Ep. 47 The Purpose of a Show Cause Order

On this episode of Tennessee Court Talk, we explore a little-known but important process used in Tennessee’s appellate courts: the Order to Show Cause. Often misunderstood, this procedure serves as a form of contempt hearing specifically for attorneys, requiring them to appear in person before the appellate court to explain their conduct—or lack thereof—in cases they are handling.

Joining the conversation are two respected judges from the Tennessee Court of Criminal Appeals:

• Judge Ross Dyer, who brings valuable insight from his prior work in the Tennessee Attorney General’s Office before his appointment to the appellate bench in 2016.
• Judge Tom Greenholtz, who shares his perspective shaped by years on the trial bench in Hamilton County before his appointment to the appellate bench in 2022.

This episode sheds light on the purpose and process of Orders to Show Cause, highlighting their role in maintaining accountability and ethical standards in the legal profession.

Transcript

00;00;00;04 - 00;00;20;03
Host
This episode of Tennessee Court Talk is discussing an order to show cause. How does it work and how can an order to show cause affect your court case? Joining me today for discussion are two Judges from the Tennessee Court of Criminal Appeals, Judge Ross Dyer and Judge Tom Greenholtz.. Let's start with you, Judge Dyer. At the very basis of this topic.

00;00;20;05 - 00;00;21;24
Host
What is an order to show cause?

00;00;21;27 - 00;00;57;06
Judge Dyer
So simply put, an ordered show cause is this court has at some point, our court at some point in time has multiple on multiple occasions advised an attorney to do something. File transcript. File a brief. Something like that. And they have failed to comply with an order of this court. And so we will enter another order telling them that they have to appear in front of us and show cause as to why they should not be held in contempt for failing to do what we've been asking them to do.

00;00;57;07 - 00;01;01;10
Judge Dyer
That's probably the most simplistic way I can. I can describe it.

00;01;01;12 - 00;01;02;10
Host
Judge Greenholtz.

00;01;02;12 - 00;01;29;18
Judge Greenholtz
And I think the, there are a lot of different types of kind of show cause order. Some are more serious than others. If you haven't gotten the transcript filed on time, you know, the court will put down a an order asking you to show cause about why certain actions shouldn't be taken or something like that in a in a more serious case where maybe the prosecution of the appeal is just languished, maybe the appellant hasn't filed a brief or, done something that must be done before the appeal continues.

00;01;29;21 - 00;01;51;24
Judge Greenholtz
The calling of the order as a show cause order is really kind of a misnomer. It may be that sometimes a show cause order may tend to imply that the burden is, necessarily on the appellant or the appellant's lawyer. In that case, might not be true. Frankly, if the court is looking to actually punish someone for a willful violation of the of the court's orders previously.

00;01;51;26 - 00;02;15;08
Judge Greenholtz
And so, I think if the vernacular recall, those more serious ones show cause orders, too, but they're really a little different. It's not that the appellant is showing cause for why action shouldn't be taken. It's really the the court and itself saying, hey, we need a better explanation about what's going on here. Looks like you're in willful disobedience of a court order, and, we're going to have a further discussion about it.

00;02;15;08 - 00;02;16;03
Judge Greenholtz
But yeah.

00;02;16;05 - 00;02;21;29
Host
Does the show cause order always end up in a, in some sort of hearing, or can you reply or without a hearing.

00;02;21;29 - 00;02;49;07
Judge Dyer
We could craft them however we choose, I guess would be the accurate answer. That being said, you know, I, I think every one I've ever seen it is yours to show up on this day and show your cause as to what's happening. While we shouldn't take further measures, whatever. I don't know that I've. I can't recall in my time that I've seen where we've put on a show cause order and we've just allowed someone to file a response and we say, okay, I think there have.

00;02;49;07 - 00;03;08;03
Judge Greenholtz
Been some times that, you know, this, this kind of thing. I was talking about, this topic with our, one of our staff attorneys over here in the East, and it looks like know. Oh, excuse me, it looks like there is a kind of a divergence between the sections, maybe sometimes about how show cause orders are, addressed and dealt with.

00;03;08;04 - 00;03;38;04
Judge Greenholtz
There are times in the East where, show cause order will go down on a less serious matter, perhaps the holding someone in contempt. And in those cases, we do resolve them, kind of on the papers. So there could be an example that I'm thinking of, maybe a Pro Se Appellant, has come in and Pro Se Appellant either may not know the appellate rules or some other things, and after rounds and rounds of notice will put down a show cause we're asking why the appeal shouldn't be dismissed.

00;03;38;08 - 00;03;57;00
Judge Greenholtz
And if the appellant doesn't respond or gives insufficient reason, sometimes the appeal is dismissed. And that's done, without an in-person hearing. I think Judge Dyer's right, though, when you start getting into contempt issues, that's always going to be a hearing. I think, the court has to has to be able to see the lawyer offer the lawyer an opportunity to be heard, be represented by counsel.

00;03;57;00 - 00;04;00;17
Judge Greenholtz
But in point of fact, we the court really wants to know what's going on.

00;04;00;17 - 00;04;05;05
Host
So an attorney receives an order to show cause, what happens in the hearing itself?

00;04;05;12 - 00;04;29;04
Judge Dyer
The first thing and Judge Greenholtz just alluded to this, you know, it's a true contempt hearing at that point. And so first thing is, note is letting them know they have they have a right to have counsel, that they are under oath. So whatever they start telling us is considered to be under oath. But then really it is a fact finding discussion.

00;04;29;04 - 00;04;50;08
Judge Dyer
I mean, that's kind of how I would describe it. It, you know, attorney X here, all the things that we've asked you to do and the orders we've sent in, the phone calls we've made that you have not been responsive to, and we would like to hear from you as to, you know, why you haven't, done these things.

00;04;50;11 - 00;05;14;24
Judge Dyer
I will say for me, one of my in that discussion, one of the, one of the inquiries I always make is does your client know you're here? Does your client understand at the three of us right now could dismiss your client's appeal because you failed to do your job. So does your client know you're here? One of the things, and this is me.

00;05;14;24 - 00;05;35;04
Judge Dyer
But you know that I, I'm always in favor of putting in whatever order we put down is. You have to send a certified letter to your client telling them what has happened, what's going on, and then you file a copy of that with the court. Because that, you know, at the end of the day and, and Judge Greenholtz alluded to this.

00;05;35;04 - 00;05;52;21
Judge Dyer
When he was talking about a Pro Se Litigant. You know, we could dismiss your appeal. You know, if you fail to comply with the rules, that's that's one of our remedies is we just dismiss the appeal and, and so when I am inquiring of the attorney as to what's going on, one of my main concerns is, does your client know what's going on?

00;05;52;21 - 00;06;11;22
Judge Dyer
I want to know what's going on, you know, is there something is there something we can do to help you? Do you have an issue? Are you really just willfully disregarding our orders, but also, does your client understand that, you know, he may be sitting in prison on a 30 year sentence, and we're getting ready to kick kick his appeal out.

00;06;11;29 - 00;06;18;28
Judge Dyer
So that would be kind of my thoughts on kind of what goes on and kind of how they start. Yeah.

00;06;19;01 - 00;06;40;23
Judge Greenholtz
You know, it's kind of an interesting question because the, as a, as a practical matter, the person who's being summoned, into the contempt hearing, has due process rights because if the, if the attorney is found to be in in willful disobedience of a court order, there's going to be a punishment, there will be a sanction.

00;06;40;25 - 00;07;09;05
Judge Greenholtz
And so the the attorney has, you know, the right to notice the attorney has written notice, you know, setting forth the facts and the allegations. The attorney has the right to know when and where to show up. The attorney has the right to counsel, as it goes, and the attorney has the right to have, have proof put on, one of the things the court typically will do is ask the lawyer at the beginning of the hearing, do you dispute the facts, or do you agree that the facts is laid out in the notice?

00;07;09;07 - 00;07;32;29
Judge Greenholtz
Are accurate? Do you want to supplement those? Do you wish to have proof put on about those facts? I haven't been in a hearing yet. Where, where a lawyer has, has said, you know, I completely dispute everything that, that is being alleged here. I demand that proof be put on. If that were the case, the, court would, would ask the attorney general, then to prosecute the action.

00;07;33;02 - 00;07;56;21
Judge Greenholtz
I don't know what would happen. Candidly, Ross, what would happen if the AG, refused to do so in the trial court? The district attorney is not required to prosecute a contempt. And so sometimes there could be a private lawyer appointed. But the the the lawyer who, has shown up for the content hearing has that right to have a hearing most of the time where I've been in the hearings, the lawyer, concedes at least the factual basis.

00;07;56;21 - 00;08;18;15
Judge Greenholtz
And what we're really talking about at that point is what should happen from there. What's also interesting to me, too, is that by the time we get into a contempt hearing, I mean, this, the issue had been has been going on for a while. So typically with, let's say a circumstance where an appellate has failed to file a timely principal brief 30 days comes and goes.

00;08;18;15 - 00;08;39;28
Judge Greenholtz
After the record is filed, the clerk will send out a notice to say, hey, you haven't filed your brief yet. Sometimes that notice, comes and goes, no response. And then we send out an order that says, hey, not only did you not file your brief on time in accordance with the rules, you ignored the clerk's, gentle nudge that we need to get your brief in, you know, file your brief within however many days, 20 or 30 days.

00;08;39;28 - 00;08;58;24
Judge Greenholtz
Here you go. When the appellate doesn't respond to that notice, that's when the show cause comes down. That says, all right, you have blown through not only the rules. You've blown through the clerk's notice of blowing through our order. Now, we're going to have to ratchet this up a little bit. You hereby, order to, to show up in court at this time, at this day, and we're going to talk about, the issues a little more seriously.

00;08;58;28 - 00;09;15;18
Host
Let's just go ahead and jump into that. Judge Dyer alluded to this to begin with. Is that the only way for a client to receive notice that their attorney is being show cause is the attorney has to contact them? I mean, I know you said they have to show proof that they've contacted, but there's no contact by the court.

00;09;15;18 - 00;09;18;06
Host
There's no contact by the clerk's office, anything like that.

00;09;18;08 - 00;09;50;11
Judge Dyer
As I understand how the clerk's office, you know, operates at that stage, it's you know, they're sending all those notices to the attorney of record. They're not sending those notices to the client. And so, yeah, I mean, the only way a client's going to know, that his attorney is in court that day on the show cause hearing or that things haven't been filed and aren't progressing or they have been filed and everything's progressing fine, is the communication between the lawyer and the client.

00;09;50;14 - 00;10;04;16
Judge Dyer
Well, the court does not get involved in, in that until you get to this point. And then that's when you know we will get involved. But yeah, up until that point, the client has no clue what's going on.

00;10;04;18 - 00;10;33;10
Judge Greenholtz
I think there's a reason for that. The clerk's office does a great job. So Jim Hivner and his Deputy Clerks do a great job in all of the divisions. One of the things may be that, we would not want the clerk's office doing is interfering with the, with the client lawyer relationship. And so at least before it gets to the point where we're talking with the lawyer, it may be that the communications from the clerk's office should go to the, designated counsel record, as it goes.

00;10;33;12 - 00;10;51;26
Judge Greenholtz
Once it gets to us, though, when we're talking about, you know, willful disobedience of court orders at that point, I think it's appropriate for the court then to direct the, clerk's office or, the counsel record to, to let the client know, of course, if the if the lawyer's abiding by, his or her duty of communication under the rules of professional conduct.

00;10;51;29 - 00;10;58;09
Judge Greenholtz
We wouldn't need that to begin with, but, the court's order is a backstop to make sure that that, ethical duties being complied with.

00;10;58;11 - 00;11;09;08
Host
Judge Greenholtz you sort of alluded to the the steps that the clerk’s office takes and that the court takes to try to get an attorney to appear for a show cause hearing what happens if that attorney does not appear to the show cause hearing?

00;11;09;10 - 00;11;26;21
Judge Greenholtz
Is going to be bad news. It'll be bad news. I you know, Ross, I'm trying to think if I've had one where the lawyer hasn't shown and as I'm reaching back out, I know I remember one where the lawyer was late. And so the award was was scheduled to be at court, maybe like at 930 when court opened wasn't there.

00;11;26;21 - 00;11;46;18
Judge Greenholtz
But at least let us know that the order would be there at 130 or whatnot. So, you know, being in touch with the court is helpful. I haven't seen an issue where the lawyer has just willfully failed to appear, as it goes, in the old days, I, you know, the stories are apocryphal, no doubt, but in the old days, it may be that a capeus was issued at that.

00;11;46;18 - 00;12;10;08
Judge Dyer
Yeah. I think that I think that's correct. I think that's correct. I mean, I've been on I probably been on maybe I'll even say two, but I mean, that's very few, if you think about it, in the grand scheme of things, to where the attorney either claimed he didn't get a calendar or was late because he was coming from somewhere part of the state to where we were.

00;12;10;10 - 00;12;32;02
Judge Dyer
But they ended up getting there, you know, through the clerk's office, through the staff attorney. Phone calls were made and they ended up showing up. So they were late. My memories kind of like Tom's, the stories you've heard. Capious was would have been issued. I do think I'll say this. I think one time we had someone who called the morning of and was in the hospital, so obviously we just had to reschedule that one.

00;12;32;09 - 00;12;44;04
Judge Dyer
But, yeah, I mean, I, I have not been on a panel. We've had to we've had to issue a case for someone not showing up for that hearing. Yeah. It's a very it's is very possible that could happen.

00;12;44;06 - 00;13;13;14
Judge Greenholtz
And you've got to think. And there are a lot of reasons why lawyers would, would become involved in a situation like this to begin with. Most of the time, my impression is, is that it might be the result of a couple of, of issues, that that we'll see. And in fact, when I was talking with Vanessa, I think she confirmed this to, sometimes it's just maybe a younger lawyer who first gets the notice from the clerk and just freaks out like, oh, my God, I haven't found my my brief on time.

00;13;13;14 - 00;13;33;24
Judge Greenholtz
You know, they're going to come after me, and then it just spirals down from there. And if, the lawyer simply is offered the off ramp, the other lawyer will take it. And there you go. Sometimes it's the result of, maybe substance issues, mental health issues otherwise that are more properly referred to, the Tennessee Lawyers Assistance program to TLAP.

00;13;33;26 - 00;13;59;26
Judge Greenholtz
I at least out here in the East. I haven't seen it much where the lawyer is just obstinate, where the lawyer is just. I do not care what you all say. I'm not going to abide by your rules any longer. I haven't seen that out in the East much. Yeah. So by the time it it, If we get to the point where the lawyer is not showing up for the contempt hearing, if the lawyer is ultimately found in contempt, that fact is going to be a very bad fact when it comes to assessing the consequence of what's going on.

00;13;59;28 - 00;14;17;21
Judge Greenholtz
So, you know, the best advice is, is that if you, it's like everything else in life, frankly, if you would admit your faults, sincerely try to mend your ways. I think you're right. I think the lawyer's gonna find that, the court is not interested in holding anyone in contempt. The only thing we want to do is just proceed with the appeal.

00;14;17;23 - 00;14;39;28
Judge Greenholtz
So, you know, you come into the to the contempt hearing saying, look, I, I really messed this up. I'm so sorry. I've already taken care of it. I filed my brief before I even got into the courthouse. I'm ready to go. But also, you know, accept whatever consequence comes from that. I think the lawyer's going to find that in the vast majority of cases, the court will say, fine, just don't do it again.

00;14;40;01 - 00;14;53;20
Judge Greenholtz
Pay attention to our orders, and then everyone will go on about their business. It's when, I think sometimes without cause, a lawyer tries to vigorously defend an action without real cause. I think that's when the with a train comes off the track sometimes.

00;14;53;20 - 00;14;59;03
Host
Well, that leads into another question that I had. So what are some of the potential outcomes of the show cause hearings?

00;14;59;03 - 00;15;23;11
Judge Dyer
So yeah, I mean, Tom alluded to to the best outcome, and the best outcome is the lawyer who shows up with a file stamped copy of the brief that they were in the clerk's office before the hearing and were started getting that brief filed. And the and they can tell us, you know, fall on my sword. I screwed up, you know, whatever their excuse was, I, I moved offices, you know, whatever, whatever.

00;15;23;11 - 00;15;43;25
Judge Dyer
But, hey, I just filed a brief. Everything you've asked me to do has been called up before this hearing ever started. The outcome. There usually is a dismissal of of everything. And you just move on, and they can go from that all the way to. Tom and I were on a panel in which it was clear. This is how I'll describe it.

00;15;43;25 - 00;16;12;21
Judge Dyer
Tom, you may describe it a little different, but it was clear that this gentleman just did not have control of the administrative processes in his office. He was never really in the office. He had like a part time administrative assistant who may be checking the mail. He got some stuff on his phone, you know. Anyway, long and short of it was it was clear he didn't know how to run his law practice and at least the appellate part of his law practice.

00;16;12;24 - 00;16;44;04
Judge Dyer
And so we put him on a monitoring program, had him find a mentor who they filed a if he would file a quarterly report with us saying, I've got, you know, because he had a handful of appeals at the time that was part the other problem was, you know, and so it went from it went from someone who walks in with a brief to us finding him a mentor, so to speak, for someone they file quarterly reports and updates were we're all it is appellate cases are what is resolved this, that and the other.

00;16;44;06 - 00;17;06;24
Judge Dyer
And in those cases when you get to those extreme cases, usually usually what we do is we say, here's the one, two, three things. Whatever it is that we're requiring you to do, we're going to find you in contempt, but we're going to hold that contempt finding in abeyance and the punishment in abeyance. We're going to give you a list of 3 to 5 things that we need you to do.

00;17;06;24 - 00;17;25;06
Judge Dyer
And if you do all those within the time period in which we ask you to do those, we will dismiss the contempt charge that would be at that kind of extreme. I guess the other only thing I can think of is just outright finding them in contempt, removing them from the case and reporting him. The BPR would really kind of be worst case scenario.

00;17;25;07 - 00;17;26;27
Judge Dyer
Tom, what would.

00;17;26;29 - 00;17;52;18
Judge Greenholtz
Yeah, I think you've laid out all the all the options very well. I think we have, you know, the one in Nick you've got, a lawyer comes in and has already remedied what we were concerned with. And so, the court would simply just dismiss, the proceeding. There is, in my experience, in the practice of law, having had the privilege of practicing before, a number of judges across the nation, some outstanding judges, others was very good judges.

00;17;52;21 - 00;18;08;25
Judge Greenholtz
I've not encountered a single person who ever said, hey, I want to be a judge because I want to hold people in contempt for not filing briefs. I've not seen that judge yet. And so I think most of the time, if you come in and say that I've already taken care of this, I'm going to accept whatever consequence you have.

00;18;09;03 - 00;18;29;11
Judge Greenholtz
I really think the judges on the, on the Court of Criminal Appeals, in particular, are going to say, just don't do this again. Pay attention when we when we send you all these notices. Other things can happen too, though. And the, the the legislature has provided that the possible punishments for contempt can include a fine can include up to ten days incarceration.

00;18;29;19 - 00;19;03;00
Judge Greenholtz
I I've not heard of anyone being incarcerated in and you know kind of more of the modern times as it goes. But you could have the possibility of a fine, the sanction that I would be most worried about, frankly, is reporting to the BPR. So once that contempt finally comes down, if it's not, if it's not, for lack of a better word, expunged after a, after the probationary period, once that comes down, there will be a report to the BPR and then the Board of Professional Responsibility may initiate then a disciplinary action.

00;19;03;02 - 00;19;20;16
Judge Greenholtz
And that disciplinary action is going to follow that lawyer. Then for the rest of the lawyers career, I mean, the contempt will too, but if it's expunged, that's probably explainable later on. But if there's a disciplinary action that results, in discipline, that's going to follow the lawyer. And that's, that's really what, as a lawyer, that's what I would want to avoid.

00;19;20;16 - 00;19;39;00
Judge Greenholtz
Most, most importantly is that referral over to BPR. I think it's fair to say, at least in the case that, the Ross alluded to, that he and I were on, the lawyer in that case that I think had gotten in some trouble, as Ross says, because of maybe some office management practices. Not a bad lawyer, at all.

00;19;39;00 - 00;19;58;17
Judge Greenholtz
But, you know, that's that will happen sometimes in the practice of law if you're not watching out for it. He filed, we had asked him to file quarterly reports, and be subject to a practice monitor. He did that. The reports were good reports. Every time we got one, he explained, you know, hey, these are the cases I have up in the Court of Appeals.

00;19;58;17 - 00;20;14;09
Judge Greenholtz
This is what I have pending in the trial courts, and this is what we're doing to stay on top of it. And, I think we required it. My recollection is, is maybe, maybe a year's worth of reports. But after we got the last one, it seemed clear to me that the issues that we had encountered had been resolved.

00;20;14;09 - 00;20;32;18
Judge Greenholtz
And we dismissed, we dismissed the, the contempt proceeding. There was no there was no reason to go any further than that. The the issue, that we had notified had been completely remedied and, all for the better of everyone involved. So there's a lot of different ways you can go about it at once.

00;20;32;18 - 00;20;49;18
Judge Greenholtz
Again, if I can emphasize anything on this podcast is that just recognize the fault that there is and, and and acknowledge it and fix it and, try your best not to do it again. Like I said, there's no one on this court, I think, that wants to hold people in contempt. That's not why we're that's not why we we got to work in the morning.

00;20;49;18 - 00;21;10;27
Judge Dyer
And and if I can piggyback your, your guidance there, you know, one of the things, Nick, we, as I say, I think any of my colleagues who are doing them or a part of them at times, we tell attorneys at the end of all these hearings, look, we don't want to be here. We know you don't want to be here.

00;21;11;00 - 00;21;28;29
Judge Dyer
And the best way for us to never see you in this, this, this fashion again is, you know, there's plenty of people you can call lawyers that you're friends with. You can call and say, hey, I've got this appeal. I don't really know what I'm doing. If that's the case, there's people at the clerk's office who will answer you.

00;21;29;02 - 00;21;49;03
Judge Dyer
Yeah. Hey, you just need to do this. Call the staff attorney. The staff attorneys are great about. Okay. Yeah, I get it. You missed this by two days. Here's how you need to remedy that. I can promise you, they all want to keep you from having to appear in front of one of these hearings. I remember is my time in the AG's office like we crawled under the chairs when these hearings took place.

00;21;49;03 - 00;22;13;01
Judge Dyer
Just because it just is uncomfortable. Here's one of your colleagues getting reprimanded by the court or who does the same job, so to speak, that you're doing, and it's just it's just not comfortable. No one wants to see any lawyer standing up in front of three of us, having to go through this process. So to your point, Tom, if there's anything I can stress, it's do everything you can.

00;22;13;02 - 00;22;20;00
Judge Dyer
Phone calls, respond to emails, whatever. Talk to your buddy so that you don't have to see us.

00;22;20;02 - 00;22;29;22
Host
Judge Dyer, Judge Greenholtz, thank you so much for joining me today on Tennessee Court Talk and helping to explain not only a show cause hearing, but much more in the perspective of a sometimes unknown procedure in our court system.

00;22;29;24 - 00;22;33;26
Judge Greenholtz
Well, Nick, thank you very much. It's been a pleasure. Just great to see you again.

00;22;33;29 - 00;22;36;06
Judge Dyer
Good to see you. And thank you, Nick. Appreciate it.