Dan Michael, Judge (Service Ended August 31, 2022)

Biography

Reports of Cases Reviewed by Appellate Courts – Beginning Jan. 1, 2022

Text is the appellate court’s summary of the opinion.

Scroll down for important information.

 

In Re McKayla H., No. W2020-01528-COA-R3-JV (Tenn. Ct. App. Apr. 6, 2023).  In this custody case, Father appeals the trial court’s order allowing Mother to relocate, from Tennessee to Virginia, with the parties’ daughter. Father also appeals the trial court’s order charging him with costs of the child’s airline travel expenses and the guardian ad litem’s attorney’s fees. Discerning no reversible error, we affirm. Mother and the guardian ad litem’s respective requests for appellate attorneys’ fees are granted.

 

In Re Samone, No. W2021-01225-COA-R3-PT (Tenn. Ct. App. Feb. 14, 2023).  This appeal arises from the termination of a father’s parental rights to his minor children upon the juvenile court’s finding by clear and convincing evidence of the statutory grounds of abandonment by failure to provide a suitable home, abandonment by failure to visit, substantial noncompliance with the permanency plan, persistent conditions, putative father grounds, and failure to manifest an ability and willingness to assume custody of and financial responsibility for the children. The juvenile court further found by clear and convincing evidence that termination of the father’s parental rights was in the children’s best interest. We reverse the statutory grounds of abandonment by failure to provide a suitable home and persistent conditions. We also reverse the ground of abandonment by failure to visit and the putative father ground of failure to seek reasonable visitation as they pertain to the child, Samyra. We affirm the remaining grounds for the termination of the father’s parental rights, as well as the juvenile court’s determination that termination of the father’s parental rights is in the children’s best interest.

 

In Re Aiden W.L., No. W2021-01187-COA-R3-PT (Tenn. Ct. App. Dec. 15, 2022). In this custody case, Appellant/Mother asserts that the trial court erred in its best interest analysis by failing to consider the preference of the minor child under Tennessee Code Annotated section 36-6-106(a)(13). As such, she contends that the trial court erred in designating Father/Appellee the primary residential parent. Discerning no error, we affirm.

 

In Re Jah’lila, No. W2021-01199-COA-R3-PT (Tenn. Ct. App. Sept. 21, 2022).  This is a termination of parental rights case. The trial court terminated Mother’s parental rights to her three children on the grounds of: 1) abandonment for failure to support under Tennessee Code Annotated section 36-1-113-(g)(1); 2) failure to comply with the permanency plan under section 36-1-113(g)(2); 3) persistence of the conditions that led to removal of the children under section 36-1-13(g)(3); and failure to manifest an ability and willingness to assume custody under section 36-1-113(g)(14). Mother’s parental rights to her youngest child were terminated on the additional ground of severe child abuse under section 36-1-113(g)(4). After determining that Father had failed to legitimate his children, the trial court terminated Father’s parental rights pursuant to section 36-1-113(g)(9)(A) for failure to support; failure to visit; failure to manifest an ability and willingness to assume custody; and a danger of risk of substantial harm. The trial court also determined that termination of Mother’s and Father’s parental rights is in the best interests of the children. Discerning no error, we affirm.

 

Understanding the Limitations and Use of the Information Found in This Book

Tennessee’s trial judges resolve hundreds of thousands of legal and factual issues in tens of thousands of cases every single year.  No appeal is filed in the vast percentage of those cases, indicating that while the “losing” party may not like a ruling on a particular issue, that party understands there was an appropriate reason for the judge’s decision or, at a minimum, the judge was acting within his or her discretion.

 

Of course, a small number of decisions of trial judges do result in an appeal. Experienced trial lawyers know that the number of cases appealed out of a particular trial judge’s court does not, in and of itself, reveal much about the trial judge. For example, some judges hear more complex cases than others, and those cases are more likely to be appealed. Convictions in child sex abuse cases are frequently appealed, as are many criminal cases resulting in long sentences. There are a large number of parental rights termination cases that find their way to the appellate courts.  Judges who routinely try those types of cases will, other things being equal, see more of their cases reviewed by appellate courts than judges who do not see such cases.

 

Second, certain litigants (and certain lawyers) are more likely to appeal a case than others.  Thus, judges who have those litigants or lawyers regularly appear in their courtrooms will find more cases reviewed by the appellate courts.

 

For these and other reasons, the reader is cautioned not to read too much into the number of cases appealed from a court.  Stated differently, there is no reason to believe that a judge who has ten cases reviewed by an appellate court in a single year is a “worse” judge than one who has one case appealed, or that a judge who has three cases appealed is a “better” judge than one who has nine cases appealed.

 

Next, the number of times a judge’s ruling is reversed by an appellate court is not necessarily indicative of the quality of his or her work. For example, experienced lawyers know that there are “holes in the law,” i.e., cases where there is no law directly on point and the judge is forced to predict what an appellate court would rule on the issue. The fact that a judge decided an open legal issue one way and an appellate court decided it another way does not mean that the trial judge was “wrong” or does not understand the law. It simply means that the trial judge had a different view of what the law should be than the appellate court that decided the issue. A trial judge is not blessed with a crystal ball that can with 100 percent accuracy forecast how an appellate court will rule on an undecided legal issue.

 

In addition, the trial court is sometimes not provided with the same in-depth legal arguments and law that is supplied to the appellate court by the parties, or which is provided by law clerks at the appellate level (many trial courts do not have law clerks). The trial judge may have reached the same conclusion as the appellate court if he or she had been supplied with additional law or argument.

 

Finally, the law changes constantly, and the trial judge may rule on a case based on today’s law, which may evolve between the time of that ruling and the issuance of an opinion of the appellate court. In such cases, the reversal of the case by the appellate court is a question of timing of the original court decision as compared to changes in the law, not one of error by the trial court.

 

So, what is the value of this book?  How can the trial lawyer use it to help his or her clients given the limitations expressed above? Permit me to digress slightly.

 

You have seen the coffee cups or t-shirts that proclaim, “A good lawyer knows the law, but a great lawyer knows the judge.”

 

Some read this phrase as suggesting that the “great lawyer” is one who has an improper relationship with the judge – that he or she can use a personal relationship to improperly influence the judge.  But most lawyers know better.  Most lawyers understand that “knowing the judge” means knowing the judge’s background, preferences concerning the presentation of evidence (including exhibits), arguments of motions, drafting of proposed orders, and given that experience, how he or she is likely to rule on a particular issue.  “Knowing the judge” also means knowing the local rules, local forms, local customs, and what things irritate the judge (and every judge is irritated by at least one thing that lawyers or litigants may do).

 

Many lawyers, particularly those in more rural areas of the state or who limit their practice to one area of law, understand the personality and preferences of the judges they see on a regular basis. Many of these lawyers may have a fair advantage appearing before that judge. (The advantage is “fair” because it results from experience and knowledge.)  That advantage – knowing how the judge thinks and his or her preferences – is not outcome-determinative, but it still may be an advantage, similar to a sports team playing on their home field.

 

Why did I say it “may” be an advantage, given what I said earlier about the benefits of “knowing the judge?”  Because simply knowing the judge’s thought processes and preferences is not enough. You still need to have the law and the facts on your client’s side.  And you need to be prepared to be able to give the judge what he or she needs to know to make a ruling.

 

So, the purpose of “The Book” is to give Tennessee lawyers case-related information to help them understand the trial judge who will rule on their client’s case or preside over a jury trial. By looking at past appellate court rulings arising from cases decided by the trial judge, anyone unfamiliar with a judge can get a “feel” for the judge. The case data contained herein does not compare with daily or weekly appearances in front of the judge on issues like a given case, but it is readily available information that give you an idea of how the judge has ruled in the past on a variety of matters.

 

The cases included are those originally decided by the trial judge that were in appellate court opinions released on or after January 1, 2022.  Note that there are a substantial number of judges who first took office in 2022 and thus it is reasonable to assume that there will be no appellate decisions for such judges until late 2023 or 2024.

 

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