fees from the Divorcing Parent Education and Mediation Fund. The court shall use a claim form developed by the Administrative Office of the Courts and supplied to the court as needed.

(j) Filing claims by the Qualified Neutral. Upon conclusion of the alternative dispute resolution process, the Qualified Neutral shall file with the clerk of the court two (2) copies of the completed claim form supplied to the Qualified Neutral with the Order of the court. In addition, the Qualified Neutral shall attach a copy of the Order of the court to each of the claims to be filed. The claim form shall include a listing of all in-session and all out-of-session times reasonably spent by the Qualified Neutral in the alternative dispute resolution process. The Qualified Neutral will be held to a high degree of care in the keeping of records supporting all claims and in the claim form. A Qualified Neutral who receives payment pursuant to the terms of this Rule, and who makes application for additional funds for expenses incurred and services rendered, shall report such payment in the claim form filed with the clerk of the court..

(k) Review of the claim by the Court. The court shall review the claim form filed by the Qualified Neutral and, upon approval of the claim form, shall forward one copy of the approved claim form and Order of the court to the Administrative Office of the Courts.

(l) Review of the claim by the Administrative Office of the Courts. The Administrative Office of the Courts shall examine and audit the claim form to insure compliance with these rules and other statutory requirements. After such examination and audit and giving due consideration to the Divorcing Parent Education and Mediation Fund, the Administrative Office of the Courts shall make a determination as to the compensation to be paid to the Qualified Neutral and cause payment to be issued in satisfaction thereof. The determination by the Administrative Office of the Courts shall be final.

Section 3. Parenting education services.

(a) Qualified Parenting Education Providers. Qualified Parenting Education Providers are those individuals or groups approved by the court to provide parenting education seminars in accordance with Title 36, Chapter 6, Part 4 of the Tennessee Code Annotated.

(b) Reimbursement. Qualified Parenting Education Providers shall be reimbursed for those reasonable parenting education services rendered and expenses incurred provided by court order under Title 36, Chapter 6, Part 4 of the Tennessee Code Annotated to indigent parents.

(c) Maximum fee. Qualified Parenting Education Providers who receive moneys under this Rule shall be limited to a maximum fee of $25.00 per parent for time and materials reasonably spent in providing parenting education services, a portion of which may be reimbursed from the Divorcing Parent Education and Mediation Fund.

(d) Referral to reduced fee parenting education services. Upon one party filing in forma pauperis, the court shall refer that party by an Order of the court to a Qualified Parenting Education Provider, chosen by the party or the Court, for parenting education services. The Order shall be forwarded to the Qualified Parenting Education Provider and it shall state that the amount to be paid from the Divorcing Parent Education and Mediation Fund shall be not more than the amount set forth above in Section 3(c), Maximum Fee, of the present Rule. Further, the Order shall have a claim form attached thereto for submission to the court by the Qualified Parenting Education Provider for reimbursement of fees from the Divorcing Parent Education and Mediation Fund. The court shall use a claim form developed by the Administrative Office of the Courts and supplied to the court as needed.

(e) Referral to parenting education services where one party is not determined to be indigent. Upon only one party filing in forma pauperis, and the determination of the court that the other party is able to pay for the parenting education services, the court shall refer the parties by an Order of the court to a Qualified Parenting Education Provider, chosen by the parties or the court, for parenting education services. The court may require that the second party shall pay all or a portion of the fee of the first party as well as all of the fee of the second party to the Qualified Parenting Education Provider. The Order shall be forwarded to the Qualified Parenting Education Provider and it shall state the amount to be paid to the Qualified Parenting Education Provider or into the registry of the clerk of such court by the each of the parties.

(f) Filing a claim by the Qualified Parenting Education Provider. Upon conclusion of the parenting education service, the Qualified Parenting Education Provider shall file with the Administrative Office of the Courts two (2) copies of the completed claim form supplied to the Qualified Parenting Education Provider with the Order of the Court. The Qualified Parenting Education Provider may submit a single claim form for the claims for parenting education services for more than one parent referred under this Rule. In addition to the copies of the completed claim form, the Qualified Parenting Education Provider shall attach a copy of each Order of the court and a copy of each certificate of completion of the parenting education seminar to the claim form filed. The claim form shall include a listing of all parenting education services and materials provided by the Qualified Parenting Education Provider in the parenting education services. The Qualified Parenting Education Provider will be held to a high degree of care in the keeping of records supporting all claims and in the claim form. A Qualified Parenting Education Provider who receives payment pursuant to the terms of this Rule, and who makes application for additional funds for expenses incurred and services rendered, shall report such payment in the claim form filed with the Administrative Office of the Courts.

(g) Review of the claim by the Administrative Office of the Courts. The Administrative Office of the Courts shall examine and audit the claim form to insure compliance with these rules and other statutory requirements. After such examination and audit and giving due consideration to the Divorcing Parent Education and Mediation Fund, the Administrative Office of the Courts shall make a determination as to the compensation to be paid to the Qualified Parenting Education Provider and cause payment to be issued in satisfaction thereof. The determination by the Administrative Office of the Courts shall be final. [Effective June 28, 2001. Amended by order filed September 6, 2006.]

Rule 39. Exhaustion of Remedies -- In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to petition for rehearing or to file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies available for that claim. On automatic review of capital cases by the Supreme Court pursuant to Tennessee Code Annotated, § 39-13-206, a claim presented to the Court of Criminal Appeals shall be considered exhausted even when such claim is not renewed in the Supreme Court on automatic review. [Effective June 28, 2001.]

Rule 40. Guidelines for Guardians Ad Litem for Children in Juvenile Court Neglect, Abuse and Dependency Proceedings

(a) Application.
These Guidelines set forth the obligations of lawyers appointed to represent children as guardians ad litem only in juvenile court neglect, abuse and dependency proceedings pursuant to T.C.A. § 37-1-149, Rules 37 of the Tennessee Rules of Juvenile Procedure, and Supreme Court Rule 13. By adoption of these guidelines it is intended that they not be applied to proceedings in other courts that involve child custody or related issues.

(b) Definitions.
As used in this Rule, unless the context otherwise requires:

(1) "Guardian ad litem" is a lawyer appointed by the court to advocate for the best interests of a child and to ensure that the child’s concerns and preferences are effectively advocated.

(2) "Child's best interests" refers to a determination of the most appropriate course of action based on objective consideration of the child's specific needs and preferences. In determining the best interest of the child the guardian ad litem should consider, in consultation with experts when appropriate, the following factors:
(i) the child’s basic physical needs, such as safety, shelter, food, clothing, and medical care;
(ii) the child’s emotional needs, such as nurturance, trust, affection, security, achievement, and encouragement;
(iii) the child’s need for family affiliation;
(iv) the child’s social needs;
(v) the child’s educational needs;
(vi) the child’s vulnerability and dependence upon others;
(vii) the physical, psychological, emotional, mental, and developmental effects of maltreatment upon the child;
(viii) degree of risk;
(ix) the child’s need for stability of placement;
(x) the child’s age and developmental level, including his or her sense of time;
(xi) the general preference of a child to live with known people, to continue normal activities, and to avoid moving;
(xii) whether relatives, friends, neighbors, or other people known to the child are appropriate and available as placement resources;
(xiii) the love, affection and emotional ties existing between the child and the potential or proposed or competing caregivers;
(xiv) the importance of continuity in the child’s life;
(xv) the home, school and community record of the child;
(xvi) the preferences of the child;
(xvii) the willingness and ability of the proposed or potential caretakers to facilitate and encourage close and continuing relationships between the child and other persons in the child’s life with whom the child has or desires to have a positive relationship, including siblings; and
(xviii) in the case of visitation or custody disputes between parents, the list of factors set forth in Tenn.Code.Ann. § 36-6-106.

(c) General Guidelines.

(1)The child is the client of the guardian ad litem. The guardian ad litem is appointed by the court to represent the child by advocating for the child’s best interests and ensuring that the child’s concerns and preferences are effectively advocated. The child, not the court, is the client of the guardian ad litem.

(2)Establishing and maintaining a relationship with the child is fundamental to representation. The guardian ad litem shall have contact with the child prior to court hearings and when apprised of emergencies or significant events affecting the child. The age and developmental level of the child dictate the type of contact by the guardian ad litem. The type of contact will range from observation of a very young or otherwise nonverbal child and the child’s caretaker to a more typical client interview with an older child. For all but the very young or severely mentally disabled child, for whom direct consultation and explanation would not be effective, the guardian ad litem shall provide information and advice directly to the child in a developmentally appropriate manner.

(3)The obligation of the guardian ad litem to the child is a continuing one and does not cease until the guardian ad litem is formally relieved by court order. The guardian ad litem shall represent the child at preliminary, adjudicatory, dispositional and post-dispositional hearings, including the permanency plan staffings, court reviews, foster care review board hearings and permanency hearings. The guardian ad litem should maintain contact with the child and be available for consultation with the child between hearings and reviews. For a child who is very young or severely mentally disabled, the guardian ad litem should regularly monitor the child’s situation through contacts with the child’s caretakers and others working with the child and through periodic observations of the child.

(d) Responsibilities and duties of a lawyer guardian ad litem.
The responsibilities and duties of the guardian ad litem include, but are not limited to the following:

(1)Conducting an independent investigation of the facts that includes:

(i) Obtaining necessary authorization for release of information, including an appropriate discovery order;
(ii) Reviewing the court files of the child and siblings and obtaining copies of all pleadings relevant to the case;
(iii)Reviewing and obtaining copies of Department of Children’s Services’ records;
(iv) Reviewing and obtaining copies of the child’s psychiatric, psychological, substance abuse, medical, school and other records relevant to the case;
(v) Contacting the lawyers for other parties for background information and for permission to interview the parties;
(vi) Interviewing the parent(s) and legal guardian(s) of the child with permission of their lawyer(s) or conducting formal discovery to obtain information from parents and legal guardians if permission to interview is denied;
(vii)Reviewing records of parent(s) or legal guardian(s), including, when relevant to the case, psychiatric, psychological, substance abuse, medical, criminal, and law enforcement records;
(viii)Interviewing individuals involved with the child, including school personnel, caseworkers, foster parents or other caretakers, neighbors, relatives, coaches, clergy, mental health professionals, physicians and other potential witnesses;
(ix) Reviewing relevant photographs, video or audio tapes and other evidence; and
(x) Engaging and consulting with professionals and others with relevant special expertise.

(2)Explaining to the child, in a developmentally appropriate manner:

(i) the subject matter of litigation;
(ii) the child’s rights;
(iii)the court process;
(iv) the guardian ad litem’s role and responsibilities;
(v) what to expect before, during and after each hearing or review;
(vi) the substance and significance of any orders entered by the court and actions taken by a review board or at a staffing.

(3)Consulting with the child prior to court hearings and when apprised of emergencies or significant events affecting the child. If the child is very young or otherwise nonverbal, or is severely mentally disabled, the guardian ad litem should at a minimum observe the child with the caretaker.

(4)Assessing the needs of the child and the available resources within the family and community to meet the child’s needs.

(5)Considering resources available through programs and processes, including special education, health care and health insurance, and victim’s compensation.

(6)Ensuring that if the child is to testify, the child is prepared and the manner and circumstances of the child’s testimony are designed to minimize any harm that might be caused by testifying.

(7)Advocating the position that serves the best interest of the child by:

(i) Petitioning the court for relief on behalf of the child and filing and responding to appropriate motions and pleadings;
(ii)Participating in depositions, discovery and pretrial conferences;
(iii)Participating in settlement negotiations to seek expeditious resolution of the case, keeping in mind the effect of continuances and delays on the child;
(iv)Making opening statements and closing arguments;
(v) Calling, examining and cross-examining witnesses, offering exhibits and introducing independent evidence in any proceeding;
(vi)Filing briefs and legal memoranda;
(vii)Preparing and submitting proposed findings of facts and conclusions of law;
(viii)Ensuring that written orders are promptly entered that accurately reflect the findings of the court;
(ix)Monitoring compliance with the orders of the court and filing motions and other pleadings and taking other actions to ensure services are being provided;
(x) Attending all staffings, reviews and hearings, including permanency plan staffings, foster care review board hearings, judicial reviews and the permanency hearing;
(xi)Attending treatment, school and placement meetings regarding the child as deemed necessary.

(8)Ensuring that the services and responsibilities listed in the permanency plan are in the child’s best interests.

(9)Ensuring that particular attention is paid to maintaining and maximizing appropriate, non- detrimental contacts with family members and friends.

(10)Providing representation with respect to appellate review including:

(i) discussing appellate remedies with the child if the order does not serve the best interest of the child, or if the child objects to the court’s order;
(ii)filing an appeal when appropriate; and
(iii)representing the child on appeal, whether that appeal is filed by or on behalf of the child or filed by another party.

(e) Responsibilities and duties of a guardian ad litem when the child’s best interests and the child’s preferences are in conflict.

(1)If the child asks the guardian ad litem to advocate a position that the guardian ad litem believes is not in the child’s best interest, the guardian ad litem shall:

(i) Fully investigate all of the circumstances relevant to the child’s position, marshal every reasonable argument that could be made in favor of the child’s position, and identify all the factual support for the child’s position;
(ii)Discuss fully with the child and make sure that the child understands the different options or positions that might be available, including the potential benefits of each option or position, the potential risks of each option or position, and the likelihood of prevailing on each option or position.

(2) If, after fully investigating and advising the child, the guardian ad litem is still in a position in which the child is urging the guardian ad litem to take a position that the guardian ad litem believes is contrary to the child’s best interest, the guardian ad litem shall pursue one of the following options:

(i) Request that the court appoint another lawyer to serve as guardian ad litem, and then advocate for the child’s position while the other lawyer advocates for the child’s best interest.

(ii) Request that the court appoint another lawyer to represent the child in advocating the child’s position, and then advocate the position that the guardian ad litem believes serves the best interests of the child.

(3) If, under the circumstance set forth in subsection (b), the guardian ad litem is of the opinion that he or she must advocate a position contrary to the child’s wishes and the court has refused to provide a separate lawyer for the child to help the child advocate for the child’s own wishes, the guardian ad litem should:

(i) subpoena any witnesses and ensure the production of documents and other evidence that might tend to support the child’s position;

(ii)advise the court at the hearing of the wishes of the child and of the witnesses subpoenaed and other evidence available for the court to consider in support of the child’s position.

(f) Guardian ad litem to function as lawyer, not as a witness or special master.

(1)A guardian ad litem may not be a witness or testify in any proceeding in which he or she serves as guardian ad litem, except in those extraordinary circumstances specified by Supreme Court Rule 8, §§ EC 5-9, 5-10 and DR 5-101.

(2)A guardian ad litem is not a special master, and should not submit a "report and recommendations" to the court.

(3)The guardian ad litem must present the results of his or her investigation and the conclusion regarding the child’s best interest in the same manner as any other lawyer presents his or her case on behalf of a client: by calling, examining and cross examining witnesses, submitting and responding to other evidence in conformance with the rules of evidence, and making oral and written arguments based on the evidence that has been or is expected to be presented. {Adopted by Order filed February 5, 2002.]

Rule 40A. Appointment of Guardians Ad Litem in Custody Proceedings (Provisional Rule Effective May 1, 2009 through April 30, 2010.

SECTION 1. DEFINITIONS

(a) "Custody proceeding" means a court proceeding, other than an abuse or neglect proceeding, in which legal or physical custody of, access to, or visitation or parenting time with a child is at issue, including but not limited to divorce, paternity, domestic violence, contested adoptions, and contested private guardianship cases.
(b) "Abuse or neglect proceeding" means a court proceeding for protection of a child from abuse or neglect or a court proceeding in which termination of parental rights is at issue.
(c) "Guardian Ad Litem" means a person appointed to represent the best interests of a child or children in a custody proceeding. Persons eligible to serve as guardian ad litem include:
(1) a specially trained Court-Appointed Special Advocate;
(2) an attorney; or
(3) a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child′s best interests;

SECTION 2. APPLICABILITY
This Rule applies to all custody proceedings in Tennessee, regardless of the court in which the proceedings are filed, and to all custody proceedings pending on or commenced after the effective date of this Rule.

SECTION 3. GUARDIAN AD LITEM APPOINTMENTS
(a) Consistent with Tennessee Code Annotated section 36-4-132, in a custody proceeding the court may appoint a guardian ad litem when the court finds that the child′s best interests are not adequately protected by the parties and that separate representation of the child′s best interests is necessary. Such an appointment may be made at any stage of the proceeding.
(b) Courts should not routinely appoint guardians ad litem in custody proceedings. Rather, the court′s discretion to appoint guardians ad litem shall be exercised sparingly. In most instances, the child′s best interests will be adequately protected by the parties.
(c) In determining whether appointing a guardian ad litem is necessary, the court shall consider:
(1) the fundamental right of parents to the care, custody, and control of their children.
(2) the nature and adequacy of the evidence the parties likely will present;
(3) the court′s need for additional information and/or assistance;
(4) the financial burden on the parties of appointing a guardian ad litem and the ability of the parties to pay reasonable fees to the guardian ad litem;
(5) the cost and availability of alternative methods of obtaining the information/evidence necessary to resolve the issues in the proceeding without appointing a guardian ad litem; and
(6) any factors indicating a particularized need for the appointment of a guardian ad litem, including:
(i) the circumstances and needs of the child, including the child′s age and developmental level;
(ii) any desire for representation or participation expressed by the child;
(iii) any inappropriate adult influence on or manipulation of the child;
(iv) the likelihood that the child will be called as a witness or be questioned by the court in chambers and the need to minimize harm to the child from the processes of litigation;
(v) any higher than normal level of acrimony indicating the parties lack of objectivity concerning the needs and best interests of the child;
(vi) any interference, or threatened interference, with custody, access, visitation, or parenting time, including abduction or risk of abduction of the child;
(vii) the likelihood of a geographic relocation of the child that could substantially reduce the child′s time with a parent, a sibling, or another individual with whom the child has a close relationship;
(viii) any conduct by a party or an individual with whom a party associates which raises serious concerns for the safety of the child during periods of custody, visitation, or parenting time with that party;
(ix) any special physical, educational, or mental-health needs of the child that require investigation or advocacy; and
(x) any dispute as to paternity of the child.
(d) If the court concludes that appointing a guardian ad litem is necessary, the person appointed shall possess the knowledge, skill, experience, training, or education that enables the guard ad litem to conduct a thorough and impartial investigation and effectively represent the best interests of the child.

SECTION 4. APPOINTMENT ORDER
(a) Appointment of a guardian ad litem shall be by written order of the court.
(b) In plain language understandable to non-lawyers, the order shall set forth:
(1) the reasons for the appointment, focusing upon the factors listed in Section 3(c) of this Rule;
(2) the specific duties to be performed by the guardian ad litem in the case;
(3) the deadlines for completion of these duties to the extent appropriate;
(4) the duration of the appointment; and
(5) the terms of compensation consistent with Section 12 of this Rule.
(c) The court shall provide in the appointment order as much detail and clarity as possible concerning the guardian ad litem′s duties and authority. Providing such specificity will assist the parties in understanding the guardian ad litem′s role, will enable the court to exercise effective oversight of the guardian ad litem′s powers and duties, and will facilitate meaningful appellate review.
(d) A guardian ad litem shall immediately disclose any relationships or associations between the guardian ad litem and any party which might reasonably cause the guardian ad litem′s impartiality to be questioned. This disclosure must be made no later than fifteen (15) days after appointment.
(e) There is no right to a peremptory change of a guardian ad litem. Allegations that a guardian ad litem appointment is unnecessary, that a particular appointee is unqualified or otherwise unsuitable, or that an appointee is or has become biased should be addressed by trial courts through motion practice. Any appeal from a trial court′s decision on such a motion shall be prosecuted pursuant to Tennessee Rules of Appellate Procedure 9 and 10.

SECTION 5. DURATION OF APPOINTMENT
Appointment of a guardian ad litem continues in effect only for the duration provided in the appointment order or any subsequent order. If no order specifies the duration of the appointment, the appointment shall terminate automatically when the trial court order or judgment disposing of the custody proceeding becomes final.

SECTION 6. ROLE OF GUARDIAN AD LITEM
(a) The role of the guardian ad litem is to represent the child′s best interests by gathering facts and presenting facts for the court′s consideration subject to the Tennessee Rules of Evidence.
(b) The guardian ad litem shall not function as a special master for the court or perform any other adjudicative responsibilities.
(c) The guardian ad litem shall represent the child′s best interests and not the child′s wishes or preferences.

SECTION 7. ACCESS TO CHILD AND INFORMATION RELATING TO CHILD
(a) Subject to subsections (b) and (c), when the court appoints a guardian ad litem in a custody proceeding, the court shall issue an order, with notice to all parties, authorizing the guardian ad litem to have access to:
(1) the child; and
(2) confidential information regarding the child, including the child′s educational, medical, and mental health records, any agency or court files involving allegations of abuse or neglect of the child, any delinquency records involving the child, and other information relevant to the issues in the proceeding.
(b) A child′s record that is privileged or confidential under law other than this Rule may be released to a guardian ad litem only in accordance with that law, including any requirements in that law for notice and opportunity to object to release of records. Information that is privileged under the attorney-client relationship may not be disclosed except as otherwise permitted by law of this state other than this Rule.
(c) An order issued pursuant to subsection (a) must require that a guardian ad litem maintain the confidentiality of information released, except as necessary for the resolution of the issues in the proceeding. The court may impose any other condition or limitation on an order of access which is required by law, rules of professional conduct, the child′s needs, or the circumstances of the proceeding.

SECTION 8. DUTIES/RIGHTS OF GUARDIAN AD LITEM
(a) The guardian ad litem shall satisfy the duties and responsibilities of the appointment in an unbiased, objective, and fair manner.
(b) A guardian ad litem is not a party to the suit but may:
(1) conduct an investigation to the extent that the guardian ad litem considers necessary to determine the best interests of the child; and
(2) obtain and review copies of the child′s relevant medical, psychological, and school records as provided by Section 7.
(c) A guardian ad litem appointed in a custody proceeding shall:
(1) within a reasonable time after the appointment, interview:
(i) the child in a developmentally appropriate manner, if the child is four years of age or older;
(ii) each person who has significant knowledge of the child′s history and condition, including any foster parent of the child; and
(iii) the parties to the suit;
(2) seek to elicit in a developmentally appropriate manner the child′s expressed objectives;
(3) consider the child′s expressed objectives without being bound by those objectives;
(4) encourage settlement of the issues related to the child and the use of alternative forms of dispute resolution; and
(5) perform any specific task directed by the court.
(d) If the child asks the guardian ad litem to advocate a position that the guardian ad litem believes is not in the child′s best interest, the guardian ad litem shall:
(1) fully investigate all of the circumstances relevant to the child′s position and identify all of the factual support for the child′s position;
(2) discuss fully with the child and make sure that the child understands the different options or positions that might be available, including the potential benefits of each option or position, the potential risks of each option or position, and the likelihood of prevailing on each option or position.
(3) if the guardian ad litem is of the opinion that the child′s best interests and the child′s wishes conflict, the guardian ad litem shall advise the court of the child′s wishes and direct the court′s attention to any available information supporting the child′s position.

SECTION 9. PARTICIPATION IN PROCEEDING
(a) A guardian ad litem appointed in a custody proceeding is entitled to:
(1) receive a copy of each pleading or other record filed with the court in the proceeding;
(2) receive notice of and attend each hearing in the proceeding;
(3) participate in case staffings by an authorized agency concerning the child; and
(4) attend all legal proceedings in the case, but a guardian ad litem may not take any action that may be taken only by an attorney representing a party, including making opening and closing statements, examining witnesses in court, and engaging in formal discovery pursuant to the Tennessee Rules of Civil Procedure.
(b) Unless all parties consent, a guardian ad litem shall not engage in ex parte communications with the court concerning the custody proceeding except for scheduling and other administrative purposes when circumstances require and as otherwise may be authorized by law other than this Rule.
(c) A guardian ad litem may communicate with a party who is represented by an attorney unless the party′s attorney has notified the guardian ad litem in writing that such communication should not occur outside the attorney′s presence.
(d) In the event a guardian ad litem prepares a report, copies of the report shall be provided to the attorneys for the parties by a deadline that shall be established by the court. Unless all parties consent, the guardian ad litem′s report shall not be provided to the court.
(e) The guardian ad litem′s report, if any, shall include:
(1) a description of the guardian ad litem′s investigation, including who was interviewed and what records were reviewed;
(2) an analysis of the facts that the guardian ad litem believes will be presented;
(3) recommendations regarding the best interests of the child;
(4) the reasons for the guardian ad litem′s recommendations, utilizing the applicable statutory factors;
(5) any conflict between the guardian ad litem′s recommendations and the child′s preferences; and
(6) any other information the guardian ad litem believes to be appropriate.
(f) Any party may call the guardian ad litem to testify as a witness. The admissibility of the guardian ad litem′s testimony is subject to the Tennessee Rules of Evidence.
(g) The guardian ad litem′s report shall not be admitted into evidence; however, the parties may use the guardian ad litem′s report in preparing for an evidentiary hearing as it may allow the parties to determine which issues are contested and alert the parties to the identity of potential witnesses who may be interviewed.
(h) The court or the parties may compel a guardian ad litem to attend a trial or hearing relating to the child and to testify as necessary for the proper disposition of the custody proceeding.

SECTION 10. EXPEDITING CUSTODY PROCEEDINGS
To the extent possible, courts shall expedite custody proceedings in which guardians ad litem have been appointed, using available technological and electronic means to speed the process and to minimize costs.

SECTION 11. GUARDIAN AD LITEM FEES AND EXPENSES
(a) The appointment order shall specify the hourly rate to be paid the guardian ad litem, the maximum fee that may be incurred without further authorization of the court, the allocation of the fee among the parties, and when payment is due. In setting the hourly rate, the maximum fee, and the allocation, the court shall consider the financial hardship to the parties of imposing further costs in the proceedings. Consideration of this factor is particularly appropriate where the parties to the custody proceeding are the child′s parents who are already represented by counsel.
(b) The guardian ad litem shall be compensated for fees and expenses in an amount the court determines is reasonable. In determining whether the guardian ad litem′s fees and expenses are reasonable, the court shall consider the following factors:
(1) the time expended by the guardian;
(2) the contentiousness of the litigation;
(3) the complexity of the issues before the court;
(4) the expenses reasonably incurred by the guardian;
(5) the financial ability of each party to pay fees and costs;
(6) the fee customarily charged in the locality for similar services; and
(7) any other factors the court considers necessary.
(c) Concerning the allocation of the fee among the parties, the court may do one or more of the following:
(1) equitably allocate fees and expenses among the parties;
(2) order a deposit to be made into an account designated by the court for the use and benefit of the guardian ad litem;
(3) before the final hearing, order an amount in addition to the amount ordered deposited under paragraph (2) to be paid into the account.
(d) The guardian ad litem must seek court approval before incurring extraordinary expenses, such as expert witness fees. Any order authorizing the guardian ad litem to hire expert witnesses must specify the hourly rate to be paid the expert witness, the maximum fee that may be incurred without further authorization from the court, how the fee will be allocated between the parties, and when payment is due.
(e) To receive payment under this section, the guardian ad litem must complete and file with the court a written claim for payment, whether interim or final, justifying the fees and expenses charged and supported by an affidavit in accordance with Tennessee Rule of Civil Procedure 5.
(f) Any objection to the guardian ad litem′s fee claim shall be filed within thirty days after the claim is filed.
(g) If no objection is timely filed, the court shall file a written order approving the claim, or portion thereof, determined to be reasonable and related to the duties of the guardian ad litem.
(h) If an objection is timely filed, the court shall conduct a hearing and thereafter file a written order denying the claim, or approving the claim, or portion thereof, determined to be reasonable and related to the duties of the guardian ad litem.
(i) If the initial allocation of guardian ad litem fees and/or expenses among the parties has become inequitable as a result of the income and financial resources available to the parties at the conclusion of the custody proceeding, the conduct of the parties during the custody proceeding, or any other similar reason, the court may reallocate the fees and expenses. Any reallocation shall be included in the court′s final order in the custody proceeding and shall be supported by findings of fact.

SECTION 12. EFFECTIVE DATE

This rule is adopted as a provisional rule for one year. It governs all custody proceedings as defined in Section 1(a) from May 1, 2009 through April 30, 2010. At an appropriate time during this one-year period, the Court will solicit comments regarding the operation, effect, and efficacy of this rule and, if warranted, will circulate revisions of the rule for review and comment and eventual adoption.

Rule 41. Rules of Ethics for Spoken Foreign Language Interpreters in Tennessee Courts.

Preamble

Many persons who come before the courts are partially or completely excluded from full participation in the proceedings due to limited English proficiency ( "LEP" ). It is essential that the resulting communication barrier be removed, as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier. As officers of the court, interpreters help assure that such persons may enjoy equal access to justice and that court proceedings and court support services function efficiently and effectively. Interpreters are highly skilled professionals who fulfill an essential role in the administration of justice.

APPLICABILITY AND ENFORCEMENT

This code shall guide and be binding upon all persons, agencies and organizations who administer, supervise use, deliver, or attempt to become credentialed to deliver spoken foreign language interpreting services to the judicial system. The Canons and any subparts are mandatory upon persons who are bound by this code. The commentary is not mandatory and exists to provide guidance in interpreting the code. Interpreters for the deaf and hard of hearing are not covered by this code. See Tenn. Code Ann. ' 24-1-211 regarding guidelines for such interpreters.

Violations of this code may result in the interpreter being removed from a case, being denied future appointments by the courts, losing credentials if the interpreter has been credentialed pursuant to the rules of the Supreme Court, or any other sanctions deemed appropriate by the Administrative Director of the Courts.

The Administrative Director of the Courts is authorized to adopt policies and procedures necessary to enforce the code.

TERMINOLOGY

(1) Consecutive Interpretation--providing the target-language message after the speaker has finished speaking.

(2) Sight Translation--oral translation of a written text.

(3) Simultaneous Interpretation--providing the target-language message at approximately the same time the source-language message is being produced.

(4) Source Language--the input language requiring interpretation.

(5) Target Language--the output language into which the utterance is being interpreted.

CANON 1 Accuracy and Completeness

Interpreters shall render a complete and accurate interpretation or translation without altering, omitting, or adding anything to what is stated or written, and without explanation.

A. The interpreter has a twofold duty: 1) to ensure that the proceedings in English reflect precisely what was said by the LEP person, and 2) to place the LEP person on an equal footing with those who understand and speak English. This creates an obligation to conserve every element of information contained in a source language communication when it is rendered in the target language.

The obligation to preserve accuracy includes the interpreter's duty to correct any error of interpretation discovered by the interpreter during the proceeding. Interpreters shall demonstrate their professionalism by objectively analyzing any challenge to their performance.

Commentary

Interpreters are obligated to apply their best skills and judgment to preserve faithfully the meaning of what is said in court, including the style or register of speech. Verbatim, "word for word," or literal oral interpretations are not appropriate when they distort the meaning of the source language, but every spoken statement, even if it appears non-responsive, obscene, rambling, or incoherent should be interpreted. This includes apparent misstatements.

Interpreters should never interject their own words, phrases, or expressions. If the need arises to explain an interpreting problem (e.g., a term or phrase with no direct equivalent in the target language or a misunderstanding that only the interpreter can clarify), the interpreter should ask the court's permission to provide an explanation. Interpreters should convey the emotional emphasis of the speaker without reenacting or mimicking the speaker's emotions or dramatic gestures.

CANON 2 Representation of Qualifications

Interpreters shall accurately and completely represent and document their credentials, training, and pertinent experience, and make such documentation available to each and every court to be maintained on file by such court, if desired.

Commentary

Acceptance of a case by an interpreter is a representation to the court of linguistic competency in legal settings. Withdrawing or being asked to withdraw from a case after it begins causes a disruption of court proceedings and is wasteful of scarce public resources. It is therefore essential that interpreters present a complete and truthful account of their training, credentials and experience prior to appointment so the officers of the court can fairly evaluate their qualifications for delivering interpreting services.

The Administrative Office of the Courts distributes photo identification cards to all state certified and registered interpreters. A court can determine an interpreter's credentialing status by viewing this card, which differentiates between registered and certified interpreters, and by consulting the credentialed interpreter roster, which can be found on the AOC's website (www.tncourts.gov).

CANON 3 Impartiality and Avoidance of Conflict of Interest

Interpreters shall be impartial and unbiased and shall refrain from conduct that may give an appearance of bias. Interpreters shall disclose any real or perceived conflict of interest.

A. Any condition that interferes with the objectivity of an interpreter constitutes a conflict of interest. Before providing services in a matter, court interpreters shall disclose to all parties and presiding officials any prior involvement, whether personal or professional, that could be reasonably construed as a conflict of interest. Such disclosure(s) shall include, but not be limited to, the fact that the interpreter has previously been retained by one of the parties for private employment. Such disclosure(s) shall not include privileged or confidential information.

B. Whenever an interpreter has an actual or apparent conflict of interest, the interpreter shall declare in open court before appointment such conflict and the court shall determine whether the interpreter may serve in the case. Situations, including but not limited to the following, shall be presumed to create an actual or apparent conflict of interest:

(1) The interpreter is a friend, associate, or relative of a party or counsel for a party involved in the proceedings;

(2) The interpreter has served in an investigative capacity for any party involved in the case;

(3) The interpreter has previously been retained by a law enforcement agency or any party to assist in the preparation of the case at issue;

(4) The interpreter or the interpreter's spouse or child has a financial interest in the subject matter in controversy or is a party to the proceeding, or any other interest that would be affected by the outcome of the case;

(5) The interpreter has been involved in the choice of counsel or law firm for that case; or

(6) Any other situation in which the interpreter thinks his or her impartiality may be questioned or compromised.

C. Interpreters shall not serve in any matter in which payment for their services is contingent upon the outcome of the case.

Commentary

The interpreter serves as an officer of the court and the interpreter's duty in a court proceeding is to serve the court and the public to which the court is a servant. This is true regardless of whether the interpreter is publicly retained at government expense or retained privately at the expense of one of the parties. Although an interpreter must disclose the fact that the interpreter interpreted for a party during out-of-court meetings, interviews, or other proceedings in the case at issue, ethical considerations do not preclude the interpreter from serving as the interpreter for multiple parties or for both the court and one or more parties in that case.

An individual who is, or may become, a witness is not permitted to serve as an interpreter in that same matter.

During the course of the proceedings, interpreters should not converse with parties, witnesses, jurors, attorneys, or with friends or relatives of any party, except in the discharge of their official functions. It is especially important that interpreters, who are often familiar with attorneys or other members of the courtroom work group, including law enforcement officers, refrain from casual and personal conversations with anyone in court that may convey an appearance of a special relationship or partiality to any of the court participants.

The interpreter should strive for professional detachment. Verbal and non-verbal displays of personal attitudes, prejudices, emotions, or opinions should be avoided at all times.

An interpreter who is also an attorney should not serve in both capacities in the same matter.

CANON 4 Professional Demeanor

Interpreters shall conduct themselves in a manner consistent with the dignity of the court and shall be as unobtrusive as possible.

Commentary

Interpreters should know and observe the established protocol, rules, and procedures for delivering interpreting services. When interpreting testimony or making comments to be included in the record, interpreters should speak at a rate and volume that enable them to be heard and understood throughout the courtroom, but the interpreter's presence should otherwise be as unobtrusive as possible. Interpreters should work without drawing undue or inappropriate attention to themselves. Interpreters should dress in a manner that is consistent with the dignity of the proceedings of the court. Interpreters should avoid obstructing the view of any of the individuals involved in the proceedings.

Interpreters are encouraged to avoid personal or professional conduct that could discredit the court.

CANON 5 Confidentiality

Interpreters shall protect the confidentiality of all privileged and other confidential information.

Commentary

The interpreter must protect and uphold the confidentiality of all privileged information obtained during the course of her or his duties. It is especially important that the interpreter understands and upholds the attorney-client privilege, which requires confidentiality with respect to any communication between attorney and client. It is equally important for the interpreter to be aware that when the attorney is not present, there is no attorney-client privilege and the interpreter may be held to divulge any information gained. The interpreter, therefore, must avoid any such situation. This rule also applies to other types of privileged communications.

Interpreters must also refrain from repeating or disclosing information obtained by them in the course of their employment that may be relevant to the legal proceeding.

In the event that an interpreter becomes aware of information that suggests the threat of imminent harm to someone or relates to a crime being committed during the course of the proceedings, the interpreter should immediately disclose the information to an appropriate authority within the judicial system and seek advice in regard to the potential conflict in professional responsibility.

CANON 6 Restriction of Public Comment

Interpreters shall not publicly discuss, report, or offer an opinion concerning a matter in which they are engaged, even when that information is not privileged or required by law to be confidential.

CANON 7 Scope of Practice

Interpreters shall limit themselves to interpreting or translating, and shall not give legal advice, express personal opinions to individuals for whom they are interpreting, or engage in any other activities which may be construed to constitute a service other than interpreting or translating while serving as an interpreter.

Commentary

Since interpreters are responsible only for enabling others to communicate, they should limit themselves to the activity of interpreting or translating only. Interpreters should refrain from initiating communications while interpreting at all times except as set out below.

Interpreters may be required to initiate communications during a proceeding when they find it necessary to seek assistance in performing their duties. Examples of such circumstances include seeking direction when unable to understand or express a word or thought, requesting speakers to moderate their rate of communication or repeat or rephrase something, correcting their own interpreting errors, or notifying the court of reservations about their ability to satisfy an assignment competently. In such instances they should refer to themselves in the third person as "the interpreter," making it clear and on the record that they are speaking for themselves.

At no time can an interpreter give advice, but an interpreter may interpret legal advice from an attorney to any party while that attorney is giving it. An interpreter should not explain the purpose of forms, services, or otherwise act as counselors or advisors. The interpreter may translate language on a form in the presence of an attorney or authorized legal personnel for a person who is filling out the form, but may not explain the form or its purpose for such a person.

The interpreter should not personally serve to perform official acts that are the official responsibility of other court officials including, but not limited to, court clerks, pretrial release investigators or interviewers, or probation officers, except as required by and in the presence of such officials.

CANON 8 Assessing and Reporting Impediments to Performance

Interpreters shall familiarize themselves as thoroughly as possible with the nature and length of a proceeding beforehand, to assess their ability to deliver adequate services. When interpreters have any reservation about their ability to satisfy an assignment competently, they shall immediately convey that reservation to the appropriate judicial authority even when the proceeding is in progress.

Commentary

If the communication mode or language of the LEP person cannot be readily interpreted, the interpreter should notify the appropriate judicial authority.

Interpreters should notify the appropriate judicial authority of any environmental or physical limitation that impedes or hinders their ability to deliver interpreting services adequately (e.g., the court room is not quiet enough for the interpreter to hear or be heard by the LEP speaker, more than one person at a time is speaking, or principals or witnesses of the court are speaking at a rate of speed that is too rapid for the interpreter to adequately interpret).

Interpreters should notify the presiding officer of the need to take periodic breaks to maintain mental and physical alertness and prevent interpreter fatigue. Interpreters should recommend and encourage the use of team interpreting whenever necessary, such as trials, complex and technical proceedings, proceedings over two hours in length and testimony lasting one hour or more (keeping in mind that the consecutive interpreting mode doubles the length of time of the testimony). See the commentary to Section 3 of Tennessee Supreme Court Rule 42 for additional information.

Interpreters are encouraged to make inquiries as to the nature of a case whenever possible before accepting an assignment. This enables interpreters to match more closely their professional qualifications, skills, and experience to potential assignments and more accurately assess their ability to satisfy those assignments competently.

Even competent and experienced interpreters may encounter cases where routine proceedings suddenly involve technical or specialized terminology unfamiliar to the interpreter (e.g., the unscheduled testimony of an expert witness). When such instances occur, interpreters should request a brief recess to familiarize themselves with the subject matter. If familiarity with the terminology requires extensive time or more intensive research, interpreters should inform the presiding officer.

Interpreters should refrain from accepting a case if they feel the language and subject matter of that case is likely to exceed their skills or capacities. Interpreters should feel no compunction about notifying the court if they feel unable to perform competently due to lack of familiarity with terminology, preparation, or difficulty in understanding a witness or defendant. Court personnel and parties are encouraged to provide interpreters with copies of all documents referred to in a proceeding, such as witness lists, indictment, exhibit lists, criminal complaint, investigative reports, tape transcripts, telephone logs and bank records.

Interpreters should notify the court of any personal bias they may have involving any aspect of the proceedings. For example, an interpreter who has been the victim of a sexual assault may wish to be excused from interpreting in cases involving similar offenses.

CANON 9 Misconduct

An interpreter shall not commit a criminal act that reflects adversely on the interpreter's honesty, trustworthiness, or fitness as an interpreter in other respects. Likewise, an interpreter shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Commentary

This language is intended to put interpreters on notice that inappropriate conduct before, during, and after successful completion of the credentialing process may have professional ramifications. The conduct at issue includes, but is not limited to, inappropriate behavior in which an interpreter engages during one or more of the required credentialing examinations.

CANON 10 Duty to Report Ethical Violations

Interpreters shall report to the proper judicial authority any effort to impede their compliance with any law, any provision of this code, or any other official policy governing court interpreting and legal translating.

Commentary

Because the users of interpreting services frequently misunderstand the proper role of the interpreter, they may ask or expect the interpreter to perform duties or engage in activities that run counter to the provisions of this code or other laws, regulations, specific instructions from the bench, or policies governing court interpreters. It is incumbent upon the interpreter to inform such persons of his or her professional obligations. If, having been apprised of these obligations, the person persists in demanding that the interpreter violate them, the interpreter should request the judge or appropriate official with jurisdiction over interpreter matters to resolve the situation.

CANON 11 Professional Development

Interpreters shall continually improve their skills and knowledge and advance the profession through activities such as professional training and education, and interaction with colleagues and specialists in related fields.

Commentary

Interpreters must continually strive to increase their knowledge of the languages in which they professionally interpret, including past and current trends in technical, vernacular, and regional terminology as well as their application within court proceedings.

Interpreters should keep informed of all statutes, rules of courts and policies of the judicial system that relate to the performance of their professional duties.

An interpreter should seek to elevate the standards of the profession through participation in workshops, professional meetings, interaction with colleagues, and reading current literature in the field. [Adopted by Order filed April 25, 2002. Amended by Order filed April 27, 2005]

Rule 42. Standards for Court Interpreters

Section 1. Scope

This rule shall apply to all courts in this state, including without limitation, municipal court, general sessions court, juvenile court, probate court, circuit court, chancery court, and criminal court.

Commentary

This rule recognizes that for most people living in the United States, English is their native language, or they have learned to read, speak, and understand English. There are others for whom English is not their primary language. For them language can be a barrier to understanding and exercising their legal rights, and to securing meaningful access to the judicial system.

This rule is promulgated to assist the courts in this state in providing equal access to the courts to participants who have a limited ability to speak or understand the English language.

Section 2. Definitions

(1) State Certified Court Interpreter--an interpreter who possesses the qualifications outlined in Section 5(b) of this rule.

(2) State Registered Court Interpreter--an interpreter who possesses the qualifications outlined in Section 5(a) of this rule.

(3) Interpretation--the unrehearsed transmission of a spoken message from one language to another.

(4) Limited English Proficient ( "LEP" ) Person--a participant in a legal proceeding who has limited ability to speak or understand the English language.

(5) Non-Credentialed Interpreter--a court interpreter who is not certified or registered as provided in this rule.

(6) Participant--a party, witness, or other person in a legal proceeding.

(7) Sight Translation--oral translation of a written text.

(8) Written Translation--the rendering of a written document from one language into a written document in another language.

(9) Audio or Video Transcription and Translation B written transcription of the entire verbal content and translation of the non-English verbal content of an audio or video recording.

Section 3. Determining Need for Interpretation

(a) Appointing an interpreter is a matter of judicial discretion. It is the responsibility of the court to determine whether a participant in a legal proceeding has a limited ability to understand and communicate in English.

(b) Recognition of the need for an interpreter may arise from a request by a party or counsel, the court's own voir dire of a party or witness, or disclosures made to the court by parties, counsel, court employees or other persons familiar with the ability of the person to understand and communicate in English.

1. State certified court interpreter;

2. State registered court interpreter;

3. Non-credentialed court interpreter.

(d) The court may appoint an interpreter of lesser preference (i.e., registered instead of certified or non- credentialed instead of registered) only upon a finding that diligent, good faith efforts to obtain the certified or registered interpreter, as the case may be, have been made and none has been found to be reasonably available. A non-credentialed interpreter may be appointed only after the court has evaluated the totality of the circumstances including the gravity of the judicial proceeding and the potential penalty or consequence involved.

(e) Before appointing a non-credentialed interpreter, the court shall make the following findings:

(i) that the proposed interpreter appears to have adequate language skills, knowledge of interpreting techniques, familiarity with interpreting in a court setting; and

(ii) that the proposed interpreter has read, understands, and will abide by the Rules of Ethics for Spoken Foreign Language Interpreters in Tennessee Courts.

(f) A summary of the efforts made to obtain a certified or registered interpreter and to determine the capabilities of the proposed non-credentialed interpreter shall be made in open court.

(g) The court shall use the services of multiple interpreters where necessary to aid interpretation of court proceedings.

Commentary

The Administrative Office of the Courts distributes photo identification cards to all state certified and registered interpreters. A court can determine an interpreter' s credentialing status by viewing this card, which differentiates between registered and certified interpreters, and by consulting the credentialed interpreter roster, which can be found on the AOC' s website (www.tncourts.gov).

Section 3(g). The court may wish to consider using multiple interpreters in legal proceedings where one or more of the following situations exist:

(1) Legal proceedings lasting more than 2 hours--Generally, in legal proceedings lasting more than two hours a team of two interpreters should be designated to ensure the accuracy and completeness of the record by allowing interpreters to alternate work and rest in short shifts, thus avoiding fatigue. Although it may not be necessary to use multiple interpreters for short hearings, studies have shown that interpreters' accuracy rates greatly decrease after 20-30 minutes of continuous interpretation. Therefore, courts should be aware that interpreters may need breaks during relatively short hearings.

(2) Multiple defendants--One or more interpreters may be appointed (apart from the interpreter(s) who are interpreting the legal proceedings) in order to provide interpreting services for attorney-client communications during the proceeding. However, courts should be aware that ethical considerations do not preclude interpreters from facilitating in-court and out-of-court communication for both the court and one or more parties in the same proceeding. Moreover, the Administrative Office of the Courts has provided many courts with simultaneous interpreting equipment, which will allow one interpreter to interpret for multiple defendants during a single proceeding.

See the commentary to Canon 8 of Tennessee Supreme Court Rule 41 for additional information regarding circumstances in which it may be advisable to use multiple interpreters.

Section 4. Procedures

(a) Waiver of Interpreter. The LEP participant may at any point in the proceeding waive the services of an interpreter. The waiver of the interpreter's services must be knowing and voluntary, and with the approval of the court. Granting such waiver is a matter of judicial discretion.

(1) Procedure.

(i) The waiver is approved by the court after explaining in open court to the LEP person through an interpreter the nature and effect of the waiver; and

(ii) the court determines in open court that the waiver has been made knowingly, intelligently, and voluntarily.

(iii) If the LEP person is the defendant in a criminal matter, the court must further determine that the defendant has been afforded the opportunity to consult with his or her attorney.

(2) At any point in any proceeding, for good cause shown, the LEP person may retract his or her waiver and request an interpreter.

(b) Interpreter Oath. All interpreters, before commencing their duties, shall take an oath that they will make a true and impartial interpretation using their best skills and judgment in accordance with the standards and ethics of the interpreter profession. The court shall use the following oath:

"Do you solemnly swear or affirm that you will interpret accurately, completely and impartially, using your best skill and judgment in accordance with the standards prescribed by law and the Rules of Ethics for Spoken Foreign Language Interpreters in Tennessee Courts; that you will follow all official guidelines established by this court for legal interpreting or translating, and discharge all of the solemn duties and obligations of legal interpretation and translation?"

Commentary

Section 4(b). Comment 1. It is common practice for interpreter oaths to be sworn to and maintained on file for all interpreters who are regularly employed by a court. This simplifies the court's inquiries in open court during procedural hearings. It is recommended, however, that an oath be read and sworn to in open court in all proceedings conducted before a jury.

Section 4(b). Comment 2. The Rules of Ethics for Spoken Foreign Language Interpreters in Tennessee Courts address the various ethical responsibilities of interpreters for accuracy and completeness, impartiality, confidentiality, and other matters relating to the professional conduct of interpreters. The court should be alerted to potential conflicts of interest or other violations of the Rules of Ethics. The sanction of removal from the case is justified for any violations of the Rules of Ethics. See Tennessee Supreme Court Rule 41 for additional information.

Section 5. State Certified and Registered Court Interpreters

(a) To receive designation as a state registered court interpreter, the candidate shall:

(1) Submit to a criminal background check. Convictions for any felony or for a misdemeanor involving dishonesty or false statement shall disqualify a candidate from certification if such conviction is ten years old or less as provided in Tennessee Rule of Evidence 609;

(2) Attend an approved ethics and skill building workshop;

(3) Pass an approved criterion-referenced written examination;

(4) Provide verification of United States citizenship or the legal right to work and remain in the United States;

(5) Complete any required forms and pay any required fees; and

(6) Complete any additional requirements established by the Administrative Director of the Courts pursuant to subsection (d).

If an oral performance examination is available, a registered court interpreter must sit for the examination at least once every twelve months from the date he/she is designated as a registered court interpreter until he/she receives a passing grade to become a certified court interpreter. Failure to sit for the oral examination as required by this section shall result in the loss of designation as a registered court interpreter and the interpreter shall be required to begin the credentialing process anew.

(b)(1) To receive designation as a state certified court interpreter, the candidate shall:

(i) Successfully meet the requirements to be designated as a state registered court interpreter;

(ii) Pass an approved criterion-referenced oral performance examination; and

(iii) Complete any additional requirements established by the Administrative Director of the Courts pursuant to subsection (d).

(2) Interpreters with certification as a federal court interpreter shall be granted reciprocity as a state certified court interpreter after successfully meeting the requirements of (a)(1), (a)(2), (a)(4), (a)(5), and (a)(6) above. Interpreters with any other type of certification will be reviewed on a case-by-case basis to determine what steps the interpreters must take to be granted state court interpreter certification.

(c)(1) Once credentialed, certified and registered court interpreters shall be required to renew their credentials every three years. The three-year effective period begins on July 1 following the date of credentialing. Renewals are from July 1 of one year to June 30 of the third year for three-year periods.

(2) Renewing credentials requires the following:

(i) Providing documentation of 18 hours of approved continuing education (CE) credits received during the three- year period. A CE credit is equal to one contact hour in the classroom. A minimum of 12 of the 18 hours must consist of foreign language or interpreting skills training. The Administrative Director of the Courts is authorized to adopt policies and procedures necessary to implement this provision of the rule; and

(ii) Completing any required forms and paying any required fees.

(d) The Administrative Director of the Courts shall determine appropriate examination registration fees as well as examination eligibility requirements, requirements for successful completion of examinations, and penalties for unsuccessful completion of examinations. The Administrative Director of the Courts also has the authority to impose additional requirements for an interpreter to earn, retain, or reinstate status as a registered or certified interpreter. The director is authorized to adopt policies and procedures necessary to implement this provision of the rule.

Commentary

Comment 1. Court interpretation is a specialized and highly demanding form of interpreting. It requires skills that few bilingual individuals possess, including language instructors. The knowledge and skills of a court interpreter differ substantially from or exceed those required in other interpretation settings, including social service, medical, diplomatic, and conference interpreting. Due to the highly specialized knowledge and skills required in this profession, the Court has promulgated this rule to adopt uniform qualifications for interpreters serving in Tennessee's courts.

Comment 2. A "criterion-referenced" performance examination is one in which the required score is based on an absolute standard rather than one on the relative performance of examinees as measured against one another.

Comment 3. Interpreters are responsible for familiarizing themselves with the credentialing and renewal requirements. For additional information, interpreters should consult the interpreter page of the Administrative Office of the Courts' website, which can be accessed at www.tncourts.gov, or contact the Administrative Office of the Courts.

Section 6. Removal of an Interpreter in Individual Cases

Any of the following actions shall be good cause for a judge to remove an interpreter from a case:

(1) Incompetence;

(2) Being unable to interpret adequately, including where the interpreter self-reports such inability;

(3) Knowingly and willfully making false, misleading, or incomplete interpretation while serving in an official capacity;

(4) Knowingly and willfully disclosing confidential or privileged information obtained while serving in an official capacity;

(5) Misrepresentation of credentials;

(6) Failure to reveal potential conflicts of interest; or

(7) Failing to follow other standards prescribed by law and the Rules of Ethics for Spoken Foreign Language Interpreters in Tennessee Courts.

Commentary

It is important to recognize that interpreters are sometimes called to court to interpret for someone who speaks a different language or dialect from that spoken by the interpreter. This section authorizes the court to remove interpreters who are not competent to interpret for this or any other reason, or who violate the Rules of Ethics for Spoken Foreign Language Interpreters in Tennessee Courts.

Section 7. Cost of Interpreter Services

(a) Generally, the costs of interpreter services in both civil and criminal cases shall be taxed as court costs pursuant to Tenn. R. Crim. P. 28 and Tenn. R. Civ. P. 54.

(b) Interpreter services may be assessed against the indigent defense fund pursuant to Tennessee Supreme Court Rule 13 in appropriate circumstances.

Commentary

Interested persons should consult Tennessee Supreme Court Rule 13 or contact the Tennessee Administrative Office of the Courts to determine the circumstances in which interpreter services may be assessed against the indigent defense fund. [Adopted by Order filed April 25, 2002. Amended by Order filed April 27, 2005]

Rule 43 — Interest on Lawyers’ Trust Accounts.

Rule 43. Interest On Lawyers' Trust Accounts. - Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.15, requires that Tennessee lawyers who maintain pooled trust checking accounts for the deposit of client funds participate in the IOLTA (Interest On Lawyers' Trust Accounts) program.

The following rule shall govern the operation of IOLTA accounts and the IOLTA program:

Section 1. The determination of whether or not a financial institution is an eligible institution which meets the requirements of this Rule shall be made by the Tennessee Bar Foundation, the organizational administrator of the IOLTA program. The Foundation shall maintain a list of eligible financial institutions and shall make that list available to Tennessee lawyers. The selection of an institution from the list of those eligible rests with the lawyer or law firm.

Section 2. Eligible institutions are those financial institutions which voluntarily offer IOLTA accounts and comply with the requirements of this Rule, including maintaining IOLTA accounts which pay the highest interest rate or dividend generally available from the institution to its non-IOLTA account customers in a local market area when IOLTA accounts meet or exceed the same minimum balance or other eligibility qualifications, if any. To determine the highest interest rate or dividend generally available from the institution to its non-IOLTA accounts, eligible institutions may consider factors, in addition to the IOLTA account balance, customarily considered when setting interest rates or dividends for customers, provided that such factors do not discriminate between IOLTA accounts and accounts of non-IOLTA customers and that these factors do not include that the account is an IOLTA account. The determination of the highest interest rate or dividend generally available shall not include consideration of promotional rates that are offered by the financial institution for a limited time. Nothing in this Rule shall prohibit an eligible institution from paying an interest rate or dividend higher than required herein.

Section 3. If a financial institution offers one or more of the following product types to its non-IOLTA customers and an IOLTA account qualifies for one or more of the products pursuant to Section 2 of this Rule, then, in order to be an eligible financial institution, the financial institution must pay an interest rate on the IOLTA account equal to the highest yield available at that financial institution among those product types. The financial institution may, at its discretion, either use the identified product or products as the IOLTA account or pay the equivalent yield on the IOLTA account in lieu of using the highest yield bank product(s) identified:

(a) A business checking account with an automated investment feature, such as an overnight investment in repurchase agreements or money market funds fully collateralized by or invested solely in United States government securities which are direct debt obligations of the government of the United States or of agencies or instruments thereof guaranteed by the full faith and credit of the government of the United States as to the payment of principal and interest at maturity; or

(b) A checking account paying preferred interest rates, such as market based or indexed rates; or

(c) A public funds interest-bearing checking account, such as accounts used for governmental agencies and other non-profit organizations; or

(d) An interest-bearing checking account such as a negotiable order of withdrawal (NOW) account, or business checking account with interest; or

(e) A business demand deposit checking interest-bearing transaction account (when permitted by federal law); or

(f) Any other suitable interest-bearing deposit account with or tied to unlimited check writing ability offered by the institution to its non-IOLTA customers.

Section 4. As an alternative to compliance under Section 3, a financial institution may also comply with this rule if it agrees to pay a rate voluntarily negotiated with the Foundation to be in effect for and remain unchanged during a period of up to twelve months as provided pursuant to a voluntary agreement between the financial institution and the Foundation.

Section 5. A daily financial institution repurchase agreement shall be fully collateralized by United States Government Securities, and may be established only with an eligible institution that is "well capitalized" or "adequately capitalized" as those terms are defined by applicable federal statutes and regulations.

Section 6. An open-end money-market fund shall be invested solely in United States Government Securities or repurchase agreements fully collateralized by United States Government Securities and shall hold itself out as a "money market fund" as that term is defined by federal statutes and regulations under the Investment Company Act of 1940 and, at the time of the investment, shall have total assets of at least two hundred fifty million dollars ($250,000,000).

Section 7. An eligible financial institution participating in the IOLTA program must also:

(a) Remit interest or dividends net of any allowable service charges or fees, preferably monthly, but at least quarterly, to the Tennessee Bar Foundation;

(b) Transmit to the Tennessee Bar Foundation, in a format specified by the Tennessee Bar Foundation, a report which contains:

(i) the name of the lawyer or law firm on whose account the remittance is sent;

(ii) the account number;

(iii) the balance on which the interest rate is applied;

(iv) the rate of interest or dividends applied;

(v) the gross interest or dividends earned;

(vi) the type and amount of any allowable service charges or fees deducted; and

(vii) the net amount remitted.

A financial institution which maintains more than thirty IOLTA accounts may, at the request of the Tennessee Bar Foundation, be required to transmit the report in an electronic format.

(c) Transmit information to the lawyer or law firm maintaining that account in accordance with the institution's normal procedures for reporting to depositors.

Section 8. No financial institution service charges or fees may be deducted from the principal of any IOLTA account.

Section 9. Deductions by the financial institution from interest earned may only be for allowable reasonable service charges or fees calculated in accordance with the institution's standard practice for non-IOLTA customers. For purposes of this Rule, "allowable reasonable service charges or fees" are defined as:

(a) per check or electronic debit charges;

(b) per deposit or electronic credit charges;

(c) a fee in lieu of minimum balance;

(d) FDIC insurance fees or FDIC account guarantee fees;

(e) a sweep fee; and

(f) a reasonable IOLTA account administrative fee.

Other financial institution service charges or fees shall not be deducted from IOLTA account interest and shall be the responsibility of, and may be charged to, the lawyer or law firm maintaining the IOLTA account. Nothing in this Rule shall be construed to require that a financial institution charge fees on an IOLTA account, nor does anything in this Rule prohibit a financial institution from waiving or discounting fees associated with an IOLTA account.

Section 10. Allowable reasonable service charges or fees in excess of the interest earned on any one IOLTA account may not be deducted from interest earned on any other IOLTA account.

Section 11. If the Tennessee Bar Foundation, for any reason, determines a financial institution does not meet the requirements of this rule, the Tennessee Bar Foundation will notify the financial institution. The financial institution will be provided not less than thirty days to take corrective action that results in compliance with this rule.

Section 12. A lawyer, law firm or financial institution that objects to a determination of the Tennessee Bar Foundation that a financial institution is not an eligible institution under Section 1 through 10 of this Rule or a lawyer who objects to a determination of the Tennessee Bar Foundation that the lawyer is not eligible for an exemption under Section 14(e), may appeal such determination to the Board of Professional Responsibility in accordance with regulations adopted by the Board of Professional Responsibility.

Section 13. Interest transmitted shall, after deductions for the necessary and reasonable administrative expenses of the Tennessee Bar Foundation for operation of the IOLTA program, be distributed by that entity, in proportions it deems appropriate, for the following purposes:

(a) To provide legal assistance to the poor;

(b) To provide student loans, grants, and/or scholarships to deserving law students;

(c) To improve the administration of justice; and

(d) For such other programs for the benefit of the public as are specifically approved by the Tennessee Supreme Court.

Section 14. Unless exempt under this Section 14, every lawyer admitted to practice in Tennessee shall certify in the lawyer's annual registration statement required by Tennessee Supreme Court Rule 9, Section 20.5, as a condition of licensure, that all funds in the lawyer's possession that are required pursuant to RPC 1.1 5(b) to be held in an IOLTA account are, in fact, so held and shall list the name(s) of the financial institution(s) and account number(s) where such funds are deposited. This certification shall be made on a form provided by the Board of Professional Responsibility and shall be submitted by the lawyer within the time period set forth in Rule 9, Section 20, for the annual registration statement.

A lawyer licensed in Tennessee is exempt, and shall so certify on the lawyer's annual registration statement, if:

(a) the lawyer is not engaged in the private practice of law in the State of Tennessee;

(b) the lawyer serves as a Judge, Attorney General, Public Defender, U.S. Attorney, District Attorney, in-house counsel, teacher of law, on active duty in the armed forces or employed by state, local or federal government and not otherwise engaged in the private practice of law;

(c) the lawyer does not have an office in Tennessee; however, for purposes of this Rule, a lawyer who practices, as a principal, employee, of counsel, or in any other capacity, with a firm that has an office in Tennessee shall be deemed for purposes of this Rule to have an office in Tennessee if the lawyer utilizes one or more offices of the firm located in Tennessee more than the lawyer utilizes one or more offices of the firm located in any other single state;

(d) under regulations adopted by the Board of Professional Responsibility under criteria established upon recommendation of the Tennessee Bar Foundation, the lawyer or law firm is exempted from maintaining an IOLTA account because such an IOLTA account has not and cannot reasonably be expected to produce interest or dividends in excess of allowable reasonable fees; or

(e) the lawyer is exempted by the Tennessee Bar Foundation from the application of this Rule following a written request for exemption by the lawyer and determination by the Tennessee Bar Foundation that no eligible financial institution (as defined and determined in accordance with this Rule 43) is located within reasonable proximity of that lawyer.

Section 15. Upon its receipt of a lawyer's certification under Section 14 of this Rule, the Tennessee Bar Foundation shall, on or before March 31 of each year, report to the Board of Professional Responsibility any evidence of the lawyer's noncompliance known by the Tennessee Bar Foundation. Noncompliance with this Rule will result in the following action:

(a) On or before May 15 of each year, the Board of Professional Responsibility shall compile a list of those lawyers who are not in compliance with this Rule. On or before the first business day of May of each year, the Board of Professional Responsibility shall serve each lawyer on the list compiled under this Rule a Notice of Noncompliance requiring the lawyer to remedy any deficiencies identified in the Notice on or before May 3 1 of that year. Each lawyer to whom a Notice of Noncompliance is issued shall pay to the Board of Professional Responsibility a Noncompliance Fee of One Hundred Dollars ($100.00). Such Noncompliance Fee shall be paid on or before May 3 1 of that year, unless the lawyer shows to the satisfaction of the Chief Disciplinary Counsel that the Notice of Noncompliance was erroneously issued, in which case no such fee shall be due.

(b) On or before May 31 of that year, each lawyer on whom a Notice of Noncompliance is served also shall file with the Board ofProfessiona1 Responsibility an affidavit, in the form specified by the Board of Professional Responsibility, attesting that any identified deficiencies have been remedied. In the event a lawyer fails to timely remedy any such deficiency or fails to timely file such affidavit, the lawyer shall pay to the Board of Professional Responsibility, in addition to the Noncompliance Fee, a Delinquent Compliance Fee of Two Hundred Dollars ($200.00).

(c) On or before June 30 of each year, the Board of Professional Responsibility shall:

(i) prepare a proposed Suspension Order listing all lawyers who were issued Notices of Noncompliance and who failed to remedy their deficiencies by May 31;

(ii) submit the proposed Suspension Order to the Supreme Court; and

(iii) serve a copy of the proposed Suspension Order on each lawyer named in the Order.

The Supreme Court will review the proposed Suspension Order and enter such order as the Court may deem appropriate suspending the law license of each lawyer deemed by the Court to be not in compliance with the requirements of this Rule.

(d) Each lawyer named in the Suspension Order entered by the Court shall file with the Board of Professional Responsibility an affidavit in the form specified by the Board of Professional Responsibility, attesting that any identified deficiencies have been remedied and shall pay to the Board of Professional Responsibility, in addition to the Noncompliance Fee and the Delinquent Compliance Fee, a Five Hundred Dollar ($500.00) Suspension Fee as a condition of reactivation of his or her law license. Payment of all fees imposed by this section shall be a requirement for compliance with this Rule and for reactivation of a license. The Board of Professional Responsibility shall not reactivate the license of any lawyer whose license is suspended pursuant to this Rule until the Chief Disciplinary Counsel certifies compliance with the requirements of this Rule.

(e) All notices required or permitted to be served on a lawyer under the provisions of this Rule shall be served by United States Postal Service Certified Mail, return receipt requested, at the address shown in the most recent registration statement filed by the lawyer pursuant to Supreme Court Rule 9, Section 20.5, and shall be deemed to have been served as of the postmark date shown on the Certified Mail Receipt.

Section 16. The Board of Professional Responsibility, acting in concert with the Tennessee Bar Foundation, may promulgate such forms and procedures to implement Sections 14 and 15 of this Rule and of Supreme Court Rule 8, RPC 1.15.

Section 17. The information contained in the statements forwarded to the Tennessee Bar Foundation under Section 14 and/or Section 15 of this Rule shall remain confidential other than as to Tennessee Supreme Court or the Board of Professional Responsibility. The Tennessee Bar Foundation shall not release any information contained in such statements other than as a compilation of data from such statements, except as directed in writing by the Tennessee Supreme Court or the Board of Professional Responsibility or in response to a subpoena.

Compiler's Note. - By order filed on July 8, 2009, the Supreme Court of Tennessee amended Tenn. Sup. Ct. R. 8, RPC 1.15 and Tenn. Sup. Ct. R. 43. The Court's order contained the following transition provision governing the effective dates of the amended rules:

For the purposes of implementing amended Rule 8, RPC 1.15 and amended Rule 43, including without limitation the promulgation of regulations, forms and procedures, and the determination of eligible financial institutions, the amended rules shall take effect upon the Supreme Court's filing of this order. However, in order to permit a reasonable period for the implementation of the amended rules, lawyers maintaining pooled accounts pursuant to Rule 8, RPC 1.15 and Rule 43 shall have until January 1, 2010 within which to comply with the provisions of the amended rules. All lawyers shall comply with amended Rule 8, RPC 1.15 and amended Rule 43 on or before January 1, 2010. Prior to that date, lawyers shall comply either with the applicable rules in effect immediately prior to the adoption of the amended rules or with the amended rules.

Rule 44 — Regulation of Lawyer Intermediary Organizations

This Rule shall govern intermediary organizations as defined in RPC 7.6(a). An intermediary organization is a lawyer advertising cooperative, lawyer referral service, prepaid legal service provider, or similar organization the business or activities of which include the referral of its customers, members, or beneficiaries to lawyers for the performance of fee- generating legal services or the payment for or provisions of legal services to the organization’s customers, members, or beneficiaries in matters for which the organization does not bear ultimate responsibility. A tribunal appointing or assigning lawyers to represent parties before the tribunal or a government agency performing such functions on behalf of a tribunal is not an intermediary organization under this Rule.

A. Registration and Reporting Requirements

(1) Each intermediary organization shall file an initial registration statement and annual registration statements with the Board of Professional Responsibility, each of which shall be certified by an officer or authorized representative of the organization.

(2) The initial registration statement shall set forth or be accompanied by the following:

(a) A copy of the organization’s basic organizational document, including the articles of incorporation, articles of association, articles of organization, operating agreement, partnership agreement, trust agreement, or other organizational document and all amendments, addenda, or exhibits to any such document.

(b) A copy of all bylaws, operating agreements, rules, regulations, or similar documents, if any, regulating the conduct of the organization’s internal affairs.

(c) A list of the names, addresses, and official positions of, and biographical information concerning, any individuals who are responsible for conducting the organization’s affairs.

(d) A list of the names, addresses, and official positions of, and biographical information concerning, any shareholder or beneficial owner of an ownership interest in the organization of 5% or greater.

(e) A list of the names, addresses, and Board of Professional Responsibility disciplinary numbers of all lawyers participating in the organization and providing legal services for Tennessee residents.

(f) A specimen copy of the form of all contracts made or to be made between the organization and any participating lawyers.

(g) A specimen copy of the form of any contract made or to be made between the organization and any person, corporation, partnership, or other entity for the performance on the organization’s behalf of any function, including, but not limited to, marketing, administration, enrollment, investment management, and subcontracting for the provision of legal services.

(h) A specimen copy of the form of any group or prepaid legal services contract that is to be issued to employers, unions, trustees, individuals, or other organizations and a specimen copy of any form of evidence of coverage to be issued to subscribers.

(i) A schedule of rates and charges for each contract to be used.

(j) A description of any proposed marketing efforts.

(k) A description of the organization’s grievance or complaint procedure for its customers, members, or beneficiaries.

(l) As to prepaid legal insurance providers, a copy of a Certificate of Authority to sell legal insurance issued by the Commissioner of the Tennessee Department of Commerce and Insurance.

(m) A copy of the organization’s most recent financial statements audited by an independent certified public accountant.

(3) The annual registration statements shall set forth or be accompanied by the following:

(a)A copy of the organization’s most recent financial statements audited by an independent certified public accountant.

(b) A narrative description of any material changes that may have occurred since the organization’s last filing with the Board, including updated or current copies of any information or documents previously filed with the Board of Professional Responsibility that have materially changed.

(4) The following organizations are exempt from filing initial or annual registration statements with the Board:

(a) Legal aid or public defender offices:

(i) operated or sponsored by a duly accredited or approved law school; or

(ii) operated or sponsored by a governmental agency;

(b) A military legal assistance office;

(c) A lawyer referral or legal aid service operated by the Chattanooga Bar Association, Knoxville Bar Association, Memphis Bar Association, Nashville Bar Association, Tennessee Bar Association, or Tennessee Trial Lawyers Association.

B. Compliance

An intermediary organization complies with this Rule if it registered as provided in Section F and has complied with the requirements of Sections A, C, D, and all of the following additional requirements:

(1) The organization shall not be owned or controlled by any participating lawyer, a law firm with which a participating lawyer is associated, or a lawyer with whom a participating lawyer is associated in a firm.

(2) The customer, member, or beneficiary of the organization, and not the organization, shall be the client of the participating lawyer.

(3) The organization shall assert no improper influence upon, nor shall it infringe upon, the attorney-client relationship or the independent professional judgment of the participating lawyer.

(4) The organization shall not limit the objectives of the representation to be provided by participating lawyers to its customers, members, or beneficiaries, or the means to be used to accomplish those objectives, if such a limitation would materially impair the lawyer’s ability to provide the client with the quality of representation that would be provided to a client who had not been referred to the lawyer by the organization.

(5) The organization shall not request or require that a participating lawyer reveal information that is privileged or protected by RPC 1.6.

(6) The organization shall not request or require that a participating lawyer take any action prohibited by, or fail to take any action required by, the Tennessee Rules of Professional Conduct.

(7) Customers, members, or beneficiaries of the organization shall be informed that they may file a complaint of unethical conduct by a participating lawyer with the Board of Professional Responsibility, and informed of the method by which they may do so.

(8) Any organization that is a prepaid legal insurance provider shall comply with Tennessee Code Annotated, Title 56, Chapter 43, known as the Tennessee Legal Insurance Act.

(9) The organization shall permit the participation of not less than four (4) lawyers licensed to practice in Tennessee, not associated with each other in a firm, and each of whom maintains an office in the geographical area served by the organization; provided, however, that the organization may require such participating lawyers to:

(a) meet reasonable and objectively determinable standards of competence and experience; and

(b) pay a reasonable participation fee in conformance with RPC 5.4(a).

(10) The organization shall not condition referral of its customers, members, or beneficiaries to participating lawyers upon a preliminary determination by the organization that the client’s claims or defenses have merit or economic value; however, the organization may perform call screening as necessary to determine the applicability and availability of appropriate non-legal services.

(11) The organization shall utilize reasonable procedures to assure that participating lawyers are properly licensed and competent to handle the matters referred to them.

(12) The organization shall utilize reasonable procedures to provide substitute counsel in the event that a lawyer to whom a matter is referred cannot undertake or continue the representation in compliance with the Rules of Professional Conduct or this Rule.

(13) If the organization is a not-for-profit lawyer referral service, it may charge a fee calculated as a percentage of legal fees in compliance with RPC 5.4(a)(6).

(14) The organization shall establish and implement a reasonable grievance or complaint procedure for the resolution of complaints or grievances by customers, members, or beneficiaries who are dissatisfied with the services or fees provided by the organization or its participating lawyers.

(15) An organization shall apprise itself of any public disciplinary history of any participating lawyer and shall, when appropriate, review the files of the Board of Professional Responsibility concerning any such public discipline imposed on any participating lawyer before allowing that lawyer to participate in providing services.

C. Advertising and Marketing Requirements

An intermediary organization shall not:

(1) Make a statement about its services, its participating lawyers, or the services they will or may provide, that would violate RPC 7.1 if made by a lawyer.

(2) An intermediary organization shall not identify any of its participating lawyers as specialists, as specializing in, or as certified or recognized as a specialist in a particular field of law unless all participating lawyers are certified as specialists in the identified field of law by the Tennessee Commission on Continuing Legal Education and Specialization.

(3) If a significant motive for the solicitation is the pecuniary gain of the organization or its participating lawyers,

(a) Solicit employment for its participating lawyers in specific matters by in person, live-telephone, or real-time electronic contact with a person who has not initiated the contact; or

(b) Solicit employment for its participating lawyers by a writing, recording, telegram, facsimile, computer transmission or other mode of communication directed to a specifically identified person who has not initiated the contact communication if a participating lawyer would be prohibited from doing so by RPC 7.3(b) or (c).

D. Qualification of Lawyers

An approved intermediary organization shall take reasonable steps to determine that all of its participating lawyers meet the following requirements:

(1) That the lawyer is on active status and in good standing with the Board of Professional Responsibility and with the lawyer licensing authority in each jurisdiction in which the lawyer is licensed;

(2) That the lawyer is in compliance with the CLE requirements of Rule 21;

(3) That the lawyer agrees to permit the organization to release and furnish any information from the lawyer’s application to the lawyer’s clients or potential clients; and

(4) That the lawyer agrees to participate in and abide by the organization’s procedures concerning grievances or complaints by customers, members, or beneficiaries.

E. Other Requirements Imposed by Organization

Nothing in this Rule prohibits an organization registered under this Rule from imposing upon its participating lawyers, and a registered organization may impose upon its participating lawyers, other lawful requirements as a condition of participation, including, for example, requirements that participating lawyers waive any confidentiality of disciplinary complaints or proceedings under Supreme Court Rule 9, Section 25, that participating lawyers agree to participate in the arbitration of disputes concerning their fees or services provided in connection with their participation in the organization, or that participating lawyers maintain professional liability insurance at certain levels. Further, accurate communications concerning any such requirements in any advertising by the organization do not violate any provision of this Rule. An organization may establish specific subject matter panels of participating lawyers, whose eligibility for such panels shall be determined on the basis of experience and other substantial objectively determinable criteria.

F. Registration

(1) If an organization complies in all material respects with this Rule, the Board of Professional Responsibility shall register the organization under this Rule. If an organization fails to comply in any material respect with this Rule, the Board shall deny registration to the organization. If an organization registered under this Rule is found to no longer be in compliance with the requirements of this Rule, the Board shall revoke the registration of the organization.

(2) All documents or information provided to the Board of Professional Responsibility by or on behalf of the organization shall be open for public inspection in the offices of the Board of Professional Responsibility during its regular business hours. The Board may charge a reasonable fee for copying any such documents or information.

G. Amendments to This Rule

Any interested person or organization may petition this Court to change this Rule. [The foregoing Supreme Court Rule 44 shall become effective on February 1, 2004. ]

Rule 45 -- Americans with Disabilities Act.

The administrative director of the courts is authorized to establish any policies and procedures that may be necessary to assist courts with compliance with the Americans with Disabilities Act, 42 U.S.C. 12131 et. seq. The Supreme Court shall approve any such policies and procedures prior to implementation. Participants in the judicial system shall comply with any policies and procedures that may be implemented. This rule shall apply to all courts in this state, including without limitation, municipal courts, general sessions courts, juvenile courts, circuit courts, chancery courts, criminal courts, and the respective appellate courts.

Commentary: Policies and procedures that are implemented pursuant to this rule will be available by contacting the administrative office of the courts or accessing the website at www.tncourts.gov.

Rule 46 -- E-Filing

A. General Provisions

1. Short Title

This rule may be cited as the "E-Filing Rule."

2. Definitions

a.. "Administrative Office of the Courts" or "AOC" means the Information Technology Division of the Administrative Office of the Courts which provides information technology support for the judicial branch of state government including the Appellate Court Clerk’s Office.

b. "Appellate Record" or "Record" means the record generated by the trial court clerk and transmitted to the Appellate Court Clerk pursuant to Tenn. R. App. P. 25.

c. "Clerk" means the Clerk of the Appellate Courts.

d. "Clerk’s Office" means any Supreme Court building in Nashville, Knoxville or Jackson designated by the Clerk.

e. "Court" means the Tennessee Supreme Court, Tennessee Court of Appeals, and Tennessee Court of Criminal Appeals, and all justices and judges thereof.

f. "Electronic Filing Provider" (EFP) means the vendor selected by the Electronic Filing Task Force for electronic filing and electronic service of documents filed in the appellate courts along with electronic file management and document management assistance.

g. "Document Management System" or "DMS" means a computer system owned and in the custody of the Clerk’s Office which maintains all electronic and scanned paper-documents filed in the appellate courts in electronic form.

h. "E-File" or "E-Filing" means the electronic transmission of documents to the appellate courts and from the appellate courts for the purpose of filing with such courts.

i. "Electronic Filing Task Force" or "Task Force" means the Task Force on Electronic Filing in the Appellate Courts established by this Court in an order filed on November 19, 2004.

j. "E-Service" means the electronic transmission of documents to a party, attorney or representative under these rules.

k. "Litigant" means any person, corporation, partnership, business or governmental entity who is a party in an appeal pending in the appellate courts and is represented by an attorney in that appeal.

l. "Paper copy" means the version of a document reduced to typewritten or handwritten form and filed with the Clerk in such format.

m. "Portable Document Format" or "PDF" means a computer file format developed by Adobe Systems for representing documents in a manner that is independent of the original application software, hardware, and operating system used to create those documents.

n. "Registered user" means an "authorized user" as set forth in Section (B)(3), infra, who has properly registered with the Clerk to e-file and e-serve documents with the appellate courts through the EFP.

B. Scope of the Rule

1. Permitted Electronic Filing

a. Except as provided in this rule, litigants through their counsel may e-file any document that would otherwise be filed with the Clerk’s Office in accordance with the Tennessee Rules of Appellate Procedure.

b. Such e-filings shall constitute the official filing of such documents in compliance with the Tennessee Rules of Appellate Procedure.

c. Neither litigants nor trial court clerks may e-file appellate records, including transcripts and exhibits, with the Clerk’s Office during this pilot project. However, the Clerk may in his or her discretion scan appellate records into electronic form for the convenience of the Court and the parties, subject to the availability of resources.

2. Paper Filing

a. Litigants may continue to file paper copies of documents in accordance with the Tennessee Rules of Appellate Procedure. Once paper copies are filed, the Clerk shall scan such documents into electronic form and file such documents in the same DMS as documents directly filed by counsel through the EFP. The Clerk has the discretion to scan or not scan paper documents filed by pro se litigants.

b. Litigants who choose to file paper copies with the Clerk shall pay a scanning fee in an amount established by the Clerk based upon the revenues necessary to fund the scanning process. The scanning fee shall be based upon the actual cost of scanning, but the fee shall be not less than the fee established by the EFP for e-filing. The Clerk shall establish the method for collection of such a fee.

c. Litigants who choose to file paper copies with the Clerk shall include an additional copy beyond the number of copies otherwise required by the Court. This additional copy shall be unstapled and only bound in the upper left-hand corner with a clamp for scanning purposes

3. Authorized Users - The following persons may e-file documents through the EFP upon completion of the registration requirements of this Rule:

a. Attorneys licensed to practice law in Tennessee;
b. Pro hac vice attorneys;
c. All appellate court judges and their staff; and
d. All deputy clerks of the Clerk’s Office;

4. Authorized Accessors - During this pilot project, any person may access via an internet web site established by the EFP all documents e-filed through the EFP. Such access shall be free of charge for all persons. Furthermore, the EFP is prohibited from providing any fee-based services related to the e-filed documents. The EFP shall maintain a web-site for the Clerk at which the documents are free for all persons to access. The Clerk may also authorize access of scanned documents in electronic form through the EFP if the Clerk and the EFP are able to agree to arrange such access. If a document is paper-copy filed and is not made available in electronic format at the web-site maintained by the EFP, then there shall be a notation of the existence of the document, the date of filing and that the document was paper-copy filed.

5. Prohibited E-Filed Documents - Documents in the following categories may not be e-filed:

a. Parental termination appeals;
b. Juvenile appeals;
c. Criminal appeals from convictions of the following provisions of the Tennessee Code Annotated: § 39-13-305(a)(2) (especially aggravated kidnapping where the victim is less than thirteen years old); § 39-13-502(aggravated rape, where the victim is less than eighteen years old); § 39-13-503(rape where the victim is less than eighteen years old); § 39-13-504(aggravated sexual battery where the victim is less than eighteen years old); § 39-13-505(sexual battery where the victim is less than eighteen years old); § 39-13-506(statutory rape); § 39-13-522(rape of a child); § 39-13-527(sexual battery by an authority figure); § 39-13-528(solicitation of a minor); § 39-13-605(unlawful photographing in violation of privacy if the victim is less than eighteen); § 39-13-607(observation without consent where the victim is less than eighteen years old); § 39-15-302(incest if the victim is less than eighteen years old); § 39-15-401(child abuse and neglect); § 39-15-402(aggravated child abuse and neglect); § 39-17-902(distribution to or employment of minors regarding obscene material if the victim is less than eighteen years old); § 39-17-911(sale, loan, or exhibition of obscene material to minors); § 39-17-914(display for sale or rental of material harmful to minors); § 39-17-1003(sexual exploitation of a minor); § 39-17-1004(aggravated sexual exploitation of a minor); § 39-17-1005(especially aggravated sexual exploitation of a minor).
d. Appeals in which the entire record is sealed pursuant to court order or statute.

Upon the filing of the Notice of Appeal, registered users are under a duty to inform the Clerk on a form provided by the Clerk that the appeal falls within one of the above categories.

6. Redaction of Information - In order to maintain the privacy rights of persons involved in appeals before the appellate courts, it is the responsibility of counsel who e-files or paper-copy files any document under this Rule to redact the following information from any document e-filed or paper-copy filed with the court, unless otherwise ordered by that court. The Clerk’s Office will not review each document for compliance with this subsection. The following information shall be redacted from any document e-filed and posted on the internet web site of the EFP:

a. Social Security numbers - If an individual’s social security number must be included in a document, only the last four digits of that number may be used.

b. Names of minor children - If the involvement of a minor child must be mentioned, only the initials of the child may be used.

c. Dates of birth - If an individual’s date of birth must be included in a document, only the year may be used.

d. Financial account numbers - If financial account numbers are relevant, only the last four digits of these numbers may be used.

e. Home addresses - If home addresses must be included in a document, only the city and state may be used.

f. Medical information - Any medical information protected as confidential under the Health Insurance Portability and Accountability Act shall be redacted.

C. Filing and Service Procedures

1. Registration Requirements

a. An authorized user who desires to e-file and/or e-serve shall register with the Clerk. Upon receipt of a properly executed user registration agreement, the Clerk shall assign to the authorized user a confidential login and password to the e-file system. No attorney or other user shall knowingly authorize or permit another unauthorized person to use the registered user’s name or password. Except as expressly permitted in this rule, the document shall be e-filed using the registration of the registered user who signed the document.

b. Registered users of the e-file system shall notify the Clerk by e-mail or regular mail within 10 days of any changes in firm name, delivery address, fax number or e-mail address.

2. Time and Effect of E-Filing

a. Any document filed electronically shall be considered as filed with the Clerk’s Office when the transmission of the entire document from the EFP is received by the Clerk’s Office. Any document received by the Clerk before Midnight local time of the Clerk’s Office where the document is e-filed shall be deemed filed on that date if such document otherwise meets all the requirements for filing under the relevant rules of court.

b. When the EFP receives electronic confirmation from the Clerk’s Office that the e-filing has been received by that office, the EFP shall electronically transmit to the registered user a receipt confirming that the e-filing has been received by the Clerk’s Office. The confirmation receipt shall serve as proof of filing. In the event the Court rejects the submitted document following review, the document shall not become part of the official record, and the Clerk shall notify the registered user of the rejection and the reason for the rejection. Users may be required to re-file documents to meet necessary filing requirements.

3. Format of Documents

a. Absent leave of Court, all e-filed and e-served documents shall be formatted in accordance with the applicable rules of the Tennessee Rules of Appellate Procedure governing formatting of paper-filed documents in the appellate courts, subject to the following exception: the requirement regarding the colors of brief covers and the requirement that briefs be fastened on the left side shall not apply to e-filed documents..

b. The electronic title of each document shall include all information required by the applicable rules of the Tennessee Rules of Appellate Procedure governing the particular document.

c. All original documents that are e-filed shall be prepared through direct conversion from the word processing file to Portable Document Format and not through scanning. All attachments and appendices containing photocopies of documents may be scanned into Portable Document Format. Furthermore, PDF documents may not contain embedded files, scripts, tracking tags and/or executable files.

d. Any appendix to an e-filed document must contain a table of contents at the beginning of the appendix with a numeric listing of the documents. In addition, there shall be a blank page inserted between each document in the e-filed appendix so as to allow the numeric tabbing of the documents by the EFP.

4. Payment of Filing Fees to EFP

a. Registered users who voluntarily e-file shall pay e-filing fees established by the EFP as set forth in the contract between the EFP and the Clerk. Such fees may be paid at the time of each filing by credit card, or an account established by the registered user with the EFP on a per filing basis or a monthly basis. Registered users shall also pay the state litigation tax of $13.75 pursuant to T.C.A. § 67-4-602 to the EFP who shall remit said tax to the Clerk on a monthly basis.

b. The Clerk shall not charge any additional fee for a registered user to e-file documents under this Rule.

c. Court costs assessed by a Court under Tenn. Code Ann. § 8-21-501 shall still apply to all documents e-filed under this Rule.

d. A prevailing party may recover e-filing or scanning fees in the same manner as recoverable costs on appeal set forth in Tenn. R. App. P. 40(c).

e. Counsel appointed to represent indigent defendants under Supreme Court Rule 13 shall be reimbursed for the scanning or e-filing/e-service fee as a miscellaneous expense under Section (4)(I) of that Rule.

5. Signatures

a. Every pleading, document and instrument electronically filed or served shall be deemed to have been signed by the justice, judge, clerk, attorney or declarant and shall bear a scanned facsimile or typographical signature of such person, along with the typed name, address, telephone number and number assigned by the Board of Professional Responsibility, if applicable. Typographical signatures shall be in the form of a conforming signature ("/s/ ").

b. Documents filed by registered users shall be deemed signed, provided that such documents are filed using the User Name and Password of the signatory.

c. In the case of a signatory who is a registered user but whose User Name and Password will not be used in the e-filing of the document, as in the case of documents requiring multiple signatures, the filer of the document shall list thereon all the names of any other signatory or signatories. The filer shall attest that concurrence in the filing of the documents has been obtained from each of the other signatories, or from the single signatory, which shall serve in lieu of their signature(s) on the document. The filer’s attestation may be incorporated in the document itself or take the form of a declaration to be attached to the document.

d. Any filing made under this rule shall bind the signatory as if the document were physically signed and filed and shall function as the signatory’s attestation to the truthfulness of an affidavit, declaration, certification or any other purpose consistent with the Tennessee Rules of Appellate Procedure or any other appellate court rule.

e. Unless otherwise ordered by the Court or Clerk, a paper copy of all documents filed or served electronically, including original signatures, shall be maintained by the party filing the document and shall be made available, upon reasonable notice, for inspection by other counsel, the Clerk, or the Court. Parties shall retain originals of documents until final disposition of the case and the conclusion of all appeals. The Clerk may request a paper copy of any electronically filed document at any time.

6. Electronic Service

a. Delivery of e-service documents as permitted under these rules to other registered users shall be considered as valid and effective service and shall have the same legal effect as an original paper document. Recipients of e-service documents shall access their documents through the ESFP.

b. E-service is accomplished by use of the recipient attorney’s on-line in-box provided by the EFP. A "Notice of Electronic Filing" is generated automatically by the EFP system upon completion of an electronic filing. The "Notice of Electronic Filing" acts as proof of service when e-mailed to the on-line in-box of counsel of record in the case..

c. E-service shall be deemed complete when the transmission to the EFP is completed.

d. E-service shall only be permitted during the pilot project when all of the parties to an appeal agree to participate in providing service of documents via e-service. A party who has previously agreed to be served via e-service may opt out of e-service by giving notice at any time to all parties and the EFP.

7. System or User Filing or Service Errors

If the electronic filing or electronic service does not occur because: (1) an error occurred in the transmission of the document to the EFP or served party that was unknown to the sending party; (2) the EFP failed to process the electronic document when received by the EFP; (3) the served party was erroneously excluded from the service list; or (4) the filer or recipient experienced other technical problems, the Court may upon satisfactory proof enter an order permitting the document to be filed nunc pro tunc to the date the document was first attempted to be filed electronically. In the case of service, the served party shall, absent extraordinary circumstances, be entitled to an order extending the date for any response or period within which any right, duty or other act must be performed.

D. Effective Date

This rule shall take effect on August 1, 2006.

E. Evaluation

Upon the effective date of this Rule and before e-filing begins, the Clerk with the assistance of the AOC shall develop the evaluation process as part of the request for proposal for obtaining the services of the EFP so that the evaluation process shall be in effect at the time e-filing begins under this Rule. The evaluation process shall include both an objective data component and a survey of users. One year after e-filing begins the Clerk shall submit the results of the evaluation process to the Court along with recommendations on the following issues: (1) whether e-filing should be made mandatory; (2) if so, the suggested date upon which e-filing should be made mandatory; and (3) whether there are any changes or improvements in the e-filing system that would make it a more effective and efficient process. [Implemented by order filed July 21, 2006.

Rule 47. Provision of Legal Services Following Determination of Major Disaster.

(a) Determination of existence of major disaster. Solely for purposes of this Rule, this Court shall determine when an emergency affecting the justice system, as a result of a natural or other major disaster, has occurred in:

(1) this jurisdiction and whether the emergency caused by the major disaster affects the entirety or only a part of this jurisdiction, or

(2) another jurisdiction but only after such a determination and its geographical scope have been made by the highest court of that jurisdiction. The authority to engage in the temporary practice of law in this jurisdiction pursuant to paragraph (c) shall extend only to lawyers who principally practice in the area of such other jurisdiction determined to have suffered a major disaster causing an emergency affecting the justice system and the provision of legal services.

(b) Temporary practice in this jurisdiction following major disaster. Following the determination of an emergency affecting the justice system in this jurisdiction pursuant to paragraph (a) of this Rule, or a determination that persons displaced by a major disaster in another jurisdiction and residing in this jurisdiction are in need of pro bono services and the assistance of lawyers from outside of this jurisdiction is required to help provide such assistance, a lawyer authorized to practice law in another United States jurisdiction, and not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in this jurisdiction on a temporary basis. Such legal services must be provided on a pro bono basis without compensation, expectation of compensation or other direct or indirect pecuniary gain to the lawyer. Such legal services shall be assigned and supervised through an established not-for-profit bar association, pro bono program or legal services program or through such organization(s) specifically designated by this Court.

(c) Temporary practice in this jurisdiction following major disaster in another jurisdiction. Following the determination of a major disaster in another United States jurisdiction, a lawyer who is authorized to practice law and who principally practices in that affected jurisdiction, and who is not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in this jurisdiction on a temporary basis. Those legal services must arise out of and be reasonably related to that lawyer's practice of law in the jurisdiction, or area of such other jurisdiction, where the major disaster occurred.

(d) Duration of authority for temporary practice. The authority to practice law in this jurisdiction granted by paragraph (b) of this Rule shall end when this Court determines that the emergency conditions caused by the major disaster in this jurisdiction have ended except that a lawyer then representing clients in this jurisdiction pursuant to paragraph (b) is authorized to continue the provision of legal services for such time as is reasonably necessary to complete the representation, but the lawyer shall not thereafter accept new clients. The authority to practice law in this jurisdiction granted by paragraph (c) of this Rule shall end 60 days after this Court declares that the emergency conditions caused by the major disaster in the affected jurisdiction have ended.

(e) Court appearances. The authority granted by this Rule does not include appearances in court except:

(1) pursuant to that court's pro hac vice admission rule and, if such authority is granted, any fees for such admission shall be waived; or

(2) if this Court, in any determination made under paragraph (a), grants blanket permission to appear in all or designated courts of this jurisdiction to lawyers providing legal services pursuant to paragraph (b). If such an authorization is included, any pro hac vice admission fees shall be waived.

(f) Disciplinary authority and registration requirement. Lawyers providing legal services in this jurisdiction pursuant to paragraphs (b) or (c) are subject to this Court's disciplinary authority and the Rules of Professional Conduct of this jurisdiction as provided in Tenn. Sup. Ct. R. 8, RPC 8.5. Lawyers providing legal services in this jurisdiction under paragraphs (b) or (c) shall, within 30 days from the commencement of the provision of legal services, file a registration statement with the Clerk of this Court. The registration statement shall be in a form prescribed by this Court. Any lawyer who provides legal services pursuant to this Rule shall not be considered to be engaged in the unlawful practice of law in this jurisdiction.

(g) Notification to clients. Lawyers authorized to practice law in another United States jurisdiction who provide legal services pursuant to this Rule shall inform clients in this jurisdiction of the jurisdiction in which they are authorized to practice law, any limits of that authorization, and that they are not authorized to practice law in this jurisdiction except as permitted by this Rule. They shall not state or imply to any person that they are otherwise authorized to practice law in this jurisdiction.

Commentary. --

[I] A major disaster in this or another jurisdiction may cause an emergency affecting the justice system with respect to the provision of legal services for a sustained period of time interfering with the ability of lawyers admitted and practicing in the affected jurisdiction to continue to represent clients until the disaster has ended. When this happens, lawyers from the affected jurisdiction may need to provide legal services to their clients, on a temporary basis, from an office outside their home jurisdiction. In addition, lawyers in an unaffected jurisdiction may be willing to serve residents of the affected jurisdiction who have unmet legal needs as a result of the disaster or, though independent of the disaster, whose legal needs temporarily are unmet because of disruption to the practices of local lawyers. Lawyers from unaffected jurisdictions may offer to provide these legal services either by traveling to the affected jurisdiction or from their own offices or both, provided the legal services are provided on a pro bono basis through an authorized not-for-profit entity or such other organization(s) specifically designated by this Court. A major disaster includes, for example, a hurricane, earthquake, flood, wildfire, tornado, public health emergency or an event caused by terrorists or acts of war.

[2] Under paragraph (a)(l), this Court shall determine whether a major disaster causing an emergency affecting the justice system has occurred in this jurisdiction, or in a part of this jurisdiction, for purposes of triggering paragraph (b) of this Rule. This Court may, for example, determine that the entirety of this jurisdiction has suffered a disruption in the provision of legal services or that only certain areas have suffered such an event. The authority granted by paragraph (b) shall extend only to lawyers authorized to practice law and not disbarred, suspended from practice or otherwise restricted from practice in any other manner in any other jurisdiction.

[3] Paragraph (b) permits lawyers authorized to practice law in an unaffected jurisdiction, and not disbarred, suspended from practice or otherwise restricted from practicing law in any other manner in any other jurisdiction, to provide pro bono legal services to residents of the affected jurisdiction following determination of an emergency caused by a major disaster; notwithstanding that they are not otherwise authorized to practice law in the affected jurisdiction. Other restrictions on a lawyer's license to practice law that would prohibit that lawyer from providing legal services pursuant to this Rule include, but are not limited to, probation, inactive status, disability inactive status or a non-disciplinary administrative suspension for failure to complete continuing legal education or other requirements. Lawyers on probation may be subject to monitoring and specific limitations on their practices. Lawyers on inactive status, despite being characterized in many jurisdictions as being "in good standing," and lawyers on disability inactive status are not permitted to practice law. Public protection warrants exclusion of these lawyers from the authority to provide legal services as defined in this Rule. Lawyers permitted to provide legal services pursuant to this Rule must do so without fee or other compensation, or expectation thereof. Their service must be provided through an established not-for-profit organization that is authorized to provide legal services either in its own name or that provides representation of clients through employed or cooperating lawyers. Alternatively, this court may instead designate other specific organization(s) through which these legal services may be rendered. Under paragraph (b), an emeritus lawyer from another United State jurisdiction may provide pro bono legal services on a temporary basis in this jurisdiction provided that the emeritus lawyer is authorized to provide pro bono legal services in that jurisdiction pursuant to that jurisdiction's emeritus or pro bono practice rule. Lawyers may also be authorized to provide legal services in this jurisdiction on a temporary basis under Tenn. Sup. Ct. R. 8, RPC 5.5(c).

[4] Lawyers authorized to practice law in another jurisdiction, who principally practice in the area of such other jurisdiction determined by this Court to have suffered a major disaster, and whose practices are disrupted by a major disaster there, and who are not disbarred, suspended from practice or otherwise restricted from practicing law in any other manner in any other jurisdiction, are authorized under paragraph (c) to provide legal services on a temporary basis in this jurisdiction. Those legal services must arise out of and be reasonably related to the lawyer's practice of law in the affected jurisdiction. For purposes of this Rule, the determination of a major disaster in another jurisdiction should first be made by the highest court of appellate jurisdiction in that jurisdiction.

[5] Emergency conditions created by major disasters end, and when they do, the authority created by paragraphs (b) and (c) also ends with appropriate notice to enable lawyers to plan and to complete pending legal matters. Under paragraph (d), this Court determines when those conditions end only for purposes of this Rule. The authority granted under paragraph (b) shall end upon such determination except that lawyers assisting residents of this jurisdiction under paragraph (b) may continue to do so for such longer period as is reasonably necessary to complete the representation. The authority created by paragraph (c) will end 60 days after this Court makes such a determination with regard to an affected jurisdiction.

[6] Paragraphs (b) and (c) do not authorize lawyers to appear in the courts of this jurisdiction. Court appearances are subject to the pro hac vice admission rules of the particular court. This Court may, in a determination made under paragraph (e)(2), include authorization for lawyers who provide legal services in this jurisdiction under paragraph (b) to appear in all or designated courts of this jurisdiction without need for such pro hac vice admission. If such an authorization is included, any pro hac vice admission fees shall be waived. A lawyer who has appeared in the courts of this jurisdiction pursuant to paragraph (e) may continue to appear in any such matter notwithstanding a declaration under paragraph (d) that the conditions created by major disaster have ended. Furthermore, withdrawal from a court appearance is subject to Tenn. Sup. Ct. R. 8, RPC 1.16.

[7] Authorization to practice law as a foreign legal consultant or in-house counsel in a United States jurisdiction offers lawyers a limited scope of permitted practice and may therefore restrict that person's ability to provide legal services under this Rule.

[8] The ABA National Lawyer Regulatory Data Bank is available to help determine whether any lawyer seeking to practice in this jurisdiction pursuant to paragraphs (b) or (c) of this Rule is disbarred, suspended from practice or otherwise subject to a public disciplinary sanction that would restrict the lawyer's ability to practice law in any other jurisdiction.

[Amended by Order filed October 23, 2009.]

Rule 48 Assuming Jurisdiction Over Undecided Cases

(a) A party to a pending, but undecided, appeal may request the Court to assume jurisdiction over the case meeting the requirements of Tenn Code Ann. §16-3-201 (d)(1)-(2) by filing a motion that complies with the following requirements:

(1) The motion shall contain: (i) a statement of the question or questions presented for review, (ii) a statement of the relevant facts, (iii) a statement of the reason or reasons for assuming jurisdiction, including an explanation of the unusual public importance of the case and the need for an expedited decision, and (iv) a statement of the relief sought;

(2) The motion shall be accompanied by copies of the trial court's order or opinion, portions of the record, or affidavits and other relevant documents necessary for the disposition of the motion;

(3) Unless the moving party has already filed a bond for costs or is otherwise exempt by statute or rule from the obligation to file a bond in accordance with Tenn. R. App. P. 6, the motion shall be accompanied by a bond for costs with sufficient surety in the amount of $1,000. If the appellate clerk determines that this bond, or the bond filed in accordance with Tenn. R. App. P. 6, is insufficient, the Court may require an additional bond in an amount the Court deems sufficient to cover the costs of the appeal;

(4) The original six (6) paper copies of the motion and supporting papers shall be filed with the clerk of the appellate court. In addition, the moving party shall provide the clerk with an electronic copy of the motion and all supporting papers in PDF format either by providing the clerk with a CD-ROM containing the motion and supporting papers or by emailing the motion and supporting papers to the clerk at an email address provided by the clerk; and

(5) The motion shall contain a certificate stating that the motion and supporting papers have been served on all other parties to the appeal in accordance with Tenn. R. App. P. 20.

(b) Unless otherwise ordered, any party who is served with a motion to assume jurisdiction may file the original and six (6) paper copies of a response to the motion within ten (10) days after the filing of the motion. The response may be accompanied by portions of the record, affidavits, or other relevant documents and shall be served on all other parties. Parties filing a response to a motion to assume jurisdiction shall also provide the clerk with an electronic copy of the response and all supporting papers in PDF format either by providing the clerk with a CD-ROM containing the response and supporting papers or by emailing the response and supporting papers to the clerk at an email address provided by the clerk.

(c) The filing of a motion to assume jurisdiction does not stay the proceedings in the intermediate appellate court unless the Court orders otherwise.

(d) When the Court, either on its own motion in accordance with Tenn. Code Ann. §16-3-201(d)(3) or on the motion of a party, grants a motion to assume jurisdiction over a pending appeal, the Court shall enter an order including a schedule for the preparation and filing of the record on appeal if the record has not already been filed and a briefing schedule. The Court may, in its discretion, either dispense with or expedite oral argument and may take any other necessary or appropriate actions.

[adopted by order, June 12, 2009]

Rule 49 -- Continuity of Operation Plan for the Tennessee Courts

Section 1.
In the event of a disaster that incapacitates the operation of the appellate courts in Nashville, Knoxville, or Jackson, the Chief Justice, or in the event the Chief Justice is unavailable, the next most senior Justice or intermediate appellate court judge available, shall have the authority to enter an order activating and promulgating a disaster plan. Among other things, such an order may:

(a) Grant up to a thirty-day extension of mandatory deadlines that would otherwise apply to documents required to be filed in the Supreme Court, Court of Appeals, or Court of Criminal Appeals. If deemed necessary, additional extensions of time may be granted upon a majority vote of the justices of the Supreme Court; and

(b) Designate alternate filing methods available to parties who choose to submit documents to the appellate courts during the pendency of the disaster plan. Alternate filing methods may include: (1) filing at a Designated Alternate Facility established by appellate court officials; (2) filing via the mail at an alternate unaffected Supreme Court building located in a different Grand Division of the State; and/or (3) filing via e-mail if the computer systems are operational.

Section 2.
In the event of a disaster that incapacitates the operation of the courts in a particular county or counties, the Chief Justice, or in the event the Chief Justice is unavailable, the next most senior Justice or intermediate appellate court judge available, shall have the authority to enter an order activating and promulgating a disaster plan. Among other things, such an order may:

(a) Grant up to a thirty-day extension of mandatory deadlines that would otherwise apply to documents required to be filed under the Tennessee Rules of Civil, Criminal or Juvenile Procedure or the Rules of any court. If deemed necessary, additional extensions of time may be granted upon a majority vote of the justices of the Supreme Court; and

(b) Designate alternate filing methods available to parties who choose to submit documents to the courts during the pendency of the disaster plan. Alternate filing methods may include: (1) filing at a Designated Alternate Facility established by court officials; (2) filing via the mail at an alternate Court building; and/or (3) filing via e-mail if the computer systems are operational.

Section 3.
Any order entered pursuant to Section 1 or Section 2 shall be expeditiously disseminated to attorneys, litigants, the media, and the public via posting of the order on the website of the Administrative Office of the Courts at www.tncourts.gov, e-mailing the order to designated legal organizations, and providing a press release along with a copy of the order to media in Tennessee.

Section 4.
Any order entered pursuant to Section 1 or Section 2 shall remain in effect for thirty days, unless the effective date is shortened or extended by a majority vote of the justices of the Supreme Court.

[Rule 49 amended by replacement of entire rule, effective July 1, 2008.]

[The text of new Tenn. Sup. Ct. R. 50 is as follows:]

Rule 50 -- Tennessee Access to Justice Commission

Section 1. Establishment of the Tennessee Access to Justice Commission.

1.01. The Supreme Court of Tennessee hereby establishes the Access to Justice Commission (hereinafter referred to as the "Commission").

1.02. The Commission shall consist of ten members who shall reflect, to the extent feasible, the diversity of the ethnic, gender, and geographic communities of Tennessee.

1.03. The Supreme Court shall designate one member to serve as Chair of the Commission. Commission members shall elect a Vice-Chair to serve a one-year term and who is eligible to serve a total of three years.

1.04. The initial term for each member shall be designated at the time of appointment. The Chair shall serve an initial term of three years. Three members shall be appointed for an initial term of three years; three members shall be appointed for an initial term of two years; and three members shall be appointed for an initial term of one year. Subsequent terms of all members shall be three years. No member may serve more than two successive three-year terms or more than a total of eight years consecutively. Vacancies shall be filled by appointment of the Supreme Court.

1.05. The Commission shall meet at least quarterly and at other times at the call of the Chair.

1.06. Five members of the Commission shall constitute a quorum. After a quorum is established, the Commission may act upon a majority vote of those present.

1.07. Members shall receive no compensation for their services but may be reimbursed for their travel and other necessary expenses in accordance with regulations adopted by the Judicial Branch.

1.08. A member of the Supreme Court will serve as liaison to the Commission.

1.09. The Administrative Office of the Courts shall staff the Commission.

1.10. The Supreme Court shall review the Commission every five years to determine if the Commission continues to serve the purposes for which it was created.

Section 2. Duties and Authority.

2.01. The Commission shall develop a strategic plan for improving access to justice in Tennessee that shall include education of the public concerning the need for legal representation to meet the ideal of equal justice under law, identification of the priorities to meet the need of improved access to justice, and recommendations to the Supreme Court of projects and programs the Commission determines to be necessary and appropriate for enhancing access to justice in Tennessee. The Commission shall submit a strategic plan to the Court within twelve months of the filing of this Order and shall update the strategic plan every two years thereafter.

2.02. The Commission may create advisory committees to study specific issues identified by the Commission and to make such recommendations to the Commission as the members of the advisory committees deem appropriate.

2.03. The Commission may invite non-Commission members, including representatives from other branches of government, lawyers, and members of the public, to attend meetings and to participate as members of advisory committees to help further the work of the Commission.

2.04. The Commission shall:

(a) Review the report filed with the Court by the Task Force to Study Self Represented Litigants and consider the recommendations contained therein.

(b) Encourage state and local bar associations, access to justice organizations, pro bono programs, judges, and court clerks across the state to promote and to recognize pro bono service by lawyers across the state;

(c) Encourage state and local bar associations, access to justice organizations, pro bono programs, judges, and court clerks across the state to encourage full and limited scope legal representation at reduced fees;

(d) Encourage the Alternative Dispute Resolution Commission and other groups to provide pro bono and reduced-rate mediation services to self-represented litigants and to litigants who, although represented, have modest means or who are pro bono clients;

(e) Address existing and proposed laws, rules, procedures, and polices that are barriers to access to justice for low income Tennesseans and to consider the role of community education and increased availability of technology in reducing these barriers.

(f) Develop and recommend initiatives and systemic changes to reduce barriers to access to justice and to meet the legal needs of:

(1) Persons who do not qualify for existing assistance programs by reason of their incomes but whose access to civil justice is limited by the actual or perceived cost of legal services;

(2) Persons with disabilities who do not qualify for existing assistance programs by reason of their incomes;

(3) Persons in language minorities; and

(4) Persons whose legal needs may not be met due to restrictions on representation by legal aid programs funded by the Legal Services Corporation.

(g) Promote increased understanding of the importance of access to justice and of the barriers faced by many Tennesseans in gaining effective access to the civil justice system; and

(h) Study and recommend strategies to increase resources and funding for access to justice in civil matters in Tennessee.

2.05. The Commission has no independent authority to adopt or implement recommendations.

[Rule 50 added by Order April 3, 2009]

Rule 51 -- Procedures in Workers' Compensation Appeals.

Section 1. Referral to Special Workers' Compensation Appeals Panel. Pursuant to Tenn. Code Ann. § 50-6-225(e)(3) and (4), and subject to Section 2 of this rule, all workers' compensation appeals are hereby referred to the Special Workers' Compensation Appeals Panel to be heard and determined by the Panel in accordance with the Tennessee Rules of Appellate Procedure, as if the appeal were being heard by the entire Supreme Court.

Section 2. Supreme Court's Discretionary Review. Following the filing of the briefs in a workers' compensation appeal, the Supreme Court, on its own initiative, may enter an order directing that the appeal not be referred to the Appeals Panel in accordance with Section 1. In such cases, the appeal shall be placed on the Supreme Court's docket to be heard and determined by the entire Supreme Court in accordance with the Tennessee Rules of Appellate Procedure. The exercise of the Court's review under this section is discretionary and generally will involve cases which present an unsettled or otherwise important issue of law.

Section 3. Supreme Court's Review Following Appeals Panel's Decision. Tenn. Code Ann. § 50-6-225(e)(5)(A) provides for the Supreme Court's review of any appeal referred to and determined by the Panel in accordance with Section 1 of this rule. In addition to the procedures set out in the statute, the following procedures shall apply in such cases.

(a) If the Court grants review of the Panel's decision pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(A)(i) or (ii):

(1) the Court may, in its discretion, order the filing of supplemental briefs;

(2) the appellate court clerk, unless otherwise ordered by the Court, shall place the case on the Court's next docket for oral argument in the division in which the case arises, subject to a motion to expedite the case pursuant to Tenn. Code Ann. § 50-6-225(f)(2)

(b) If the Court denies a motion for review filed pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(A)(ii), the Court's denial of the motion shall be final; no petition for rehearing shall be available pursuant to Tenn. R. App. P. 39.

Section 4. Interlocutory & Extraordinary Appeals By Permission. In workers' compensation cases, applications for permission to appeal pursuant to Tenn. R. App. P. 9 or 10 shall be ruled upon in the first instance by the Supreme Court. Upon granting such an application, the Court, in its discretion, may refer the appeal to the Appeals Panel for determination on the merits. Following the Panel's decision in such an appeal, any party to the appeal may file a motion for review pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(A)(ii).

[Rule 51 added by Order October 8, 2009]

RULES OF THE SUPREME COURT OF THE STATE OF TENNESSEE(Rules 25-End)

APPENDIX A. FORM PETITION

READ THESE INSTRUCTIONS CAREFULLY BEFORE PREPARING THE PETITION

IN THE _________ COURT OF

___________ COUNTY, TENNESSEE AT ___________

PETITION FOR RELIEF FROM CONVICTION OR SENTENCE

GROUNDS OF PETITION

PETITIONER'S VERIFICATION UNDER OATH SUBJECT TO PENALTY FOR PERJURY

APPENDIX B. AFFIDAVIT OF INDIGENCY

APPENDIX C. CERTIFICATION OF COUNSEL

CERTIFICATE

APPENDIX D. FORM MOTION TO REOPEN

READ THESE INSTRUCTIONS CAREFULLY BEFORE PREPARING THE PETITION

IN THE ______ COURT OF _________ COUNTY, TENNESSEE AT ___________

MOTION TO REOPEN POST-CONVICTION PETITION

PETITIONER'S VERIFICATION UNDER OATH SUBJECT TO PENALTY FOR PERJURY

APPENDIX E. AFFIDAVIT OF INDIGENCY

APPENDIX F. FORM PRELIMINARY ORDER

AT ___________

PRELIMINARY ORDER (COLORABLE CLAIM)

APPENDIX G. FORM PRELIMINARY ORDER

AT ___________

PRELIMINARY ORDER (NO COLORABLE CLAIM)

APPENDIX H. FORM SCHEDULING ORDER

AT ___________

SCHEDULING ORDER

UNIFORM CIVIL AFFIDAVIT OF INDIGENCY

ORDER ALLOWING FILING ON PAUPER'S OATH

DETERMINATION OF NONINDIGENCY

RULES OF THE SUPREME COURT OF THE
STATE OF TENNESSEE
(Rules 25-End)

_ COUNTY, TENNESSEE AT _

PETITIONER'S VERIFICATION UNDER OATH
SUBJECT TO PENALTY FOR PERJURY

IN THE __ COURT OF _ COUNTY, TENNESSEE
AT _______

PETITIONER'S VERIFICATION UNDER OATH
SUBJECT TO PENALTY FOR PERJURY

PRELIMINARY ORDER
(COLORABLE CLAIM)

PRELIMINARY ORDER
(NO COLORABLE CLAIM)