Appellate Toolbox 2: Letter of Supplemental Authority

“Good reasons must, of force, give place to better.”

-      Julius Caesar IV, 3;

Brutus overrules Cassius in planning a battle

      Another useful tool for appellate practitioners is the Letter of Supplemental Authority under Tenn.R.App.P. 27(d). The rule provides that if pertinent and significant authorities come to your attention after your brief has been filed or after oral argument, but before the court’s decision, you may bring them to the court’s attention in a letter addressed to the clerk of the court. 

          The letter should cite the authority and, without additional argument, refer to the page in the brief or the point in the oral argument on which the authority is relevant. You must send a copy of the Letter to all other parties. The other parties may make a similar limited response.  Tenn.R.App.P. 27(d).

          Obviously, when there is new authority that emerges after your brief is filed or after oral argument, but before the appellate court has ruled, you should bring it to the Court’s attention by filing a Letter. 

          The rule is not limited just to newly issued authority. It also applies to authority that has newly come to your attention.  Many times while an appeal is pending, I have been doing research in other cases and have discovered authority that I wish we had cited in our argument.  It is a judgment call, but sometimes I have felt like it was important enough to bring to the Court’s attention such pre-existing authority that was new to me by filing a Letter of Supplemental Authority.