What’s Up with all the Moves in the Nashville Legal Market?

“Every day” would be exaggeration. But, “every other day” isn’t.

Every other day, I’m reading in the Nashville Post about some out of town Big Law firm buying a Nashville law firm or practice group (or, as Rex Hammock says “acquihire“). Or poaching a bunch of lawyers (or a few). Or just local firms shuffling lawyers like a deck of cards.

It’s absolutely nuts, and I love it. It’s like the NBA trade-deadline, but far more boring–unless you’re a lawyer, and you like gossip (two things that will be on my gravestone).

A few weeks ago, I had a pre-trial lunch with a lawyer from Jones Day in Atlanta, and I asked him if the Atlanta legal market is this crazy with attorney movement. He said, yes, but for associate attorneys.

There was a bit of condescension involved, but implicit in his response was the suggestion that, maybe, this suggests that Nashville is joining the big leagues. Part of becoming one of the “big cities” is being taken over by the “big” law firms.

For years, the Big Law firms never paid any attention to Nashville. Nashville’s legal market was ruled, largely, by home-grown, home-managed law firms whose footprint generally extended a few counties in any direction, but rarely beyond the state lines. Small firms, with big personalities.

If a Big Law firm had a Big Client who needed help in Nashville, they’d call one of the 3-4 big(-ish) Nashville law firms to serve as local counsel. But, in general, the Big Law Firms didn’t think they needed to be actually in Nashville.

That’s what has changed. The national/global law firms now realize they need to be here and are having to catch up by “buying” into the Nashville market. Atlanta isn’t seeing this constant shuffling, because, frankly, all the Big Firms are already in Atlanta.

And what a boon it’s been in Nashville. You know those random calls you get asking if you’d sell your house? That’s what’s happening. But with lawyers.

I’m curious about what the next 4-5 years holds in store in the Nashville market. Part of what has made Nashville’s legal world special is the eccentric independence of so many firms here in town. Sure, there are local folks you dislike having cases with, but at least you know them.

After a bunch of out-of-towners start buying up your neighbors’ houses, your property increases in value. But you don’t know your neighbors anymore.

So far, the shift to a global practice hasn’t made local deals any easier or more pleasant for me. With a year’s worth of perspective, though, I think it’s an inevitable part of our evolution as a city.

Recently, I dealt with Arizona lawyers on a hipster donut store lease in “southern Davidson County,” but they had no idea what I was talking about when I said “Brentioch.”

I’ll go back to what I said last year: What’s good for the Nashville legal market is going to be, generally, good for Nashville lawyers.

For a while, I was afraid to even mention all the local moves, worrying that this group or that group would think this post was about them. But that was probably 50 acquihires ago. This post is, literally, about the entire market (since we’ve all seemed to switch firms since 2019).


As long-time readers know, when I get busy with work, this blog suffers. As I’m nearing my anniversary of my firm’s current incarnation, I’ll be posting more, mainly as a way to share and discuss this solo- and small practice adventure over the last few years.

Service of Process: Just Like in Hollywood (Part 2)

It’s a strange day when legal procedural issues get top billing on the Today Show

As you may have seen, Jason Sudeikis served his ex-Olivia Wilde with legal papers while she was, literally, on a public stage talking about her upcoming movie. The photos from the event show her, in real time, opening the packet and reading the custody papers. On stage.

It’s news-worthy because it seems like such a jerk thing to do, especially given the public persona of Sudeikis, who is famous for playing the nicest character on modern TV and, generally, regarded as a nice person in real life.

Seriously, Ted Lasso isn’t just nice, but inspirationally nice. I can’t count the number of showy LinkedIn posts talking about life lessons people have learned from Ted. One review called the show a “warm hug of nice.”

But, this? This seems like a big-time jerk move.

I’ve written about this frequently: Service of process can be the hardest part of litigation, and a party may be forced to go to great lengths to get somebody personally served with legal papers. It may be a little too “on the nose” to cite examples from Hollywood, but this sequence from Pineapple Express is hilarious and procedurally accurate. It’s also a huge deal: Ineffective service of process can ruin your entire lawsuit.

Personally, in trying serve an evasive defendant, I’ve researched social media, court dockets, or anything else that will help me locate where and when the defendant may be. My process server has shown up holding a bouquet of flowers, an empty cardboard box, and waited at the end of a bike race, looking for Racer # 3433 at the finish line.

So, did Sudeikis do something wrong? It depends. Was Olivia Wilde evading service, requiring them to go to this extra mile to “catch” her? We don’t know that.

But, we do know this: This move is inflammatory and is going to make this litigation more difficult. As lawyers, we are faced with all sorts of “allowed” procedural tactics that sound great on paper, but that can also skew litigation into scorched earth territories in real life. Part of a good lawyer’s job is to talk clients out of those tactics and focus on the bigger picture.

Here, Sudeikis has already disavowed the action, saying that neither he nor his lawyer approved this rogue decision by the process server.

But, looking at the big picture, the damage may already be done. This custody battle just got a lot more contentious. And, honestly, it’s going to be weird watching Ted Lasso manage his own divorce and custody issues knowing what I know about this messy real-life drama.

Davidson County Election Picks from a Nashville Lawyer

Last night, I hosted a neighborhood “meet and greet” for a judicial candidate, and one of my neighbors told me something I didn’t know: We all watch your front yard, to see which candidate signs you have.

At the party, I saw this in real time, as neighbors showed up with pens, the Davidson County sample ballot mailing, and lots of questions.

If you put me in a roomful of people asking me questions, I’ll talk. Having said that, it was terrifying, seeing people circle names (or “X” out others) based just on what I was saying.

But, our city needs good judges and, as I shared my thoughts, I realized that my first-hand knowledge was useful to these people, who had never set foot in the courthouse. I go to courts in Davidson County for a living and nothing impacts my work as much as the quality of the local judiciary. So, I offered my honest and measured comments on each race.

I’ll share (some of) my comments with you all too:

First Circuit Court Judge (Division 1): I pick David Briley over Wendy Longmire. David has a compassionate heart for regular people and a calling to public service, coupled with a strong legal mind. I worked at a law firm with David Briley for more than 13 years, so I’m biased–but in a good way. He regularly represented individuals in personal injury cases, as well as pitched in on the biggest cases the firm handled. Personally, he and I teamed up on a construction lawsuit against one of America’s largest fast food chains, and I got to see him operate in my world. I was impressed (and so was my client). He’s also a nice, conscientious person. He’s someone who I trust to make the right decision.

Seventh Circuit Court Judge (Division 7): This is the Probate Court, and I don’t do probate law. But I know somebody who does it all the time: Andra Hedrick. And she’s running for Probate Judge. By my own review, she’s the most qualified candidate in terms of actual, practical experience. She’d be a great probate judge.

Eight Circuit Court Judge (Division 8): I support Kelvin Jones, the incumbent. He’s smart (look at his resume), and, when I can support candidates whose background and race reflect the larger community they serve, I have promised to do it. If you talk to him, you’ll see that he cares. This is a tough one (people I trust really disagree on these candidates), and I approached this race with a very open mind. I have gone to events for both candidates, and I see a clear argument for both. In short, do your research, and I won’t argue with you on this one.

Criminal Court Judge (Division 5): Whenever a big criminal case is shown on the news, it tends to have Monte Watkins as the judge. And he always does a good job. He’s a good judge and a good person.

District Attorney: My first legal job was a summer clerkship at the Shelby County District Attorney General’s Office, and I learned, quickly, that it’s a hard job. Glenn Funk is doing a good job. I don’t do criminal defense, so my measure is how often do I–as a regular citizen–hear complaints about the DA’s office (like what happens in other cities). I just don’t hear about problems with Funk’s office. I trust him and his values.

Chancery Court Part III: There may be no court that I care more about than Chancery Court, Part III. “Chancellor Lyle is the best judge I’ve ever appeared in front of,” and this is her court. When she announced her retirement, I was curious about who would be brave and bold enough to fill those shoes. I am pleased that my friend and former colleague, I’Ashea Myles, is that person. Myles isn’t just running for office, she’s looking to make history as the state’s first ever African-American female chancellor. We need judges who have guts. She’s got my vote.

General Sessions Judge, Division III: Melissa Blackburn may be the hardest working Judge in Davison County. Civil Dockets. Criminal Dockets. The Mental Health Court. The Veterans Court. And, to be announced later today, a new project helping to move individuals ruled incompetent through the system in a way that gets them help–and maybe out of the system.

General Sessions Judge, Division VI: No matter what type of case, I’d trust Jim Todd to get it right.

General Sessions Judge, Division VII: The first 2022 election sign that I put in my yard was for Marcus Floyd. He’s a great, smart guy (and a Hillsboro High graduate), and he’ll be an asset to this city for decades to come.

General Sessions Judge, Division VIII: This is also a close one, with spirited and smart people on each side. In a close race, I tend to favor the incumbent, Rachel Bell. Some folks may complain about the start time of her dockets, but I’d point out what she’s done to help people in Davidson County avoid eviction during the pandemic with the L.E.G.A.C.Y. Housing Resource Diversionary Court and Program, which has helped thousands of tenants (and, yes, landlords–as of September 20, 2021: $18,799,705.71 had been paid to landlords), and also her long-standing expungement clinics.

General Sessions Judge, Division IX: I appreciate that, no matter the case, Judge Lynda Jones never treats any case (or litigant) as a “small” claims matter. She is focused on getting it right, including past efforts to create a business docket in General Sessions. She’s ambitious and works hard.

Circuit Court Clerk: The current clerk, Ricky Rooker, is one of the best in the state, partly because he’s been doing it for so long. Everything they do seems to take lawyers’ needs into account, and they had a smooth transition to a very effective e-filing system in 2020. Part of that success was due to Rooker having a very good deputy, Joseph Day, who is now running for Clerk. If it isn’t broke, don’t change it. I’m voting for Day.

If you were at the house party, you probably got a bit more color and background on some of these races.

You’ll notice that there are a handful of races I’m not commenting on. I haven’t voted yet, and I plan to keep on researching those. This list may evolve. I’m researching all of these until the day I cast my own; they are imporant races.

Finally, this list is biased by my own interactions, experiences, and past; please do your own research.

New Tennessee Court of Appeals Resolves Ten-Year Old Question about Post-Judgment Interest Rate

For nearly a decade, I’ve been writing about the Tennessee post-judgment interest statute, Tenn. Code Ann. § 47-14-121, which was amended in 2012 to change from the long-standing fixed rate of 10% to a variable rate that changes every 6 months.

I say “writing,” but others may say “complaining.” They’d probably cite this post: What I Don’t Like About the New Post-Judgment Interest Rate Statute In Tennessee (Everything).

My initial concern was one that many Tennessee lawyers shared: Because the interest rate is subject to change every six months, will the applicable rate on an existing judgment also change every six months?

Nobody knew. Not attorneys. Not court clerks. Not even the trial court judges.

In a very helpful comment to this 2020 post about the issue, Tennessee attorney Michelle Reynolds provided the best answer I’d seen (and one that I’ve since argued):

From the TNCourts.gov website: “Beginning July 1, 2012, any judgment entered will have the interest set at two percent below the formula rate published by the Tennessee Department of Financial Institutions as set in Public Chapter 1043. The rate does not fluctuate and remains in effect when judgment is entered.”

Of course, that’s not a case or a statute. It’s an “introductory paragraph on the Administrative Office of the Courts website.”

In an opinion issued last night, however, we have our answer!

In the case (Laura Coffey v. David L. Coffey, No. E2021-00433-COA-R3-CV (Tenn. Ct. App. Apr. 11, 2022), the Tennessee Court of Appeals notes this long-standing confusion and then immediately dispels it.

In its analysis, the Court notes that the rate to be applied under Tenn. Code Ann. § 47-14-121(a) is clear and unambiguous (it’s math), and it’s the entirely separate provision at Tenn. Code Ann. § 47-14-121(b) that introduces fluctuations in the general rate. Noting the clarity in (a), the Court finds that (b) does not create ambiguity as to existing judgments.

Under Tenn. Code Ann. § 47-14-121(a), the Court writes, the “applicable post-judgment interest rate does not fluctuate when applied to a particular judgment; instead, it remains the same for the entire period of time following entry of the judgment…until the judgment is paid.”

It’s always a great day when an unresolved issue gets clarity. Sometimes I make a joke that only “law nerds” will appreciate a legal development like this; for this one, though, I think all Tennessee lawyers will benefit from this opinion.

We are Supporting World Central Kitchen on March 10, and We hope you will too

As some of you saw in my post from last week, my little law firm will be donating all revenue generated on March 10, 2022 to support Ukraine and Ukrainian refugees.

The initial decision was based on the terrible early images from the War and, in the past week, things have only gotten worse, as the Russian attack has ravaged residential areas and evacuation routes. If families are able to make it to the border, it’s only after losing everything they owned, after hard travel in the cold, and after days with no food.

Seeing this, my family has decided to support the World Central Kitchen, which quickly mobilized along the border to provide hot meals and basic necessities to Ukrainian refugees crossing into Poland and, now, are set up at eight other border crossings and also in the large cities inside Ukraine.

You can get live updates (and inspiration about kindness and humanity) via their twitter account: @WCKitchen

I encourage you to join us by donating at World Central Kitchen’s donation page.

If you do donate, please feel to let me know in the replies or comments to this post.

Note: You don’t have to be a new or an existing client to participate. Everybody is welcome to give.

On Ukraine: Tweets are Cheap, but Billable Hours Aren’t

Before law school, I majored in English, not Political Science.

So, as I see the news about the war in Ukraine, I don’t understand the politics behind the invasion (probably because there’s no just reason for this), but I absolutely see the tragedy. The fathers saying goodbye to their families. The injured and scared kids. The destroyed houses.

Photo from: https://twitter.com/verkhovna_rada/status/1498613193794625544?s=20&t=kZwUp1cKqaDLgujkNGLTWQ

I also see the bravery of the Ukrainian leaders and in the Ukrainian people. I bet there’s a hot-shot Ukrainian lawyer out there whose “to-do” list today didn’t consist of legal research, but instead defending their city from armed forces.

What would I do if that happened to my family? To my country?

Other than a few sympathetic tweets offering the typical “thoughts and prayers,” what can I do to help? I’m just a lawyer in Nashville.

Oh right. My time is valuable. Let’s donate that.

Next Thursday, March 10, I’ll donate all of my billable hours from legal work to humanitarian efforts supporting Ukraine and Ukrainian refugees.

I’m a lawyer (see above), so I’m sure you all will expect some fine print.

Here goes:

  • I will donate all billable hours, but don’t forget that I’m a small shop (so don’t expect a 24 hour day–I also do the IT and bookkeeping)
  • I’ll show my math, though, and I will post both the final tally at the end of the day, as well as the receipt for the donation (to be made on March 11)
  • I haven’t yet decided on the organization, but I’m open to suggestions for worthy organizations (my children and I are going to vote) (Edited: We are supporting World Central Kitchen)
  • If you’re a new or existing client who would like me to work on your file specifically on March 10, let me know
  • If you’re a lawyer or law firm who wants to out-donate me, you are welcome (and encouraged) to steal this idea

That last point is important.

I have the privilege and the luxury to donate my entire day to this cause. Some big law firms may not want donate 100% of the day. But can you imagine if some of Nashville’s largest law firms donated just one hour of each lawyer’s billable hours on March 10 to this?

As an aside, I also hear the skepticism about the Western world’s support for Ukraine, when there’s been an absence of similar responses for black and brown people facing similar crises. I also don’t know the answer for that, but I agree.

So, assuming this isn’t a massive failure and doesn’t send me into bankruptcy, let’s plan to do this again next month, on April 13, to help Syrian refugees.

2021 in Review: New Lawsuits in Davidson Circuit and General Session Courts were also Down

Last week, I wrote about how Bankruptcy Court debtor filings were at an all-time low in the Middle District of Tennessee.

A few of you asked if there was a corresponding drop in Chancery, Circuit, and General Sessions filings. Maybe that’s why people weren’t running to file bankruptcy.

Given the numbers in Bankruptcy Court, it’d make sense that state court litigation might have also slowed down, but I was a bit surprised by the answer.

Davidson County Chancery Court lawsuits have been surprisingly consistent. The final Chancery lawsuit of 2021 was filed at 11:59AM on December 30. It was case number 21-1324-I, which means that it was the 1,324th case filed last year. It’s an unpaid commercial debt lawsuit.

For comparison, here are the last few years’ numbers on new case filings: 1,299 cases filed in 2020; 1,569 in 2019; 1,413 in 2018; and 1,386 in 2017.

In short, there was no real drop in chancery court litigation, which surprised me. 2021 felt like a slow litigation year for Nashville.

Of the ten stories featured in the Nashville Post’s 2021 “Top Reads: Legal” article, six of them were just about law firm personnel moves not, you know, actual news-worthy litigation.

In general, you’d expect to see the business-minded Chancery Court have cases on this list, but, frankly, it’s a bit boring (no offense, toilet fire lawsuit).

What about General Sessions Cases? This is where it gets more interesting.

As of the end of November, there were 6,551 detainer / eviction warrants filed in 2021, along with 15,404 small claims lawsuits filed. For that same period (end of November) in 2019, there were 10,694 eviction lawsuits and 24,508 small claims lawsuits filed. Long story short, that’s about a 40% drop in filings.

Circuit Court? By the end of November, there had been 1,736 new civil lawsuits filed in 2021. At the end of November 2019, there had been 2,590 civil lawsuits filed, representing a 33% drop.

I’m not entirely sure what to make of this data. A 40% drop in evictions and credit card/debt collection cases would certainly be expected to result in a slower pace of new bankruptcy filings, but, nevertheless, this also shows that the common perception that “courts are closed” and “evictions aren’t happening” is incorrect.

Some credit has to be given to the LEGACY Housing Resource Diversionary Court run by Davidson County Judge Rachel Bell. This program can’t stop the new eviction filings, but it has helped many pending cases get resolved. As of September 20, 2021, $18,799,705.71 had been paid to landlords via this program and, most likely, kept those tenants out of the bankruptcy lawyers’ offices.

In the end, my take is that Middle Tennessee bankruptcy filing numbers are far more impacted by lawsuits filed in Davidson County General Sessions Courts than by the business-litigation dockets in Chancery Court. These numbers offer some part of an explanation.

The Future of Law Office Space? You Can Keep your 5 Year Lease, I’ll be at WeWork

I really love my office space, but I don’t talk about it much.

I have space in a brand new building, right off Music Row. The office has every modern amenity you can dream of. Free wireless internet and utilities. 10 conference rooms, all set up for hi-tech video and audio. A variety of free coffee and drinks, in a modern and luxuriously decorated common area. Three full time staff to welcome guests, handle packages, and greet me in the morning. An outdoor patio that overlooks midtown Nashville. A few times a week, the landlord throws a party with free drinks, cookies, and networking with the other tenants.

When I was recognized as an Attorney for Justice last month by the Supreme Court, guess who was the first to congratulate me? (Spoiler-Alert: My landlords).

So, why don’t I talk about it much?

My office is in the Midtown Nashville WeWork, and, for a long time, I was worried that Big Fancy Lawyers did not have offices at flexible office spaces.

Why’d I think that?

In general, The Law is a profession governed by tradition and slow to embrace innovation.

Ask most managing partners, and you’ll find a distinct preference toward the “Ways Things Have Always Been Done.” With that mindset, then, the typical law firm office features fancy marble foyers, libraries with leather bound books, and spacious corner offices where the partners can enjoy a whiskey drink at 9pm (when all the associates are starting to leave for the day).

I’m exaggerating a bit, but it remains a world where a lawyer’s self-worth is often defined by the comparative size of his or her office.

This summer, at our neighborhood swimming pool, I was talking to a Big Law Firm lawyer, who was a little bitter about a large group of lawyers leaving her law firm to start the local branch of a Giant Law Firm.

You know what her most damning insult about the new venture was? “I heard their offices are in a flex-office co-working space.”

The suggestion being, of course, that, unless you have way too much space in a way too expensive building on a way too long lease, well, what’s the point?

For decades, law firms have focused on opulent physical spaces to suggest, indirectly, success and prestige, which they hope will result in more work from clients.

Hopefully, the newer generation of lawyers (and cost-conscious clients) will see all this for what it is and realize that the best way to impress clients is high-value, efficient billing and timely, good work.

Maybe COVID-19 and the success of working-from-home will be a watershed moment for the profession, with so many lawyers abandoning skyscrapers for our guest bedrooms. We won’t stay at home forever, of course, but will it be so easy to return to the Old Way, now that we’ve seen that billable hours aren’t necessarily worth more from the 26th Floor?

I’m not holding out hope. A few months ago, the Nashville Bar Association presented a “Future of Commercial Real Estate” seminar, which was held at a Big Law Firm’s brand new office spaces, in the most expensive building in town.

Maybe old habits are hard to break.

For me, when I left my Old Big Law Firm, I talked to my commercial broker clients about finding office space, and the conversations were always about 5 or 7 year leases, for a new venture that I had no idea where it would take me (and, boy-oh-boy, has it ever taken me a bunch of places).

I needed something flexible and that would facilitate my work, but that wouldn’t force me to work more just to pay my monthly rent.

My office set-up has been perfect for me. It’s a gorgeous space, with every amenity I need, and I have the ability to grow or to shut it all down, without navigating the intricacies of a 7 year lease.

Also, I’m neighbors with Amazon, ML Rose, Bethel College, and dozens of tech companies whose names I can’t pronounce.

I can’t say enough positive things about my space. I’d say more, but, as I’ve been typing this, I got Katie’s email about the Christmas gift wrapping/hot cocoa party…

Nashville Bar Association’s Second Trial Court Opinion Is Live: Full Case Copies Found Here

For the past 6 months, I’ve served as an editor for the Nashville Bar Association’s Notable Trial Court Opinion newsletter.

The purpose of this publication is to find interesting, novel, and useful opinions from the District Courts in the Middle District of Tennessee and from the trial courts in Davidson County, Tennessee. Specifically, my job is to review and write about the opinions from the Davidson County Circuit Court and Chancery Court Judges.

Sure, we all know that the Tennessee Supreme Court and the Tennessee Court of Appeals are the standard bearers in defining “what the law is” in Tennessee.

But, having said that, the trial courts are the first (and sometimes only) place that weird and first-impression issues in Tennessee law are examined, and seeing specific instances of how the trial courts are interpreting statutes and case precedent is critical for Tennessee litigators.

Most court rulings never get appealed, and, without a project like this, Middle Tennessee lawyers miss out on most of the good decisions that are relevant to their practices. The goal of this project is to find those opinions and share them with members of the bar.

We’re on the second edition, and a number of you have asked to see actual copies of a few of the underlying opinions.

The first case is Nissan North America, Inc. v. West Covina Nissan, LLC, et. al., Davidson County Chancery Court Case No. 16-883-BC. Memorandum and Order Excusing [Witness] from In-Person Attendance at Trial entered July 1, 2021. This case is notable because it provides a useful blueprint of the factors that a Tennessee court will consider when faced with a request to allow remote testimony under Tenn. R. Civ. P. Rule 43.01.

Another case that was featured is Robert L. Baker, et. al. v. Brett Eldredge, et. al., Davidson County Chancery Court Case No. 20-445-III. Memorandum and Final Order Granting Defendants’ Motion for Summary Judgment; Denying Plaintiff’s Motion for Summary Judgment; and Dismissing Case with Prejudice entered on December 23, 2020. A number of you have asked for a copy of this case, which is a cautionary tale about how one party can modify an at-will contract by unilateral performance, where the other party fails to object to the non-conforming performance.

As you can see from the September 2021 edition, these are just a small sample of the cases we discuss, but these are the two cases that I’ve had a number of requests to post.

And, as always, if you see a trial court decision that’s really good, please send it my way.

Can the failure to respond to Admissions be fixed? New Court of Appeals opinion says “Maybe.”

As a young lawyer, one of the worst tasks I was ever given was to cover a hearing on a motion to deem admissions admitted, where the other lawyer appeared to have simply overlooked the deadline to respond.

Requests for admission are, basically, what they sound like. One party in a lawsuit sends another party a written demand that they admit or deny a specific thing–generally a fact or that a document is authentic. Under Rule 36.01 of the Tennessee Rules of Procedure, if the other party doesn’t respond in 30 days, the fact is conclusively admitted for purposes of the lawsuit.

And, yes, a lawyer receiving these requests and ruin a client’s case if she is not good at calendaring or paperwork.

And many lawyers are not.

So, 20 years ago, as a brand new associate, I was sent down to Williamson County Chancery Court to argue a motion like this where the other lawyer–apparently–simply forgot to respond and, as a result, his client’s fate was at the mercy of a paperwork oversight.

And he was not happy to be arguing his side of the case.

For my side, it wasn’t a particularly hard argument. You tell the Judge the date of the Requests, add 30 days, tell the Judge that there was no response by that date, and cite Rule 36.01.

What made it hard is that the lawyer on the other side was a well-known, respected lawyer, and, generally, as a matter of courtesy, lawyers don’t play “gotcha” with each other on paperwork issues like this. And, even to me–a brand-new lawyer–it was a tough request.

Ultimately, Judge Easter stared at Rule 36.01 for a long time and decided to not hold the other lawyer to 30 days. He gave him more time. I was–frankly–happy to lose that day.

I was reminded of all that when I read the Court of Appeals opinion from yesterday, in Masterfit Medical Supply v. Samuel Bada, No. W2020-01709-COA-R3-CV (Tenn. Ct. Apps., Sept. 23, 2021). In that case, a party lost at the trial court level based on his failure to respond to admissions on unpaid invoices.

A critical component of the Court’s opinion, however, was that the complaining party never filed a motion under Rule 36.02 to have the admission withdrawn or amended.

Under Tenn. R. Civ. P. 36.02, “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.”

Courts favor deciding cases on the merits and that’s why Rule 36.02 makes sense. As a matter of equity, all kinds of other sworn statements can be clarified, amended, and modified, so why should un-answered admissions be unassailable, where no particular prejudice results?

That day in Williamson County, the other lawyer didn’t argue this rule, but, based on Judge Easter’s clear desire to consider the merits (and not a technicality), it’s clear that the Judge would have welcomed such a request.