Affirmative Litigation Toolkit - Practice Guide
Practice GUide
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The Initial Questions
What is your timeline for investigation?
When do you want to sign the retainer agreement?
Do you need to make a FOIA request?
Who is the property’s current owner and who previously owned it?
Who manages the property?
Do those names match the owner and/or manager on your clients’ lease?
Are those entities registered with the TN Secretary of State’s Office?
Does the property have Code violations?
Are you focusing on 1 property/1 landlord/1 termination or is there scalability?
Externally, what can your community partners do and internally, what are your client advocates or tenant organizers’ roles?
The “Right” Case for Affirmative Housing Cases
We purposely placed the word “right” in quotations marks, because that terminology becomes tricky in the context of public interest/legal aid client populations. The term for us does not mean a right and a wrong plaintiff or case exist. We use it in our evaluation of potential matters for affirmative litigation the same way a restaurant manager might ask a bartender about potential new hire: would you want to stand next to this person for eight hours?
Affirmative housing litigation cases present a different set of calculus. The General Sessions detainer warrant clock is not ticking. The harm has already happened. We might meet the client(s) during the crisis, but this case unfolds after that timeline.
Your organization will dedicate significant time and resources to this case. You will be with these clients for many hours for up to and sometimes more than a year. And, importantly, you have the burden of proof. These are witnesses you will have to put on the stand, clients whose evidence you will need to collect and present in discovery.
For us, an affirmative case must have a legal route forward, including an opportunity to recover fees and costs. We must have the capacity to take it. And, we must want to spend eight hours standing next to the client(s).
Where we find clients…
Eviction defense —> We often keep working with clients who have substantial counter claims or larger issues beyond the detainer warrant, though we have traditionally waited to bring the AffLit case until after the clients moved out.
Coalition partners —> We can serve as a gap-filling organization in our Eviction Right to Counsel Coalition, because we don’t receive LSC funding.
Community partnerships —> We work to maintain strong relationships with City Council members, advocacy groups, and individual advocates. When there’s a major habitability incident at a complex or a reporter starts looking at interesting data, we can take that call. The initial approach is always about in-the-moment help and education.
The client conversation…
We make a point to meet potential AffLit clients in-person. If we’ve never met them, this typically happens for the initial interview. If we’ve worked with them in the eviction setting, we shift to talking through the AffLit case logistics and any factual information we didn’t explore in the DW case.
We typically review and sign the AffLit retainer in a second meeting if the client is brand new or in this meeting if the client comes from the Eviction Defense team. Ours includes cost-sharing language if we don’t secure a fee waiver and a contingency fee provision if the case settles.
In this conversation, we assess both client goals and buy-in, and we’re frank about the case’s long timeline and our expectations for client cooperation and communication.
Bottom line: you will put a lot of skin in the game for an AffLit case, and you want to make sure your client will, too.
Check out our AffLit retainer on the Templates page.
Just as important as having a solid rapport with our clients is developing a solid familiarity with the property...
Understanding the Buildings
The investigation stage of a case should be fun. We see it as a chance to be nosey in the best way, run down the rabbit holes, and learn more about a new to us kind of federal housing subsidy or business registrations in Tennessee or whatever we find along the way. We do also set a time limit, so that we don’t rabbit hole too hard.
The Federal Touch Angle
For every property, we look for how the property may be covered by federal housing law. We check the National Housing Preservation Database for the list of known layered subsidies, the HUD property and subsidy IDs, the number of units, the owner and manager names, and the subsidy start and end date.
The client’s lease, of course, can ID the applicable subsidy. We search for LITCH amendments and indications that the property has been RADed or is a project-based voucher situation. We also have seen plenty of model leases where the individual subsidy is unclear, but the bottom right-hand corner of each page shows a HUD form number. Likely, that’s a multifamily property and a Google query will either tell you which one or send you to the correct HUD handbook.
Final stop is over at the Davidson County Register of Deeds online portal. We like having a full history of the property's records, and if we remain unsuccessful in determining the subsidy type, often a covenant will indicate a federal touch.
For more federal housing information, we are big subscribers of the Green Book from the National Housing Law Project and their very active listserv.
Ownership Details
We visit our County Assessor’s online property search to save the printable property card and crosscheck the owner’s name with what’s listed on the Preservation Database and the client’s lease. Our Assessor’s website links to Nashville’s tax records search. We use the owner’s name to pull those records.
When a business entity owns the property, our next stop is the Secretary of State’s website for a business entity search. We’re verifying not just the registered agent information, but also the entity’s registration status and its history of any changes to its name, principal office location, registered agent. Is its registration active or was it revoked some time ago? Did the business have another name when it formed? Do you recognize any of its former agents?
We also mine the Secretary of State’s website for an entity’s full filing record, but that’s typically not until we reach the complaint-writing stage and are determining what parties to sue. Check out the Strategy chapter for more information.
Extras
We also check for current and past building codes violations
We’ve learned that a FOIA request is necessary to get a Housing Assistance Payment contract.
We’ve also found that we need a FOIA request for tax related information.
Speaking of FOIA requests...
Freedom of Information Act Request State and Federal Processes
Federal Process
FOIA.gov serves as the to-go for federal requests under the Freedom of Information Act. See 5 U.S.C. § 552.
Keep in mind, you will still submit your request to the individual agency according to its instructions, but this central website organizes the different access points and provides helpful general process guidelines and information.
Good to Know
The basics of the FOIA request…
The government wants it in writing.
The request should include an as-detailed-as-possible description of 1) the information you want and 2) the format in which you want it.
In response to your request, agencies are not required to 1) do research (beyond the actual searching for your requested information), 2) analysis data, 3) answer written questions, or 4) create records.
As to timing…
Once an agency gets your request, expect a letter 1) confirming receipt and 2) assigning the request a tracking number.
Under the statute, agencies have at least a month to respond.
The FOIA website cautions that response times vary by the complexity of your request and the individual agency’s backlog.
Should the agency need more than the statutory period, it must notify you in writing and provide you with the opportunity to modify or limit your request’s scope OR agree to a different timeline.
Agencies must expedite a request when either:
“The lack of expedited treatment could reasonable be expected to pose a threat to someone’s life or physical safety” and
“There is an urgency to inform the public about an actual or alleged Federal Government activity, if [the request is] made by a person who is primarily engaged in disseminating information”
+ individual agencies can set their own reasons to expedite a request
As to costs…
The initial no-charge threshold is two hours of search time and 100 pages of copies.
After that, an agency can charge you for time and copies.
You can include in your request a cap on the fees you are willing to pay.
You can also request a fee waiver, but it will only apply where you can demonstrate that the disclosure benefits the public interest in that it is likely to contribute significantly to the public understanding of the operations and activities of the government.
As to requests about our clients…
If you’re looking for information about someone other than yourself, plan to submit authorization permitting disclosure to you.
Step 1: Search for the information on the individual agency’s website or try the FOIA.gov main hub search. The website also has a few research tools to help sift through already available and how to identify the specific agency to ask directly, and links to other government resource websites.
If you come up short, you can check out the FAQs or go straight to making your request…
Step 2: Click the “Create a request” link from the website’s row of options.
Choose the appropriate agency either by keying the name into the search bar or clicking it from the non-alphabetized list.
That click will take you to a landing page that reads like the FOIA.gov’s profile of that individual agency. It lists the different offices, divisions, and bureaus in that department, each of which have their own profile page, and importantly, the landing page includes a link to that agency’s FOIA Reference Guide.
That click will take you directly to the department’s step-by-step guide.
State Process
Tennessee does not have a central clearing house like FOIA.gov. Some agencies have more streamlined systems. For example, the Tennessee Department of Human Resources offers a straightforward online form.
For those agencies without a standard procedure, the National Freedom of Information Coalition offers an excellent template form.
Good to Know
The basics…
Like the federal statute, Tennessee law dictates that requests be detailed enough so that the responding agency can identify the responsive records.
The law does not require the government to create a new, complied record or create a record that never existed.
Though technically, the statute provides that you could make a records request by telephone, government entities can require written requests.
Expect to submit proof of Tennessee identification.
As to timing...
Tennessee’s turnaround time is shorter. The agency has seven days to provide the record, a written denial complete with a reason for refusal, or a written alternative timetable for providing the record.
As to cost...
In a fun twist, inspection of the records is free, but making copies will cost you.
An agency can charge reasonable costs for copies. Currently, the Tennessee Office of Open Records Counsel has established the reasonable cost to be 15 cents for each black and white 8 and a half by 11 or 8 and a half by 14 sheet and 50 cents for each color copy in the same dimensions—unless the agency’s actual copying costs are more.
An agency can also charge for labor: the hourly wage for each employee needed to satisfy the request AFTER the agency’s custodian has spent an hour gathering the record material.
**Before the agency can charge you, it must provide an estimate.
Two laws govern Tennessee’s public records process.
Open Meeting Law Tenn. Code Ann. § 8-44-101 and 104: Policy; construction + Meeting minutes; recording, public inspection, and inclusions; no secret votes
101: the state’s stance is the “formation of public policy and decisions is public business and shall not be conducted in secret”
104: minutes of any governmental body must be promptly and completely recorded meaning who was there, what motions/proposals/resolutions were considered, the tally of any vote taken, and if vote was by roll call, the record of each person’s vote
Public has the right to inspect that record
All votes of any such governmental body are public either by ballot or roll call
Open Records Act Tenn. Code Ann. § 10-7-503 Inspection by citizens; confidentiality; availability; destruction of records
(a)(1)(A) defines public records and state records as “all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental entity”
The definition explicitly excludes devices and equipment, including computers and cell phones.
There are no-show, no-pay penalties: if you make two or more requests in a six-month period and you don’t view either of the records within 15 days of being notified that it’s ready, the agency can ignore you for a six-month period + if you requests copies but don’t pay for them, the agency can ignore all requests until you settle your bill. (a)(7)(A)(vii).
If you are requesting law enforcement personnel records, look to (c)(1).
Per (g)(1), each county and municipal government must have its own public records policy that cannot be more burdensome than state law.
Wondering if you’ll ever understand the complicated web that is federal housing? Stay tuned for our HUD Crash Course coming to the Toolkit this Fall.
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The Initial Questions
Do you want to use a Demand Letter before filing? If so, see an example on the Templates Page.
In what court are you filing?
Who are you naming in the complaint?
Are you prepared to file a TRO or preliminary injunction soon after filing the complaint?
Do you want to involve municipal enforcement via the codes department?
Are there businesses entity related statutory violations you can bring into the complaint?
Who to Sue
Generally, when choosing defendants, we name property owners, property managers, parties named in the lease, and any agent of the landlord whose conduct or omission(s) impacted our clients. In consumer protection cases, that might include parent companies or subsidiaries associated with ownership or management in some way. In habitability cases, that might include previous owners whose neglect of the building(s) created the problems now affecting the renters.
Our defendants tend to be entities, rather than private individuals, which means our affirmative litigation case calls back to that Business Association class from 3L. The following information is a broad strokes rundown of oddities in Tennessee associations laws, a key for where to find applicable statutes, and a note about business code related violations on which we’ve based TCPA claims.
Partnerships
Under the Tennessee Revised Uniform Partnership Act, the statement of authority document does not have to list the names and address of the partners.
Where a partnership isn’t bankrupt and there isn’t an enforceable agreement permitting satisfaction, three situations allow a judgment creditor to access an individual partner’s assets:
The partner is personally liable
The partnership has paid out judgment for the same claim
A writ of execution for the judgment comes back completely unsatisfied or only satisfied in part
Tennessee does not impose franchise or excise taxes on non-limited liability partnerships.
Limited Partnerships
Two separate but current acts govern limited partnerships.
The New LP Act covers partnerships formed on or after January 1, 2018.
The Old LP Act covers partnerships formed prior to that date unless the partnership opts into the New LP Act.
For limited liability limited partnerships, a general partner violates his duty of care when acting with gross negligence.
Regarding third-party liability, limited partners—as opposed to general partners—in any of the limited partnerships will not be held liable to third parties in situations where apparent authority would normally impose liability.
LLCs
Here, too, two separate but current acts govern limited liability companies.
The New LLC Act covers entities formed on or after January 1, 2006.
The Old LLC Act covers entities formed prior to that date unless the entity opts into the New LLC Act.
LLCs in Tennessee use an “Article of Organization” as their formation document, rather than a “Certificate of Formation,” the traditional document in other states.
Under the New LLC Act, entities can form a series limited liability company by which assets are separated in a kind of parent-subsidiary structure. Each series will have its own set of members and managers, and the sets of assets are protected from each other’s liabilities.
The New LLC Act establishes three options for structuring this kind of entity: member-managed, manager-managed, and director-managed. These different arrangements have implications for the duty of care and who is an agent of the entity.
In a member or manager-managed LLC, the duty of care for a member or manager’s conduct must not be grossly negligent or reckless or an intentional or knowing violation of the law.
For the issue of agency…
In a member-managed LLC, a member is an agent when acting in the ordinary course of the LLC’s business.
Under the New LLC Act, in a manager-managed, a manager is an agent when acting in the ordinary course of business unless she lacks the authority to act.
Under the New LLC Act, in a director-manager LLC, a director and member aren’t agents simply because they hold those roles. If the LLC has a president, that person is an agent of the LLC.
Corporations
The rules are straightforward here—none of the small variations from the Model Business Corporation Act seem to obviously impact the way housing litigation would engage with this kind of entity.
Statute Key
Revised Uniform Partnership Act at Tenn. Code Ann. §§ 61-1-101 to 61-1-1208
Revised Uniform Limited Partnership Acts
Old Act at Tenn. Code Ann. §§ 61-2-101 to 61-2-1209
New Act at Tenn. Code Ann. §§ 61-3-101 to 61-3-1207
Limited Liability Company Act
Old Act at Tenn. Code Ann. §§ 48-201-101 to 48-248-606
New Act at Tenn. Code Ann. §§ 48-249-101 to 48-249-1133
Business Corporation Act at Tenn. Code Ann. §§ 48-11-101 to 48-27-103
For foreign entities…
For-profit Corporations —> Tenn. Code Ann. §§ 48-25-100 to 48-25-305
Non-profit Corporations —> Tenn. Code Ann. §§ 48-65-101 to 48-65-305
LLCs —> Tenn. Code Ann. §§ 48-246-102 to 48-246-602
To do business in Tennessee, foreign entities receive a certificate of authority (COA) for the Secretary of State’s Office. It’s part of their initial filings. If at any point for whatever reason the entity’s registration is revoked, that COA is also revoked. Crucially, if that entity is a landlord, it cannot initiate an action in any state court without a current COA. It can defend itself, but it can’t file as a plaintiff.
We brought a TCPA claim based on a violation of this requirement, in addition to other URLTA claims, where the landlord filed an eviction against our clients in 2026 despite not having had a current COA since 2021.
Who’s Who within the Entity
We order copies of the business filing with the Secretary of State’s Office to determine several things, including the names of the individuals behind the entities and the reason(s) behind a revoked registration. You can do that online and get the full slate of filings for $20.
Step 1: From the Business page on the Secretary of State’s website, click on the “Order Copies & Certificates.”
Step 2: From the next page, click the link in blue “online” option.
Step 3: Create an account or log in
Step 4: From your home page, on the left side, under “Start a new Filing,” choose Business Filing (it’s counter intuitive, but it is the correct one)
Step 5: Scroll down and click the “Order Certificated & Certified Copies” option on the right
Step 6: Click into the Search Business box and when the second screen pops up, search the business entity using its unique Control Number (find that on the business details page when you do the initial business search)
Step 7: When the entity appears, click the box by the Control Number, click “Add Items, and then click “Next” when the screen returns to the main frame and the business name has populated in the search bar.
Step 8: The following screen shows all the options you can order. We’ve found that if you choose “All documents,” you get everything the Secretary of State’s Office has on file for that business for $20 (rather than $20 for each individual document).
Step 9: Follow the prompts to pay and wait for the email accounting your documents are ready to view.
Playing by the rules that work best for your case...
Federal Court v. TN State Court Rules of Civil Procedure
The choice between federal and state court might be an easy one: the claims simply dictate where we file the case. If you have a complaint premised on both federal and state law, though, a comparison between the two proves helpful.
Quick note: By and large, we avoid General Sessions for affirmative litigation based on our experience bringing a few security deposit cases there. The lack of civil procedure, including formal discovery, loose adherence to rules of evidence, and the unpredictable schedules’ impact on our clients’ time all influenced our decision. It’s not a hard and fast rule—we’ve made the exception here and there for very straightforward cases where the client is interested in a quicker timeline—but for more complex facts and claims, you’ll find us in Circuit or Federal court.
Also, for quick reference:
The Tennessee Rules of Civil Procedure are here.
The Federal Rules of Civil Procedure are here.
Pleading
In Tennessee…to make a defense of comparative fault in an answer, a defendant must identify comparative tortfeasors with name or description and plead facts supporting that argument pursuant to Rule 8.03. Without that inclusion in the answer, the defendant is liable for all damages (save those, if any, attributed to the plaintiff).
In Federal…a defendant’s answer need not plead similar facts under Rule 8(c).
Answer Window
In Tennessee…a defendant has 30 days to answer after receiving the summons and complaint.
In Federal…a defendant has 21 days to answer, unless she had waived service in which case she has 60 days if she’s in the US and 90 days if she’s outside the US.
Remember government defendants, sued in with either their official or individual capacity, always have 60 days from the date of service.
Discovery
The Conference
In Tennessee…there is no discovery conference and no time-rule on the when of initiating discovery. In fact, you can serve written requests with the summons and complaint. Keep in mind, though, that defendants served everything at once have 45 days, rather than 30, to answer the requests.
In Federal…written requests are held until after the Rule 26(f) conference.
Disclosures
In Tennessee…there are no mandatory disclosures. The rule is if you want it, you must specifically request it.
Be aware for habitability actions and perhaps TCPA cases, too, information about liability insurance is not discoverable. See Thomas v. Oldfield, 279 S.W.3d 259 (Tenn. 2009)
Compare with Federal Rule 26(a)(1)(A)(iv) under which any insurance agreement that could be used to satisfy a judgment or indemnify or reimburse a defendant must be produced for inspection and copying.
For expert witnesses, specifically, a party may ask via interrogatories for the identity of the expert and a summary of facts and opinions to which the expert will testify. Pursuant to Rule 26.02(4)(a)(i), that summary will be prepared and signed by the attorney who hired the expert.
In Federal…per Rule 26(a), there at least two disclosures and three if the case involves experts
Initially, within 14 days of the Rule 26(f) conferences, parties must disclose:
The name and if known, address and phone number, for people with discoverable information likely to be used in support of a claim or a defense
A copy—or a description and location—of all documents, electronically stored information, and tangible things in that party’s possession likely to be used in support of a claim or defense.
A damages computation for each category of damages claimed
Any applicable agreement for liability insurance
For expects, at least 90 days before trial, parties must disclose:
The identity of each expert witness
If an expert is only testifying—and has not written a record—only 1) the subject matter of her testimony and 2) a summary of fact and opinions to which she will testify are required.
If an expert has written a report, the list of disclosures is longer, including
A complete statement of her proffered opinions and the basis for them
The facts and data she used to form that opinion
Any exhibits she’ll use at trial to summarize or support those opinions
The expert’s qualification, including a list of any authored publications within the previous 10 years
A list of any other case within the previous 4 years in which she testified at trial or sat for a deposition
A statement of her compensation for writing the report and testifying
Pre-trial, at least 30 days before trial, parties must disclose:
The name and contact information—address and phone number—of every witness who will be called and, separately, those who might be called
A designation for each witness whose testimony will be presented by deposition
**if that deposition wasn’t recorded by stenograph, parties should provide a transcript of the relevant parts
A list of each document and exhibit planned for trial and, separately, those that might be used
Number and Time Caps
In Tennessee…the state rules do not specify limits on the number of interrogatories parties may serve or time limits on the duration of depositions. However, Local Rules often step in to supply those finer points.
In Federal…without leave of the court for more, parties are limited to 25 interrogatories, including all subparts, and to 10 total depositions, each of which can not go over 7 hours. See Rules 33(a), 30(a)(2)(A)(i), and 30(d)(1), respectively.
Subpoenas
In Tennessee…the court clerks must issue and sign subpoenas—attorneys can’t do this.
In Federal…attorney can issue and sign subpoenas with a clerk.
Before and At Trial
Juries (See Rules 38 and 39 in both the state and federal materials for complete jury information.)
In Tennessee…pursuant to Rule 47.01, counsel has a right to examine the jury pool for voir dire and give a general “non-argumentative” summary of the case.
In Federal…the judge has the latitude to examine jurors without counsel’s participation under Rule 47(a).
Experts, specifically use of a deposition at trial
In Tennessee…an expert’s deposition is of limited use at trial—it can only serve as impeachment evidence, not for substantive proof pursuant to Rule 32.01(3).
In Federal…no such limitation exists. Absent an agreement between the parties, an expert’s deposition can serve the same purpose regarding substantive proof as in-person testimony.
Objections to Jury Instructions
In Tennessee…Rule 51.02 does not prejudice an attorney for not raising the objection at trial in the moment the instructions are read should the attorney move later for a new trial.
In Federal…under Rule 51(c)(2)(B), attorneys must make a timely objection “promptly after learning” an instruction has been given or refused or the objection is waived, which can in some districts mean the objection must be on the record before the jury starts deliberations.
Damages
In Tennessee…Rule 54.03 cabins relief to the four corners of what has been litigated and against which parties have been able to defend.
In Federal…Rule 54(c) encourages courts to view their ability to grant relief more broadly, stating that all judgments not taken by default should afford parties the relief to which they are entitled—even if that relief was not the party’s pleading.
Final Judgements
In Tennessee…under Rule 58, the successful party’s counsel drafts and signs the final judgment and then submits the proposed order to the court for the judge’s signature and filing.
In Federal…only the court handled that process of the final judgment’s preparation and entry pursuant to Rule 58.
Having the present sense of which court best benefits your case...
Federal Court v. TN State Court Rules of Evidence
As noted in the comparison between state and federal court civil procedure rules, often the claims choice the forum more than logistics of procedure and evidence. Knowing the differences, however, never hurts.
For quick reference:
The Tennessee Rules of Evidence are here.
The Federal Rules of Evidence are here.
Trial Court’s Power in Testimony
Witnesses
In Tennessee…though the court may question a witness, judges can’t call a witness on its own save in extraordinary circumstances under Rule 614.
In Federal…the court may both question witnesses called by the parties and call its own witnesses under Rule 614.
Experts
In Tennessee…trial courts can only appoint an expert sua sponte where specifically provided by law pursuant to Rule 706.
In Federal…trial court have more leeway to appoint an expert so long as the parties don’t or can’t show cause that the expert shouldn’t be appointed.
Cross Examination
In Tennessee…under Rule 611, questions on cross can go beyond issues of credibility and the four corners of the direct examination.
In Federal…under Rule 611, cross must remain focused on credibility and the scope of direct examination.
Impeachment Based on Crimes
In Tennessee…the range of crimes that are fair game for impeachment of a witness’s credibility is broader under Rule 609(a).
In Federal…the same range is narrower under Rule 609.
Expert Witness Threshold
In Tennessee…to be admissible under Rule 702, expert testimony must “substantially assist” the fact finder.
In Federal…to be admissible under Rule 702, expert testimony need be more likely than not to help the fact finder.
Hearsay
Present Sense Impressions
In Tennessee…this exception doesn’t appear in the state rules.
In Federal…under Rule 803(1), a statement describing what the declarant is then currently perceiving can come in.
Medical Diagnosis Statements—And vs. Or
In Tennessee…for a statement to a doctor to qualify under this exception, the visit must have included both a diagnosis and treatment under Rule 803(4).
In Federal…the statement is admission if the patient received either a diagnosis or both the diagnosis and the treatment.
Public Records
In Tennessee…under Rule 803(8), statements from reports made by police officers and other law enforcement personnel are excluded from the exception for public records.
In Federal…civil trials can admit statements from police reports under Rule 803(8).
Statements from an Ancient Document
In Tennessee…“ancient” means at least 30 years old and the document in question must affect a property interest to qualify for the exception under Rule 803(16).
In Federal…any document pre-dating January 1, 1998, counts—without the additional requirement.
Learned Treatises
In Tennessee…statements in learned treaties, periodicals, or pamphlets may be used to impeach expert witnesses only, not as substantive evidence, under Rule 803(18).
In Federal…statements in these materials can serve both as substantive evidence and the basis for impeachment of experts.
Property Boundaries
In Tennessee…community reputation can prove a property boundary if the reputation has existed for 30 years prior to the current action pursuant to Rule 803(20).
In Federal…the same exception does not require a specific time period for the community reputation.
Prior Inconsistent Statements of the Testifying Witness
In Tennessee…under Rule 803(26), the forum in which the prior statement that is inconsistent with the witness’s current statement can include a recorded audio or video, a signed written statement, and a sworn statement, such as at a trial, hearing or deposition.
In Federal…only sworn prior inconsistent statements made at a trial, hearing or deposition will merit this exception.
Statement Against (Penal) Interest
In Tennessee…this exception does not require corroboration material to support the declaration.
In Federal…under 804(b)(3)(B), the declaration must be corroborated to merit the exception.
Residual Exception
In Tennessee…there is no if-it-qualifies-for-no-other-exception.
In Federal…so along as a statement comes with sufficient guarantees of trustworthiness AND it’s more probative than any other evidence attainable by reasonable efforts AND the party provides proper notice, a hearsay statement that doesn’t merit any other exception can be admission under Rule 807.
To TRO or not to TRO...
Injunctive Relief Prior to Trial
One of the initial questions we ask before filing the complaint is whether we want to also seek injunctive relief before trial. We consider that decision before filing, because the logistics make for a quick turnaround regardless of what forum we choose.
In Tennessee (Rule 65)
Restraining Order
Logistics —> This lasts 15 days initially and can be extended for another 15-day period for good cause. It can be granted ex parte. See below for the hearing related information.
Rule 65.01 explicitly states that an RO can only restrict an act.
If granted, the order applies to the party, its agents and attorneys, and anyone actively working with either the party and/or its agents—so long as those bound by the order receive actual notice of the order.
Filing —> to get ex parte relief, be prepared to demonstrate in an affidavit or verified complaint:
the nature of an immediate and irreparable injury that will occur before a hearing with the other party can take place AND
with counsel certification, the efforts made to give notice and why notice should not be required in the case.
Bond —> you need a bond for an amount the court finds will properly cover costs and damages to the other party if the court later determines it was wrongfully restrained. The rules allow a court to waive the bond where it has granted an Affidavit of Indigency.
Temporary Injunction
Logistics —> The rules don’t establish a fixed timeline, meaning the injunction can stay in place until the case resolution, but this relief does require notice. See below for the hearing related information.
Note, the court has the discretion, with notice, to consolidate a trial on the merits with the motion hearing.
If the court doesn’t consolidate, any evidence presented at the hearing that would be admissible at trial becomes part of the case record.
If granted, the order applies to the party, its agents and attorneys, and anyone actively working with either the party and/or its agents—so long as those bound by the order receive actual notice of the order.
Filing —> be prepared to demonstrate in an affidavit or verified complaint:
The client’s rights are or will be violated by the other party and either
The clients will be immediately and irreparably harmed before the court issues a final judgment OR
The other party’s harmful acts or omissions will render any final judgment useless.
Bond —> you need a bond for an amount the court finds will properly cover costs and damages to the other party if the court later determines it was wrongfully enjoined. The rules allow a court to waive the bond where it has granted an Affidavit of Indigency.
Hearings
Because the state rules are a bit mum on the logistics of hearings for extraordinary relief, see the local rules for clarity.
In Davidson County, for example, applications for restraining orders in civil (non-DV) cases are decided on the pleadings and supporting materials. However, under Rule 19.02, the court sets a temporary injunction hearing regardless of its decision on the restraining order and the moving party should submit a proposed restraining order with space for the court to supply the date, time, and location of the injunction hearing.
Individual courts vary on whether injunctive relief hearings appear on the regular motion dockets. The rules instruct parties to contact the court’s staff for the answer.
Each court will rule on a motion for temporary injunction based on the pleadings unless the moving party requests an evidentiary hearing.
In Federal (Rule 65)
Temporary Restraining Order
Logistics —> This lasts 14 days initially and can be extended for another 14-day period for good cause. It can be granted ex parte, and if it is granted without notice, a motion for preliminary injunction will be scheduled for a hearing ASAP.
The other party can, with two days’ notice, appear before the court and move to dissolve or modify the TRO.
If granted, the order applies to the party, its agents and attorneys, and anyone actively working with either the party and/or its agents—so long as those bound by the order receive actual notice of the order.
Filing —> to get ex parte relief, be prepared to demonstrate in an affidavit or verified complaint:
the nature of an immediate and irreparable injury that will occur before a hearing with the other party can take place AND
with counsel certification, the efforts made to give notice and why notice should not be required in the case.
If the court requires the moving party to file a proposed order for ex parte relief, that document should include:
The date and hour of issuance,
A description of the injury and why it is irreparable, and
An explanation for why the order has been issued without notice.
Security —> you need a bond for an amount the court finds will properly cover costs and damages to the other party if the court later determines it was wrongfully restrained.
Preliminary Injunction
Logistics —> The rules don’t establish a fixed timeline, meaning the preliminary injunction can stay in place until the case resolution, but this relief does require notice and a hearing.
Note, the court has the discretion, with notice, to consolidate a trial on the merits with the motion hearing.
The court must, however, preserve a party’s right to a jury trial. Conceivably, this means a party could oppose consolidation or the court could bifurcate relief.
If the court doesn’t consolidate, any evidence presented at the hearing that would be admissible at trial becomes part of the case record.
If granted, the order applies to the party, its agents and attorneys, and anyone actively working with either the party and/or its agents—so long as those bound by the order receive actual notice of the order.
Filing —> Under the Sixth Circuit’s current case law on preliminary injunctions, the motion should meet a four-part test:
likelihood of success on the merits
likelihood of irreparable harm without the injunctive relief
in the balancing of equities, harm to the movant without the relief is greater than potential harm to the other party should the court grant the motion
that the injunctive relief serves the public interest
Stryker Employment Comp., LLC v. Abbas, 60 F.4th 372, 385 (6th Cir. 2023) (quoting Winters v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005).
Security —> you need a bond for an amount the court finds will properly cover costs and damages to the other party if the court later determines it was wrongfully enjoined.
Example Checklist
Rule of thumb for the particular logistics remains checking the local rules and calling the clerk.
The Middle District of Tennessee’s local rules, by way of example, state the court’s requirements for a TRO application (but not for a preliminary injunction motion), including an affidavit or verified written complaint, a memorandum of law, and a proposed order. Additionally, counsel should call the Clerk prior to filing the application to request a hearing be scheduled.
Ready to start writing? See our example complaints on the Templates page.
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The Initial Questions
What are your client support systems?
What is your discovery plan...
For gathering the disclosure and response information from your clients?
For sending requests?
For doing deposition prep with clients?
Re: a potential settlement…
Do you have a clear goal established with your client?
Do you have a line on a mediation provider?
The Tennessee Academy of Mediators & Arbitrators has individual mediators across the state
JAMS, originally called Judicial Arbitration and Mediation Services, has a virtual office in Nashville
Do you have an established internal number per client that factors in fees and costs?
Keep in mind that attorneys from insurance companies work toward settlements using an average number taken from similar settlements in the area.
If you have multiple plaintiffs, do you have blanket authority to accept an appropriate settlement?
AffLit Calendaring SOP
Big law might have fancy calendaring software, and the client management systems do offer task and scheduling features. Candidly, though, building out a standard operating procedure when you start opening AffLit cases—or perusing ours—can be helpful.
Our SOP emerged as we thought through how to adapt from the usual detainer warrant structure to a more formal, involved set of deadlines in Circuit Court. We started with an Outlook calendar for the attorneys and the paralegals, with paralegals taking the lead on populating the calendar. To be sure, the (ongoing) learning process involves getting very comfortable with the local county and individual chamber rules.
Tennessee State Court
Initial Calendaring
For every newly filed affirmative case, we calendar:
Our filing date
The service date for each defendant’s, noting that the filing date for the return of service will likely be different from the actual service date
The deadline for each defendant to file an answer
How to count: defendants have 30 days to respond to a complaint. That count starts the day after the defendant is served and does include weekend days.
If the 30th day falls on a Saturday or Sunday, the defendant’s deadline moves to the following Monday.
If the 30th day is a legal holiday, the deadline moves to the next day.
**For those counties in which e-fling is not an option: if the 30th day falls on a day when the clerk’s office is closed (for whatever reason, including weather), the deadline moves to the next day.
As you go Calendaring
When the case is assigned to a courtroom, we add:
That courtroom’s day for hearing motions
Any singular or routine days that court will not hold trials or hearings
When there’s activity from the other side, we add:
Notices of appearance by opposing counsel
When answers are filed
When discovery starts, we add:
The date we receive written discovery requests
The date responses are due by statute (30 days for all three types)
**Remember that discovery is a counsel-led process that the court typically wants us to figure out without its assistance. Tennessee start does not require a discovery conference. You can work out a schedule with opposing counsel and submit the scheduling order to the court or if you find your friend on the other side has a more casual approach, we’ve found an open line of communication works fine.
BUT we have returned responses to Requests for Admissions within 30 days, to avoid those requests becoming admitted facts.
The date of depositions
The date notices of the deposition are due to the case’s other parties
When the trial is set, we add:
That date
The date trial briefs are due to the court, if applicable
The date we must exchange witness lists and evidence with opposing counsel
Federal Court
Initial Calendaring
For every newly filed affirmative case, we calendar:
Our filing date
The service date for each defendant’s, noting that the filing date for the return of service will likely be different from the actual service date
The deadline for each defendant to file an answer
How to count: non-government defendants have 21 days to respond to a complaint. That count starts the day after the defendant is served and does include weekend days and legal holidays, as well as the last day of the count.
If the 21st day falls on a Saturday, Sunday, or a legal holiday, the defendant’s deadline moves to the end of the next day that is not a Saturday, Sunday, or legal holiday.
The effect of waiving service: if you send a notice—following all the FRCP Rule 4(d) requirements—of your request that the non-government defendant waive service and the defendant does waive,
she has 60 days (if in the US) or
90 days (if outside the US)
to respond counting from the date the request was mailed.
Government defendants have 60 days to respond counting from the date…
the U.S. Attorney received service if the defendant is sued in her official capacity
the defendant or the U.S. Attorney received service—whichever is later—if the defendant is sued in her individual capacity
As you go Calendaring
When the case is assigned to a courtroom, we add:
That courtroom’s day for hearing motions
Any singular or routine days that court will not hold trials or hearings
When there’s activity from the other side, we add:
The date of opposing counsel’s notice of appearance
The date opposing counsel files an answer
When we receive Notice of the Initial Case Management Conference, we add:
The date of the CMC
Under the Middle District of TN’s local rules, after a complaint is filed, the Clerk sends a filing party notice of an initial case management conference date. It’s then the filing party’s responsibility to serve that notice on the other parties.
The date of the Rule 26(f) Conference
The FRCP state that the discovery conference should happen as soon as practicable but at least 21 days before the date of a scheduling conference.
The due date for initial disclosures, which, pursuant to 26(a)(1)(C), is at or within 14 days of the discovery conference
The due date for the Joint Proposed Initial Case Management Order
When discovery starts, we add:
All the disclosure dates
Initial by 14 days post Rule 26(f) conference
Experts by 90 days before trial
Pre-trial by 30 days before trial
The date we receive written discovery requests
The date responses are due by statute (30 days for all three types)
The date we sent requests and the date responses are due back us
The date of all depositions
The date we sent notice(s) of our deposition(s) to the case’s other parties
When the trial is set, we add:
The due date for expert witness disclosures, which, pursuant to 26(a)(2)(D), is 90 days before trial, unless otherwise stipulated by court order.
The due date for pretrial disclosures, which, pursuant to 26(a)(3), is 30 days before trial.
**We haven’t ventured into jury trial yet, so this calendaring doesn’t reflect any associated deadlines. Stay tuned for updates when we get there!
The less technical concern once the complaint is filed...
Supporting Plaintiffs During Litigation
In the same way affirmative litigation requires a different calculus when thinking about whether to open a case, the client support once we’ve opened the case is different—not simply because the relationship lasts longer than our time with eviction clients.
So many factors are different from General Sessions, including the timeline, formality, the rules, and the asks of our clients. As unfamiliar as Circuit Court and U.S. District Courts may be for us, those spaces are typically even more novel for our client population. Plus, clients who remain tenants of a subject property risk retaliation.
Support throughout the process is no less important for our clients—perhaps even more so—than for clients in more privileged places of race, class, national origin, and ability. We see that support in three parts.
Education
The initial in-person meeting skews towards education. We can’t fairly assess client goals and buy-in if clients don’t have a full understanding of the litigation process. We start with an explanation of the timeline and talk through and define each option and possibility, including:
A demand letter before we proceed to court
A settlement if the demand letter is successful
Our contingency fee
A complaint and what we’ll need from them to write that
The filing process and possible costs
How we’ll also file an Affidavit of Indigency and what we’ll need for that
What happens after we file and what service is
The discovery process and its possible costs and what we’ll need from them then
A settlement at this point and how that impacts our contingency fee
Potential risks if the clients still live at the property
How we support our clients during litigation
Navigating social media during litigation
A trial, where it would happen, and what their participation would look like
What happens if they change their mind along the way
We’ve handled that information either before turning to the AffLit retainer or while we’re going through the retainer, which is lengthy on its own.
And the education piece of client support doesn’t stop after this meeting—we keep in mind that legal terminology is a specialized vocabulary and that the legal process was built around the concept of a certain plaintiff with a certain background and certain advantages to which many of our clients don’t have access. Further, it’s our job to communicate to clients what is important to the case.
For example, when we went through discovery requests from an opposing counsel in a case where we alleged intentional infliction of emotional distress, we didn’t have elaborate answers to the traditional questions about the medical or therapeutic care our clients sought when they were evicted or the friends and family members with whom they shared their distress or the social events they chose not to attend because they weren’t feeling up to it.
These clients don’t have health insurance, didn’t have time to pore over the details of the eviction with their larger community, and are not picking and choosing from their social calendar of charity events, luncheons, and school events. It also took some delicate encouraging of the husband to get him to talk about his level of worry about his ability to house his family, which of course, we need him to do to make a case for IIED.
Considerations of Life Outside the Lawsuit
Litigation is stressful for anyone, but our clients are often juggling daily life responsibilities alongside various levels of poverty, resource scarcity, and safety concerns around their status. As we need things from them during litigation, we think about what impact our ask will have and if there’s a way to lighten that impact.
It’s not about limiting client participation or the case itself. It’s about figuring out how we do our jobs as a legal team while being mindful of how to help them do their job as plaintiffs.
We use a Lyft Concierge program to avoid parking costs for court dates. We prepare to be efficient and effective in meetings and conversations, so that we don’t have to call a client back to ask the same questions—because our clients don’t always work “normal” schedules or have affordable or at-the-ready childcare.
Property Related Support
Those clients who remain at the property face greater exposure as they pursue their rights through litigation. Perhaps it’s in the form of a retaliatory eviction, abuse of access, refusal to make repairs, or reduction of certain regular services.
We see the answer as an open line of communication between us and the clients and client education around the importance of documentation.
This is why we think a fully built-out housing justice team includes tenant organizers and social workers. They can help tenants stay on top of rent or step in with resource help to avoid any late payments or nonpayment issues. They can work with tenants to property document and follow up on maintenance requests. They can stay in the loop on any issues that might lead to a notice. And they can do those things as non-attorneys, meaning the attorneys stay focused on the AffLit case and are able to step in quickly and easily if eviction defense is necessary.
If a settlement begins to seem possible, check out our example settlement agreements and insurance itemization on the Templates page.
If you’re moving forward with discovery, see our breakdown of the TN State Disco Rules, but trigger warning: potential law school flash card flashbacks ahead.
The options for objections when responding to OC’s request...
Discovery Objections and Bates Numbering How-To
Our approach to objection is that we make them, we add “Subject to and without waiving the objection,” and then we generally answer the question if we can. We’re sure to tag on the end of the answer “Plaintiff reserves the right to supplement her response.”
Common objections we use
This request is…
Overbroad and not relevant to the claims and defenses at issue
Unduly burdensome and costly
Not proportional to the needs of the case
Not reasonably calculated to lead to discovery of admissible evidence
Vague and ambiguous
Too broad to determine the information being sought
This request…
Calls for a legal conclusion
Calls for conjecture and speculation
Seeks to obtain privileged information
Seeks to obtain information protected by attorney work product rules
Prematurely seeks that [Client’s name] marshal all evidence supporting her claim before the end of discovery
Seeks information in the possession of, known to, or equally available to Defendant
Seeks information from a third party and not in Plaintiff’s possession, custody, control or personal knowledge
Seeks information that will not be known until after discovery is complete
Contains compound, conjunctive, or disjunctive questions
Re: Bates numbering – thankfully, our PDF program, Foxit, does it easily, and likely your program does, too. We do find, though, that following the step-by-step guide from the Foxit Blog places the numbers of the documents we’ve selected in the order we selected, but we still need to manually merge the individual PDFs into a combined document.
Thinking about your own requests? See our written discovery template on the Templates page.
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The Initial Questions
What is the local rule about the amount of notice due before a hearing?
On what day of the week does your court hold motion hearings?
What can be determined without oral argument and what requires an appearance?
What is your plan for supplementing discovery and supplemental information from OC?
What is your plan for pre-trial disclosures?
What is your plan for witness preparation?
Do you want trial demonstratives and what’s your court’s rule on those?
Are you required to submit a trial brief?
See our examples of motions we filed this year in AffLit cases on the Examples page.
Stay tuned for trial related materials, including examples of our proof charts, a hearsay cheat sheet, witness preparation guides, and our take on building binders.