Reprise: Making Your Record Make Sense

November 16, 2018 § Leave a comment

Reprise replays posts from the past that you may find useful today.

Ten Tips for a Clearer Record

October 30, 2014 § Leave a comment

As I have said here before, your primary job as a trial lawyer is to make a comprehensible record.

There are two obvious reasons for this: (1) if you fail to make the trial judge understand what your favorable facts are and what your theory of the case is, you lose, plain and simple; and (2) if you lose, you have got to have everything in the record — clearly stated — that you need to win on appeal.

It does you no good to try a case for three days and have the record transcribed only to find to your dismay that it is full of [Unintelligible], and interrupted, incomplete sentences, and references by the witnesses to documents that were never identified or offered into evidence.

Here are ten tips to get you thinking about making an adequate record:

1.  The court reporter can not get two (or more) people speaking at the same time. Lawyers who have come before me know this is a pet peeve of mine. The record is required to be verbatim, meaning that everything said audibly in court must appear in the record, and must identify who said what. Even the best court reporter can not make a verbatim record of more than one person speaking at the same time. After several warnings, I have told my court reporter to stop trying and just record it as [Unintelligible] if she can not accurately record what is being said and identifying the speaker. That does not produce a record that might prevail on appeal, you can rest assured.

2.  No nods or shakes or shrugs. The court reporter is not an interpreter. If your witness nods, the reporter will report it as [witness nods], not as a “yes.” It will be up to the trial judge and appellate court to do the interpreting, which may not yield the intended result. When your witness offers a physical gesture instead off a verbal response, follow up with something like, “Does that mean yes?” or “Please answer verbally.” It’s not the judge’s job to ask that, although some judges will just to resolve their own doubt.

3.  What in the world are you talking about? You hand the witness a photograph and ask what it depicts, and never offer it into evidence (counsel opposite is not going to help you). Or you hand the witness a sheaf of documents already in evidence and ask questions about them, never identifying them by exhibit number. Either is a good way to keep the trial judge and the appellate court from knowing what it is you’re trying to prove.

4. Read at your peril. Some people talk fast, but everybody reads much faster than they speak normally. When you read, consciously slow down. And then slow down some more. You read faster than you talk because you’re not having to think about what you are going to say. If your goal is an intelligible record, you will have to read a lot slower than it seems like you should, but the product will be a record that is accurate.

5.  Speak up! Projecting one’s voice seems to be a lost art, but it’s essential if you want the judge and court reporter to catch what you’re saying. That’s true even if you and your witness have a microphone. Speak up. When you have a soft-speaking witness, encourage him to speak louder. Don’t stand too close to the witness because that usually degrades into a conversational, coffee-table exchange.

6.  Distractions distort the record. Anything that distracts the court reporter will detract from the accuracy of your record. Shuffling papers, drumming a miked table, loud whispering, jangling cell phones, are a few of the most attention-grabbing. If you or your client have a hacking cough, have some lozenges at the ready or ask the judge to allow a cup of water. If all else fails, suggest that your client to go out into the lobby until the paroxysms subside, making sure you either ask the judge for a recess or announce that your client is okay with proceeding in her absence.

7.  Let the court reporter mark the exhibits. You’ve just handed the court reporter that crucial exhibit, and before she can do anything else, you launch into your next question. As a rule, most judges or court reporters will stop you, but I saw a court reporter some years ago simply take the document and lay it on the table, resuming taking her record without ever marking the exhibit. That’s on the lawyer.

8.  Nothing is stricken. Something said in court can not be unsaid, so do not even ask. It’s the court reporter’s job to make a verbatim record of everything that happens. If you don’t like what was said, cover the offending answer in redirect or cross.

9.  S-p-e-l-l. You know the witness’s name and spelling, but neither the court reporter nor the judge do. It’s a good practice to ask the witness to spell names other than the most common. And that goes for persons and places identified in testimony, as well as case citations.

10. Clarify pronouns. As handy as they can be, pronouns introduce vagueness into your witness’s testimony. “All four arrived together, but I saw him leave later with her, and I was with him until she and he came back.” If you don’t define all of those pronouns using names, you have left the court with an indecipherable lump of information.

Six Factors for the Amount of Separate Maintenance

November 14, 2018 § Leave a comment

In the case of Daigle v. Daigle, 626 So.2d 140, 145 (Miss. 1993) (quoting Lynch v. Lynch, 616 So.2d 294, 296 (Miss. 1993)) the court laid out six factors that the trial court must consider in determining the amount of separate maintenance:

“There are six factors a chancellor should consider in determining the amount of separate maintenance to be awarded: (1) the parties’ health; (2) the parties’ combined earning capacity; (3) the reasonable needs of the spouse requesting separate maintenance and any children; (4) the necessary living expenses of the payor; (5) the fact that the payee spouse has use of the marital home and furnishings; and (6) any other pertinent facts. Id.

Also cited in Williams v. Williams, 224 So. 3d 1282, 1285 (¶9) (Miss. App. 2017).

Retirement and Resignation Festivities

November 13, 2018 § 7 Comments

At least 18 chancellors will be leaving the bench at the close of business on December 31 (actually on December 28, because the Governor decreed the 31st to be a holiday this year).

If there is a reception or ceremony scheduled in honor of your chancellor, readers of this blog might want to find out about it so that they can make plans to attend.

Please comment with any info you have. You can comment later on this same post as information develops.

The info I have as of today:

  • Chancellor Jerry Mason, District 12, retiring. Reception honoring him on December 14, 2018, from 1-3 pm in his Chancery courtroom on the second floor of the Lauderdale County Courthouse.
  • Chief Judge Joe Lee of the COA, retiring. Ceremony and reception immediately following at the COA en banc courtroom, Gartin Justice Building, Jackson, November 15, 2018, at 2 pm.
  • Chancellor John Grant, Rankin County. November 30th 1 – 3 pm. Rankin County Chancery Courthouse.

Chief Justice Waller is Retiring

November 12, 2018 § 1 Comment

Chief Justice Waller announces he will retire January 31, 2019.

From the MSSC press release:

            Chief Justice William L. (Bill) Waller Jr. announced that he will retire on January 31, 2019.

            Chief Justice Waller said, “I have elected to tender my resignation and retire from public service effective January 31, 2019, completing more than 21 years of service on the Mississippi Supreme Court and 10 years as Chief Justice. It has been my highest privilege to be elected as a Justice of the Supreme Court and serve as Chief Justice of Mississippi.”

            Chief Justice Waller was elected in November 1996 and  took office in January 1998.  He was re-elected in 2004 and 2012. He was a presiding justice for five years. He became Chief Justice in January 2009.

            At age 66, he enjoys good health. “It’s just time,” he said.

            The Governor will appoint a Justice to the District 1, Place 1 position on the court. The next election for the seat is in November 2020, and the next eight-year term will begin in January 2022. The position is one of two seats on the court with a 14-month delay between the election and the beginning of a new term.

            Mississippi Code Section 9-3-11 says that the justice who has served longest on the court shall be Chief Justice. Presiding Justice Michael K. Randolph of Hattiesburg, who joined the court in April 2004, is the second longest serving justice on the court after Chief Justice Waller.

            Upon retirement from the court, Chief Justice Waller plans to become a senior status judge and remain active in Access to Justice and other administration of justice endeavors. He would like to teach as an adjunct professor at the University of Mississippi School of Law and Mississippi College School of Law. He previously taught pretrial practice at both law schools.

November 12, 2018 § Leave a comment

State Holiday

Courthouse closed

Dispatches from the Farthest Outposts of Civilization

November 9, 2018 § Leave a comment

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Judicial Election Results

November 7, 2018 § 7 Comments

Please post the results from your districts via comment, like a bulletin board.

Be sure to include the District, names of the contestants, and any numbers you have. If not final due to missing precincts, please note that fact.

November 6, 2018 § 2 Comments

Election Day

Lots of judicial posts are contested. Please go vote.

The Trap of the Oral “Easement”

November 5, 2018 § Leave a comment

The Stewarts and the Smiths owned adjoining lots on a lake where they and others enjoyed water skiing. They and some other neighbors deepened a drainage ditch for lake access, and built a boat ramp and retaining walls. The retaining walls were on both properties, but the boat ramp was almost entirely on the Smiths’ lot. In exchange for sharing the cost of the project, the Smiths gave permission for all participants to use the ramp freely, which they did. The offer and agreement were oral and never reduced to writing or recorded.

In 1995, Girani acquired the Stewarts’ lots, and he made further improvements and repairs to the boat ramp. He continued to use the ramp at will, and did not make any effort to acquire a written, recorded easement.

In 2006, Lovorn acquired the Smiths’ lots and blocked the boat ramp, insisting that the others get permission before using it.

At that point, Girani filed suit in chancery court. In the absence of a written, recorded easement, he urged the chancellor to find that the parties’ actions had created an “easement by estoppel.” Or, he suggested, the chancellor could find that he has an “irrevocable license” to use the ramp, based on the consideration of his contribution to the boat ramp and channel. The chancellor denied any relief, and Girani appealed.

In Girani v. Lovorn, decided October 9, 2018, the COA affirmed, with Judge Tindell writing the unanimous opinion:

¶9. Although Girani acknowledges Mississippi caselaw generally fails to recognize either easements by estoppel or irrevocable licenses, he asserts equity allows courts to employ such remedies to prevent injustice. Contending the facts of this case support judicial recognition that he has either an easement by estoppel or an irrevocable license to access Lovorn’s boat ramp, Girani asks this Court to modify or extend existing Mississippi caselaw to provide for such remedies.

¶10. “[A]n easement is an interest in land subject to the statute of frauds, and any agreement to convey or transfer an easement must comply with the statute of frauds, and be conveyed by written deed.” 37 C.J.S. Statute of Frauds § 66 (2017). Where recognized, however, an easement by estoppel provides an exception to the statutes imposing the requirement of a writing. Id. at § 67. The Mississippi Supreme Court has defined easement by estoppel to mean:

[A]n easement which is created when a landlord voluntarily imposes an apparent servitude on his property and another person, acting reasonably, believes that the servitude is permanent and in reliance upon that belief does something that he would not have otherwise or refrains from doing something that he would have done otherwise.

Gulf Park Water Co. v. First Ocean Springs Dev. Co., 530 So. 2d 1325, 1332 (Miss. 1988) (quoting United States v. Thompson, 272 F. Supp. 774, 784 (E.D. Ark. 1967)). In contrast to an easement, a license “confers no interest in the land but merely gives one the authority to do a particular act on another’s land . . . and . . . may be created orally.” 37 C.J.S. Statute of Frauds § 66. “However, it . . . has been said that an irrevocable license is . . . an easement rather than a license.” 53 C.J.S. Licenses § 147 (2017).

¶11. In the present case, Girani admits no written instrument ever existed to grant him permission to use the boat ramp on Lovorn’s land. He therefore relies solely on the remedies of easement by estoppel and irrevocable license for his requested relief. Recognizing that our supreme court has previously looked unfavorably on both irrevocable licenses and easements by estoppel, Girani asks this Court to extend or modify existing Mississippi caselaw on this issue. See Gulf Park Water Co., 530 So. 2d at 1335 (providing that Mississippi “does not recognize ‘irrevocable licenses’”); Belzoni Oil Co. v. Yazoo & Miss. Valley R.R. Co., 94 Miss. 58, 58, 47 So. 468, 472-73 (1908) (refusing to change licenses into an irrevocable right on the basis of equitable estoppel); Beck v. New Orleans & Tex. Ry. Co., 65 Miss. 172, 176, 3 So. 252, 252 (1887) (declining to recognize irrevocable licenses). Upon review, we decline to do so. See Cahn v. Copac Inc., 198 So. 3d 347, 358 (¶35) (Miss. Ct. App. 2015) (“[T]his Court does not have the authority to overrule or ignore supreme court precedent.”). We therefore find this assignment of error lacks merit.

It’s not probable that the MSSC will grant cert and change the law of easement by estoppel or irrevocable license in Mississippi, but stranger things have happened, and I give credit to Girani’s lawyers for pursuing what appears to be the only possible avenue to get their client the relief he is seeking.

Any lawyer who has been in practice a while will recognize this kind of scenario. The client and his neighbors fall into a particular way of doing things until property changes hands and the new owner balks at continuing the longstanding custom. This could have been fixed years ago with a written and recorded easement, but everyone was comfortable with their cozy arrangement so why inject a bunch of lawyers into the picture? Only thing is that the lawyers get involved eventually anyway. “Pay me now or pay me later.”

“Quote Unquote”

November 2, 2018 § Leave a comment

“Surely it is much more generous to forgive and remember, than to forgive and forget.”  —  Maria Edgeworth

“I also am other than what I imagine myself to be. To know this is forgiveness.”  —  Simone Weil

“From forgiveness anew life will spring in the believer, and as a consequence forgiveness cannot be forgotten. No longer is the Law the only disciplinarian [to lead us] to Christ, but forgiveness through Christ is the gentle disciplinarian who does not have the heart to remind us of what has been forgotten but still reminds us of it to the extent of saying: Just remember that it is forgiven. It is not forgotten but is forgotten in forgiveness. Every time you recollect the forgiveness, it is forgotten; but when you forget the forgiveness, it is not forgotten, but then the forgiveness is wasted.”  —  Søren Kierkegaard