TRIAL BY CHECKLIST
July 5, 2010 § 23 Comments
Some years ago an old Chancellor complained to me that we were being reduced to “trial by checklist,” what with all the cases being handed down that spelled out factors that the trial court must address in adjudicating certain issues. Over the years, those so-called checklists have multiplied, so that Chancellors are required to consider and address factors in determining:
- Child custody
- Equitable distribution
- Periodic and rehabilitative alimony
- Lump sum alimony
- Grandparent visitation
- Separate maintenance
- Modification of child support
- Adverse possession
- Attorney’s fees
Over time, I will be posting these factor “checklists” for your use.
Remember that these factors are the ones that must be decided by the judge in order to decide your case. In essence, the factors are the elements of the case that will determine its outcome. If you are not putting on proof as to each factor that applies in your case, you are running the risk that the Chancellor will find that there is not enough evidence to rule in your favor.
Practice Tip: When trying a case involving any of the foregoing issues, have a list of the factors applicable your case at hand, and methodically cover them in your questions for the witnesses. Give some thought to questions that will best develop evidence that will support a finding in your client’s favor for as many factors as possible, and how to minimize the impact of factors that are not in your favor.
The Better Chancery Practice Blog 
[…] For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.” […]
[…] You old timers know of my fondness for what I refer to as “Checklists” — those lists of factors that apply in various cases in chancery court. Newcomers may not be acquainted with the concept, so I republish this list of checklists every now and then to spread the word. It’s a concept I’ve referred to as “Trial by Checklist.” […]
[…] For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.” […]
[…] case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting […]
[…] what I call trial by checklist. You can think of the factors as a checklist of what you need to prove to make your case. If you […]
[…] referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting […]
[…] by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are […]
[…] TRIAL BY CHECKLIST: ATTORNEY’S FEES IN AN ESTATE A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST […]
[…] A CHECKLIST OF CHECKLISTS Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. […]
[…] talked before here about how important it is to develop your proof at trial based on the various lists of factors […]
[…] A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST: SEPARATE MAINTENANCE A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST: LUMP SUM ALIMONY A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST: PERIODIC AND REHABILITATIVE ALIMONY A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST: MODIFICATION OF CHILD SUPPORT A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST: EQUITABLE DISTRIBUTION A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST: GRANDPARENT VISITATION A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST: CHILD CUSTODY FACTORS A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST: ADVERSE POSSESSION A practice tip about trial factors is here. […]
[…] TRIAL BY CHECKLIST: ATTORNEY’S FEES A practice tip about trial factors is here. […]
It is a conundrum of the first order that the fact-finding of Chancellors is subjected to such scrutiny while that of jurors is not. I appreciate your comment and wonder what the lawyers who try cases in Chancery Court see this.
Good advice to lawyers Chancellor Primeaux. Too often I experience lawyers who do not cover all of the “factors” in their proof. I sometimes wonder if they know what they are.
But once upon a time not too far ago there were no “factors”. The appellate courts were able to review a chancellor’s decision from the record and determine if he or she was right or wrong, just as they now do in reviewing jury verdicts, including those which impose the death penalty.
Why the double standard?