December 9, 2016 § 5 Comments
I know things can get tense out there, friends, but I hope it doesn’t come to this here in Mississippi:
A San Diego lawyer disbarred in a default judgment after walking out of his disciplinary trial says he plans to sue state officials involved in the proceedings.
The former lawyer, Douglas James Crawford, was accused of bringing pepper spray and a stun gun to a deposition, threatening to use them on opposing counsel if things got out of hand, and discharging the stun gun while pointing it toward opposing counsel, according to a summary of his case in the California Bar Journal. He was disbarred in September.
Crawford tells the San Diego Union-Tribune that he plans to sue for civil rights violations. He says he walked out of the disciplinary trial because he believed lawyers for the State Bar of California misrepresented facts and improperly kept him from presenting witnesses and evidence.
“As far as the disbarment, I could care less,” Crawford told the Union-Tribune. “It’s not really a group of people I want to associate myself with.”
A state bar court had found Crawford culpable in four of eight misconduct charges against him, according to the California Bar Journal summary and a July 2015 decision by the bar court hearing department. The bar court found he engaged in moral turpitude in the pepper spray and stun gun incident.
Crawford told the Union-Tribune that he brought the stun gun and pepper spray to the deposition because someone had brought a gun to another deposition and he felt unsafe. He said he displayed the stun gun and pepper spray to disclose that he was armed, but he never threatened anyone with them.
People bringing guns to depositions? People feeling unsafe at depositions? My Lord. And the disbarred lawyer is planning to sue for “civil rights violations.” Really.
I didn’t make this up. You can read the article at this link.
December 7, 2016 § 1 Comment
At its heart the legal profession is all about communicating, which consists of at least several elements:
- First, one must understand that which must be communicated. This entails analysis of the situation to break it down into its legal elements, and then application of the law to those elements.
- Second, the analysis has to be translated into understandable words.
- Third, the understandable words have to be presented in an organized, understandable, persuasive manner.
You can probably improve on that, but it suits my purposes for now.
At the trial level, effective communication involves well-written pleadings and briefs or memoranda of law, and oral argument, as well as the way you examine witnesses. At the appellate level, brief-writing and oral argument depend heavily on how well the lawyer can communicate.
Some things that get in the way of effective communication are poor grammar and spelling, improper word choice and usage, and disorganized thinking. And, it should go without saying that your communication is for naught if your legal analysis is flawed.
Here are a few tools to help you craft your communications effectively:
- The Elements of Style, by William Strunk and E.B. White. This little gem at fewer than 100 pages (at least in the worn edition I have), is crammed with useful insights into effective writing. Here you will find such usage solutions as how to create the possessive plural of names ending in s, proper use of semi-colons with clauses, whether to use a singular or plural verb forms with words such as “or” or with linking verbs, and the proper case of pronouns, all presented in clear language with easy-to-grasp examples. There are other sections on principles of composition, matters of form, misused words and expressions, and suggestions for improving your style of writing.
- Fowler’s Dictionary of Modern English Usage, by H.W. Fowler, Jeremy Butterfield, editor. When should one use italics? What is the difference between reciprocal and mutual, or apprehend and comprehend, or unless and until? Why the word “literally” conveys the opposite sense of what you intend? Do we still observe rules such as avoiding split infinitives and ending sentences with a preposition (hint: it’s usually okay to)? You will find answers to these and many, many other questions that routinely pop up as you write in this useful book that is arranged by subject alphabetically.
- Any good thesaurus. When you say the same thing over and over using the same words, your words have no impact.
- A good dictionary. Before you use that word, you might want to look it up (takes three seconds) to make sure it means what you think it does.
- The Law Prose blog. A gold mine of information on proper and potent use of legal terminology. This is one you should bookmark.
- Adams on Contract Drafting offers guidance on how to draft contracts in ways that avoid ambiguity and clearly state the intent of the parties. Even if all of your drafting practice consists of property settlement agreements, you can learn something here about how precision in the use of language can make a big difference between success and failure of your instruments.
- Here’s a link to an article in the ABA Journal Online on How to Bring a More Conversational Tone to Your Writing, which is meritorious in its own right, but illustrates also that there are resources all over the internet that you can bring to bear in your quest to be a more productive communicator.
You may be surprised how, when you concentrate on making your language more concise, correct, and powerful, you will simultaneously discover weaknesses in your legal analysis and thought process that you can shore up and strengthen before you ever dispatch that communication to counsel opposite and the court. That’s the kind of strength that distinguishes a really good lawyer from a mediocre one.
December 5, 2016 § 4 Comments
When it comes time for children to testify in a chancery court trial, there is a host of factors to take into account. Is it in the child’s best interest to testify? Is the child competent? Is it really necessary to subject the child to that experience?
Once the decision is made to allow the child to testify, the question arises as to how the testimony should be taken. Should the parents be present?
That question arose at trial in the case of Miller v. Smith, decided by the COA on November 22, 2016. In that case, the chancellor had excluded both the father and the mother from the court room in a contested child-custody modification case where an adolescent step-child offered testimony of sexual abuse. In an opinion affirming the trial judge, Judge Fair wrote for the COA:
¶18. At trial, Jessica’s daughter Kristen testified to several instances where Dale sexually harassed and/or abused her. The chancellor stated that due to the nature of the testimony, she preferred to clear the courtroom for Kristen’s interview, having present only the lawyers and the court reporter. The testimony was recorded, and a transcript appears in the record on appeal. Kristen testified that she went to the police to report one of the incidents (the police report was in evidence and part of the GAL’s report), but the police did not investigate further because there was no physical evidence of abuse. Also, the Mississippi Department of Human Services (MDHS) conducted an investigation (the report was also in the record and part of the GAL’s investigation) but found no physical evidence of sexual abuse. Kristen was cross-examined by Dale’s attorney, and Dale gave rebuttal testimony to his version of the events.
¶19. Dale argues the chancery court erred in allowing Kristen to testify outside of his presence. He specifically argues that doing so violated the confrontation clauses of both the United States and Mississippi Constitutions. He further argues that his forced absence from the courtroom violated Mississippi Rules of Evidence 615 and 617.
¶20. The Confrontation Clause only applies to criminal cases. “In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him . . . .” Miss. Const. art. 3, § 26 (emphasis added). So Dale’s first argument fails.
¶21. Article 3, Section 25 of the Mississippi Constitution simply provides that “[n]o person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Because Dale’s counsel was present during Kristen’s testimony, there was no violation of Article 3, Section 25.
¶22. Further, Dale’s argument that the chancery court violated Rule 617 is misplaced. No interview was taken using closed-circuit television, as provided in Rule 617. [Fn 7]
Rule 617 provides:
(a) Grounds. On the motion of a person named in subdivision (b), or on its own, the court may order that a child’s testimony be taken outside the courtroom and shown in the courtroom by means of closed-circuit television if the court determines that:
(1) the child is under the age of 16 years;
(2) the testimony is that an unlawful sexual act, contact, intrusion, penetration, or other sexual offense was committed on the child; and
(3) there is a substantial likelihood that the child will suffer traumatic emotional or mental distress if compelled to testify:
(A) in open court; and
(B) in a criminal case, in the presence of the accused. (Emphasis added).
¶23. Dale asserts that Rule 615, commonly known as “the Rule,” and occasionally more properly “the exclusionary rule,” deprived him of due process. Rule 615 states:
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person . . . .
¶24. The chancellor disregarded Dale’s objection to being forced to leave the courtroom during Kristen’s testimony. Because Dale was a party, he argues that, under a strict interpretation of the Rule, the chancellor did not have the authority to exclude him from being present. The procedure used by the chancellor in this case (excluding parents and/or stepparents in basically an “in camera” proceeding) is common, either by agreement or without objection of parties, in custody cases. See Robison v. Lanford, 841 So. 2d 1119, 1121 (¶21) (Miss. 2003) (holding that, as a matter of first impression, records of in-chambers interviews with children during child custody modification proceedings were required to be made).
¶25. There are exceptions to the Rule. For example, in Rule 617, parties who are alleged to be guilty of sexual abuse of a child may be excluded from the personal presence of children ages sixteen and under. M.R.E. 617. There is not, however, reported precedent of enforced exclusion of a party under the present circumstances of testimony by a seventeen year-old stepchild.
¶26. In a number of criminal cases, our supreme court has found that failure of enforcement of the exclusionary rule does not automatically result in reversal, holding that prejudice must accompany failure to exclude. See Avery v. State, 119 So. 3d 317, 320 (¶9) (Miss. 2013); Woulard v. State, 832 So. 2d 561, 565 (¶13) (Miss. 2002). Here, Dale has failed to show how he was prejudiced from the chancellor’s error. Not only was his attorney present during Kristen’s testimony, he cross-examined Kristen. The chancellor also allowed Dale to give rebuttal testimony to factual assertions by Kristen. Consequently, we find that no reversible error has been shown under this issue.
The situation described here is, as Judge Fair notes, fairly common in chancery court. In my experience, the parties often agree that they will leave the court room during the child’s testimony, as long as their attorneys can remain and participate. Most parents do not want to appear to be trying to pressure the child or to be putting their own interests ahead of the child’s, so they agree. In those cases where they both do not agree, however, and the chancellor finds that it would be in the child’s best interest for them to be excluded, this case is authority to support that action.
December 2, 2016 § 8 Comments
” … What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen erecting a spiritual tyranny on the ruins of Civil authority; in no instance have they been seen the guardians of the liberties of the people. Rulers who have wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries. A just Government instituted to preserve and perpetuate it [public liberty] needs them not. Such a government will be best supported by protecting in every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of others.” — James Madison
” … this would be the best possible world if there were no religion in it.” — John Adams (quoted by Jefferson in a letter)
“In every country and in every age the priest has been hostile to liberty. He is always in alliance with the despot. … they have perverted the purest religion ever preached to man into mystery and jargon, unintelligible to all mankind, and therefore the safer engine for their purpose.” — Thomas Jefferson
[I came across these quotes and thought they were share-worthy as a counterpoint to the school of thought that our founding fathers intended this to be a Christian nation. Madison, Adams, and Jefferson were three of the most prominent founders. Madison is considered by many scholars to have been a Deist, and Jefferson definitely was so. Jefferson revered the teachings of Jesus, but believed Christianity had subverted and corrupted His teachings. Adams, who was a Congregationalist and later a Unitarian, considered himself a Christian, but shared Jefferson’s views on Christianity.
Two other founding fathers, Thomas Paine and Benjamin Franklin, were also Deists. Paine’s Age of Reason is a scathing denunciation of religion. Franklin considered himself both a Deist and a Christian. Franklin made a motion at the 1787 Constitutional Convention that every session begin with a prayer for God’s guidance; the motion was defeated.
What the founders shared was an abhorrence of any state-sponsored religion such as the Anglican Church in England. They also recognized that there were many different religions planted in and taking root in the new nation, and that any persecution for religious beliefs would be too much like the English system, which the rejected. Hence the First Amendment.
When the French were looking for a model for their post-royalty nation, they admired the new United States Constitution, and used it as a template for their own recognition of the rights of citizens. After consultation with several of our founders, they were persuaded to make their own government a purely secular one, which, with a few deviations, it has remained to this day.]
November 30, 2016 § 3 Comments
Thanks to you, the Better Chancery Practice Blog has elbowed its way onto the ABA Journal’s Blawg 100, which is the publication’s annual list of the best blogs about lawyers and the law.
I consider this quite an honor, since only the best 100, of the more than 4,000 legal blogs recognized by the ABAJ, are listed.
My sincere thanks to everyone who participated in the nomination process, and to everyone who takes valuable time from their day to entertain my musings.
November 29, 2016 § Leave a comment
Reprise replays posts from the past that you may find useful today.
STUNG BY ATTORNEY’S FEES
August 7, 2012 § 1 Comment
The usual standard in chancery court is that a party will not be entitled to an award of attorney’s fees unless the party proves an inability to pay. It’s a subject we’ve touched on before.
The exception to the rule is when the court finds a party in contempt. In that case, no inability to pay need be shown. And, when you represent the contemnor, you are wise to advise your client in advance to be prepared to get stung by those fees if the case is tried and he or she is on the losing side.
The latest manifestation of these principles is in the COA case of Rogers v. Rogers, decided July 25, 2012. In Rogers, the chancellor had found Mr. Rogers to have perpetrated a fraud on the court and assessed him with $1,605 in his ex-wife’s attorney’s fees. The COA reversed the finding of fraud (subject of another post), and Mr. Rogers complained that (a) there was no basis to assess fees absent the fraud finding, and (b) that there was insufficient evidence to support the award. Here’s the pertinent part of Judge Carlton’s decision:
¶29. Our jurisprudence generally provides that “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999) (citations omitted). Additionally, a chancellor may also award attorney’s fees based on a party’s wrongful conduct, as stated in Chesney v. Chesney, 849 So. 2d 860, 863 (¶12) (Miss. 2002), as follows:
There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So. 2d 832, 844-45 [(¶60)] (Miss. 1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So. 2d 68, [72 (¶14)] ((Miss. Ct. App. 2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).
See also McCarrell v. McCarrell, 19 So. 3d 168, 172-73 (¶¶18-19) (Miss. Ct. App. 2009). Further, the issue of whether to award attorneys’ fees in a divorce case constitutes a discretionary matter left to the chancellor, and this Court is “reluctant to disturb” such a finding. Young v. Young, 796 So. 2d 264, 268 (¶11) (Miss. Ct. App. 2001).
¶30. Chancellors are instructed to apply the McKee factors in granting or denying attorney’s fees. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). However, the chancellor’s September 28, 2010 final judgment, where the chancellor awarded Julianne $1,605 in attorney’s fees, shows no mention of, nor specific findings on, the McKee factors. The chancellor stated only that “evidence reflected that [Julianne’s] attorney’s fees and court costs totaled $1,605.”
¶31. Our supreme court has held where there is substantial evidence in the record supporting the chancellor’s award of attorney’s fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995) (no McKee findings); Prescott v. Prescott, 736 So. 2d 409, 416 (¶31) (Miss. Ct. App. 1999) (no finding of inability of recipient to pay). We further note that a specific, on-the-record finding of inability to pay is not necessary where attorney’s fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So. 2d 858, 863 (¶16) (Miss. Ct. App. 1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount v. Mount, 624 So. 2d 1001, 1005 (Miss. 1993).
¶32. In the case before us, the chancellor recognized Charles’s continued failure and refusal to comply with the divorce decree, including his failure to make alimony payments, failure to provide medical-insurance coverage, and failure to pay Julianne’s uncovered medical expenses. The chancellor also found Charles in contempt of court for his failure to provide adequate medical-insurance coverage for Julianne. For these reasons, we affirm the chancellor’s award of attorney’s fees to Julianne. This assignment of error is without merit.
The significance of Rogers with respect to attorney’s fees awards is two-fold: (1) it reiterates the rule that the inability-to-pay test is inapplicable when the assessment of fees is due to contempt or misconduct; and (2) it clarifies that the amount of proof and documentation necessary to support the award for contempt or misconduct is not as great as in an inability-to-pay case.
Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.
November 28, 2016 § Leave a comment
Most of you, I am sure, are familiar with the fable of the blind men and the elephant. Six different blind men, for some reason, are asked to feel an elephant and to describe what the creature is like based on their experience. Of course, each one can offer a description based only on his limited groping. One surmises a rope-like creature based on feeling the trunk, another guesses a tree-like creature after feeling the leg, and yet another posits an umbrella-like critter from feeling the ear. And so on. The point being that perception based on limited evidence can be misleading and incomplete.
That takes us to the COA’s decision in Kittrell v. Kittrell, decided October 4, 2016, in which the court was called upon to determine whether the special chancellor erred in concluding that an alimony provision in a PSA was periodic. To set the stage, Judge Lee recited the legal standard and went on to describe the court’s chore:
¶9. “Although a court order imposing alimony must, in general, clearly identify what type of alimony is being awarded and adhere to its traditional characteristics, our ‘Supreme Court has not required consensual support agreements to follow the same terms as for court imposed alimony.’” Id. at 918 (¶30) (quoting Elliott v. Rogers, 775 So. 2d 1285, 1289 (¶15) (Miss. Ct. App. 2000)). “Rather, the Supreme Court has emphasized divorcing parties’ freedom and ‘broad latitude’ to settle the financial aspects of their separation by contract as they see fit[.]” Id.
¶10. It is because of this broad latitude that this Court is faced with the hopeless task of determining whether the alimony provision in Stan and Stephanie’s property-settlement agreement provided for lump-sum or periodic alimony. [Emphasis added]
Hopeless task? Hyperbole, you think? Well, judge for yourself; here’s the PSA provision in question:
Both parties do hereby agree that Stan Kittrell each month shall deposit his monthly retirement check from the Public Employees Retirement System (PERS) into Stephanie Kittrell’s bank account via direct deposit with the monthly amount of $250.00 considered child support and the remainder as alimony. The child support will continue to be deposited monthly until the child’s [twenty-first] birthday or until the child no longer lives with the mother. The remainder of the check shall be considered alimony and shall continue to be paid until the child reaches the age of [twenty-one] or until Stephanie Kittrell remarries. Stan Kittrell shall receive sixty percent (60%) of the [thirteenth] PERS check and Stephanie Kittrell shall receive forty-percent (40%) of the same until such time as the child reaches the age of [twenty-one] or until the child no longer lives with the mother. Stephanie Kittrell by signing this document agrees to pay the house note on the marital home out of the PERS money she receives from Stan Kittrell.
Stan Kittrell hereby relinquishes all rights and benefits to Stephanie Kittrell’s 401k retirement funds. Both parties relinquish any right to bonuses, rewards, or financial settlements of any kind.
Hyperbole? I think not. Here’s how the COA addressed it:
¶18. We also reverse the chancery court’s finding that the alimony provision in Stan and Stephanie’s property-settlement agreement provided for periodic alimony. The alimony provision does not strictly adhere to the traditional characteristics of either periodic or lump sum alimony. See Lowrey [v. Simmons], 186 So. 3d  at 919 (¶33) [(Miss. App. 2000)]. Accordingly, we will enforce the provision as it is written. See id. Because Stephanie did not remarry, Stan was obligated to pay alimony until Dylan reached the age of twenty-one on September 17, 2014. And Stan’s thirteenth PERS check would have terminated when Stan was granted custody of Dylan. We remand this case to the chancery court for a calculation of the specific amount of alimony owed as well as costs and attorney’s fees.
I am guessing that this was not the outcome Stan expected when he signed that PSA back in 2005.
When you draft an agreement such as a PSA, keep in mind that it not only has to reflect the parties’ agreement and make sense to them and counsel involved, it most importantly must be clear enough to make sense to others not involved, and particularly to any judge who will later be called upon to construe it. Again : Draft it, and set it aside for a day or so. Then pick it up and read it over again carefully. Does it say what needs to be said? Then re-read it pretending that you know nothing about the negotiations (like a judge has to do). Is it clear from its plain language just what is intended and what is to occur? If it is intended to be periodic alimony, then say so in plain, unmistakable terms. When you leave it to a judge to figure it out later, your client might not get what she thought she bargained for.
This case also involved a claim for termination of alimony for cohabitation. That’s for another day.
November 25, 2016 § Leave a comment
November 24, 2016 § Leave a comment