COMPLYING WITH RULE 10(d), MRCP

November 30, 2010 § Leave a comment

Rule 10(d), MRCP, states “Whenever any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with the pleading unless justification for its omission is stated in the pleading.”

Originally, Rule 10(d) required a copy of any writing to be attached as an exhibit to the pleading.  That requirement was removed in 2000 to conform to the Mississippi Supreme Court’s ruling in Gilchrist Machine Co. v. Ross, 493 So.2d 1288, 1292, n. 1 (Miss. 1986); see also, Edwards v. Beasley, 577 So.2d 384 (Miss. 1991); and Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986).

So what do you need to do to avoid an evidentiary problem under Rule 10(d)?

As the comment states, ” … it remains good practice normally to attach such documents as part of a clear statement of a claim or defense,”  and the rule does specifically state that a copy should be attached unless justification for not attaching it is stated in the pleading.  The comment points out that if a foundation document is not attached to an otherwise sufficient pleading, it may be obtained through discovery.

From the cases, it appears that the documents offered at trial that were not attached would likely be admitted, unless no justification was given in the pleading and efforts to discover them were unsuccessful.

A THOUSAND WORDS’ WORTH

November 29, 2010 § 1 Comment

Rule 1006 of the Mississippi Rules of Evidence allows you to offer charts, summaries or calculations where the evidence is so voluminous that it would be inconvenient to develop it in the course of testimony.  The procedure is simple:  The originals are produced at a reasonable time and place for inspection and copying, and the court may order that they be produced in court, although introduction of the originals is not required, according to the official comment to the rule.

The advantages of this rule can be pretty significant.  It can improve your effectiveness in presenting complex proof, and give you an edge over an opponent who is too lazy to avail himself of it.

Here are a few examples:

  • There is a claim of wasteful dissipation of assets based on abuse of a credit card over a three-year period.  There are literally hundreds of transactions.  Instead of dumping the statements into evidence, prepare a chart showing yearly and monthly totals.  Another chart could highlight spending trends, such as dates and amounts of casino cash advances, jewelry purchases and so on.  Witnesses can then be questioned about particular aspects of the matter without laborious testimony to establish the underlying transactions.
  • Six years of tax returns are relevant.  Chart the income and taxes paid, or the depreciation and deductions claimed, rather than tediously poring over them.
  • The other party has fluctuating income.  Use charts and graphs to illustrate.

A variation on this theme is to present your client’s position in a concise written form, as, for instance, where your client is requesting particular provisions for visitation.  Have the proposed visitation arrangement reduced to writing and have your client testify about the key articles.  Introduce the proposed arrangements through your client.

As always, put yourself in the judge’s shoes.  If all you do is put 76 credit card statements in evidence with some testimony of a witness or two, are you sure that the judge will draw all the conclusions that you want her to?  If all you do is put tax returns into evidence with some testimony, will the judge in his deliberations focus in on exactly what you need to win?  Which evidence is more likely to get a detailed, thorough going over:  raw documents with some notes taken by the judge; or a chart that focuses the judge’s attention like a laser on the details you need?

Rule 1006 is a super tool.  It lets you reduce literally thousands of words (and, consequently judge’s notes) into a picture.  And we all know how many words a picture is worth.

HAPPY THANKSGIVING

November 25, 2010 § Leave a comment

We have so many blessings, it’s almost impossible to find a starting point to count them all.  Maybe the turkey is the best starting point.

God bless you all.  See you again November 29.

CHANCERY COURT RUNOFF RESULTS

November 24, 2010 § Leave a comment

Runoff elections were held in two Chancery Court districts yesterday. 

In District 10 (Forrest, Lamar, Pearl River and Perry Counties), for Place 2, to replace Judge Sebe Dale. Dawn H. Beam of Sumrall defeated Scott Phillips of Columbia. 

In District 13 (Covington, Jefferson Davis, Lawrence, Simpson, and Smith Counties), 16-year incumbent Judge Larry Buffington of Collins lost to David Shoemake of Collins.

This information is from the Northeast Mississippi Daily Journal, and percentages were not provided.

ONCE AGAIN ON THE IMPORTANCE OF CHECKLIST PROOF

November 24, 2010 § Leave a comment

I’ve talked before here about how important it is to develop your proof at trial based on the various lists of factors — I call them “checklists” — that have been handed down by the appellate courts. 

The Court of Appeals on November 2, 2010, reversed a Chancellor’s decision granting grandparent visitation for failure to address the Martin v. Coop factors.  In the case of Conerly v. Davis, the court stated that ” … the grandparent-visitation statutes simply give a grandparent … standing to file a request seeking visitation rights. It is then within the chancellor’s discretion to award or deny visitation after reviewing the Martin factors and considering the best interest of the child. Therefore, we vacate the chancellor’s judgment and remand this case for an on-the-record consideration of the Martin factors and the entry of an appropriate judgment based on those factors.”

The Martin v. Coop factors are here.

A guide to the intricacies of grandparent visitation is here.

The retrial in this case may be due to a simple oversight on the judge’s part.  Or, it may be that neither party at trial developed any evidence that would have supported findings under the appropriate factors.

When representing a client in any case where proof of trial factors is required to support the chancellor’s decision, be sure you present evidence to establish each and every one.  If you do not have proof on every factor, develop as many as you can.  If the judge renders an opinion at the conclusion of the case and does not address the applicable factors, ask her to adress them or to render a supplemental opinion doing so.  If the judge renders a written opinion and/or judgment, file an MRCP Rule 59 motion immediately, but not more than ten days after the judgment is entered, asking the court to address the factors based on the proof in the record.

You are setting the stage for a remand and a second, costly trip to court for your client if you don’t.

UCAPA: A VALUABLE CUSTODY TOOL

November 23, 2010 § Leave a comment

Mississippi adopted the Uniform Child Abduction Prevention Act (UCAPA) in 2009.  It is codified at MCA §§ 93-29-1 through -23.

Although the title of the law refers only to abduction, the new statutes go much further and offer proceedings and remedies for situations involving violation of a court order by removing or withholding custody of a child, both of which are situations frequently encountered by practitioners and the courts.  The unique aspect of this law is that it is preventative; that is, it allows the court to act in anticipation of a violation, provided that certain things are proven.    You need to be aware of this law and add it to your repertoire of actions in custodial situations of every kind and nature.

The Act is an adjunct to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCA §§ 93-27-1 through 209.

The purpose of the law is to provide legal measures to prevent child abduction, which is defined in Section 3 as “wrongful removal or wrongful retention of a child,” or wrongful removal of a child, which is defined as “taking of a child that breaches rights of custody or visitation given or recognized under the laws of this state,” or wrongful retention of a child, which is defined as “the keeping or concealing of a child that breaches the right of custody or visitation given or recognized under the law of this state.”  

There are three ways to impose measures under the Act spelled out in Section 7:

  1. A court may on its own motion impose abduction prevention measures if it finds that the evidence establishes a credible threat of abduction.  Section 3 states that the court is any aythorized to establish, enforce or modify a child custody order.    
  2. A party to a child-custody determination or a party having a right under Mississippi law or the law of any other state may petition to have obtain abduction prevention measures.  A child custody determination is defined in Section 3 as “a proceeding in which the legal custody, physical custody, physical custody or visitation with respect to a child is at issue, including divorce and dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic abuse.    
  3. A prosecutor or certain public officials may take action.

Jurisdiction is in any court that has child custody jurisdiction under the UCCJEA.  Also, a court of this state may have temporary emergency jurisdiction under MCA § 93-27-204.

The petition must be verified and include a copy of any existing child-custody determination.  The petition must state a factual basis for the belief that there is a credible risk of abduction, stating which of the factors set out in Section 13 are applicable, and why.  Subject to MCA § 93-27-209(5) (where information must be kept confidential to protect the safety of a child), the petiton must also include (a) the name, birth date and gender of the child; (b) the customary address and current physical location of the child; (c) The identity, customary physical address and current physical location of the respondent; (d) a statement whether a prior action to prevent abduction was filed by anyone having custody of the child, and the date, location and disposition of the action; (e) a statement whether a party has been arrested for a crime related to domestic violence, stalking, child abuse or neglect, and the date, location and disposition of the case; and (e) any other information required to be submitted to the court under § 93-27-209, MCA. 

Section 13 lists factors to be considered by the court in determining whether there is a credible risk of abduction, and allows the court to take into consideration that the respondent may have believed in good faith that her actions were necessary to prevent harm to the child, or that they were done with permission.  The factors include whether there has been:

  1. A previous abduction or attempted abduction;
  2. A threat to abduct;
  3. Recent activity indicating a planned abduction;
  4. Domestic violence, stalking or child abuse or neglect;
  5. Refusal to follow a child-custody determination;
  6. Lack of strong familial, financial, emotional or cultural ties to this state or the United States;
  7. Strong familial, financial, emotional or cultural ties to another state or country;
  8. Likelihood of taking the child to another country that is not a party to the Hague Convention, or the laws of which would bar efforts by the other party to contact or re-gain custody of the child, or which poses a threat to the health or safety of the child, or is a terrorist state, or is one with which this country has no diplomatic relations, or is involved in any external or civil war to which the child may be imposed.
  9. An ongoing immigration proceedings that may result in expulsion;
  10. An application for U.S. citizenship denied; 
  11. Falsified travel, driver’s license or other government-issued documents, or misrepresentations to the United States government;
  12. Use of multiple names;
  13. Any other relevant conduct.

If the action is brought on the court’s own motion, the court must also consider the age of the child, the potential harm to the child, the legal and practical difficulties of returning the child to the jurisdiction if the child were abducted, and the basis for a finding of potential abduction.

An order issued by the court must include the provisions spelled out in Section 15

Measures that may be imposed to prevent abduction as set out in Section 15 may include:

  • Imposition of travel restrictions;
  • Prohibition from removing the child from this state or the United States, from retaining the child in violation of a court order, or even from approaching the child at any location other than one designated by the court for supervised visitation;
  • Requirement to register the court’s order in the other state as a condition precedent for visitation with the child in that state;
  • An order that the child’s name be placed on the U.S. State Department’s Passport Issuance Alert Program;
  • Surrender of passports and prohibition against applying for new or replacement passports or visas;
  • Other measures as spelled out the section.

The court may also limit visitation, require a bond, order educational programs, issue a warrant to take custody of a child, direct law enforcement to locate and take or return custody of a child, and grant any other relief necessary.

The court’s order remains in effect for the time stated in the order, or until emancipation of the child, or until the child attains age 18, or until further order of a court of competent jurisdiction.

This court’s view:  On first blush, it would appear that this would be a rarely-invoked law.  After all, how many times have genuine abduction situations arisen in our courts?  Well, in 2010, I have already had two cases that raised issues under this law.  One involved a citizen of  middle-eastern country married to an American citizen who was alleged to have threatened in the heat of a separation squabble that he would take the children to his country and the mother would never see them again.  The other involved grandparent visitation rights and a threat to take the children to another state or Canada where the parent would no longer be required to submit to the court’s order.

But those specific instances are only the more exotic examples.  With a little imagination and effort, you can find ways to make this statute work for your clients in more prosaic cases.

There have been many scenarios over the course of my legal career where this law would have come into play and provided a remedy where none existed then. 

Practice Tip:  Familiarize yourself with UCAPA and add it to your repertoire to use in child custody, visitation and wrongful retention cases, especially where there are interstate or international considerations.  It can be an important tool in your custody tool box.

RUNOFFS IN CHANCERY ELECTIONS TODAY

November 23, 2010 § Leave a comment

In District 10 (Forrest, Lamar, Pearl River and Perry Counties), for Place 2, to replace Judge Sebe Dale. Dawn H. Beam of Sumrall faces Scott Phillips of Columbia. 

In District 13 (Covington, Jefferson Davis, Lawrence, Simpson, and Smith Counties), incumbent Judge Larry Buffington of Collins is in a runoff with David Shoemake of Collins.

FAMILY VIOLENCE AND ITS IMPACT ON CUSTODY

November 22, 2010 § 3 Comments

MCA § 93-5-24(9)(a)(i) sets out some important language that you need to be aware of the next time you are involved in a child custody dispute.  It reads in part:

“In every proceeding where the custody of the child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.  The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party.  The court shall make written findings to document how and why the presumption was or was not triggered.”   

A preponderance of the evidence is required to overcome the presumption.  In making a determination whether the presumption is rebutted, the court is required to consider all of the following:

  1. Whether it would be in the child’s best interest to award the perpetrator custody because of the other parent’s absence, mental illness, substance abuse or other circumstances that affect the best interest of the child;
  2. Whether the perpetrator has successfully completed a “batterer’s treatment program;”
  3. Whether the perpetrator has successfully completed an alcohol or drug abuse counselling program if deemed appropriate by the court;
  4. Whether the perpetrator has successfully completed a parenting class if deemed appropriate by the court;
  5. Whether the perpetrator has been placed on probation or parole, and whether he or she is subject to a restraining order, and his or her compliance with its terms; and
  6. Whether the perpetrator has committed any further acts of domestic violence.

If both parents have committed family violence, the court may award custody to a third party or to the parent whom the court finds to be less likely to continue to perpetrate family violence, and the court may order the custodial parent to complete a “treatment program.”

The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of custody.

In J.P. v. S.V.B., 987 So.2d 975 (Miss. 2008), the court upheld a finding of family violence where a father slapped his daughter several times and made her nose bleed.

In Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006), the court of appeals remanded a child custody adjudication where the record established that the father had a history of violence.  The court directed the chancellor to apply and comply with the statute.

In C.W.L. v. R.A., 919 So.2d 267 (Miss. App. 2005), the court upheld a chancellor’s finding that the statute was inapplicable where the proof showed a few incidents of yelling and screaming, slapping and one episode of choking, but no serious or even moderate injuries.

Interestingly, MCA § 93-5-24(4) provides that “There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.”  Does this mean that the parents can cancel the family violence presumption by agreeing to a joint custody arrangement?  I don’t find any case law on the point.

As a practice matter, you need to know up front whether your client will be vulnerable to the presumption.  Has he had a conviction for domestic violence?  Has he been put under a County Court TRO?  Has he been convicted of assault on a family member?  Has there been Youth Court or DHS involvement?  Has he gotten carried away in his discipline of the children or in an argument with his wife? 

If you detect problems early enough, you can take proactive measures to get your client counselling or anger management classes or some form of treatment that will give the chancellor a reasonable basis to make a finding that your client has rebutted the presumption.

TRIBUTE TO JUDGE LACKEY

November 21, 2010 § Leave a comment

It was Judge Henry Lackey of Calhoun City whose refusal to be corrupted and courageous cooperation with law enforcement brought to justice some of the most powerful trial lawyers in this country. 

This tribute from the Calhoun County Journal:

Judge Lackey is truly one-of-a-kind

“There are two things you need to be a judge,” Judge Henry Lackey said. “A lot of gray hair to look distinguished and hemorrhoids to look concerned.”
Judge Lackey was speaking to a large gathering at the Oxford Convention Center that turned out to honor him upon his upcoming retirement after 17 years as circuit court judge and even longer as public servant.
Judge Lackey is less than two months away from entering retirement, but one look at this week’s Journal and you would see he’s busier than ever.
He was “roasted and toasted” at the Oxford Convention Center last week shortly after being honored by the Mississippi Supreme Court for his years of service on the bench.
Another reception is planned for Dec. 10 at First Baptist Church in Calhoun City.
This Thursday, Judge Lackey will once again be auctioning off Christmas items at the City Sidewalks Celebration at the Methodist Corner on the Calhoun City Square. Saturday night he is the featured entertainment at the Vardaman Sweet Potato Festival Banquet.
In between all of this he is still managing his day job as Circuit Court Judge for District Three. He’s spent all of this week holding court in Holly Springs.
The honors for 75-year-old Judge Lackey continue to pour in due in part to his role in one of the biggest legal crackdowns in recent history – the downfall of famed trial lawyer Dickie Scruggs and several of his colleagues.
“I’ve received praise and accolades that I don’t deserve,” Judge Lackey told me a few months back. “It’s like praising the sheriff for not stealing. It’s your job.”
Judge Lackey’s “integrity and intrepidness” in the case are well documented in Curtis Wilkie’s new book “The Fall of the House of Zeus” – a must-read according to my wife Lisa.
But as all the attention still pours in, and rightfully so, Judge Lackey still thinks of himself as the simple, “country lawyer” who still lives “within 300 yards of where he discovered America,” and that’s why he is so treasured here in Calhoun County.
A visit with him and you hear no mention of Dickie Scruggs. He talks of his “wonderful upbringing” in Calhoun City, working at his family’s business – the Ben Franklin 5 and 10 Cent store on the Calhoun City Square – and the endless list of fascinating people he grew up with such as Clarence “Dummy” Martin, Ray “Funnyman” Tolley, John Pittman, Mr. Mac, Monk and Big Dog.
I’ll never forget sitting in his office and him telling me of his experience when Robert Wardlaw, the world’s tallest man at 8’9″, visited Calhoun City.
One of the best story tellers I’ve every known, Judge Lackey is always worth the price of admission at any event he’s attending. I certainly wouldn’t let an opportunity to enjoy his tales or company pass me by.

The homespun Judge Lackey deserves our accolades.  As it is with Judge Lackey, I hope it will be said of all of us at the end of our careers that we adhered to the highest ethical principles and upheld the honor and dignity of the law.

Thanks to Tom Freeland for the link to this tribute.

 

NEW DEAL SALAD

November 21, 2010 § Leave a comment

If it seems that I have a lot of shrimp recipes, it’s because for years we were able to buy fresh and IQF seafood from Brian Watts, who would bring it up from the coast every other Wednesday.  We were able to buy shrimp, crab, oysters and fish like grouper, trout, flounder and snapper, and I always had good gulf seafood on hand.  Katrina put him out of business for a time, but he picked back up — until BP’s carelessness put him out of business again, I hope not for good.  BP hired Brian and his charter boat The Undertaker, to work for them during the cleanup.  Now that the cleanup is winding down and gulf seafood is making a comeback, maybe Brian will get back into the business of supplying his Meridian friends with delicacies from the sea. I hope so.  

This is a super-easy recipe that you will want to serve to company.  It’s great in the summer on the patio with a chilled sangria, but it will do just as well in cold weather with a riesling. 

NEW DEAL SALAD

1 Lb. Scallops

1/4 Tsp. lemon juice

Pinch of salt

½ Lb. med. shrimp, deveined

1 Tsp. salt

1/4 Tsp. red pepper

1 Avocado (ripe), peeled and cut into pieces

½ Cup French Dressing (recipe below)

½ Cup celery, thinly-sliced

1 Cucumber, peeled and minced

1/4 Cup green olives, sliced and pitted

Fresh spinach

Rinse the scallops in a sauce pan. Add cold water to cover and lemon juice and pinch of salt. Bring to a boil. Drain and transfer to a bowl.

Rinse and boil the shrimp in cold water to cover, with salt and red pepper.

Drain and add to scallops. Add the avocado. Toss with ½ cup French dressing, celery, cucumbers and green olives.

Chill and serve on a bed of fresh spinach.

French Dressing for New Deal Salad

1 3-oz. package cream cheese, softened

1 Tsp. onion, minced

1 Tsp. salt

½ Tsp. dry mustard

2 Tbsp. parsley, chopped

Freshly-ground pepper to taste

½ Cup extra-virgin olive oil

1 1/4 Tbsp. vinegar

Cream the cheese. Add remaining ingredients and mix. Gradually beat in oil and vinegar.

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