VOICES FROM THE ABYSS

October 11, 2010 § Leave a comment

It was for only a dozen years that Adolf Hitler held power by political means in Germany and by conquest over much of Europe.  Yet, in that relatively brief span of time, the Nazi regime that he masterminded managed to plunge the entire world into an abyss of degradation, terror, inhumanity and conflict so barbarous that we can scarcely imagine its scope and depth 65 years after its end. 

I recently read or re-read three books dealing with life in Nazi Germany during the Hitler years.      

The first is WHAT WE KNEW: TERROR, MASS MURDER AND EVERYDAY LIFE IN NAZI GERMANY by Eric A. Johnson and Karl-Heinz Reuband.  If you click on the picture to the left, it will take you to Amazon.com where you can read excerpts.

What makes this book a fascinating read is the first 250 or so pages, consisting of oral histories related by people who lived through the Nazi terror.  Interviewees include: Jews who left Nazi Germany before Kristallnacht and those who left after; Jews who were deported; Jews who went into hiding; Germans who knew little about mass murder; Germans who had heard about mass murder; and Germans who knew about, witnessed or participated in mass murder.

What emerges from the testimony of these survivors is an engrossing picture of what everyday life was like in Nazi Germany from around 1932 to the end of World War II.

There are the stories of Jews who managed to flee ahead of the Nazi terror, as well as that of those who were transported to the death camps, and what they did to survive there.  There is the testimony of Jews who somehow managed to hide out in Germany or its subjugated states, escaping extermination.  They tell persecution by the government, and of the verbal and physical abuse they suffered at the hands of ordinary Germans who had once been their friends and neighbors, as well as of the rare kind and courageous Germans who helped them, often surreptitously so as to avoid repercussions from the Nazis.

Also here is the testimony of the Germans.  There are the stories of those who adored and idolized Hitler and of those who despised and resisted him to their detriment and even destruction.  There are the stories, too, of those who claim they knew nothing of the systematic extermination of the Jews and of those who knew and even participated in it.

One of the enduring questions arising out of Nazi Germany is what did ordinary people know about the atrocities of the Nazis?  The authors devote the remainder of the book to analyzing the data they accumulated to address that question and others such as how anti-semitism took hold under the Nazis, the extent of spying and denunciation by ordinary citizens, the scope of police persecution, and the various forms of persecution of the Jews and others selected for torment and even annihilation.  Their conclusions?  You will have to read the book.

It is important for Americans to know and understand how the Nazis rose to power and came so close to dominating the entire world but for the determined resistance of England and the industrial might of the United States.  After all, the Nazi phenomenon did not arise out of some ignorant peasant backwater.  It occurred in the country long known as the “Land of Poets and Thinkers,” the nation that gave birth to Goethe, Schiller, Kant, Beethoven, Leibniz, Einstein, Bach, Holbein, and so many other luminaries of western civilization.  It was grinding depression, political instability and desperate economic straits in the lingering aftermath of World War I that opened the way for the Nazis to capture the allegiance of the German voters, who made a devil’s bargain by surrendering their freedom in exchange for stability and economic improvement.  

If the Germans could cast aside their considerable legacy of civilization and embrace the barbarity and totalitarianism of the Nazis for comfort and security, who is to say that we could not fall on the same sword?

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I also re-read NIGHT by Elie Wiesel.           

If you have never read this powerful little book (only 120 pages) written by the Nobel-prize-winning author who as a teenager wsa transported with his family to Auschwitz and then to Buchenwald, you need to put down whatever you are reading and pause to read this.  This latest edition is a new translation of the original French by his wife, Marion, and purports to be closest of all editions to Wiesel’s own voice. 

Other than the substance itself, what makes this book so powerful is its spare, minimalist style, pared down ruthlessly from the original Yiddish into French by the French writer François Mauriac.

The book opens in Wiesel’s hometown of Sighet, in Transylvania, where the Jewish community was warned but refused to heed an eccentric who had been briefly imprisoned by the Nazis.  It goes on to recount the establishment of a Jewish ghetto in the town and the ultimate transportation to the death camps or work camps.  Wiesel saw his mother and sister taken off to the gas chamber.  He and his father were put to slave labor in the camp at Buna.  As the war wound down and the Russians closed in on western Poland where their camp was situated, Wiesel, his father and the other inmates were forced to march in a bitter winter blizzard from Auschwitz-Buna to Gleiwitz, a march in which thousands died.  Wiesel and his father survived the march, but his father contracted dysentery soon after being savagely beaten by an SS guard, and the elder Wiesel was taken off to the gas chamber.  The author poignantly tells of his last conversation with his father, a passage of the book you will not soon forget.        

Wiesel’s haunting retelling of the inhumanity he endured and how he survived it will live vividly in your mind long after you have read this book.

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The final book is MAN’S SEARCH FOR MEANING by Viktor Frankl, which I re-read.  This little book was listed by the Library of Congress in 1991 among the 10 most influential books in the United States.

Like Wiesel’s, Frankl’s book includes his eyewitness account of the brutality and suffering that he survived as a Jewish slave/prisoner in various Nazi concentration camps.  Unlike Wiesel, Frankl approaches the experience from a psychological and psychoanalytical perspective, from which he developed the theory of Logotherapy.  His theory is that life has meaning in even the most apocalyptic circumstances and finding that meaning is the main motivation in life, and that we have the freedom to find our own meaning in our suffering and the unchangeable obstacles we face.  The first part of the book is Frankl’s account of his experiences, and the second is his analysis of those experiences and his conclusions about their meaning.  

This is an inspirational book that rejects the notions of victimhood and determinism.  It will challenge some of your own notions about how one addresses and rises successfully above the vicissitudes and misfortunes of life.

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Some years ago I visited Dachau concentration camp only a few miles from Munich.  The entrance gate bore the cynical epigram “Arbeit macht frei” — “Work makes you free” — the words that were copied from there and placed over the gate to Wiesel’s Auschwitz.

Dachau was not established as an extermination camp for Jews, although many Jews were imprisoned and died there.  Dachau’s original and primary function was as an internment camp for political opponents of the Nazis, homosexuals and the mentally ill or erratic.  Later in the war, Russian prisoners of war were transported there by the thousands, and were put to death by the bullet, some being used for target practice by the guards.   

Dachau was also the site of scientific experimentation on the prisoners, which was intended to be of some military benefit.  Some prisoners were put into chambers and subjected to increasing pressure until their brains literally burst out of their ears and mouths, in order to see how much pressure a human could stand.  Some had organs removed and were sewn back up to see how long one could live without, say, a liver.  Some had objects implanted inside of them so the effects could be observed.  Some were guinea pigs for drug testing, and others were administered lethal substances to determine just how much dosage was lethal.  

It was chilling to stand in the barracks where so many suffered and perished, to walk across the appelplatz where the roll call of walking dead took place every day, to see the guard towers, to stare into the crematorium where the bodies of the executed were disposed of.  Gazing across the huge expanse of the camp, one could see through the barbed-wire fence the homes where German citizens of Dachau village lived their mundane lives, oblivious — they claimed — to the profound suffering and obscene atrocities taking place literally across the street.

The main gate and grounds of Dachau Concentration Camp today

     

TRIAL BY CHECKLIST: INCOME TAX DEPENDENCY EXEMPTION

October 11, 2010 § 9 Comments

A practice tip about trial factors is here.

The Mississippi Supreme Court ruled in Nichols v. Tedder, 547 So.2d 766, 775 (Miss. 1989), that the Chancellor may award the dependency exemption for income tax purposes to either parent as part of its determination of child support. 

If your client wants the court to award her the tax dependency exemption, it will take more than just asking her what she wants the court to do.  In Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000), the Mississippi Supreme Court laid out the factors that the Chancellor is required to consider before making the award.  They are:

  1. The value of the exemption at the marginal rate of each parent;
  2. The income of each parent;
  3. The age of the children and how long the exemption will be available;
  4. The percentage of the cost of supporting the children borne by each parent; and
  5. The financial burden assumed by each parent under the property settlement agreement in the case.

In Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001), the Court of Appeals added a sixth:  the value of the non-economic but valuable contributions made by the custodial parent.

Although I have often heard parties testify that they wanted the court to award them the exemption, I have never heard any testimony on factor 1. 

It seems to me that if you fail to put on the requisite proof, you run the risk that the judge will simply say that the proof did not support such an award, or, if the trial judge does award it, that the Court of Appeals will take it away or put your client to the considerable expense of having to retry the issue so that the trial judge will have the evidence necessary to adjudicate it.

“QUOTE UNQUOTE”

October 8, 2010 § Leave a comment

Mignon McLaughlin

“Every day of our lives we are on the verge of making those slight changes that would make all the difference.”  —  Mignon McLaughlin

“Do not let the fact that things were not made for you, that conditions are not as they should be, stop you.  Go on anyway.  Everything depends on those who go on anyway.”  —  Robert Henri

“Do not be too timid and squeamish about your actions.  All life is an experiment.  The more experiments you make the better.  What if they are a little coarse, and you get your coat soiled or torn?  What if you do fail, and get fairly rolled in the dirt once or twice?  Up again, you shall never be so afraid of a tumble.”  —  Ralph Waldo Emerson

BETTER CHANCERY PRACTICE FAQ

October 8, 2010 § 2 Comments

My 8.05 financial statements stink.  How can I improve them?

Here are Ten Tips for More Effective Rule 8.05 Financial Statements.

Is my estate ready to close?

Check out this Checklist for Closing an Estate.

I think I need to file a habeas action.  Any tips?

This Habeas Corpus Step by Step should help.

One more time: what are those child custody factors I need to prove at an upcoming trial?

The Albright factors are what you’re looking for.  

Help! We need to sell some real property in an estate, and I don’t know where to start?

How to Sell Real Property in an Estate may be just what you need. 

I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before.  What do I need to do?

This Outline for Handling a Minor’s Settlement will get you started.

My mail has an MRCP 41(d) notice in it this morning.  I remember you said something about it, but I don’t have time to look for it.  Can you remind me what I am supposed to do?

<Sigh>  Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door

I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify.  Any ideas on what I should do?

Try looking at Proving Tax Effects of Alimony.

My Chancery Judge is really nitpicky.  How can I draft my adoption Complaint to satisfy him?

Are you talking about me?  Whatever.  Here is a post on pleading Jurisdiction for Adoption.

Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire.  Any suggestions?  I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.

You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines.  Until you do, try reading “High Waters” and Burlap Suits.  It won’t change anything, but it may help you to feel better.

JUDGMENTS: PARTIAL AND FINAL

October 7, 2010 § 4 Comments

After a few weeks, the judge has issued his opinion in that thorny divorce trial.  He granted your client’s wife a divorce and gave her custody and child support, but ordered that you and the other attorney produce appraisals before he will adjudicate the equitable distribution and the alimony claim.  Your client is hopping mad at the outcome and demands that you appeal the judge’s ruling immediately.  Can you?

MRCP 54(b) provides that the when there are multiple claims for relief or multiple parties, the court may order final relief as to one or more but fewer than all of the claims or parties “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment.”  If the court does not so direct, then any order issued that adjudicates fewer than all of the claims or rights of fewer than all of the parties, no matter whether it is entitled as a judgment, is not final, and is subject to revision at any time.

So what does this mean?  There are several ramifications.  One is that if the partial judgment or order does not specifically direct that it is final, you may not appeal from it until the entire action is finalized.  If it does include the required finality language and you do not file a timely appeal, you may find yourself shut out from an appeal on the matters addressed in that order.  Another ramification of non-finality is that the Chancellor may change it at any time, even beyond ten days after its date, because the provision of MRCP 59 that allows the Chancellor to alter his judgment within ten days of entry applies exclusively to final, appealable judgments.           

And what exactly is a judgment, anyway?  MRCP 54(a) states that “‘Judgment’ as used in these rules [MRCP] includes a final decree and any order from which an appeal lies.”  Any interlocutory adjudication is an order, and not a judgment; thus, e.g., Temporary Order, Order Compelling Discovery, Scheduling Order, Order Deeming Requests for Admission as Admitted.

A NEW WAY TO RENEW A JUDGMENT

October 6, 2010 § Leave a comment

MCA § 15-1-43, has long provided that a judgment is enforceable for seven years from the date of rendition.  The only method to extend the judgment lien beyond seven years was to file another suit to renew the judgment within the seven-year period in the couty where the original judgment was entered or where venue would otherwise be proper.  Lloyd v. Bank of the South, 796 So.2d 985 (Miss. 2001).

The legislature amended MCA § 15-1-43, effective July 1, 2010, to create a more streamlined procedure that eliminates the need for a renewal lawsuit.  H.B. 277.  It is one of several new laws that affect your Chancery practice, most of which went into effect July 1, 2010, and are listed here.

To renew a judgment under the new procedure, one files a notice with the clerk of the court that rendered the judgment.  The notice should be in substantially the following form:

NOTICE OF RENEWAL OF JUDGMENT OR DECREE

(a)  Notice is given of renewal of judgment that was rendered and filed in this action as follows:

(i)  [Date that the original judgment was filed];

(ii)  [Case number of such judgment];

(iii)  [Judgment was taken against];

(iv)  [Judgment was taken in favor of];

(v)  [Current holder of such judgment];

(vi)  [Current amount owing of such judgment].

(b)  If applicable, that a Notice of Renewal of Judgment or Decree has been previously filed with the clerk of the court on [date].

The clerk enrolls the renewal in the same manner as an original judgment, and the renewal is effective as of the date of filing with the clerk.  The right to file suit to extend a judgment continues unimpaired.

At the time of filing notice, the judgment creditor or attorney must file an affidavit setting out the name and last known post office address of the judgment debtor and judgment creditor.  The clerk shall “promptly” mail a copy of the notice to the judgment debtor at the address provided, and shall make a notation of mailing on the docket.  The notice shall include the name and address of the judgment creditor and attorney, if any.  The judgment creditor may mail a copy and proof of mailing with the clerk.  Lack of mailing by the clerk does not affect the validity of the renewal if the judgment creditor files its own proof of mailing.

The renewed judgment is enforceable for seven years from the date of filing, and may be renewed in successive terms in like manner.

JUDGE LACKEY RETIRES

October 5, 2010 § Leave a comment

This from Tom Freeland’s NMissCommentor Blog …

Judge Lackey Retirement Dinner, & request for donations

A retirement party for Hon. Henry Lackey, Circuit Judge of the Third Circuit Court District is being held by the Third Circuit Bar in Oxford on November 4th at the Oxford Conference Center.  I’m one of the lawyers collecting contributions toward this dinner, which will also include a retirement gift to Judge Lackey.

Please send any contributions you are willing to make with the check made out to:

Judge Lackey Retirement Party Fund

Send them to me at:

Box 269
Oxford, MS 38655

If you send a check, it would be useful to my effort to keep track of donations if you sent me an email telling me you did and how much it was.  Send the email to tom (at) freelandlawfirm.com

Invitations to this event will be sent out later this month to members of the Third Circuit Bar and to judges all over the state; if you wish to attend the event and aren’t in the counties of the Third Circuit, send me an email to the address just mentioned and I will see that the information gets to the appropriate person.

Thanks!

[Tom Freeland]

I don’t know how many Twelfth District lawyers have had the privilege to know or practice before Judge Lackey.  If you do know him or tried cases in his court, you may want to try to make the event or send a contribution.

I met Judge Lackey back in the 1980’s at a CLE program in New Orleans during Mardi Gras.  I had recently finished trying a case before Chancellor Woodrow Brand, sitting as Special Chancellor in Meridian in a trial involving lots of money and a world-renowned manufacturer.  At the conclusion of the trial Judge Brand complimented the attorneys on a job well done and took the case under advisement.  When he heard that, Judge Lackey raised his bushy eyebrows and remarked with humor and some irony that that sort of compliment was something that lawyers in Judge Brand’s district were simply not accustomed to.  We laughed together and swapped tales about practice in our different parts of the state.  He knew some Meridian lawyers and judges and asked about them.  He was kind, soft-spoken, attentive and humorous, and I enjoyed the little time I spent with him — so much so that I remembered it down through the years.

I ran into Judge Lackey last year at a Judges’ meeting in Tunica, and he remembered the New Orleans seminar and was kind enough to say that he did remember sitting next to me and visiting.  He reminded me that there had been an ice storm that Sunday that closed the bridges out of the city so that he and his wife were stranded there an extra day.  I had forgotten that.  My wife and I had made it out of the city an hour before the bridges were closed.  

If Judge Lackey’s long service as a lawyer and as a Circuit Judge were all he accomplished in his career, he would be remembered as a successful public servant.  His role in the Scruggs scandal, however, in which he hewed strictly to judicial and legal ethics, and would not deviate an inch from the proper path, elevates him to a higher level of esteem.  Not because he did what professional standards required of him, but because of his courage in facing down the beast and bringing it to destruction.

Judge Lackey is a beacon of right shining through the ashy pall that Scruggs and his minions cast over the legal profession and the judiciary.  For that let us ever remember him and esteem his memory.

God bless you in your retirement, Judge Lackey.

MAKING YOUR JUDGMENT STICK

October 5, 2010 § Leave a comment

So you got your client a judgment for $10,000 lump sum alimony in her divorce.  Pretty good for a 5-year marriage.  You’ve gotten quite a few pats on the back for your good work, and your client was so pleased with your performance that she wrote a check for the balance of her fee the day you handed her a copy of the judgment.  You are so glad to be done with the case that you go and cash the check and take the weekend off in the French Quarter.  

Only problem is that your client calls you on your cell at Pat O’Brien’s complaining that her ex has sold the farm and claims he has spent all of the proceeds.  She says that the farm was his only asset, and wants to know how she is going to collect her $10,000.  You call the closing attorney, who advises you that there were no liens of record, and that the sale was perfectly legitimate. 

Where did you go wrong?

A judgment is not a lien against the real property unless it is recorded in the Circuit Clerk’s office.  Had you gotten an abstract of judgment from the Chancery Clerk, taken it to the Circuit Clerk’s office, and asked that it be recorded, the sale of the farm could not have been closed without the judgment being paid in full.  The unrecorded judgment is not binding notice to the closing lawyer or the purchaser, so they have no liability to your client.

MRCP RULE 77(d) MEANS WHAT IT SAYS

October 4, 2010 § Leave a comment

We are talking about judgments this week, a timely subject in view of the Supreme Court’s decision in In Re:  Barbara Dunn, Hinds County Circuit Clerk, decided last Thursday.

The Dunn case arises out of two other interlocutory appeals in which the defendants were adversely affected by judgments, but were not given notice of entry of those judgments as required by MRCP Rule 77(d), which requires the Circuit and Chancery Clerk to serve notice of entry of orders on all parties not in default.  The specific language of the rule is as follows:

(d)  Notice of Orders or Judgments.  Immediately upon the entry of an order or judgment the clek shall serve a notice of the entry in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the service.  Any party may in addition serve a notice of such entry in the manner provided in Rule 5 for service of papers.  Lack of notice of the entry by the clerk does not affect the time for appeal, nor relieve, nor authorize the court to relieve, a party for failure to appeal, within the time allowed, except as permitted by the Mississippi Rules of Appellate Procedure.

In Dunn, the clerk failed to give notice that the trial judge had ruled on motions for summary judgment.   

As the Supreme court pointed out, the omission was serious and impacted substantive and procedural rights.  The opinion stated:

The seriousness of this omission is such that this Court should not, and it will not, regard it as an innocuous clerical error.  The notices required by Rule 77(d) are mandatory, and they are indispensable to the right of parties to receive timely information from our state trial courts concerning significant judicial actions in civil matters in litigation. 

Since this was Ms. Dunn’s third appearance before the Supreme Court on the same issue, the court assessed her with a $5,000 fine. 

In my experience as a practitioner and as a judge, I know of only one district where Rule 77(d) notices are routinely sent out, and it is not the Twelfth District.  On one occasion some years ago, I learned by pure happenstance that the court had entered a final judgment in my case 24 days before, leaving me only six days to confer with my client and decide whether we would appeal.   

MRAP 4(h) gives some relief, providing as it does that the trial court may reopen and extend the time for appeal on a finding that a party entitled to MRCP 77(d) notice did not receive it.  The MRAP rule, however, does have time parameters within which one must operate.

 The court’s strict stance on application of procedural rules in this case is reminiscent of the court’s ruling in Illinois Central railroad Co. v. Moore, about which I previously posted here.  It would appear that if your case on appeal turns on a procedural issue, you will have the uphill climb with this court if you did not dot every “i” and cross every “t.” 

Some intriguing questions remain in the aftermath of Dunn.  Are routine procedural orders and agreed orders included?  In Rule 81 cases, there is no default since no answer is required; what is the rule’s application to Rule 81 matters?  What are the practical ramifications for practitioners, since the rule explicitly does not relieve any party from operation of an order or judgment for failure of a clerk to give notice of entry? 

As a practitioner, when you have a particularly important order or judgment, you should avail yourself of that provision in Rule 77 whereby you can give notice yourself and have it noted on the docket.

You can read more about the case at Philip Thomas’s blog MS Litigation Review & Commentary.

 

THE BALDUCCI FILES

October 4, 2010 § 1 Comment

If you’re familiar with the story of Dickie Scruggs’ downfall, you know that the final, climactic act in his Greek tragedy began in the Calhoun City offices of Circuit Judge Henry Lackey, who met with Scruggs operative Tim Balducci and recorded Balducci’s offer to bribe him. 

Patsy Brumfield of the Tupelo Daily Journal, has obtained copies of the FBI recordings and has posted them online here.  There are four video and three audio recordings.  Six are in Lackey’s office, and one is in Scruggs’ office after Balducci has been arrested and has agreed to cooperate with he FBI.

What is most remarkable about them is the prosaic, almost ho-hum nature of the conversations.  The tone is business as usual, which is chilling, considering how far-flung were Scruggs’ conflicts with other lawyers similar to the one that led to the Lackey bribe attempt.

Another compelling feature of the recordings is how they show the banal nature of evil.  It seldom manifests itself with the dramatic flair we see on tv and in the cinema.  It is a handshake, a wink and a nod, an exchange of consideration. 

Thanks to Tom Freeland at NMissCommentor for posting about this.

Tom also has a great post today about whether Curtis Wilkie’s upcoming book, FALL OF THE HOUSE OF ZEUS answers some questions about the handling of the Scruggs trial.

Where Am I?

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