March 31, 2011 § Leave a comment
So you just made the most brilliant objection of your legal career and the blankety-blank judge reserved ruling. How could this be? You begin to stew and fret, so much so that you let the witness conclude her testimony and be excused.
Guess what. Your brilliant objection went out the window as the witness left the courtroom. Why?
Uniform Chancery Court Rule 3.04 deals with objections to testimony. It specifically states, “If the Chancellor shall reserve his ruling, counsel interposing the objection shall make a note thereof and renew his objection at the conclusion of the testimony; otherwise he shall be deemed to have waived his objection.” You didn’t renew the objection, so it is waived.
It is fairly common for Chancellors to reserve ruling on an MRCP Rule 41(b) motion to dismiss at the conclusion of the plaintiff’s or petitioner’s case. If the judge reserves ruling, you must renew your motion at the conclusion of your case, or it is deemed waived.
In similar fashion, if the judge reserves ruling on a question or line of questions, be sure to renew that objection in a timely fashion, or you may be “procedurally barred” from raising the point on appeal.
March 30, 2011 § 1 Comment
In law school we were taught not so much the law as how to think like lawyers. That is, we were taught to think analytically, to break complex issues into comprehensible components, and to bring creative solutions to bear using the framework of the law.
Michelle Harner of the University of Maryland School of Law has written a remarkable paper entitled, The Value of “Thinking Like a Lawyer,” which you can download here as a .pdf file. The abstract of the paper summarizes it succinctly:
The legal profession was hit particularly hard by the recent recession. Law firms laid off lawyers in record numbers, and law school graduates found few if any employment opportunities. Clients also started rethinking the terms of the lawyer-client relationship, at least in the larger law firm context. Some commentators suggest that these changes are indicative of things to come; that the legal profession is undergoing a long-overdue paradigm shift that will permanently change the nature of the legal profession. This Essay examines these developments through the lens of Larry Ribstein’s The Death of Big Law and Richard Susskind’s The End of Lawyers?: Rethinking the Nature of Legal Services. It compares and contrasts Ribstein’s and Susskind’s analyses of the profession and assesses potential lessons for lawyers, clients, and legal educators. This Essay concludes by encouraging professionals to remain open to changes that improve efficiency and client service. It also stresses the value of preserving and promoting the hallmark of being a lawyer – that is, thinking like a lawyer.
Professor Harner begins by accepting some of the premises offered by Ribstein and Susskind: that forces are at work changing the legal profession; that the legal profession is becoming commoditized and generic; and that survival as a lawyer, and indeed, survival of the legal profession, will demand evolution in the way lawyers offer and market services.
Where she ends up is with the idea that legal thinking has a marketable value, and that lawyers should evaluate the services they offer in terms of the value that their legal thinking can add, as opposed to simply doing all the traditional tasks that lawyers have assumed and which do not require legal thinking, many of which nowadays are being taken over by non-lawyers.
Her challenge is for lawyers and the legal profession to re-examine our ways of looking at the ethical framework in which we operate to determine whether it really does promote the best interest of clients and the profession.
I encourage you to read professor Harner’s paper, and to begin to think about the future of your profession.
March 29, 2011 § 2 Comments
If anyone has a legitimate claim over authority to have the last word, it’s got to be the Oxford English Dictionary, aka the OED to English word afficianados everywhere. The OED is recognized as being the authoritative source for what is and is not an actual English word (as any accomplished Scrabble fan can tell you).
When one thinks dictionary, however, one may think stuffy, hidebound, behind the times, snooty, pompous. After all, dictionariologists are ivory-tower academicians far removed from the slangy stew that we here in the real world actually speak, right?
Au contraire, mon frère (as George Carlin used to say). The OED is updated almost continuously, as I recently discovered. You can read updates weekly. Yes, weekly. Here is the latest update page; check it out for yourself.
It seems that the OED, in its never-ending quest to remain both authoritative and relevant is constantly prowling around, sniffing through pop culture and its detritus, detecting newly acceptable entrants into our ever-expanding language.
This particular update includes newly-recognized words (really initialisms): OMG (Oh my God, or gosh or goodness), LOL (laughing out loud), FYI (For your info), IMHO (in my humble opinion), TMI (too much info) and BFF (best friends forever), all from the internet. And here’s a stunning addition: ♥, as in “I♥NY.”
A few other neologisms of interest: La-La land; non-dom (non-domiciled); fabless (great word meaning the opposite of fabulous); muffin top (as in waistline flab); dotted line (think organizational chart, not legal document); happy camper; and lumpenintelligentsia (faux German for what I am not sure). There are others.
I am bringing these to your attention for the possibilities they open to spice up your appellate briefs and pleadings. Imagine what this new infusion of vocabalury would add to even the most prosaic pleadings. Take, for example, this paragraph of an Answer to a Complaint for Divorce:
In answer to Paragraph 6 charging him with habitual cruel and inhuman treatment, defendant can only say OMG, she must have been in la-la land when she dreamed that up! FYI the defendant has never manhandled or even been rude to plaintiff, except for one heated argument about whether or not she had developed a muffin-top. Affirmatively, defendant would show that he is not a happy camper due to these charges, even though the relationship was pretty much fabless, defendant has nonethess ♥’d the plaintiff with all his ♥ and truly believed that he and the plaintiff were BFF. He also objects to this airing of the parties’ private business in these pleadings and resulting discovery as TMI.
How could any court frown on such a masterpiece of the language, bearing as it does the stamp of approval of the esteemed OED?
The possibilities appear endless, what with regular updates that literally ladle scoops of delicious new words onto your plate every week.
March 28, 2011 § Leave a comment
Suppose in an equitable distribution case that you have to prove the balance in a PERS account and its balance on a past date? Or in a contempt case that you have to prove it was a hail storm that did the damage on May 15, 2008? Or in a modification of child support case that the consumer price index has increased by x percent since 2006?
And suppose that in each of the scenarios above counsel opposite will not stipulate to the facts or allow you any easy way to go about proving what you need to prove?
Do you have to subpoena a witness from PERS to bring the records and do calculations in person? Do you have to subpoena a meteorologist to testify as an expert? Are you required to enlist a respected economist to testify about the CPI?
There’s an easier, more efficient way that opens up endless, inexpensive opportunities to prove even the most esoteric matters.
It’s MRE 803(8), which states that, even if the declarant is available to testify, the following are not excluded by the hearsay rule:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duties imposed by law as to which matters there was a duty to report …
There’s more to the rule involving reports such as police reports and investigative reports, but that’s a subject for another post.
To utilize that part of Rule 803(8) stated above, all you have to do is produce a certified copy of a record or report of a public agency that sets forth either activities of the agency or matters observed pursuant to a duty imposed on the agency by law.
To prove the balance in the PERS account and its balance on a past date, get a certified copy of a report from PERS itself showing that information.
The hail storm on May 15, 2008, can be proven through a certified report from the National Weather Service.
The U.S. Department of Commerce can give you a certified copy of a report showing the CPI information you need.
MRE 902(1) and (2) say that those documents are self-authenticating.
The late Lawrence Rabb, who was a respected lawyer in Meridian, often astonished me with the proof he was able to marshal using certified reports he obtained from state and federal agencies. Many times he was able to prove critical elements of a case with a simple, self-authenticating document. With a little imagination, I am sure that you can come up with dozens of ways you can put Rules 803(3) and 901(1) and (2) to use for you.
March 25, 2011 § Leave a comment
If you’ve ever tried your hand at making an anagram, you will appreciate how difficult it can be to come up with one that consists of actual words, much less one that makes a meaningful sentence and even conveys a meaningful message. That is what makes this one so incredible.
TO BE OR NOT TO BE: THAT IS THE QUESTION; WHETHER ‘TIS NOBLER IN THE MIND TO SUFFER THE SLINGS AND ARROWS OF OUTRAGEOUS FORTUNE
can be rearranged to spell
IN ONE OF THE BARD’S BEST-THOUGHT-OF TRAGEDIES, OUR INSISTENT HERO, HAMLET, QUERIES ON TWO FRONTS ABOUT HOW LIFE TURNS ROTTEN.
I don’t recall where I found this, but whoever did it is a genius. I parsed it some years ago to verify that it is a genuine anagram. If you disagree, post a comment.
March 24, 2011 § 1 Comment
Is an indigent parent in default of child support payments entitled to appointment of counsel when he or she is faced with jail as a penalty? That is the issue that was presented to the Supreme Court of the US (SCOTUS) on March 23, 2011.
The majority of states do appoint counsel in such a situation. Mississippi does not. Nor does South Carolina, where the SCOTUS case originated. In this case, Turner v. Rodgers, et al., Michael Turner was jailed for a $6,000 arrearage in child support for 12 months or until he paid up, whichever occurred first. He could not pay, and so served the 12 months in jail. Turner had been jailed repeatedly for failure to pay child support.
Turner takes the position that his jailing was for being poor, and that the system amounts to a debtor’s prison. He argues that since his liberty was at stake in the court proceeding, the court should have appointed counsel for him.
South Carolina and the mother counter that it is not necessary to have a lawyer because such proceedings usually are decided on the simple issue of payment or non-payment, and the history thereof. They point out that Turner “had the key to the jail,” as the South Carolina Supreme Court ruled in the case. And they add that introducing lawyers into the proceedings would disadvantage mothers who can’t afford a private attorney to help them seek child support payments.
The Sixth Amendment to the Constitution guarantees the right to an attorney in a criminal case, and SCOTUS has long interpreted that guarantee to include state criminal courts, but not civil cases. The distinction here is the possibility of jail time.
The SCOTUS decision is expected by this summer.
March 23, 2011 § 3 Comments
I’ve posted here about the necessity to file post-trial motions to preserve error in chancery court, and how the COA’s January 25, 2011, decision in Robinson v. Brown may have changed our traditional practice. Then the COA stayed the mandate and we awaited a new decision.
The new Robinson v. Brown opinion was issued yesterday, March 22, 2011, and in my judgment we are back exactly where we started: You’d better file those post-trial motions if you expect to raise an issue on appeal.
Although the new opinion actually addresses and analyzes the sufficiency of the chancellor’s findings, the court states at ¶ 23 that, “In this case, we likewise find the challenge of the chancellor’s findings in the instant case procedurally barred.” The two cases cited in support of the point are distinguishable both on their facts and their procedural posture, but no matter. The COA is determined to interpret MRCP 52(b) in its own way.
I have other fish to fry, so I don’t really have the time or energy to devote to breaking this down further. Besides, I am out of the appeal business. It’s lawyers like you who have to deal with this.
If the supreme court will take this case on cert and look closely at it, perhaps our supreme chancellor, Justice Pierce, will be afforded the opportunity to elucidate this for us. If I were still practicing law in chancery court I would certainly want the point clarified for the sake of my clients and my malpractice insurance premiums.
In the meantime, I stand by my earlier suggestion to file those post-trial motions raising every conceivable point possible that you may wish to raise on appeal. If you don’t you may find yourself “procedurally barred” in the COA.
March 22, 2011 § 1 Comment
The law that applies in custody disputes between natural parents and third parties is not the same as that in custody disputes between two natural parents. “The well settled rule in a child custody case between a natural parent and a third party is that it is presumed that the best interest of the child will be preserved by being in the custody of the natural parent.” Sellers v. Sellers, 638 So.2d 481, 486 (Miss. 1994).
The Mississippi Supreme Court addressed the scope of this presumption in Stacy v. Ross, 798 So.2d 1275, 1279-80 (Miss. 2001), in which the court cited the U.S. Supreme Court decision in Traxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2056, 147 L.Ed.2d 49 (2000): “The Traxel court said, ‘as long as a parent adequately cares for his or her child (i.e., is fit) there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.’”
The presumption in favor of natural parents in custody matters may, however, be rebutted and overcome. In McCraw v. Buchanan, 10 So.3d 979, 983-4 (Miss. App. 2009), the court pointed out that, in addition to the numerous cases holding that the presumption may be rebutted, MCA § 93-13-1 states that “ … if any father or mother be unsuitable to discharge the duties of guardianship …” then another party may be appointed guardian.
In Sellers, at 606, which is regarded as one of the leading cases on custody issues between natural parents and third parties, the court set out a three-part test against which the trial judge is required to measure the proof in the case:
“In order to overcome the presumption there must be a clear showing that (1) the parent has abandoned the child, (2) the conduct of the parent is so immoral as to be detrimental to the child, or (3) the parent is mentally or otherwise unfit to have custody of the child.”
The case of In Re Guardianship of Brown, 902 So.2d 604 (Miss. App. 2004), was an appeal from a chancellor’s decision awarding custody to a maternal grandmother based on a finding that the father was “otherwise unfit.” The appellate court looked to MCA § 93-15-103(3) as a helpful guide to the kinds of conduct that might constitute “otherwise unfitness.” The statute, which deals with termination of parental rights, enumerates categories of parental behavior that would warrant severing the relationship between parent and child. The court said:
“Abandonment, moral unfitness, and mental unfitness are all included in this statute; therefore, we find that a reading of this statute is helpful in deciding what types of factors a court should consider in deciding whether a natural parent is otherwise unfit for taking care of his children. In fact, courts have used exactly the same language explaining the burden of proof in termination of parental rights cases as they have used in explaining the rights of a natural parent to have custody over a third party: “In termination of parental rights cases the petitioner must prove that the natural parent either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the minor child.” N.E. v. L.H., 761 So.2d 956, 961 (Miss. App. 2000), (citing Petit v. Holifield, 443 So.2d 874, 877 (Miss. 1984).
The Brown court found that the statute is a legislative policy statement in favor of natural parents retaining their rights as parents, including the right to custody, and the decision goes on to state:
“We find that denial of custody to a natural parent in favor of a third party should be granted only when there is a clear showing that the natural parent has relinquished his parental rights, that he has no meaningful relationship with his children, or that the parent’s conduct is clearly detrimental to his children.” Brown, at 607.
Brown also includes the following language at page 609 on the question of “otherwise unfitness” that provides some helpful guidance for the trial court:
“The chancellor decided that Mr. Brown was not entitled to custody because he was otherwise unfit as a parent. Although a court is within its discretion to deny custody to a natural parent based on miscellaneous grounds, it must also appreciate the seriousness of granting custody to a third party over a natural parent. In awarding custody to a third party, the Mississippi Supreme Court has stated the natural parent presumption as early as the year 1900: “[Children] must and ought to be subject to the custody and control of those who are immediately responsible for their being, for the reason that by nature there has been implanted in the human heart those seeds of parental and filial affection that will assure to the infant care and protection in the years of its helplessness …. that the primary object is the interest of the child, the presumption of the law is that its interest is to be in the custody of its parent.” Hibbette v. Baines, 78 Miss. 695, 704, 29 So. 80, 81 (1900) (quoting Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 800 (1890)). This presumption is overcome only by clear and convincing evidence. In overcoming this presumption, especially when making the determination on miscellaneous grounds, a court should look for factors that indicate a natural parent’s absence of a meaningful relationship with his child or behavior of the parent that is clearly detrimental to his child. In this case, the chancellor denied custody to Mr. Brown due to his inability to pay his child support in full and his inability to visit his children on a regular basis. In doing so, the chancellor was, in effect, denying Mr. Brown custody on the grounds of abandonment while simultaneously holding that Mr. Brown had not abandoned his children.
Even though Mr. Brown’s children are well cared for by their grandmother in Mississippi, a finding of unfitness is necessary to award custody to a third party over a natural parent. This finding is necessary before the court can decide the best interests of the children. In re Custody of M.A.G., 859 So.2d 1001, 1004(¶ 7) (Miss.2003). We find that the chancellor incorrectly applied the law in finding that Mr. Brown was an unfit parent. We also find that the chancellor’s holding that Mr. Brown was not emotionally available for his children is unsupported by the record.”
In order for a third party to overcome the presumption in favor of the natural parent’s right of custody, then, there must be a showing, by clear and convincing evidence, that the natural parent has abandoned the child, or that the natural parent is entirely unfit to have custody because the natural parent has relinquished his parental rights, or because he has no meaningful relationship with his children, or that the parent’s conduct is clearly detrimental to his children.
The parental presumption no longer applies if the natural parent has voluntarily given up custody of a minor child by court order. Grant v. Martin, 757 So.2d 264, 266 (Miss. 2000).
Also, a parent may be found to have “constructively abandoned” a child without conduct as extreme as MCA § 93-13-1 if the court finds that the parent has voluntarily abandoned parental responsibility and removed himeslf from active participation in the child’s life for so long that the effect is the same as actual abandonment. In Hill v. Mitchell, 818 So.2d 1221, 1226 (Miss. App. 2002), the case in which the court of appeals enunciated the concept, the mother had left her child with grandparents for eleven years under a temporary court order, but had remained in regular contact with the child.
March 21, 2011 § Leave a comment
Momma, daddy, baby, grandma and grandpa, Aunt JoAnn and Uncle Billy are all assembled expectantly with their digital cameras and mylar baloon bouquets awaiting that happy moment when the judge signs the adoption papers. Their party is deflated, though, when you glumly emerge from the judge’s office and report that there are still some papers you need to get straight before the judge will affix his signature. Hopes dashed, disappointments piqued, and disgruntled clients.
Adoptions are technical. Not the sort of thing you slap together and slide through with little thought.
Here are some tips to make your adoptions succesful:
- Plead proper residence jurisdiction. MCA § 93-17-3 was amended almost four years ago to require six months’ residency, yet we still have lawyers pleading 90 days’ residency. Change your forms.
- Plead venue. § 93-17-3 sets out several scenarios for venue. Select the one that fits your case and track the language of the statute.
- There is a UCCJEA-like requirement in § 93-17-3(2) and (3). Be sure to plead what it requires about proceedings in other states.
- Remember that the petition must be accompanied by an affidavit of a doctor or nurse practitioner as to the child’s health, and an affidavit as to the child’s property or lack thereof.
- § 93-17-3(4) also requires an affidavit of the petitioner(s) of all service fees charged by adoption agencies, as well as “all expenses paid … in the adoption process as of the time of filing the petition.” I interpret this to include attorney’s fees.
- The petition must be sworn, per § 93-17-3(4).
- § 93-17-5 sets out the requirements as to who must be joined, and how. Note that § 93-17-5(2) requires that “The child shall join the petition by its next friend.”
- Since MCA § 93-13-13 gives any minor over the age of 14 the right to select his or her guardian, you should have the adoptive child execute a joinder, if over the age of 14.
In this district we require a pre-adoption conference between the judge and the attorney. The judge will review your petition and affidavits, as well as your proposed judgment, and, if everything is in order, set a date for the final adoption. If some remedial work is needed, the judge will point out what needs to be done and send you on your way to get it done. Do not invite your clients to be there on the off-chance that the judge might approve the paperwork. That would defeat the purpose of the conference, and the judge has not necessarily built the extra time into his calendar to handle both the conference and the adoption.
March 18, 2011 § 1 Comment
English is just too confusing …
I take it you already know
Of tough and bough and cough and dough.
Others may stumble, but not you,
On hiccough, thorough, laugh, and through.
Well done! And now you wish, perhaps,
To learn of less familiar traps.
Beware of heard, a dreadful word,
That looks like beard and sounds like bird.
And dead—it’s said like bed, not bead,
For goodness’ sake, don’t call it deed!
Watch out for meat and great and threat,
(They rhyme with suite and straight and debt).
A moth is not a moth in mother,
Nor both in bother, broth in brother.
And here is not a match for there,
Nor dear and fear for bear and pear.
And then there’s dose and rose and lose—
Just look them up—and goose and choose.
And cork and work and card and ward,
And font and front and word and sword.
And do and go and thwart and cart—
Come, come, I’ve hardly made a start!
A dreadful language? Why, man alive!
I’d mastered it when I was five!
And if you need more proof, try this limerick …
There was an old lady from Slough
Who developed a terrible cough.
She drank half a pint
Of warm honey and mint,
But, sadly, she didn’t pull through.
Thanks to Futility Closet.