March 17, 2011 § 1 Comment
I am sure you’re well acquainted with the lengthy law-related scam list. You’ve probably gotten emails from the infamous Nigerian money-laundering operation (a Meridian millionaire was actually burned for $49,000 some years ago in this one), or the Indonesian entrepreneurs who say they need you to represent them but really only want to get into your trust account. And so on. Philip Thomas of Jackson weighs in about scams directed at lawyers on his blog here.
Recently an old law-related scam resurfaced targeting non-lawyers. It typically arrives via e-mail or telephone message and goes something like this:
“I am calling (or emailing) you about lawsuit number 8045-SA277. Our client has obtained a judgment against you (generally for unpaid magazine subscriptions), and we are giving you the opportunity to settle this matter. The judgment is in the sum of $1,650, but you can settle this matter by remitting only $399 before noon tomorrow. If you do not, we will proceed to collection.”
Of course, there is no lawsuit, and there is no judgment, collectible or otherwise. Some of the messages are from a Carol Klein, or Christine Walker or Carol Grimes. Laughably, some of the male callers identify themselves as “Christine Walker.”
Some callers/emailers ask the recipient to “confirm” their bank account number or social security number “for security purposes.” Of course, they don’t already have that info, but will once the victim “confirms” it by supplying it.
Some people report receiving calls at home or even at work, and the callers are rude, threatening and abusive.
One of my former clients called me about this and sent this phone number, 888-243-6571, which he googled. You can click the link and read about others’ experiences. Note that the phone numbers change frequently. From the dates on some of the entries, it looks like this fraud has been around for years, but it is making a resurgence in this part of the world.
This is a heads up in the event that any of your clients call you about this. If they are going to be sued, they will receive process or at a minimum certified mail, and they should never give out credit card or bank account info or social security numbers over the phone or via email for any reason, or send money without advice of an attorney.
March 16, 2011 § 15 Comments
A practice tip about trial factors is here.
I previously posted here about what it takes to comply with the UCCR to document your claim for attorney’s fees in an estate.
Ordinarily, attorney’s fees claims are governed by the factors in McKee v. McKee, but in an estate, the factors are slightly, but significantly, different.
In estate matters, the proper factors to consider in determining reasonable attorney’s fees are:
- The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
- The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
- The fee customarily charged in the locality for similar legal services;
- The amount involved and the results obtained;
- The time limitation imposed by the client or by the circumstances;
- The nature and length of the professional relationship with the client;
- The experience, reputation and ability of the lawyer or lawyers performing the services; and
- Whether the fee is fixed or contingent.
In re Estate of Johnson v. Moore, 735 So. 2d 231, 237 (¶27) (Miss. 1999) (quoting Moreland v. Riley, 716 So. 2d 1057, 1062 (¶16) (Miss. 1998)).
In the case of Catchings v. Estate of McCullough, decided March 15, 2011, the COA reviewed a chancellor’s decision that reduced attorney’s fees in an estate. The attorney claimed $88,000 in fees in connection with a $300,000 estate, but the chancellor found that the amount of work done did not warrant that amount of fees and reduced the fee award to $36,000, based on application of the Johnson factors stated above. The COA found no abuse of discretion and upheld the chancellor’s determination.
If you have an exceptionally large claim for attorney’s fees in an estate, it would be a good idea to attach your and a fiduciary’s affidavit itemizing the time spent and addressin each of the Johnson factors.
March 15, 2011 § Leave a comment
You’re the judge. Which values do you think will have more credibility:
- Financial statement 1 has the family vehicles valued by the party at $800 (the car he wants) and $35,000 (the car that he wants the other party to have), unsupported by any authority; and
- Financial statement 2 that has Kelly Blue Book or NADA printouts from the internet showing values of $12,000 and $16,500?
Financial statement 2 will win the credibility battle every time.
When you are doing your responses to discovery, go to the Kelly Blue Book site or the N.A.D.A. site and enter the make, year model, mileage, condition and options for your client’s car. Use the “Used Car – Private Sale” figures, and print out the results. Include the printout with your discovery response as an attachment to the Rule 8.05 financial statement or in any other appropriate place. Then, when you are preparing for trial, make sure the printout is attached to the financial statement you are going to offer into evidence.
March 14, 2011 § 9 Comments
I posted here ten tips for more effective financial statements.
Here are a handful more to use in your quest for financial statement perfection:
- Number the pages. It saves the fumbling around as the witness and the court are trying to orient themselves to your questioning. And use the page numbers in questioning the witness: “Ms. Smith, look with me at page 3, line 6.” That’s a lot clearer and easier for a witness to follow than asking “Now you say you spend $200 a month on clothes for yourself; how did you come up with that?”
- Add or delete categories to meet your needs. Your client spends $65 a month buying yarn and other materials to feed her knitting habit. Why not replace an unused catergory like “Transportation (other than automobile)” with “Hobby Expenses.” It would be a whole lot clearer than lumping it in with household expenses or something else, and will make it easier for your nervous client to understand while testifying.
- Don’t list a deduction as “mandatory” when it is not. Deductions required by law, such as taxes and social security are excluded from adjusted gross income for calculation of child support. Voluntary contributions, such as 401(k) deductions, health insurance premiums, and the like are not excluded from income. When you list voluntary deductions as “mandatory,” you are at worst planting false information in the record, and at best confusing the record. Your client does not know the distinction. This is part of practicing law: advising your client how to properly fill out his or her 8.05.
- Attach a current pay stub. Pay stubs are a marvelous source of information. Quite often clients (and attorneys, I am sad to report) miscalculate income. A current pay stub, preferably with year-to-date (YTD) info is a great tool to check the income figures. Pay stubs also show the true amounts of overtime, bonuses, deductions for insurance and other items, andd retirement contributions.
- Tailor your 8.05 to the case you are trying. In a divorce case, you can have one column of figures showing your client’s current expenses, one showing the household expenses before the separation (to show standard of living), and a third column showing her anticipated expenses following the divorce. In a modification case, add a column on both the income and expense side showing what your client’s income and expenses were at the time of the judgment you are seeking to modify.
Of all the documents you admit into evidence at trial, the 8.05 is the one that the judge will study the closest and spend the most time poring over. Make it a workhorse for your case.
March 11, 2011 § Leave a comment
What do all of these folks have in common?
As the Mayflower crossed the Atlantic in 1620, passenger John Howland was swept overboard during a storm. He managed to sieze a trailing halyard and was pulled back to safety. His descendants in the New World have included:
- Franklin Roosevelt
- George H.W. Bush and George W. Bush
- Ralph Waldo Emerson
- Henry Wadsworth Longfellow
- Joseph Smith and Brigham Young
- Humphrey Bogart
- Richard M. Nixon*
- Benjamin Spock
- Sarah Palin
- Chevy Chase
- Christopher Lloyd
- Alec Baldwin
If Howland had lost his life in that storm, none of these people would have existed.
All but Nixon* from Futility Closet; Nixon from another site.
March 10, 2011 § 2 Comments
As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late. Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.
Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided. You already have it in part with the joint property list that is included in the pre-trial order. Why not just rearrange all those assets into the manner that your client wants them divided. Once she identifies it, offer it into evidence, and the judge has the graphic depiction of how your client wants the case to go rather than just a gob of words. Instead of devoting your time (and the judge’s wayward attention) to a painstaking item-by-item approach, you can zero in on how your client justifies a greater share of the marital estate, and concentrate on the several important items she just has to have. With the preparation of a simple document you will have sharpened the focus of your case and made it more efficiently compact at the same time.
Or, if your client wants the financial assets divided a certain way, you can show the division he wants AND add a column with reduced values for tax penalties, etc., assuming you have that proof in the record.
Or, if your client has a claim for reimbursement of medical bills, why not create a table or spreadsheet itemizing all the charges, showing dates, providers, amounts charged, amount paid by insurance, and balance, with totals.
Or, if your client wants specific visitation, why not spell it all out in a proposed schedule.
Here’s how you get them in:
You: Let me show you a document and ask you what it is.
Witness: It’s a table showing [my proposal to divide the marital estate/the financial assets and how I want them divided/a summary of the medical bills/my visitation proposal].
You: Does this table accurately reflect the [marital assets/financial assets] that are already in evidence? Or: Is this the schedule you wish the judge to adopt?
You: Now, let me ask you a few questions about this …
When you put all those words into an exhibit, you are saving the judge all the work of trying to make notes of them at trial, and you are making sure that everything you want to say won’t be missed by the judge. The judge will have a document to look at rather than having to ferret that information out of his sheaf of notes.
In other words, the easier you make it on the judge, the more probable it is that your client will be very happy with the outcome of the case and the job you did.
March 9, 2011 § Leave a comment
I’ve talked here before about the beauty of MRE 1006, which allows you to summarize voluminous records and admit the summary into evidence. The charm of the rule is that (1) it eliminates the need for tedious searching through documents to locate the nuggets you need and eliminates as well the tedious testimony it takes to do that, and (2) it makes the judge’s job easier, which makes the judge happier, and a happier judge is better for your case than a grumpy one.
So you’ve gone and condensed those ten years of credit card statements into a summary showing the expenditures for jewelry for the opposing party’s girlfriend, their trips to Gulf Shores, the vacation spending on the family, and the payments on the credit card showing that he never ran a balance until the separation, when the balance began to balloon. All great stuff, and it’s going to help your alimony claim big time.
You proudly offer the summary and your wily opponent objects. Sustained. Every attempt you make to get the summary in meets with an objection. Sustained. You close your eyes and silently curse the judge who gave you the idea to go to all the trouble to do the summary in the first place. Where did you go wrong?
Well, you have to lay a foundation first.
To get a Rule 1006 summary into evidence, you have to establish 5 things:
- That the original writings, recordings or photographs are, in fact, voluminous;
- That the originals can not be conveniently examined in court;
- That the originals, or duplicates, have been made available for examination or copying, or both, by the other party at a reasonable time and place;
- That the originals would be admissible in evidence; and
- That the chart, summary or calculation offered in lieu of the voluminous originals is fair and accurate.
Now, let’s rewind the above scenario and do it right (assuming you’ve already laid a foundation for entry of the credit card statements):
You: Mrs. Smith, did you have an opportunity to examine all 120 of the MasterCard statements?
Witness: Yes, I did.
You: How many pages of statements were there?
Witness: More than 600.
You: After you examined them, what did you do?
Witness: I extracted certain information, collated it into categories, and organized it into a summary. I also highlighted the various charges on the original duplicates in colors corresponding with the categories.
You: Does your summary fairly and accurately duplicate and summarize the information in the credit card statements?
You: Your honor, I would ask that the record reflect that I did make the original credit card statements available to counsel opposite for examination and copying in discovery more than three months ago.
Counsel Opp: That is correct, Judge.
You: I offer the summary into evidence.
Counsel Opp: Objection. Best evidence rule, hearsay, self serving, redundant and cloud of witnesses.
Judge: Overruled. Let the document be marked as the next numbered exhibit and admitted into evidence.
That’s really all there is to it. When the judge is poring over his notes and the exhibits to adjudicate the case, he will be extremely grateful that he has that nice summary to use instead of having to dig through 600 pages of credit card statements with thousands of transactions. Not only that, he will be less likely to overlook something you considered critical. The extra money your client has to spend for you to prepare the summary will be worth every dollar.
Wells v. State, 604 So.2d 271, 274-5 (Miss. 1992) is a case that illustrates the use and authentication of a summary in a jury trial.
March 8, 2011 § 1 Comment
Tangela Berry and Ricky Banks were guardians of their son Ryheim Banks. In June, 2004, they filed suit in circuit court against several medical defendants alleging negligence.
They reached a settlement with one of the defendants, Laura Carpenter, for $25,000, to be apportioned 1/3 each to Berry, Banks and Ryheim, after deduction of a $10,000 attorney’s fee.
When the settlement was presented to the chancellor, the guardians’ attorney did not call any witnesses. Instead, he made an announcement to the court that Carpenter’s involvement was “negligible,” and that the settlement was “appropriate.” He did, apparently, question Berry and Banks about whether they understood they were releasing their claims against the defendant, which they did, and whether the were following the advice of their attorneys in settling Ryheim’s claim, which they also did. There was no testimony regarding the nature or extent of the injuries, or the substance of the claims, or the damages incurred. The chancellor signed a judgment approving the settlement on August 5, 2005, including the language that the settlement was a “fair and reasonable settlement of a doubtful claim and it is in the best interest of the minor and all others.”
In July 2008, the guardians again appeared in court with new counsel asking the chancellor to set aside the prior settlement because the former attorney had not prosecuted the claim and had done no discovery. They said that they had learned that Carpenter had a $1,000,000 insurance policy that would have afforded coverage that was not disclosed to them at the time of the settlement. Their motion was brought under MRCP 60(b).
The chancellor did set aside the 2005 judgment pursuant to MRCP 60(b), finding that there was insufficient evidence at the 2005 hearing to establish that the settlement was fair and reasonable and in the best interest of the minor.
Carpenter appealed, charging that the trial court erred: in not including specific findings of fact and conclusions of law in his order; and that it was an abuse of discretion to set aside a judgment under MRCP 60 after three years had elapsed from the date of the judgment.
In the case of Carpenter v. Berry, et al., decided February 10, 2011, the Mississippi Supreme Court upheld the chancellor’s ruling.
As for the claim that the conclusions were unsupported, the appellate court found that the chancellor’s findings were sufficient, considering that the matter was not complex.
With respect to the abuse of discretion claim, the court noted that the chancellor did not specify that part of MRCP 60 under which he proceeded. The court found MRCP 60(b)(5) applicable since that rule allows a judgment to be set aside where “it is no longer equitable that the judgment have prospective application.”
The court also found MRCP 60(b)(6) applicable, since it provides that the chancellor may grant relief “for any other reason justifying relief from the judgment.” MRCP 60(b)(6) “is reserved for extraordinary circumstances,” and is “a grand reservoir of equitable power to do justice in a particular case. Briney v. USF & G, 714 So.2d 962, 966 (Miss. 1998).
The Supreme Court noted that the trial judge must consider several factors in determining whether to grant 60(b)(6) relief:
- That final judgments should not lightly be disturbed;
- That a 60(b)(6) motion is not to be used as a substitute for an appeal;
- That the rule should be liberally construed so as to achieve substantial justice;
- Whether the motion was made within a reasonable time;
- Whether the movant had been afforded a fair opportunity to present claims or defenses, if the judgment was rendered after a trial on the merits;
- Whether there are any intervening equities that would make it inequitable to grant relief; and
- Any other factors relevant to the justice of the judgment under attack.
[Note: one factor relating solely to dafault judgments was omitted by the court, with a reference] M.A.S. v. Miss. Department of Human Services, 842 So.2d 527, 530 (Miss. 2003).
In this particular case, the Supreme Court found that this was no ordinary 60(b) case because it involved the rights of a minor under a guardianship. The court said:
“It is the inescapable duty of [chancery] court and or the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants and persons non compos mentis. The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers and even unnatrual parents, and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court. The court will not and can not permit the rights of an infant to be prejudiced by a waiver, or omission or neglect or design of a guardian, or of any other person, so far as within the to prevent or correct. Griffin, Chancery Practice, §§ 45, 360, 530, 533. All persons who deal with guardians or with courts in respect to the rights of infants are charged with the knowledge of the above principles, and to act contrary thereof at their peril.”
The court also noted that the procedures prescribed for settling a minor’s claims as set out in MCA § 93-13-59 and UCCR 6.10 had not been followed in the original proceeding before the court.
The timeliness claim was disposed of by finding that timeliness under 60(b)(6) depends on the facts of the case, and that the chancellor did not abuse his diecretion in this one.
Finally the Supreme Court at ¶ 22 held that “The chancellor properly exercised the discretion afforded by Rule 60(b)(6) by finding that the need to fairly protect the ward’s interests outweighed the need for finality.”
Moral of the story: Don’t take shortcuts; faithfully follow the rules and the statutes. It only takes a little more effort and time to do it right. If a proper record had been made originally, that order might have been a lot more difficult to attack. You can find an outline for how to handle a minor’s settlement here.
March 7, 2011 § 2 Comments
Tom Freeland’s NMissCommentor blog yesterday had a post entitled Judge Primeaux and the Hydra, which referenced my THE BEST DEFENSE IS A BOILERPLATE post immediately below. It prompted a flurry of comments about pleading affirmative defenses. The comments are worth reading, but the graphic alone is worth following the link.
Looking at the comments on NMC, the humor fault line appears to run a jagged course with the circuit and federal practitioners on the “not funny” or “I don’t get it” side, and the lawyers with chancery experience on the other, humorous, side. Those with chancery experience recognize that most of those defenses could never have any applicability in a divorce case, no matter what, and raising them is as ludicrous as a defendant raising recrimination or condonation as a defense to an automobile accident complaint, or unclean hands in a slip and fall case. [A side question … if you did raise those classic chancery defenses in a circuit court case, reckon the lawyer on the other side would file for Rule 11 sanctions? My money says he/she would.]
I recognize that we in chancery inhabit a strange and alien world for those who seldom venture here. We deal with matters where the shades of gray have their own shades of gray, and in the absence of juries that are always in danger of being infected by legal poisons, we usually take a somewhat more relaxed approach. That ambiguity unsettles some, I know. [I was at a rules committee meeting last week discussing some chancery matters with another member and I heard a lawyer next to me say to another, “I’m glad I don’t practice in chancery court.”] In circuit court the rules are the rules. Period. In chancery, the rules are the rules until they run up against the best interest of a child or ward. And without juries the rules of evidence can sometimes be like the speed limit in Italy — merely a suggestion.
As for the absurd divorce defenses, we chancery denizens here on the eastern edge of Mississippi civilization have had a good laugh about them over the past few months, and the perpetrators have good-naturedly endured the ribbing about them. No pleadings were ever in danger of being dismissed. I never really put anyone to a hearing for those ridiculous pleadings.
Tame the hydra and she will be your friend.
March 4, 2011 § 8 Comments
boil•er•plate. n 3. Inconsequential, formulaic or stereotypical language.
Here is the SECOND DEFENSE from a pleading styled Answer and Defenses to Complaint for Divorce filed last September in my court:
The facts having not been fully developed, the [defendant] would affirmatively plead any and all affirmative defenses as may be applicable in this action: accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”
Whew. Fortunately, after a spate of such monstrosities having been filed last fall, they dropped off drastically after I threatened to require hearings on all of those defenses before any temporary hearing. After all, don’t we need to know whether the adultery was a result of an injury by a fellow servant before we proceed? Or was the plaintiff contributorily negligent when the defendant slipped off to the Motel 8 in Philadelphia with his paramour? We need to know these things. Or, I guess we need to know them because they were pled.
Some of these defenses, foreign as they are to chancery court, do stir the imagination …
- Accord and satisfaction should be available when the defendant claims that the plaintiff should be happy with her Honda automobile.
- Assumption of risk. If you knew she was crazy when you married her, well …
- Failure of consideration. Most people are pretty inconsiderate of each other in the context of the hostility that leads up to a divorce, but should that be a defense?
- Failure to mitigate damages. My personal favorite. Shifts the whole burden of blame, doesn’t it?
- Laches. So much for the public policy of Mississippi that encourages folks to stay in a marriage as long as possible.
- Lack of capacity to commit the offense. This is actually a viable defense to some marital offenses involving biological functions, but how does it apply in equitable distribution?
- Pre-existing injuries or damages. Another one with some wondrous possibilities. “She hasn’t been harmed by my moving in with my girlfriend and leaving her penniless because she was already broke.”
- Release. As in “Please release me; let me go, I don’t love you any more?” Nah.
- Res Judicata. Don’t laugh. There are possibilities here for folks who have remarried each other after a prior divorce judgment.
- Statute of frauds. Since Mississippi did away with common-law marriages in 1956, this one is a long shot today.
- Statute of limitations. The lawyer who discovers how to make SOL apply in a divorce case will have struck gold.
- Waiver. “But she told me it was okay for me to go out with Doris.”
Maybe you can come up with some imaginative offensive or defensive theories of your own. If they’re as goofy as these, though, you’d probably be better off keeping them to yourself.