UNDUE INFLUENCE IN INTER VIVOS GIFTS BETWEEN SPOUSES

February 28, 2011 § 5 Comments

Mansfield and Patricia were married in 1994, when both were in their 40’s. It was the second marriage for each, and they had children by the previous marriages. Patricia suffered health problems during the marriage, and she received a Phen-Phen settlement in 2001.

On March 15, 2002, Patricia executed a will devising her entire estate to her three adult children and her sister. The will included this language: “Mansfield Langston, my husband, has his own estate in his name, therefore no provision for him is made in this will.”

Soon after in 2002, there was a series of transactions between the parties that ultimately resulted in a home being titled in joint ownership between Mansfield and Patricia, with right of survivorship. The home had formerly been in her sole name. There were other related transactions, the most significant of which was that a $200,000 CD was converted to joint tenancy with right of survivorship.

On May 11, 2005, Patricia died of a sudden illness, and Patricia’s estate was opened by her mother. The estate sought to set aside the joint tenancies in the marital home and the certificate of deposit in order to bring those assets into the estate for distribution to the will beneficiaries, who were Patricia’s adult children and Patricia’s sister.

Following the trial, the chancellor found that a confidential relationship existed between Mansfield and Patricia. Therefore, the chancellor ruled that the burden shifted to Mansfield to prove by clear and convincing evidence that the creation of the joint tenancies was not the result of undue influence. The chancellor held that Mansfield did not meet this burden, and both joint tenancies were set aside and brought into Patricia’s estate.

In the case of Estate of Langston, in a well-reasoned, authoritative opinion by Judge Griffis, the COA on March 30, 2010, reversed the chancellor and held that the presumption of undue influence did not apply to inter vivos transactions between husband and wife.  The ruling in effect extended the prior rule that the presumption of undue influence did not apply to testamentary dispositions between spouses.

On February 24, 2011, the Mississippi Supreme Court affirmed the COA in the case of Estate of Langston v. Williams in an opinion authored  by Justice Dickinson and joined by all but Graves, who has departed for his federal gig in New Orleans, that concludes with this key language:

“A confidential relationship between spouses does not create a presumption that one spouse used undue influence over the other to obtain an inter vivos gift. And one who claims the gift was the product of undue influence bears the burden of proof.”

The burden of proof is by clear and convincing evidence.

The case was remanded to Sunflower County Chancery Court to allow the estate to make a record on the issue, since the chancellor had ruled (properly under the law in effect at the time) that such a presumption did exist, so that the estate was neither required to prove, nor was it given the opportunity to prove, undue influence.

It’s not uncommon for issues like these to surface in second marriages of older couples where there are children by a prior marriage.  If you find yourself being presented with undue influence claims in a similar case, I encourage you to read Judge Griffis’s COA opinion.  It’s about as good an exposition of all the applicable case law that you will find.

AND THE OSCAR GOES TO …

February 25, 2011 § 8 Comments

Oscar weekend is nigh, which got me thinking about movies depicting lawyers, courts and the law.  So I made a list of my own, personal favorites to share with you.

  1. TO KILL A MOCKINGBIRD.  (1962)  Small-town lawyer Atticus Finch accepts the almost impossible task of representing a black man accused of assaulting a white woman in 1930’s Alabama.  The nobility, integrity and perserverance with which he carries out his duty as an officer of the court earn the mythical Finch universal admiration and respect.  Gregory Peck is branded in our mind as Finch.
  2. INHERIT THE WIND.  (1960)  Remarkable rendering of the infamous Scopes “monkey trial” in Dayton, Tennessee, that pitted Clarence Darrow, (Spencer Tracy) aka Drummond in the movie, against William Jennings Bryan (Frederic March) aka Brady.  Tracy and March were phenomenal in their portrayal of the two courtroom warriors.  The trial was about the right to teach evolution in the public schools, but the movie was a fairly transparent criticism of and parable about McCarthyism.
  3. JUDGMENT AT NUREMBERG.  (1961)  The courtroom scenes reverberate with drama in this depiction of the post-World War II trials of Nazi officials in Germany.  Perhaps the most compelling acting is that of Maximilian Schell as a German defense attorney who raises some troubling questions about individual responsibility in the milieu of a criminal state.  Spencer Tracy portrays an all-too-human American presiding judge who is singlemindedly devoted to the rule of law.  Burt Lancaster, James Widmark, Marlene Dietrich, Judy Garland and Montgomery Clift all deliver powerful performances.
  4. THE VERDICT.  (1982)  Paul Newman is a boozy, broken-down lawyer on the downside of a mediocre career.  He takes on a medical malpractice case hoping for a big payday, but learns as the case develops that he has a chance, perhaps the last in the twilight of his career, to accomplish something really good.
  5. 12 ANGRY MEN.  (1957)  The dynamics of jury deliberation in a  murder case.  Henry Fonda is the holdout who will not vote to convict, and as tension builds, with some jurors only wanting to finish their job and go home, the discussion begins to change minds.  Lee J. Cobb plays a juror determined to convince the others to convict.
  6. MY COUSIN VINNY.  (1992)  Hilarious depiction of a rural Alabama murder trial that is anything but routine, with Fred Gwynne as the trial judge and Joe Pesci as the improbable, inexperienced lawyer who stays on the wrong side of the judge.  Marisa Tomei won an Academy Award for best supporting actress for her role as Pesci’s cute girlfriend who unexpectedly holds the key to the case.
  7. ANATOMY OF A MURDER.  (1959)  Jimmy Stewart is a trial lawyer defending a veteran charged with murder, and as the trial unfolds, so does his understanding of his client, the man’s wife, the victim and his family.  The trial judge was played, somewhat woodenly, by an actual state trial judge.  You may have to suspend your disbelief at some of the court room scenes, but the drama is worth it.
  8. THE CAINE MUTINY.  (1954)  It’s a case of the victim becoming the villified in the court martial trial for mutiny aboard the USS Caine.  The ship’s captain, Humphrey Bogart, becomes the one on trial for all of his flaws and lapses in judgment at sea.  José Ferrar is brilliant as defense lawyer Lieutenant Barney Greenwalt, who ably and zealously defends the mutineers, even though he despises them.
  9. PHILADELPHIA.  (1993)  Tom Hanks is a young and upcoming lawyer who finds his career at an end when he is diagnosed with AIDS.  One of the first Hollywood films openly on the subjects of HIV and homosexuality.  Hanks, as Beckett the lawyer, finds his work being sabotaged by his homophobic colleagues, and his legal career itself placed on trial when charges are brought against him.
  10. A MAN FOR ALL SEASONS.  (1966)  Sir Thomas More, Chancellor of England in the reign of Henry VIII, has come to epitomize the lawyer who is faced with having to resolve conflicts between his duty to the law and government, and his duty to faith and his conscience.  Paul Scofield gives a powerful performance as the man who would not be swayed by political intrigues and conniving men.
  11. THE PAPER CHASE.  (1973)  Once you have recovered from the post-traumatic stress following your law school graduation, you may be able to relax and enjoy this now somewhat dated look at what it is like to suffer through being a student at Harvard Law School.
  12. A FEW GOOD MEN.  (1992)  Another court martial film.  Prosecutors Tom Cruise and Demi Moore have to conquer a conspiracy of silence and misplaced loyalties to win the conviction of two Marines charged with murdering a fellow Marine.  Jack Nicholson is diabolical in his depiction of Colonel Nathan Jessep, who defends the soldiers’ actions.
  13. AND JUSTICE FOR ALL.  (1979)  A suicidal trial judge packing a .45, a lawyer who admits — no, insists — during trial that his client is guilty, and the unforgettable line, “You’re out of order!  You’re out of order!  This whole trial is out of order!”  Al Pacino is a trial lawyer amidst a justice system careening crazily out of control.
  14. A TIME TO KILL.  (1996)  Violence begets violence in a racially charged Mississippi murder trial.  Based on the first novel by John Grisham.
  15. AMISTAD.  (1997)  Courtroom drama set in 1839 showing the trial over ownership of a slave vessel that had been commandeered by rebellious slaves.  Based on a true story, in which both Martin Van Buren and John Quincy Adams participated.  Retired Supreme Court Justice Henry Blackmun played the role of Justice Joseph Story.
  16. THE MAGNIFICENT YANKEE.  (1950)  Bio-pic showing the life of Oliver Wendell Holmes from his acceptance of a seat on the U.S. Supreme Court at age 61, through the next 25 years.
  17. INTOLERABLE CRUELTY.  (2003)  George Clooney and Catherin Zeta-Jones in a zany Coen Brothers movie about a cagy divorce lawyer who sets and springs traps on opposing parties, only to find himself trapped in one of his own devices.  Or is he?
  18. ERIN BROCKOVICH.  (2000)  This one is for the paralegals.  Julia Roberts plays the indomitable Brockovich, who takes on Pacific Gas & Electric on behalf of an indigent woman who is powerless (no pun intended) against the energy giant.  The movie crackles with energy and idealism.
  19. THE PEOPLE VS. LARRY FLYNT.  (1996)  It’s hard to find anything to like about Larry Flynt (Woody Harrelson), the publisher of Hustler magazine.  Yet his battle to defend his First Amendment rights, all the way to the US Supreme Court, in which he was a victim of a crippling assassination attempt, is a fascinating chapter in American law.
  20. A CIVIL ACTION.  (1998)  John Travolta is a lawyer who starts out to clean up a local water supply only to find himself engaged in an epic battle against big business that leaves his legal career and personal life in ruins.  He ultimately prevails, but was the cost worth it?
  21. GHOSTS OF MISSISSIPPI.  (1996)  Hollywood’s version of the Byron de la Beckwith trial for the murder of Medgar Evers is instructive for its glimpse into Mississippi’s ascent from the abyss of violent racism, even though the film relies on stereotypes and cliches to make its points.  It’s interesting to view the film 16 years after the event knowing that the protagonist who brought the assassin to justice, Bobby DeLaughter (Alec Baldwin), would later suffer his own downfall.
  22. ADAM’S RIB.  (1949)  Spencer Tracy and Katherine Hepburn in a farcical legal tangle.  Tracy is a prosecutor, and Hepburn, his wife, is defending a woman that Tracy is prosecuting.  The competitive couple use every ploy possible to prevail in the case, and the manic competition naturally infects their personal lives.
  23. KRAMER VS. KRAMER.  (1979)  It would not likely turn out the same way under Mississippi law, but in this story Dustin Hoffman gets custody of his son so that his ex-wife, Meryl Streep, can “find herself.”  He later loses custody to her in a court fight based on a finding that she has indeed “found herself.”  Great Academy Award-winning acting and a heart-tugging story.
  24. MICHAEL CLAYTON.  (2007)  George Clooney is Clayton, a lawyer whose sole job is to clean up messes made by his large firm’s clients and the lawyers themselves.  When he gets too close to the truth after one of his law partners is found dead of an apparent suicide, Clayton finds himself in the crosshairs.
  25. YOUNG MR. LINCOLN.  (1939)  Lincoln the lawyer, played by Henry Fonda.  The court room scenes are supposedly authentic re-enactments of the practice and procedure of the period, although the story itself is apocryphal.

There are some others that could make the list.  The court room scenes in A FISH CALLED WANDA are some of the best ever, but the movie is not really about the law and courts.  LEGALLY BLONDE has some great chuckles about law school, but it’s more about a young woman’s pursuit of her botfriend.  And THE WAR OF THE ROSES is an outrageous tragi-comedy about the atrocities committed against each other by a divorcing husband and wife, but the lawsuit is merely the framework for the conflict.

Any other nominees?

PAY RAISE DEAD … AGAIN

February 24, 2011 § 1 Comment

For: 58

Against: 59

KING IS A SUPREME

February 24, 2011 § Leave a comment

As expected, Governor Barbour appointed Judge Leslie King of the Court of Appeals to replace Presiding Justice James Graves, who has left the Mississippi Supreme Court to serve on the US Fifth Circuit Court of Appeals.

The press release from Chief Justice Waller:

February 23, 2011

Mississippi Supreme Court Chief Justice Bill Waller Jr. welcomed Justice Leslie D. King to the state’s highest court and thanked Gov. Haley Barbour for his appointment.

Chief Justice Waller said, “Judge King has provided strong and effective leadership of the Court of Appeals for nearly seven years. The Court of Appeals reviews hundreds of legal decisions each year, giving prompt and thorough attention to each case. It is essential that matters affecting people’s lives and liberty be addressed quickly, yet thoroughly. Judge King has guided the Court of Appeals in fulfilling its mission.”

“I welcome Justice King to the Supreme Court. His work ethic and extensive knowledge of the law will be a tremendous asset to the state’s highest court,” Chief Justice Waller said.

Justice King will fill the position vacated by Presiding Justice James E. Graves Jr.,who was appointed to the 5th U.S. Circuit Court of Appeals.

Gov. Barbour will appoint a judge to the vacancy on the Mississippi Court of Appeals. Justice Jess H. Dickinson of Gulfport, third in seniority on the Supreme Court, has become a presiding justice of the Supreme Court.

Mississippi has a two-tier appellate court system. The Mississippi Supreme Court is the court of last resort among state courts. The Mississippi Court of Appeals, an intermediate appellate court, hears cases assigned by the Supreme Court. The Supreme Court has discretion over whether to review decisions of the Court of Appeals. If the Supreme Court declines review, the Court of Appeals decision stands.

RESCUING THE FORGETFUL WITNESS

February 24, 2011 § 2 Comments

It’s a familiar scene. The witness is asked a crucial question and suffers that dreaded lapse of memory.  “I don’t remember,” she says, and the lawyer knows the answer is right there on counsel’s table.  How do you recover?

Unfortunately many lawyers follow the “I don’t remember” response with a leading question in an attempt to suggest the answer.  That provokes a series of objections to leading questions and even, “The witness has already said she doesn’t remember, so she can’t answer any questions about this!”  Often the examining lawyer gives up and moves on to something else.

The solution is in MRE 612, which allows a witness to use just about anything, admissible or not, to refresh his or her recollection.

Instead of asking that suggestive question, simply ask the forgetful witness whether there is anything she could refer to that would refresh her recollection.  When she says she needs to look at her calendar, or her checkbook, or her diary, or her driver’s license, hand it to her and ask her to take a moment and look it over, and then ask the question again.  Any objection should be overruled because she said she needed to refresh her recollection, and she should be allowed to do so.  Note that any object can be used.  It may be a photograph of a loved one, or a pencil, or a cell phone.  The rule does not require that it be admissible in evidence.

Whatever object is used is subject to examination and inspection by the other side.  And, of course, that is the practice as to any document or object used by a witness on the witness stand.  The other party has the right under Rule 612 to offer into evidence those portions relating to the witness’s testimony, and there is a procedure for objecting to portions of the document that are not relevant, and preserving for appellate review any matter not made a part of the record.

It is quite common in court for a witness to say, “I need to look at some papers on the table to answer that.”  The court will routinely allow the witness to look at what he or she needs to answer.

Rule 612 is the only procedure available to refresh a witness’s recollection.  It is limited to a writing or a tangible object, and does not apply to an out-of-court oral statement, which would simply be an attempt to circumvent the hearsay rule.  Eastover Bank v. Hall, 587 So.2d 266, 269 (Miss. 1991).

Some lawyers apparently confuse attempts to refresh the recollection of the witness with MRE 803(5), which pertains to the admissibility of a recorded recollection in a memorandum or record in lieu of the witness’s testimony when the witness has no recollection of the facts in the record.  The two rules address different problems:  Rule 612 is a method to refresh the recollection of the witness; Rule 803(5) is a way to get the facts in the record via documentary proof when the witness has no recollection.

Another source of confusion for older lawyers is that Rule 612 is a departure from pre-MRCP practice.  In the era before MRCP it was much more cumbersome to refresh a witness’s faulty memory.  But that was then (now 28 years ago) and this is now.  If you’re still playing tapes of pre-rules practice in your head after all these years, you need to get out a rule book and get up to date.

GET BELL ON YOUR CALENDAR

February 23, 2011 § 1 Comment

If you’re practicing family law in Mississippi, you need to add professor Deborah Bell’s seminars to your calendar every year. There is one within an easy drive of where you are. This year, for the first time in my feeble memory, the seminars are in the summer. They are usually in May.

You get a book with a synopsis of every family law case decided in the appellate courts in the preceding year, a lecture focusing on the most significant cases, a bonus lecture focusing on a specific area of family law, and an ethics hour.

Save the date. Here’s the email I received:

The 15th Annual Family Law CLE Professor Deborah Bell, Seminar Leader
This year’s Family Law CLE will be presented on the following dates and locations:

Jackson · Friday, July 22, 2011
Mississippi Sports Hall of Fame and Museum
1152 Lakeland Drive, Exit 98B off I-55

Oxford · Friday, July 29, 2011
Oxford Conference Center, 102 Ed Perry Blvd
Hwy 7N, Sisk Ave Exit

Gulf Coast · Friday, August 5, 2011
Imperial Palace, 850 Bayview Avenue, Biloxi

_______________

Save the dates for this annual 6 hour CLE providing comprehensive overviews of the last year’s family law developments. Includes one hour of ethics credit.
Register online at
www.msfamilylaw.com

or send your registration fee ($225) to:
Family Law CLE
P.O. Box 40
Taylor, MS 38673

Make check payable to:
Family Law CLE
fax: 662-234-9266
Carroll Chiles Moore, Conference Coordinator


phone: 662-513-0159

 

“A DEPOSITION IS NOT A TAKE HOME EXAMINATION”

February 22, 2011 § Leave a comment

Has this ever happened to you?  You suffer through a stupefying day of depositions of the opposing party and his witnesses, and you receive the signed, sworn copies, only to discover that the witnesses have used the errata sheets to rewrite their testimony.  The points you thought you had conclusively nailed down are now unnailed. 

In the recent case of Hyundai Motor America v. Applewhite, the supreme court ruled that defendants were entitled to a new trial because plaintiffs’ expert had used the errata sheet to revise the formulas he had relied on to make the calculations upon which his opinion was based in the deposition.  Defendants argued that they had never received the errata sheet, and that they were surprised by the changed testimony at trial.  The supreme court opinion stated at ¶ 34:

 “The trial judge did not make a factual finding as to when Hyundai became aware of the contents of Webb’s errata sheet, but such a finding is unnecessary and irrelevant to our analysis. Even if Hyundai did receive the errata sheet, simply giving the defendant this document did not relieve the plaintiffs of their duties under Mississippi Rule of Civil Procedure 26(f). The purpose of an errata sheet is to correct scrivener’s errors or provide minor clarification; it is not a means of making material, substantive changes to a witness’s testimony. See e.g., Garcia v. Pueblo Country Club, 399 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“A deposition is not a take home examination.”) If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to amend or supplement the response. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 916 (Miss. 2002). This is the responsibility of the party or parties sponsoring the witness, not the responsibility of the witness.”

This decision is a welcome clarification.  It’s frustrating when you think you have covered all the bases in your depositions only to find that you are back at the beginning.  This decision removes an element of gamesmanship from discovery. 

     

ROUXOLOGY 101

February 21, 2011 § 3 Comments

“First, make a roux.”  How many times have you seen that line staring at you from a recipe for a Cajun dish?  Does it give you a little shiver of anxiety?  Do you wonder whether you should just skip that step?

Roux is one of the holy mysteries of Cajun cooking, and if you’re going to cook Cajun dishes like Cajuns do, you are going to have to get a handle on how to make a roux.  You will have to understand some of the basics of rouxology (don’t bother to check that on Wikipedia; it’s a word I made up).  Here are the basics.  But before you proceed, you might want to take a moment to read over some of my thoughts about Cajun cuisine here and here.

Roux, of course, is simply flour cooked in fat.  But that is like saying that a jet airplane is sheet metal and fasteners.  Both statements are essentially true, but neither even begins to convey the complexity and gestalt of the thing.  How roux interacts with the ingredients and what it adds to a dish is anything but simple.  The nuances of roux vary with its color and consistency, and its variations can confer an immense array of flavors and consistency to your dishes.  Roux is almost infinitely variable and malleable in what it can do for your recipes.

The tools you will need to make your roux will be a heavy pot (I like Creuset enamelled cast iron, but any heavy pot will do) and a wooden spatula.  The heavy pot will evenly distribute the heat and help you manage the cooking.  The spatula will enable you to stir the mixture thoroughly, keeping it from burning.  As you will see, stirring is most important, and the greater quantity of roux you can stir at a time will make you more efficient and effective.  A spoon will work, but the amount of roux you are able to move with a spoon is miniscule compared to the spatula.

What are the quantities of ingredients?  Depends on what you are cooking.  A white roux for a béchamel sauce may require no more than a tablespoon each of butter and flour.  A “red” or golden roux for a courtbouillon or jambalaya may require several tablespoons each of vegetable oil and flour.  If you are making a big pot of gumbo with a dark roux, you may need a cup or more each of flour and vegetable oil.  As you learn to use and manage roux, you will learn about how much or little is needed.

What is the ratio of flour to fat?  Again, it depends.  A safe ratio is one to one, but individual preferences come into play.  I prefer the consistency of a little more oil than flour.  Your mileage may vary.

What flour?  Any all-purpose white flour will do the job.  I have heard of people using whole wheat flour, but whatever you read here is based on using white flour.

What fats will work?  It boils down to this:  Lighter fats (e.g., butter and olive oil) work fine for white rouxs.  Stouter fats (e.g., vegetable oil, bacon grease, shortening) are needed for darker rouxs.  You cannot use a light oil for a dark roux because it will burn before the roux gets to the color you need, and a burned roux is a failed roux.  The one exception I have read about but never tried is that you can use clarified butter to make a dark roux.  My preference is for a good quality vegetable or canola oil.  It is healthier than bacon fat or shortening, and it works perfectly fine.

I prefer a good quality vegetable oil

Before you start cooking, here are a few principles of rouxology you need to know:

  • The lighter the roux, the greater its thickening power and the less flavor it adds to the dish.
  • Conversely, the darker the roux the less thickening power it has, but the greater flavor it imparts.
  • A medium (red or golden) roux will thicken the dish and add some flavor, but not as much flavor as a darker roux.

Bottom line:  There is no “one size fits all” roux.  That is why I will not buy or use the canned or bottled roux products one sees in so-called Cajun groceries on the interstate or New Orleans or up north (although, sad to say, I have seen it on the shelf in groceries in sw Louisiana; I guess convenience and busy schedules rule).  The roux you use to make a sauce picante is entirely different from the roux you use to make a wild duck and sausage gumbo.  Besides, why would you want to buy a canned version of something that is so easy and entertaining to whip up yourself once you understand how?

So let’s get started with a golden or dark roux.

Pour the oil into the pan and then add the flour.  Mix together to make a thin paste, being sure that any lumps are dissolved.  Turn the heat to medium-high or high.  I have heard people say that a roux should be cooked on low heat for a long time.  I once hunted with a guy from Demopolis, Alabama, who took two hours to cook a dark roux for the hunting camp.  More power to him, but my roux is every bit as good in a fraction of the time.  That’s the way I learned to do it.

In a few minutes, the paste will begin to bubble.  If you haven’t already started stirring, now is the time to start. Stir, stir, stir, making sure that you keep redistributing the mixture over the heat and that you keep it turning color evenly.  As it cooks, the roux will take on a darker and darker color, turning first from white to a creamy gray, then to tan, then a golden, tawny brown (some call this “red” because it can give a reddish tint to your dish), and then shades of brown, from a fricasee-ochre color to dark brown ranging from milk chocolate to dark chocolate, and then, finally and fatally black, as in burnt.  To stop cooking at the color you want, pull the pot off the fire and mix the vegetables in; adding the vegetables will arrest the cooking process.

Stirring is vitally important in the cooking process, but be careful in your zeal not to splash.  Cajuns call hot roux “Cajun napalm” for the reason that it will stick to you and burn if it escapes from the pot.  Handle with care.

Golden roux (aka red roux) is more or less the color of a paper bag, and will add that golden or reddish hue to your dish and significantly thicken it.  Because of its thickening properties, don’t use as much of a golden roux in your dish as you would a darker roux.  A golden roux is best for a courtbouillon, jambalaya, sauce picante or étoufée (if you’re one of those people who makes étoufée with a roux).

A shade darker is a brown roux between dark brown and golden, which will be the color of your dish.  It doesn’t thicken as well as a golden roux, but it adds a rich, deep flavor that a golden roux lacks.  It’s the best roux for a chicken gumbo and for more delicate ingredients like crab meat or oysters.

The darkest dark roux adds a distinctive nutty flavor and a dark color that can make a simple dish memorable.  It lacks much thickening power, so you will generally use more in your recipe than you would with a lighter-colored roux.  Dark roux is best for dark-meat gumbos (e.g., wild duck and sausage), and crawfish, crab, shrimp or chicken stews.

A black roux is, simply put, a failure.  It’s burnt and will make your dish bitter and inedible.  And the entire roux does not have to be black.  Black specks mean burned ingredients and bitterness.  Unfortunately, as with most things in life, there is a fine line between success and failure.  Likewise, there is a fine line between the best dark roux and the inedbile black roux.  Knowing when to stop comes with experience.  Expect some burned rouxs in your roux-cooking career.  They are part of the learning experience.

What about a white roux (roux blanc)?  Roux blanc is used as a base for some white sauces such as béchamel and as a thickener in many recipes.  Cook and stir as you would any other roux, and follow the recipe’s instructions as to the color.  Some roux blancs must be very white, and others creamy.  I am not aware of any Cajun recipes that call for a roux blanc, but if you’re going to learn about rouxs, you need to have this one in your repertoire.

Here’s a video, avec la musique Acadienne, that I made to guide you step by step …

So you’re cooking merrily away and you suddenly get the feeling that your roux is cooking too fast.  Maybe it’s beginning to smoke, or you sense that it is thickening too quickly, or one area is turning pasty brown while another is still milky white.  What to do?  Pull the pan off the heat and stir, stir, stir.  Remember that the pan retains its heat, and if you don’t stir, the roux will burn, even if it is off the fire.  Make sure while you stir that you keep making contact with every bit of the roux.  Try to contact one third of the mixture with one sweep, then the next third, and then the last third and repeat, repeat, repeat.  When you feel that things are back under control, return the pan to the heat and continue on.

Or what about when everything seems to be going well and you are on your way to that perfect color.  The phone rings, or you see the dog peeing on the kitchen floor, or that annoying security-system salesman is back at the front door ringing the doorbell and you’d love to give him a piece of your mind.  Should you just turn off the heat and answer the phone, or let the roux simmer while you throw the dog out into the back yard, or pull the pan off the burner and go yell through the door at the salesman?  Should you just leave your precious roux for that teensy minute to address the distraction?  NEVER!!!  If you stop stirring, even for 30 seconds, the roux will burn.  Never stop stirring after the roux first bubbles.  Never.  Return the call later, or deal with the dog after you cook your roux, or let yourself take zen satisfaction at the mental image of that salesman futilely ringing away on the front porch while you’re stirring serenely.  The roux results will be worth your efforts and attention.

It takes time and experience to master the art of cooking a successful roux.  One stab at it or attempting it once a year for five years will not do it.  As my dear grandmother used to say, “Lâche pas la patate.”  Literally, it means in Cajun French “Don’t drop the potato,” which was her way of saying, “Stick with it; hang in there and you’ll make it.”

Now you know the basics of making a roux and how to use it.  Will this knowledge make you an honorary Cajun?  No, but it is an important first step in improving your Cajun cooking dramatically.

HAVE A FESTIVE PRESIDENTS DAY

February 21, 2011 § Leave a comment

LINCOLN’S NOTES ON THE PRACTICE OF LAW

February 18, 2011 § 4 Comments

Among the many facets of his notable life, often overlooked, is Abraham Lincoln’s career as a lawyer.  It’s not hard to imagine the rough-hewn Lincoln in country courthouses questioning witnesses, holding forth to the court, and regaling juries.  Even though he achieved respect of his peers and some wealth in his practice in his representation of a railroad, he retained his homespun country lawyer patina.  

These notes are some he roughed out for a speech on the practice of law that he never delivered.  Despite the fact that they were never refined to the point of oratory, they reflect the philosophy of an everyday lawyer that we can appreciate nearly 150 years later.   

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, — ordinary collection cases, foreclosures, partitions, and the like, — make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not.

Extemporaneous speaking should be practised and cultivated. It is the lawyer’s avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave. 

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note — at least not before the consideration service is performed. It leads to negligence and dishonesty — negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

Thanks to Legal Ethics Blog.

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