Hill & Range Songs, Inc. v. Fred Rose Music, Inc.
| Decision Date | 13 January 1976 |
| Docket Number | Civ. No. 6785. |
| Citation | 413 F. Supp. 967 |
| Court | U.S. District Court — Middle District of Tennessee |
| Parties | HILL & RANGE SONGS, INC. v. FRED ROSE MUSIC, INC. and Broadcast Music, Inc. |
John S. Clark, Abeles & Clark, New York City, William F. Carpenter and Richard D. Speight, Goodpasture, Carpenter, Woods & Sasser, Nashville, Tenn., for plaintiff.
L. Peter Parcher, New York City, Richard Frank, Jr., Nashville, Tenn., Robert B. Stewart, Montgomery, Ala., for defendants.
As noted in the court's memorandum of October 22, 1975, there are five issues involved in this case. The first issue was submitted to a jury and tried on March 17, 18, and 19, 1975. On March 19, 1975, the jury returned a verdict which held that Mrs. Billie Jean Berlin was the putative wife of Hank Williams under Louisiana law at the time of his death on January 1, 1953, but was not his common-law wife under Alabama law at the time of his death. The remaining four issues were submitted to the court upon agreed facts and stipulated evidence.
On April 3, 1975, plaintiff filed a Motion for Judgment N.O.V. with regard to the portion of the jury's verdict which found that Mrs. Billie Jean Berlin was not the Alabama common-law wife of Hank Williams at the time of his death.
By letter of July 17, 1975, (see Appendix 1) the court notified counsel for the parties that it had decided all the issues involved in the matter in favor of plaintiff Hill & Range Songs, Inc. The court requested in this letter that Mr. Richard Speight, counsel for plaintiff, contact the court to assist in the preparation of the final memorandum.
On November 17, 1975, defendants filed two documents: (1) a Motion for a New Trial; and (2) a Motion to Reconsider, Alter and Amend Judgment. In these two motions, counsel for defendants avers that the court erred in several respects. The court has considered each of the grounds upon which counsel bases his assignments of error, and finds them to be without merit. Thus, the defendants' Motion for a New Trial and Motion to Reconsider, Alter and Amend Judgment must be denied.
However, the court deems it appropriate to comment further upon the seventh ground set forth in defendants' Motion to Reconsider, Alter and Amend Judgment. Defendants claim that:
"the Court erred in delegating the drafting of the Court's Opinion, and judgment pursuant thereto, to counsel for plaintiff while excluding counsel for defendants from access or information relating to any notes, memoranda, or other communications between the Court and counsel for plaintiff."
In the Brief in Support of Defendants' Motion to Reconsider, Alter and Amend Judgment, counsel for defendants states:
The court fails to see how any prejudice to defendants has occurred by virtue of the method chosen by this court to draft its final memorandum. The court had already articulated the issues in rough draft form, and decided them in favor of plaintiffs, prior to requesting the assistance of counsel for plaintiffs in preparing the final memorandum.
The general procedure followed by this court in nonjury cases is as follows. After the trial of the cause, counsel for each party is requested to submit proposed findings of fact and conclusions of law, as if that party had prevailed. Additional briefs may also be filed. Normally, the court takes the case under advisement following the filing of the proposed findings of fact and conclusions of law by counsel for the parties, and the court then prepares and files its memorandum opinion. This memorandum opinion may include all, some or none of the contents of either of the proposed findings of fact and conclusions of law. Rarely does this court adopt proposed findings of fact and conclusions of law without making alterations, based on the court's independent research and consideration.
Lest there be some misunderstanding, this court wishes to emphasize that it does not take credit for devising the above mentioned method of expediting the writing of memorandum opinions. As noted in the very case cited by counsel for defendants, In re Las Colinas, Inc., 426 F.2d 1005, 1008 (1st Cir. 1970): "the practice of inviting counsel to submit proposed findings of fact and conclusions of law is well established as a valuable aid to decision making." See also: In re Woodmar Realty Company, 307 F.2d 591, 593-594 (7th Cir. 1962); Roberts v. Ross, 344 F.2d 747, 752 (3rd Cir. 1965).
In some of the cases which are sufficiently complex to necessitate lengthy opinions requiring extensive typing and proofreading, this court may request the attorney for the prevailing party to assist in the preparation of the final memorandum opinion. This occurs when the case load is unusually heavy, and the court's staff is substantially behind in the current work. After deciding the issues in the case and preparing a rough draft opinion, the court notifies the parties in writing of its decision. In the notification letter, the attorney for the successful litigant is requested to contact the court to assist in drafting the final memorandum. A copy of the notification letter is normally placed in the official court file at the time the letter is mailed.
In the instant case, there was some deviation from the court's normal procedure. The court did not request that counsel for the parties file proposed findings of fact and conclusions of law. The reason for this was that the issues in the case had already been extensively briefed, and the court had been asked to decide the issues upon stipulated facts and evidence. This obviated the necessity for proposed findings of fact and conclusions of law. Also, the notification letter was not placed in the official court file at the time of mailing. The reason for this was that the press had evidenced a great deal of interest in the case, and the court did not wish its decision to be made public until the final memorandum was prepared, outlining the grounds for the court's decision. Thus, the placing of the letter in the official file was delayed until the final memorandum was released.
When the court requests the attorney for a prevailing party to assist in the preparation of the final memorandum, a conference is arranged with that attorney. At the conference, the court furnishes the assisting attorney with its rough draft and gives that attorney instructions as to how the court desires the final memorandum to be prepared. The work of the attorney in preparing the final draft is largely ministerial, and certainly rises to no higher level than the services performed by a law clerk. The secretarial facilities of the attorney are utilized, thus freeing the court and its staff from such functions. The number of conferences held between the court and the assisting attorney and the number of drafts submitted to the court varies, depending upon the diligence of the assisting attorney in following the court's instructions. The court studies the proposed final memorandum carefully, and any portions unsatisfactory to the court are altered or deleted.
In the case sub judice, the court and its staff expended many hours of research prior to deciding the issues in the case in favor of plaintiff. In the course of this research, the court learned that a controlling case on one of the points involved which had been decided by an intermediate appellate court in Louisiana was on appeal to the Supreme Court of Louisiana. This case was King v. Cancienne, La., 316 So.2d 366, which was decided by the Supreme Court of Louisiana on June 23, 1975. Following the final determination in the King case, supra, the court proceeded to decide the issues in the case currently at bar and personally prepared a rough draft memorandum, the major portion of which was written in longhand. (See Appendix 2*). As mentioned previously, the court notified the parties of its decision by letter, in which it also requested that the counsel for the prevailing party contact this court to assist in preparation of the final memorandum opinion.
Mr. Speight, counsel for plaintiff, met with the court and was furnished the handwritten rough draft, a copy of the Louisiana Supreme Court's opinion in King v. Cancienne, supra, and various other research notes of the court.1 Mr. Speight was instructed that he was performing services for the court and should not disclose the contents of the memorandum opinion until it had been signed by the court and entered in the file. The court approved the final draft proposed by Mr. Speight only after considerable editing. In fact, the court made a deletion, alteration, or addition on literally every page of the memorandum draft submitted by Mr. Speight.
The court heard oral argument on defendants' Motion for a New Trial and Motion to Reconsider, Alter and Amend Judgment on December 17, 1975. At this hearing, the primary complaint of Mr. Frank, counsel for defendants, appeared to focus on the fact that he was not furnished a copy of the opinion written by the Supreme Court of Louisiana in King...
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