Tools for Your Appellate Toolbox: Motion to Take Judicial Notice

“An I thought he had been so valiant and cunning in fence, I’d have seen him damned ere I’d have challenged him.”

-      Twelfth Night III, 4; Sir Andrew to Toby

        When most practitioners think about their appellate toolbox, they probably think of reviewing the record, writing the brief, and doing oral argument.  But there are also many motions that can come in handy on appeal. One of these is the motion for the appellate court to take judicial notice.  I recently had occasion to use a motion for judicial notice to good effect in the case of Brown v. HDR Logistics, LLC, No. E2024-00144-COA-R3-CV, 2024 WL 4799723 (Tenn. Ct. App. Nov. 15, 2024), application for permission to appeal pending.

           Brown was originally filed in Tennessee state court, before being briefly removed to federal court, then being remanded back to state court and finally decided. Documents from the federal court proceedings were relevant to our argument on appeal, but they were not in the state court record. Citing numerous state precedents, we were able to successfully argue that the Court of Appeals should take judicial notice of the documents filed in federal court, as either being documents from the "same case," see Nunley v. State, 552 S.W.3d 800, 806 n.3 (Tenn. 2018), or a sufficiently related case, see Hoback v. City of Chattanooga, 492 S.W.3d 248, 255 n.3 (Tenn. Ct. App. 2015). The Court granted our motion, and we were able to cite to the federal documents as if they were contained in the appellate record itself. 

          This was helpful because it allowed us to tell the entire procedural history of the case, in both federal and state court.  I received several questions during my oral argument about the federal phase of the case, and had we not filed and succeeded on the motion for judicial notice, I would not have been able to answer them. 

             Look for opportunities to use a motion for judicial notice in your appellate practice.