In State v. Ellis, this Court found that under Rule 25, the most important factor to a successor judges’ ability to function as thirteenth juror is "the extent to which the credibility of one or more material witnesses is actually a significant aspect to the case," and if it is, whether that credibility can be ascertained through reviewing the record. 453 S.W.3d 889, 902-03 (Tenn. 2015). Most indicators of witness credibility can be ascertained through reading the trial transcript.

7. Post-conviction trial counsel Wilkins rendered IAC by: (a) failing to challenge Judge Carter's qualification to serve as the thirteenth juror under State v. Ellis, 453 S.W.3d 889 (Tenn. 2015) (ECF No. 1-8 at PageID 76, 78-79);

Weight is not a question of mathematics, but depends on its effect in inducing belief. State v. Ellis , 453 S.W.3d 889, 900 (Tenn. 2015) (quoting Ohio v.Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541, 546 (1997) (emphasis and internal quotation marks omitted)). Therefore, if the evidence regarding damages was conflicting and required both the jury and the trial court sitting as thirteenth juror to assess the credibility of the witnesses, a trial court's failure to explain the basis for its suggestion of remittitur may leave the appellate court in the dark as to whether, or how, the trial court's view of the credibility of the witnesses may have differed from that of the jury.

This Court recently reiterated "the distinction between assessing the weight of the evidence and assessing the sufficiency of the evidence." State v. Ellis , 453 S.W.3d 889, 898 (Tenn. 2015). We recognized that

The trial court's determination regarding whether to grant a new trial as thirteenth juror is a distinct inquiry from determining whether the evidence is legally insufficient to sustain a verdict. State v. Ellis, 453 S.W.3d 889, 898 (Tenn. 2015). A finding that the evidence is legally insufficient - that no rational trier of fact could have returned a conviction - results in an acquittal.

Those determinations are relevant only to the trial court's decision to accept the jury's verdict in its role as thirteenth juror. See State v. Ellis, 453 S.W.3d 889, 898–901 (Tenn. 2015) (differentiating the trial court's role when reviewing the legal sufficiency of the evidence and the trial court's role as thirteenth juror, the latter inquiry not requiring the "trial judge ... to view the evidence in the light most favorable to the prosecution" and permitting the trial judge to "weigh the evidence himself as if he were a juror and determine for himself the credibility of the witnesses" (quoting State v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985) (Drowota, J., dissenting))). The record does not reflect any ruling by the trial court on a motion for new trial.

The Tennessee Supreme Court observed that "[a]s to the successor judge's analysis of the trial record, this Court is in the same position to evaluate the transcript and exhibits as is the successor judge," and indicated that "a de novo review of the successor judge's analysis of the trial record is appropriate." State v. Ellis, 453 S.W.3d 889, 909 (Tenn. 2015). In a parental termination decision involving a successor judge deciding a case without hearing live testimony, this court observed that, while deference is normally afforded to a trial court's findings, where those findings are based upon the trial transcript and exhibits and not observation by the successor judge of live testimony, this court "may draw our 'own conclusions with regard to the weight and credibility' of the evidence."

. The Tennessee Supreme Court observed that "[a]s to the successor judge's analysis of the trial record, this Court is in the same position to evaluate the transcript and exhibits as is the successor judge," and indicated that "a de novo review of the successor judge's analysis of the trial record is appropriate." State v. Ellis, 453 S.W.3d 889, 909 (Tenn. 2015). In a parental termination decision involving a successor judge deciding a case without hearing live testimony, this court observed that, while deference is normally afforded to a trial court's findings, where those findings are based upon the trial transcript and exhibits and not observation by the successor judge of live testimony, this court "may draw our 'own conclusions with regard to the weight and credibility' of the evidence."

"The judge who presides at trial should explicitly approve or disapprove the verdict as thirteenth juror promptly after the jury renders its verdict." State v. Ellis, 453 S.W.3d 889, 908 (Tenn. 2015). The Court also noted that "we discourage trial judges from waiting to rule as a thirteenth juror until the hearing on a motion for new trial."

Id. at *6 (citing State v. Ellis, 453 S.W.3d 889, 898-901 (Tenn. 2015)).