“Waive” Goodbye to Your Issues?

“Assume a virtue if you have it not.”

     -      Hamlet, III,4; Hamlet to his mother

          Last week, Jacob Vanzin and I had the pleasure of conducting a CLE webinar for the Tennessee Bar Association. We discussed recent developments on the issue of waiver in Tennessee appellate courts. We discussed three Tennessee Supreme Court cases that have, of late, clarified the rules regarding waiver and preservation of issues in appellate briefs.

          1.   In Trezevant v. Trezevant, 696 S.W.3d 527 (Tenn. 2024), the Court held that appellate courts should not disregard                   an appellant’s clearly presented arguments that fall within the scope of the stated issues simply because the                          issue statements were not sufficiently precise.

          2.   In Charles v. McQueen, 693 S.W.3d 262 (Tenn. 2024), the Court ruled that a well-presented, soundly-reasoned,                        and thoroughly-supported-by-citation-to-legal-authority request for attorney’s fees in an appellee’s brief                                preserved the request on appeal.

          3.   In DiNovo v. Binkley, 706 S.W.3d 334 (Tenn. 2025), the Court concluded that meritorious argument can overcome                   technical deficiency when it comes to repetition of record citations in a brief.

         So, does this mean that when it comes to the Statement of the Issues in your briefs, you can breathe a sigh of relief?  Unfortunately, no!

       While the Supreme Court rightly emphasized the value of substance over form in our system of law, I would still recommend doing more than just meeting the minimal requirements. We have always preached that it is better to have stated an issue and not need it, than to need an issue and not have it stated. Waiver rules can equal grief through omission for you and your clients, as well as sleepless nights for the lawyer.

         There is a pragmatic argument for not getting too sub-categorical in your Statement of the Issues. Rarely does a judge yearn for more words to sift through in a brief. Skillful brevity saves your clients money and the readers and writers of briefs energy.

  Nonetheless, we contend that you should vociferously preserve your issues. Otherwise, you may unexpectedly wave goodbye to them on appeal.