December 30, 2010 § 2 Comments
Hinds County Circuit Judge Swan Yerger yesterday dismissed with prejudice Eaton Corporation’s lawsuit against Jeffery Frisby, et al., based on a finding that counsel for Eaton knew that Ed Peters was clandestinely attempting to influence the then trial judge, Bobby DeLaughter, and sanctioned Peters’ actions for their client’s benefit.
Judge Yerger found that dismissal of the billion-dollar suit was necessary to protect the integrity of the judicial system. Philip Thomas comments on it here, with links to much more information on the suit. Tom Freeland adds his thoughts here.
The demise of Eaton’s suit is collateral damage from the Scruggs judicial scandal, which shed the light of day on Ed Peters’ activities vis a vis Judge DeLaughter in Scruggs’ legal battle with the Wilson law firm and gave reason to scrutinize his actions in Eaton. If Balducci’s efforts to corrupt Judge Lackey had succeeded or never been reported, what is the likelihood that the improprieties in Eaton would ever have been uncovered? And if Peters had gone undetected, would the defendants have suffered a billion-dollar miscarriage of justice? Thankfully, we will never know for sure.
December 30, 2010 § Leave a comment
The germ of an idea for this blog popped up after a conversation I had with a young lawyer. We discussed a matter involving an estate, and I realized it was at least the fourth time that I had had the same discussion with different lawyers. I thought that there must be a better way to address lawyers’ questions and concerns about practice, and I filed the notion away in the recesses of my mind.
A couple of months later a chancellor in another district called me and we discussed our mutual exasperation over lawyers either ignoring or not even being aware of changes to the adoption jurisdiction requirements. Again, I thought there had to be a more efficient way to spread the word about these things.
Then, while reading a blog one day, it hit me: “Duh. This is the obvious way to do it.”
And after a little experimentation, I launched this blog on June 14, 2010, about six and one-half months ago.
It’s been a rewarding experience for me. Lawyers from around the state have told me they keep up with the blog. I have seen lawyers questioning witnesses using checklists they printed from posts here. Several lawyers have told me that they print out posts that they find useful and keep them in a binder for future reference. Out-of-district lawyers have told me they appreciated being able to find out in advance what I expected for a minor’s settlement, an irreconcilable differences divorce, or an intestate estate. I have had comments and e-mails from attorneys telling me that a post I made helped them resolve a difficult issue in a case.
All of that is what I hoped for when I started this. I hope you have found something here that you can use and that keeps you in touch.
In the six and one-half months of this blog there have been more than 220 posts. There have been 215 comments, but that is misleading because, for some reason, WordPress counts a link to another post as a comment. My guess is that we’ve had around 100 actual comments. We get between 150 and 200 views of the blog on a typical weekday, and 50-60 on a typical weekend or holiday. Those are views of the home page — the one you see when you sign on the blog. When a specific post is viewed separately, it is counted separately. The all-time most viewed post, with 532 unique views (and climbing; there have been 8 this week so far), is Sympathy for the Devil, my rather unsympathetic review of Curtis Wilkie’s The Fall of the House of Zeus. No doubt some of that traffic was driven by Tom Freeland’s mention of it and link on his own, popular NMissCommentor blog.
The all-time top twenty posts in 2010, followed by each post’s unique number of views, are:
December 29, 2010 § 4 Comments
If you were a carpenter, you’d want to have the finest power tools you could afford. If you were a doctor, you’d try to invest in the best diagnostic instruments available. If you were a farmer, you’d want to have a really good tractor with all the implements. If you were a — well, you get the idea. If you’re going to do a job, you need to be sure you have the right tools AND use them.
Lawyers are no different. If you’re going to practice in Chancery Court, you need to have ready access to the information you need AND use it.
Every lawyer’s most important tool is that perfect case on all fours with the one you are presenting to the court. It is a satisfying coup, indeed, to hand the judge that gem of a case with a confident smile while your opponent stands by twiddling his thumbs. The Court of Appeals hands down decisions every Tuesday, and the Supreme Court hands down decisions every Thursday (holidays and vacation days excepted). You can read the decisions as soon as they are published online at the Mississippi Judiciary website. And all of the court rules and directories are there, too.
Finding that perfect case used to be a matter of digging through the digests and key numbers, then finding the volume with your case in it and making a photocopy. Nowadays, you can find what you’re looking for on the Mississippi Bar’s website at Casemaker, which is a free online legal research engine paid for through your bar dues. If you prefer, WestLaw and Lexis have subscription services.
Of course, the MISSISSIPPI CODE is indispensable. If you can’t afford your own copy, you can browse and copy it online through CaseMaker or one of the subscription services, but many of us find it more productive to be able to flip through the pages of a book. The annotations in the code are a gold mine of authority and starting points for further research for any lawyer. If you do any probate work, you will experience a lot of frustration and failed efforts if you do not read the code. The answers to 99% of all questions that lawyers ask me about probate matters are right there in the statutes, in black and white.
MISSISSIPPI RULES OF COURT. Every lawyer who comes to trial should have a copy of the rules with her or him. You will need to flip to that specific hearsay exception so you can convince the court to let in that crucial evidence, or you will need to know what rule to cite to get around that objection to the timeliness of your motion. It’s all in the rules. But before you ever get to court, you need to be familiar with what’s there and where you can find it. It’s never very convincing to say, “Judge, I know it’s in there somewhere; I remember hearing aboout it back in law school.” If you only had one book in your library (and I hope you have more than just one!), it should be your rule book.
Any lawyer who will do much family law should have one or both of these books in his or her library …
BELL ON MISSISSIPPI FAMILY LAW. Professor Deborah Bell of the Ole Miss Law School has published what many consider the definitive reference work on divorce, custody, child support, and all things family law in Mississippi. Her text, along with its annual supplement, are well organized, thorough and concise statements of the law upon which you can rely in advising your client, preparing your case, presenting your case, and even briefing an appeal. Professor Bell’s work has been cited as authority by the appellate courts and is considered authoritative in trial courts as well. If you have a significant family law practice, you should arrange to take in a Professor Bell seminar. They are held every May, one in Oxford, one in Jackson, and one on the coast, and you will not find a more complete annual overview of developments.
MISSISSIPPI DIVORCE, ALIMONY AND CHILD CUSTODY. Professor Shelton Hand’s treatise has been a go-to authority in Mississippi for many years, and includes suggested forms as a bonus. Another feature of Hand’s work is his discussion of pleadings and procedural matters, which, coupled with the forms, may be a benefit to young practitioners more concerned with filing a viable pleading, having it served, and setting the case for hearing.
If you do any probate work, you might find these texts helpful …
PROBATE AND ESTATE ADMINISTRATION. By Robert E. Williford.
Yes, it’s true that everything you need to know about probate is in the code, but finding the exact answer to your specific question in the multitude of statutes can be a time-intensive task. These two books can help you sort through that haystack of statutes to find the right answer to your question. Complete with case citations and text by the authors.
Some helpful guides to chancery practice …
GRIFFITH MISSISSIPPI CHANCERY PRACTICE. By Billy Bridges and James Shelson. Updated Warner’s version of Griffith in 2000. Judge Bridges and Mr. Shelson again updated Griffith through the beginning of the new century.
WARNER’S GRIFFITH MISSISSIPPI CHANCERY PRACTICE. By George D. Warner, 1991. The first update to Judge Griffith’s cornerstone work in more than 40 years. Judge Warner took Griffith’s text and incorporated the Mississippi Rules of Civil Procedure, as well as important developments in the law in the intervening time.
And two old gems that were black letter authority for years …
GRIFFITH’S MISSISSIPPI CHANCERY PRACTICE. 1950 Edition. Originally published in 1925, Griffith is the seminal authority on Chancery Court in Mississippi. Almost all of the procedural provisions have been supplanted by the Mississippi Rules of Civil Procedure and the Uniform Chancery Court Rules, but there is no more authoritative text in Mississippi for understanding the philosophy, history and approach of Chancery Courts.
DIVORCE AND SEPARATION IN MISSISSIPPI. 1957. This work by professor Bunkley updated the original by Judge A.B. Amis of Meridian first published in 1934. There have been so many developments in the procedural and substantive law of the family in our state that it is tempting to regard this book as a mere historical curiosity. Some provisions bear looking at, however. The provisions about how to plead non-residency to support publication, for example, are models that modern-day attorneys should consider. The book was written in an era when careful pleading was essential to survival of one’s suit, and more careful pleading would benefit most lawyers and clients today.
And two recent additions …
PROFESSIONAL RESPONSIBILITY FOR MISSISSIPPI LAWYERS by Jeffrey Jackson and Donald Campbell and COMMENTARY ON JUDICIAL ETHICS IN MISSISSIPPI by Donald Campbell and Jeffrey Jackson arrived on the scene in 2010. These two works were published by MLI (Mississippi Law Institute), a function of the Mississippi College Law School. The unique aspect of these books is their focus on Mississippi, and I am not aware of any comparable works on these subjects of vital importance to bench and bar. Both are impressive in their depth of scholarship and thoroughness. The set is pricy for a small firm at $245, and, admittedly, they are not reference works you will turn to every day, but the odds are that they will be worth every cent you pay when you really need them. If you are practicing in the Twelfth District and would like to look over a set, feel free to drop by my office and browse through for yourself. MLI’s description and an order form can be found here.
December 28, 2010 § 1 Comment
This from Philip Thomas’s excellent blog Mississippi Litigation Review & Commentary. If these thoughts do not resonate with with your experience as a litigator, you might consider some tamer undertaking …
Posted on March 3, 2010 by Philip Thomas
You heard me. Losing a trial sucks. On multiple levels. Sorry if you don’t like my vocabulary.
Even worse, a win does not even out a loss. Tennis great Andre Agassi described it as well as anyone that I’ve heard even though he was talking about tennis and not trials:
Now that I’ve won a slam, I know something that very few people on earth are permitted to know. A win doesn’t feel as good as a loss feels bad, and the good feeling doesn’t last as long as the bad. Not even close.
Shortly after I started my first job as a lawyer I heard veteran trial lawyer Natie Caraway say basically the same thing. It took personal experience winning and losing trials to understand it.
For me a loss on appeal does not feel bad as a loss at a trial. And the loss of a bench trial does not feel as bad as the loss of a jury trial. The loss of a jury trial feels the worst because you hang it all on the line for twelve people who you don’t know and you are shattered when you find out that you could not convince them. And if you believe in your clients case–and most lawyers do–you think that the jury got it wrong. That makes it worse.
I have no answer for the best way to deal with a loss. But I agree with Chicago lawyer John Tucker on this point:
Courtroom lawyers and people who play sports are engaged in an endeavor where there is a winner and loser of every contest, and no matter how good they are, sometimes they lose.In fact, in both endeavors it is often true that the better they are the harder their contests and the more often they will lose. You don’t have to like it-in fact, you had better not-but you won’t last long if you don’t learn to get over it, or at least put it far enough behind you to go on to the next case.
Some lawyers lose a big trial and never recover. They are habitually afraid to re-enter the courtroom for fear of losing again. The best lawyers get over it and seek the adrenalin rush of going back in and putting it all on the line again.
December 22, 2010 § 1 Comment
The Christmas lull, that blessedly quiet period in the few days before and after Christmas, is a perfect time to catch up on matters that you kept shoving to the back burner for the past few months.
Like reassessing your professionalism. Where you are in your practice and where you want to go. How you’re doing. Your strong and weak points. What can you do to do a better job?
So set aside a few minutes and ponder your own professionalism. Here are a few points to start from:
- “I do solemnly swear (or affirm) that I will demean myself, as an attorney and counselor of this court, according to the best of my learning and ability, and with all good fidelity as well to the court as to the client; that I will use no falsehood nor delay any person’s cause for lucre or malice, and that I will support the Constitution of the State of Mississippi so long as I continue a citizen thereof. So help me God.” That’s the oath you took to practice law. Ever stop to think why lawyers take an oath and folks in other lines of work do not?
- I posted the Lawyer’s Creed and Aspirational Ideals here. Re-read them and even keep a copy handy in the middle drawer of your desk. Pull them out and read over them every now and again and assess how you’re measuring up. You can find and print out or download them at the Mississippi Bar website.
- Re-Read the Rules of Professional Conduct from time to time.
- Check out the bar’s resources for professionalism.
- Take stock of where you are professionally. Are you making your clients’ lives better, or are you just doing what it takes to get by? Are you becoming the kind of lawyer you idealized when you decided to become a lawyer? Are you adding something to your profession? And are you treating your practice as a profession, or is it just another job?
- If you have been practicing five years or less, have you found a mentor who is a competent attorney to rely on that attorney’s guidance and advice through thorny areas where you have doubts about how to do what you think needs to be done?
- What are your ideals, and what are you doing to accompish them?
And here’s a thought for young lawyers: Set aside an hour or so and thoughfully write the eulogy for your funeral. Yes, the eulogy you’d like to have delivered at your funeral. Include all the accomplishments and admirable traits you’d hope to have mentioned when your gone. Stick it away in the back of a desk drawer and then set out to achieve those accomplishments and develop those admirable traits. Why should you do this? Because you are writing your own eulogy every day you live anyway, and you might as well be intentional about it. Next year around this time, pull out that scrap of paper and reassess where you are. Re-draft it if you like.
And what about the day-to-day practice of law?
Lawyers are busy these days. Too busy, maybe. Today’s financial demands, compounded by spiraling overhead and household expenses, put tremendous pressure on attorneys to take on more and more work until they feel they can only succeed by adopting an assembly-line, boilerplate approach.
What concerns me about it, though, is that it seems to me that lawyers are less and less familiar with the law and the rules, relying on forms and old information to get by. Sometimes I will call a rule to the attention of a lawyer and will find that the lawyer was not even aware of it. Or I will point out a case and the lawyer is surprised that it exists. There have been times that I am convinced that the lawyer knows nothing more about the procedure he or she is invoking than what is set out in the pleadings (that often are copied from someone else or are dredged up from the bowels of the lawyer’s own computer with little additional thought). I know I’m painting with a broad brush here, but bear with me if you think this doesn’t really apply to you. You may find a few nourishing morsels if you’ll take a few minutes out of your busy schedule to read the rest of this.
Granted, the pressures of time for today’s practitioner are great. Caseloads are far heavier, and the law has become more complex over time so that what used to be a “simple divorce” now requires much more attention. Time has become more compressed for the family law practitioner. The fourteen hour workdays and weekend work so common in my early career have given way to a more sane eight-to-ten hour day and fewer weekends that allow for time with and attention for spouses and children, but the compression of time means more concentrated demands.
Have you noticed how many times on this blog that I mention the importance of reading and keeping up with changes to the code, case law and the rules? I hammer away at it because it is not only essential to your success as an attorney, but also to the benefit of your client. Too often we think of professionalism as ethics, but I challenge you to think of professionalism not only in ethical terms, but also in terms of competence and how you present yourself and represent clients.
Given all of this, I contend that it’s time to consider a few changes to the way you do business that will make you a better lawyer and make your clients more pleased with your performance. And if you are doing one or all of these, more power to you. Here they are:
- Before you file your next probate matter, read the rules and look over the applicable statutes. You will be amazed what you will find. If nothing else, you will be shocked to see what a heavy load of responsibility you are taking on by signing and filing those pleadings.
- For that matter, look back at the code the next time you file some familiar pleadings and look for changes you might have missed or some other little twist in the law you may have always overlooked.
- Carefully read over every pleading before it’s filed. Be honest: you let your secretary do most of your pleadings, don’t you? Do you know that they’re right? Are they up to date? Remember that everything you produce is a portrait of yourself.
- Read the appellate court decisions each and every week without fail. Court of Appeals hand downs are on Tuesdays after lunch, and Supreme Court’s are on Thursdays after lunch. As you run across case law that will help you in pending cases, print out the decisions and put them in those files for use in court.
- Read the rules. Lawyers who know and follow the rules generally impress judges as better lawyers because, quite frankly, they are better lawyers, and better lawyers can get better results.
- Read the statutes. Before you file that habeas, read the law. If you’re wondering how to sell a parcel of real property in an estate, look for a statute in the code. The answer to how to record and enforce a judgment is in the code.
- Use your brain. It seems to me that too many young lawyers want to get by with a fill-in-the-blank practice. No innovative approach, no novel arguments based on sound research, no extra effort. It’s so refreshing as a judge to see lawyer come into court with a soundly-prepared approach to a legal problem that is well supported by authority.
- Advise your client. If you simply do what the client says to do, you are not a lawyer, you are merely your client’s alter ego with a license; you are a tool. Guide your client in the right way to go. Influence what your client wishes to do with your judgment and knowledge. If your client demands you to do something unethical or questionable, try to persuade him or her to take another course, and if they refuse, file a motion to withdraw. Tell your client up front what the chances of success are. Never take on the cause of a client who is seeking vendetta as opposed to legal redress; the former is malicious, and the latter is justice.
These are merely a starting point. As a lawyer you have a duty not only to your client, but also to advance the profession. It only takes a little time and devotion each day. And if you are not devoted to your profession, perhaps you need to find something else to do.
Professionalism requires not only that you zealously represent your client, but also that you do it competently.
Take advantage of this quiet time and take a look at yourself and your career. It will be a rewarding investment of your time.
December 21, 2010 § 2 Comments
A LAWYER’S CREED
To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust.
To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek to fairly resolve differences and, if we fail to reconcile disagreements, I will strive to make our dispute a dignified one.
To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice.
To my colleagues in the practice of law, I offer concern for your reputation and well being. I will extend to you the same courtesy, respect, candor and dignity that I expect to be extended to me. I will strive to make our association a professional friendship.
To the profession, I will strive to keep our business a profession and our profession a calling in the spirit of public service.
To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through effective and ethical representation of my clients.
As a lawyer, I will aspire:
(a) To put fidelity to clients and, through clients, to the common good, before my personal interests.
(b) To model for others, and particularly for my clients, the respect due to those we call upon to resolve our disputes and the regard due to all participants in our dispute resolution processes.
(c) To pursue the goals of equality and fairness in my personal and professional activities.
(d) To preserve and improve the law, the legal system, and other dispute resolution processes as instruments for the common good.
(e) To make the law, the legal system, and other dispute resolution processes available to all.
(f) To practice with a personal commitment to the rules governing our profession and to encourage others to do the same.
(g) To preserve the dignity and the integrity of our profession by my conduct. The dignity and the integrity of our profession is an inheritance that must be maintained by each successive generation of lawyers.
(h) To achieve excellence in my work.
(i) To practice law not only as a business, but as a calling in the spirit of public service.
As to clients, I will aspire:
(a) To expeditious and economical achievement of client objectives.
(b) To fully informed client decision-making. As a professional, I will:
(1) Counsel clients about various forms of dispute resolution;
(2) Counsel clients about the value of cooperation as a means towards
the productive resolution of disputes;
(3) Maintain the sympathetic detachment that permits objective and independent
advice to clients;
(4) Communicate promptly and clearly with clients; and
(5) Reach clear agreements with clients concerning the nature of the
(c) To fair and equitable fee agreements. As a professional, I will:
(1) Consider and discuss with clients alternative fee arrangements as may be
appropriate in the circumstances;
(2) Reach fee agreements with clients as early in the relationship as possible;
(3) Determine the amount of fees by consideration of many factors and not just
time spent by the attorney.
(d) To comply with the obligations of confidentiality and the avoidance of conflicting loyalties in a manner designed to achieve the fidelity to clients.
(e) To achieve and maintain a high level of competence in my fields of practice.
As to opposing parties and their counsel, I will aspire:
(a) To cooperate with opposing counsel in a manner consistent with the competent representation of my client. As a professional, I will:
(1) Notify opposing counsel in a timely fashion of any canceled appearance;
(2) Grant reasonable requests for extensions or scheduling changes; and
(3) Consult with opposing counsel in the scheduling of appearances, meetings,
(b) To treat opposing counsel in a manner consistent with his or her professional obligations and consistent with the dignity of the search for justice. As a professional, I will:
(1) Not serve motions or pleadings in such a manner or at such a time as to
preclude opportunity for a competent response;
(2) Be courteous and civil in all communications;
(3) Respond promptly to all requests by opposing counsel;
(4) Avoid rudeness and other acts of disrespect in all meetings including
depositions and negotiations;
(5) Prepare documents that accurately reflect the agreement of all parties; and
(6) Clearly identify all changes made in documents submitted by opposing
counsel for review.
As to the courts, other tribunals, and to those who assist them, I will aspire:
(a) To represent my clients in a manner consistent with the proper functioning of a fair, efficient, and humane system of justice. As a professional, I will:
(1) Avoid non-essential litigation and non-essential pleading in litigation;
(2) Explore with clients and opposing parties the possibilities of settlement of
(3) Seek non-coerced agreement between the parties on procedural and
(4) Avoid all delays not dictated by a competent presentation of a client’s claims;
(5) Prevent misuses of court time by verifying the availability of key participants for
scheduled appearances before the court and by being punctual; and
(6) Advise clients about the obligations of civility, courtesy, fairness, cooperation,
and other proper behavior expected of those who use our systems of justice.
(b) To model for others the respect due to our courts. As a professional, I will:
(1) Act with complete honesty;
(2) Know court rules and procedures;
(3) Give appropriate deference to court rulings;
(4) Avoid undue familiarity and any appearance or claim of any undue influence
with members of the judiciary;
(5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members of
(6) Show respect with my attire and demeanor;
(7) Assist the judiciary in determining the applicable law; and
(8) Seek to understand the judiciary’s obligations of informed and impartial
As to my colleagues in the practice of law, I will aspire:
(a) To recognize and to develop our interdependence;
(b) To assist my colleagues to become better people in the practice of law and to accept their assistance offered to me.
(c) To defend my colleagues against unjust criticism; and
(d) To offer my colleagues appropriate assistance with your personal and professional needs.
As to our profession, I will aspire:
(a) To improve the practice of law. As a professional, I will:
(1) Support high-quality continuing legal education;
(2) Participate in organized activities of the bar and other legal organizations;
(3) Assist when requested in the education of future lawyers; and
(4) Promote understanding of professionalism and ethical standards among
members of the profession.
(b) To protect the public from incompetent or other wrongful lawyering. As a professional, I will:
(1) Support high standards in bar admissions; and
(2) Assist in the enforcement of the legal and ethical standards imposed upon all
(c) To support diversity in the profession, especially the practice of law by members of historically underrepresented groups.
(d) To promote the understanding of and an appreciation for our profession by the public. I will:
(1) Use appropriate opportunities, publicly and privately, to comment upon the
roles of lawyers in society and government, as well as in our system of justice;
(2) Conduct myself always with an awareness that my actions and demeanor
reflect upon our profession.
(e) To devote my time and skills to activities that promote the common good.
As to the public and our systems of justice, I will aspire:
(a) To counsel clients about the moral and social consequences of their conduct.
(b) To consider the effect of my conduct on the image of our systems of justice including the social effect of advertising methods.
(c) To provide the pro bono representation that is necessary to make our system of justice available to all.
(d) To support organizations that provide pro bono representation to indigent clients.
(e) To improve our laws and legal system by, for example:
(1) Serving as a public official;
(2) Assisting in the education of the public concerning our laws and legal system;
(3) Commenting publicly upon our laws; and
(4) Using other appropriate methods of effecting positive change in our laws and legal system.
The Creed and Aspirational Ideals are published by the Mississippi Bar.
December 20, 2010 § 1 Comment
This from a judges’ meeting a couple of years ago.
I Thou shall not be perfect or even attempt to be.
II Thou shall not try to be all things to all people.
III Thou shall not leave undone things that ought to be done.
IV Thou shall not spread thyself too thin.
V Thou shall learn to say “no” without guilt.
VI Thou shall schedule time for thyself.
VII Thou shall have something to look forward to every day.
VIII Thou shall sometime be slack, idle and inelegant.
IX Thou shall keep thyself happily fit.
X Thou shall embrace the present and let go of the past.