THE POST TO RESTORE SANITY

October 22, 2010 § Leave a comment

Okay, I sort of stole the title of this post from Jon Sewart’s RALLY TO RESTORE SANITY (now the RALLY TO RESTORE SANITY and/or FEAR, since Stephen Colbert added his March to Keep Fear Alive to Stewart’s effort).  Whether you like Stewart or hate him, the idea of restoring sanity to our national debate is a concept all rational people should embrace.  It’s one I certainly wish for, especially on the eve of the congressional elections as the tone sharpens from strident to shrill. 

I ran across the following article in the AARP Bulletin the other day, and it puts into words my thoughts on the state of our political discourse in this country today much better than I could, so I am posting it here. 

CIVILITY IN A FRACTURED SOCIETY

Today’s rancorous politics is dividing America by: Jim Leach| from: AARP Bulletin | October 1, 2010

Politics has high and low moments. Sometimes it brings out the better angels of our nature; sometimes baser instincts. This season of shouting and name-calling is one of our lower moments, but it is not the worst period in American history. In 1804, Vice President Aaron Burr shot and killed Alexander Hamilton, our greatest secretary of the Treasury, in a legal act of incivility — a duel. Five decades later, Congressman Preston Brooks caned Sen. Charles Sumner unconscious on the Senate floor in an argument over slavery.

The Burr-Hamilton duel followed the most inspiring nation-building debate in world history. The Brooks-Sumner caning preceded the most uplifting presidency in our country’s existence. Higher moments have been characterized by expansions of political tolerance; lower moments by debilitating political discourse, often accentuated by the casting of religious slurs. Thomas Jefferson, for instance, was described as anti-Christian by partisan critics. At the zenith of anti-Catholic sentiment in the 19th century, rumors were circulated that Abraham Lincoln was Catholic. In the 20th century, in an era of rampant anti-Semitism, it was suggested that Franklin Roosevelt was a Jew.

Today, President Obama, like George W. Bush, has been referred to as a fascist. And in a period of rising Islamophobia, our president is even described as a secret Muslim.

What is wrong with false accusations and preposterous hyperbole? Plenty. Some frameworks of thought describe rival ideas; other frameworks define enemies or, worse yet, infidels.

Today’s rancorous politics is becoming radicalized in manipulative ways that divide Americans. That is why, in this election season, fidelity to civility may be as important as any stand a candidate may take.

Civility is not simply about manners. It doesn’t mean that spirited advocacy is to be avoided. What it does require is a willingness to consider respectfully the views of others, with an understanding that we are all connected and rely on one another.

Seldom is there only one proper path determinable by one individual or political party. Public decision-making does not lend itself to certitude. Everybody can learn from somebody else. That is why civility is a central ingredient of a democratic society.

Citizens should be expected to disagree vigorously with each other and take their disagreements to the ballot box. But the outcome that matters most after divisive campaigns is whether the prevailing candidates have the commitment to work together for the common good. A government of, by and for the people is obligated to conduct the nation’s business in a manner that respects dissent.

We cannot lead the world unless we morally rearm, not with intolerance for others, but with faith in traditional American ideals — honor, dignity, love of or at least respect for neighbors, near and far. As Lincoln noted in words borrowed from Scripture, a house divided cannot stand.

Jim Leach, chairman of the National Endowment for the Humanities, was a Republican member of Congress for 30 years.

POINTING THE WAY

October 21, 2010 § Leave a comment

Every litigant comes to court with problems to solve.  The ones who come away satisfied are not the ones who do the best job painting a picture of the atrocities they have suffered.  The ones who come away satisfied are usually the ones who do a good job painting a picture of the solution.

Imagine a situation at a temporary hearing where dad has left the family and has refused to send any support, but he is demanding custody because mom has a boyfriend who is spending a lot of time around the former marital residence.     

Dad’s side spends its time talking about how sorry mom is for her behavior, and how her bad behavior should not be rewarded with custody. 

Mom offers testimony about: her plan to get the children to school each day; her family in town who will help support her with caring for the children;  how mom’s work schedule will mesh with the children’s schedules; junior’s medication, and her role in administering it, and how aunt Donna will help get him to his doctor’s appointments; her plan to get little Amy to her gymnastics class every Tuesday; and what measures she will take to keep the boyfriend discreetly out of the picture on a temporary basis.  

Put yourself in the judge’s shoes.  He’s confronted with a problem, and one side has served up a platter of solutions, while the other has served up a platter of problems.  The whole reason you’re there is to get the judge to resolve the problems.  One side offers solutions, the other just talks about the problems.  Which side do you think has the better chance to prevail?

The same principle applies in most cases.  If you want the judge to fix visitation, offer a detailed plan (preferably in writing) that tells exactly what you want.  If you want 60% of the marital estate in equitable distribution, why not offer a spreadsheet that spells out precisely what your client would like to have.  If your client wants alimony, why not offer your version of a scoresheet sorting the proof among the Armstrong factors for the judge to consider?         

You will always be at an advantage if you will look at your case from the standpoint of what the judge is called upon to do.  If you will point a clear, logical, reasonable path for the judge that addresses and resolves the problems, you have an excellent chance of prevailing.

CHILD SUPPORT ARREARAGE CAN’T BE FORGIVEN. OR CAN IT?

October 20, 2010 § 2 Comments

It is axiomatic in Mississippi law that every child support payment is vested when due and any arrearage may not be forgiven, reduced or done away with by the chancellor.  Moreover, the child’s right to his parent’s support cannot be bargained or contracted away by his parents. Calton v. Calton, 485 So.2d 309, 310-311 (Miss.1986). 

The rule is not ironclad, however.  The Mississippi legislature carved out a narrow exception in MCA § 93-11-71, which states in part:

… upon a motion filed by the obligor and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness is equitable under the circumstances.”  [Emphasis added]

Caveat:  The statute would not apply in the circumstances spelled out in Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which is the subject of a previous post.

ALSO:  § 93-11-71 self-repeals on July 1, 2011, although it has been re-enacted previously.

CONTESTING PROBATED CLAIMS IN AN ESTATE

October 19, 2010 § 4 Comments

Section 91-7-165, MCA, allows the executor, administrator, legatee, heir or any creditor to contest a claim presented against the estate.  The statute requires notice to the claimant and a hearing.

This court requires notice on the claimant via a Rule 81 summons, returnable to a specific date and time.  Any other interested party who may have an interest contrary to the contestant should also be summoned, in this judge’s opinion.

At hearing, the burden of establishing a claim is on the claimant by clear and convincing evidence, or as one case characterized it, “by clear and reasonably positive evidence,” even though the claim has been admitted to probate by the clerk (in other words, the admission to probate of a claim does not have the same effect as admission of a will to probate). 

The decree of the court is limited to allowing or disallowing the claim, and the court can not enter a money judgment or judgment for other relief.

Appeal time runs from the date of entry of the decree allowing or disallowing the claim, and not from the date the estate is closed.

ADAR UPDATE

October 18, 2010 § Leave a comment

The Adar decision issued by a three-judge panel of the Fifth Circuit was the subject of a post I made October 1, 2010.  You can read my post here.  The ruling, issued in February and amended in March, was that a same-gender adoption judgment in New York was entitled to full faith and credit in Louisiana. 

On the very day I made my post, the Fifth Circuit en banc vacated the three-judge panel ruling on a petition for re-hearing:

 On October 1, 2010, the Court announced that a majority of the Circuit Judges in regular active service voted in favor of granting En Banc rehearing. By operation of Fifth Circuit Rule 41.3, that decision automatically vacated the Panel decision of February 18, 2010.

That leaves us for now where the case started, which is with a pending appeal to the Fifth Circuit, which now will take the matter up in the full panel.

Stay tuned.

Thanks to attorney Bill Jacob for bringing this to my attention.

MANAGING CLIENT EXPECTATIONS

October 18, 2010 § 4 Comments

One of the challenges of being a Chancery practitioner is keeping your clients’ expectations realistic.  And I’m not talking only about expections regarding outcome.  I’m talking expectations about you, your firm, the court and the legal process itself. 

The Pincus Family Law firm in Columbia, South Carolina has a page on its web site that may just be a home run in addressing client expectations.  You may find something useful here.  I’ve copied and pasted the text for you:

  

CLIENT EXPECTATIONS (REALISTIC OR UNREALISTIC)

ABOUT US: 

We do not work on the weekends and do not provide emergency numbers for the weekends.  There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.

Do not think we are perfect.  We make mistakes.  We are competent attorneys and paralegals, but we make mistakes.  We will correct a mistake if we find it or if you point it out.  Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.

We will return phone calls in the order they are received and based on the priority of the situation.  If you leave a message, your message will be passed on to the attorney.  Calling three or four or multiple times in a day will not get your call answered any faster.  Email is the quickest way to get a response from an attorney.

Attorneys work by appointments only.  Please do not show up at our offices to speak with an attorney without an appointment. 

Please utilize our paralegals to answer your questions and give you status reports.  Our paralegals are very experienced and can, most of the time, respond to your request.  We bill our paralegal time at less than 50% than what the attorneys charge so take advantage of their experience and knowledge.

ABOUT OTHERS:

You may not get any consideration from your spouse for anything you have done or will do because you are nice.  You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it.

Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you.  As your attorneys, we are the only reliable source of information regarding the process and status of your case.

The opposing attorney may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office.  It is unrealistic to expect that we can control how an opposing attorney handles his or her file or practices law.

The legal pleadings (Complaint, Answer, Counterclaim, etc.) are legal documents filled with allegations that must be pled (and some that are merely made to posture for a client).  Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf.  It is not worth it.

We cannot control the court’s schedule or docket.   The courts schedule cases as they are processed and in line with the thousands of other cases filed.   You will not be happy with the time it takes your case to get through the system.  There are thousands of family law cases filed in Lexington and Richland counties each year and most contested cases take several months, sometimes more than one year, to finish.

What you can expect during a Trial (Contested Case)

COURT APPEARANCES—Bonnie and Monet generally work files together although one attorney may be your “lead” attorney.  Therefore, at court appearances, it may be necessary for one to cover a court appearance for the other.  We will try to give you advance notice if your “lead” attorney will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.

SUBPOENAS—the other party can send a subpoena to any third party that MAY have information about you, your spouse, your business dealings, your employment, your education, your children and the like.  Banks, lenders, business partners, educational facilities, stock brokers, teachers, churches, etc. can all be issued subpoenas for any records they may have regarding you.  We can do the same.  There is very little we can do to stop this so be prepared to deal with the frustration you may experience.  If there is a legitimate reason to try and stop the subpoena, which there rarely is, we can file a motion to do so.  Unless the information is privileged in some fashion, the third party will have to disclose the information requested.

DEPOSITIONS—the other party can issue a notice of deposition to any third party witness.  This means that a third party can be required to give testimony under oath usually in one of our offices.  The purpose of depositions is to find out information and to find out ahead of time what a person may testify to in court.  You and your spouse could each be deposed for the same reason.  We can issue notices of depositions as well.  A fact witness is entitled to a fee of $25 to appear and professionals (doctors, psychiatrists, etc) are entitled to have their time paid for to appear (by the party that deposes them).  A court reporter must be present and is paid to attend as well.  The attorneys are paid to attend as well.  Depositions are costly.

NOTHING HAPPENS QUICKLY—generally, contested cases take several months to move through the court system.  A complicated custody or equitable division case can take one, sometimes two, years to complete.  The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, a guardian ad litem investigation, discovery, depositions, pre-trial hearings and motion hearings.  It takes a long time to move a contested case through the court system and this will likely be your number one frustration.  We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case.  Please prepare yourself ahead of time and please do not take this frustration out on us or my staff.  We are doing everything we can to move the case along.

DISCOVERY—this is the “formal” name for exchanging information through subpoenas, written questions (interrogatories) and request for documents.  Discovery has its own set of rules and deadlines which we will inform you about during the process.

CHILDREN—Marital problems are terribly difficult for children.  Do your children a favor and do not “poison” the minds of your children against their other parent.  Do not speak about their parent’s faults to children.  Do not complain to your children about how much child support you are paying or how little child support you are receiving.  Visitation with parents is NOT a bargaining chip or game.  Each parent is entitled to visitation privileges with their children.  Children are not your property.  They are not your pawns.  They are absolutely not your messenger.  They are innocent individual human beings that need both of their parents, not just the “best” parent.

ADULTERY—Do not become romantically involved with someone other than your spouse if you are still legally married (even if you are separated)! During marital litigation you should behave as though a detective and camera crew were following you and recording you and your conversations at all times.

CHILD CUSTODY CASES—You should behave as though a detective and camera crew were following you and recording you and your conversations at all times.  Do not do anything that you would not perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.

ATTORNEY’S FEES—in a child custody case, you could spend the price of a car in attorney’s fees.  Most contested custody cases run upwards of 10-20 thousand in fees paid out over the course of the case.  This usually includes attorney’s fees, guardian fees, psychological fees and expert witness fees.  In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets.  Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value.  A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in attorney’s fees over the life of the case.  The most expensive part of the case is going to be trial preparation and attendance costs.  That is why a trial retainer (an “up front” payment) is required in all contested cases.  You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.

Thanks to the LegalEthicsForum.com for this.

HEY, NINETEEN

October 15, 2010 § Leave a comment

I was talking with a young lawyer the other day and he asked when the MRCP went into effect. I told him how the rules were announced in 1981 and put into effect in 1983.  He laughed and said “I wasn’t even born then.”  Of course, I reacted with aplomb, I think, but after he left I had to tap figures into a calculator to believe it, and, yes, the little sapsucker was right. Dadgum.

Nowadays I have to ask my wife who someone is on tv, or who some comedian is referring to when he makes a joke.  Being born in the first half of the last century will do that for you, I guess.

If you want to get a handle on just how great is the disconnect between the understanding and life experiences of a 60-year-old (or 40 for that matter) and a 20-year-old, you need to ckeck out Beloit College’s Mindset List, an annual survey it publishes showing the many things that this year’s freshman college class has no clue about because they were born so recently. 

Here are some excerpts from this year’s list.  From a lawyer’s standpoint, it’s nice to know how irrelevant you’re becoming, so when you go to preaching to your 20-something-year-old client, you can realize just how little you’re communicating.  Here are a couple of things the Beloit site tells us …

“The class of 2014 has never found Korean-made cars unusual on the Interstate and five hundred cable channels, of which they will watch a handful, have always been the norm. Since “digital” has always been in the cultural DNA, they’ve never written in cursive and with cell phones to tell them the time, there is no need for a wrist watch. Dirty Harry (who’s that?) is to them a great Hollywood director. The America they have inherited is one of soaring American trade and budget deficits; Russia has presumably never aimed nukes at the United States and China has always posed an economic threat. 

Nonetheless, they plan to enjoy college. The males among them are likely to be a minority. They will be armed with iPhones and BlackBerries, on which making a phone call will be only one of many, many functions they will perform. They will now be awash with a computerized technology that will not distinguish information and knowledge. So it will be up to their professors to help them.  A generation accustomed to instant access will need to acquire the patience of scholarship. They will discover how to research information in books and journals and not just on-line. Their professors, who might be tempted to think that they are hip enough and therefore ready and relevant to teach the new generation, might remember that Kurt Cobain is now on the classic oldies station. The college class of 2014 reminds us, once again, that a generation comes and goes in the blink of our eyes, which are, like the rest of us, getting older and older.”

Back in the 1970’s, Steely Dan sang about this very phenomenon in Hey, Nineteen, a lament about a 20-something guy who could not communicate with his date because she was, alas, too young to remember Aretha Franklin.  (If you need to know who Steely Dan or Aretha Franklin are, drop by my office and I will tell you through clenched teeth).  Here’s more beyond Aretha that today’s entering freshmen don’t have in their life experience set …   

Most students entering college for the first time this fall—the Class of 2014—were born in 1992.

For these students, Benny Hill, Sam Kinison, Sam Walton, Bert Parks and Tony Perkins have always been dead.

Few in the class know how to write in cursive.

Email is just too slow, and they seldom if ever use snail mail.

With increasing numbers of ramps, Braille signs, and handicapped parking spaces, the world has always been trying harder to accommodate people with disabilities.

Had it remained operational, the villainous computer HAL [from 2001 A Space Odyssey] could be their college classmate this fall, but they have a better chance of running into Miley Cyrus’s folks on Parents’ Weekend.

Entering college this fall in a country where a quarter of young people under 18 have at least one immigrant parent, they aren’t afraid of immigration…unless it involves “real” aliens from another planet.

John McEnroe has never played professional tennis.

Clint Eastwood is better known as a sensitive director than as Dirty Harry.

Parents and teachers feared that Beavis and Butt-head might be the voice of a lost generation.

Doctor Kevorkian has never been licensed to practice medicine.

Colorful lapel ribbons have always been worn to indicate support for a cause.

Korean cars have always been a staple on American highways.

 Trading Chocolate the Moose for Patti the Platypus helped build their Beanie Baby collection.

Fergie is a pop singer, not a princess.

They never twisted the coiled handset wire aimlessly around their wrists while chatting on the phone.

DNA fingerprinting and maps of the human genome have always existed.

Woody Allen, whose heart has wanted what it wanted, has always been with Soon-Yi Previn.

Cross-burning has always been deemed protected speech.

Leasing has always allowed the folks to upgrade their tastes in cars.

Leno and Letterman have always been trading insults on opposing networks.

Unless they found one in their grandparents’ closet, they have never seen a carousel of Kodachrome slides.

Computers have never lacked a CD-ROM disk drive.

They’ve never recognized that pointing to their wrists was a request for the time of day.

Reggie Jackson has always been enshrined in Cooperstown.

“Viewer Discretion” has always been an available warning on TV shows.

Czechoslovakia has never existed.

Second-hand smoke has always been an official carcinogen.

“Assisted Living” has always been replacing nursing homes, while Hospice has always offered an alternative to the hospital.

Once they got through security, going to the airport has always resembled going to the mall.

Adhesive strips have always been available in varying skin tones.

Bud Selig has always been the Commissioner of Major League Baseball.

Pizza jockeys from Domino’s have never killed themselves to get your pizza there in under 30 minutes.

There have always been HIV positive athletes in the Olympics.

American companies have always done business in Vietnam.

Russians and Americans have always been living together in space.

The dominance of television news by the three networks passed while they were still in their cribs.

Nirvana is on the classic oldies station.

There have always been women priests in the Anglican Church.

Rock bands have always played at presidential inaugural parties.

Presidential appointees have always been required to be more precise about paying their nannies’ withholding tax, or else.

Having hundreds of cable channels but nothing to watch has always been routine. 

Their parents’ favorite TV sitcoms have always been showing up as movies.

Ruth Bader Ginsburg has always sat on the Supreme Court.

They have never worried about a Russian missile strike on the U.S.

It seems the Post Office has always been going broke.

The artist formerly known as Snoop Doggy Dogg has always been rapping.

The nation has never approved of the job Congress is doing.

 Honda has always been a major competitor on Memorial Day at Indianapolis.

YET ANOTHER REASON TO TAKE EXTRA CARE WITH 8.05’S

October 14, 2010 § 4 Comments

In the case of Trim v. Trim, 33 So.3d 471 (Miss. 2010), the Mississippi Supreme Court held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court.

So what is the significance of the Trim case for everyday practitioners?

Let’s say that your client isn’t deliriously happy with the outcome of her equitable distribution case, but she accepts it without an appeal.  Ten months later she comes in to your office mad as a hornet with sheaves of paperwork that prove conclusively that her ex substantially understated on his 8.05 the value of financial assets that he controlled, and the gain to your client could be in the hundreds of thousands of dollars.  Aha!  You think, we have the sorry so-and-so right by the [indelicate word deleted]!

But wait.  How are you going to get this before the court?  MRCP Rule 59 relief expired 10 days after the judgment was entered, and the appeal time ran 30 days after entry.  MRCP Rule 60 actions to set aside a judgment for fraud have to be brought within six months of the date of the judgment.   

That’s where Trim comes in.  By finding substantial misrepresentation on the 8.05 to be a fraud on the court, as opposed to fraud on the opposing party, the Supreme Court essentially ruled that there is no time limit to bringing an action to aside an action based on 8.05 fraud.  That’s because MRCP Rule 60 expressly states:  “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Trim has ramifications for lawyers in Chancery.  If you are in the habit of accepting your client’s 8.05 at face value without going over it with him or her, and without questioning behind it, you may be leaving your client open to an action to set aside that divorce judgment you thought you had laid to rest long ago.  The client may well question why you never went over the statement with him and counseled him about what to include and what not to include.  “My lawyer never told me that I had to list those three securities accounts; in fact, he never talked with me at all about what to include on the form.” 

In case you think this is the kind of thing that happens to somebody else somewhere else, think again.  Only this year, I set aside a divorce that was nearly two years old for substantial misrepresentation of financial assets that amounted to a fraud on the court.  It can happen to you.

FIVE SIMPLE STEPS TO PROVE ATTORNEY’S FEES

October 13, 2010 § 7 Comments

You would think that the award of an attorney’s fee would get special attention from both the client and the attorney.  After all, the client is looking for some help with the financial burden, and the lawyer representing him is looking for some assurance that she will be paid.  And one of the best ways to impress your client favorably is to hang your fees on the opposing party.

In many cases, though, I find that the lawyer takes a sort of slap-dash approach.  Sometimes the lawyer confers with the other side and reaches a low-ball stipulation about a reasonable fee.  Or the lawyer takes the witness stand (one of the very few occasions when an advocate is allowed to testify per Rule 3.7 of the Rules of Professional Conduct) and offers some general testimony in vague terms about a ballpark figure.  Or the lawyer simply asks his client what she paid him and apparently thinks that will suffice.

Proving a reasonable attorney’s fee is actually a fairly simple process, but you need to cover all the points to make your client’s claim airtight.  Before we talk about what you need to prove at trial, though, be sure you’ve done what you need to do before trial to lay a foundation for your claim:

  • Record your time as you move toward trial, and have your time record printed neatly.  You will need it for your testimony in court.
  • Be sure there is a prayer for a reasonable attorney’s fee in your pleading.  You are asking the court to take your opponent’s money, and that requires due process.

Now that the preliminaries are in order, here are the five steps to prove attorney’s fees:

  1. Be sure to have your client testify about his or her ability to pay.  In divorce cases, ability to pay is the most critical consideration, and if you do not establish your client’s inability to pay, she will not be eligible for an award of an attorney’s fee.  Deen v. Deen, 856 So.2d 736, 739 (Miss. App. 2003); Bates v. Bates, 755 So.2d 478, 482 (Miss. App. 1998).  Even in a contempt case, where inability to pay is not required, you are wise to offer testimony about the financial effect of the contempt and the resulting attorney’s fees on your client, since an award of an attorney’s fee is not mandatory in contempt.  Suess v. Suess, 718 So.2d 1126, 1129 (Miss. App. 1998).  Remember that the ethical rules do not allow you as an advocate to testify about the contested merits of the case.  If you are going to prove your client’s inability to pay, you will need your client’s testimony. 
  2. Testify yourself about the prevailing rate charged by attorneys in the district.  The award must be reasonable, and one of the key touchstones for reasonability is the usual and customary rate charged by attorneys in the district.  But the prevailing rate is not binding on the court.  The judge may award a fee at a greater or lesser rate if the circumstances warrant it.  If you charged a rate different from the prevailing rate in the district, what rate did you charge and why?  And if your rate exceeded the prevailing rate, what is your justification for doing so?  Make your record.
  3. Put into evidence an itemization of the time you devoted to the case.  Here’s where that itemized statement comes in.  Identify it and ask that it be admitted into evidence.  Before you do, though ask yourself:  Is it credible?  Does it look like a genuine fee statement that one would tender to a client for payment, or does it look like something you scratched together 5 minutes before setting foot in the courtroom?  Are the times reported credible?  Does it reflect charges for “one competent lawyer,” or are there charges included for others?  Before you ever get to trial, pore over your statement and subject it to your own cross examination.
  4. Be sure to capture all the time in the case.  Ask the court to take judicial notice of the time spent to that point in the trial, and estimate for the record how much more time will be needed to complete the trial.  Estimate also the total number of hours that will be needed for any post-trial matters, such as drafting a judgment or preparing proposed findings of fact and conclusions of law.
  5. Address each and every one of the McKee factors.  You can read more about the McKee factors here.  The McKee factors govern the amount of the award, but as a practical matter, if you don’t prove them there is nothing in the record to determine what is reasonable, which means that a reward of zero is most likely.  No matter how badly you and your client want that attorney’s fee award, if you don’t include proof of the McKee factors, you likely won’t get it.

AVOIDING AN EXPENSIVE ERROR

October 12, 2010 § 1 Comment

Imagine having this nightmare: 

You represent the husband.  He has $376,000 in his securities account.  You negotiate a property settlement agreement by which the wife will receive $203,200 from the account, and he will own the remaining $172,800.  Couldn’t be plainer or more clear-cut.  A few months drag by before you finally get the QDRO drafted and approved by the court.  You ship it off to the plan manager, who calls you and tells you that the account is now only worth $204,000, and what exactly is it that you would like her to do.  At this point in the nightmare, you wake up in a cold sweat.

Unfortunately for the parties in In re Dissolution of  Marriage of Wood, 35 So.3d 507 (Miss. 2010), the nightmare was all too real.  The facts set out above are the facts in their case.  The former Mrs. Wood sued to collect her entire amount due under the agreement, and Mr. Wood took the position that sticking with the numbers in the property settlement agreement was an impossibility, and to grant Mrs. Wood her relief would produce an unfair and inequitable result.

Chancellor Dorothy Colomb ruled that the parties had actually negotiated an agreement whereby Mrs. Wood would receive 54% of the account balance at the time of the divorce, and Mr. Wood would receive 46%. 

In affirming the chancellor, the Supreme Court addressed valuation dates, impossibility of performance and canons of construction.  You can read the decision to get an appreciation for the complexity of legal issues that the draftsmanship created in this case.  

The cardinal point for practitioners, however, is best summed up in the court’s own language at page 515:

“As this case illustrates, incorporating an estimate of an asset’s value into a property settlement agreement can cause problems when the parties later try to divide the asset, and the estimate turns out to be incorrect or inaccurate.  Therefore, we make the following recommendations for the benefit of the bar.  Where the value of an asset must be estimated because of the inherently indefinite or fluctuating nature of the asset itself, we recommend the use of percentages when setting forth the asset’s intended distribution in a property settlement agreement. Where the value of an asset remains sufficiently concrete or static, however, we recommend the use of specific dollar amounts.”

Mrs Wood expected to get $203,000, and that’s what she negotiated for.  Instead, she got $110,160, or $93,000 less than what she expected.  The lesson is to think about what you’re doing and what could or might go wrong, and how you can guard against it.

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