DICTA

April 29, 2011 § Leave a comment

SURREBUTTAL SURVIVES

April 28, 2011 § Leave a comment

Not long ago an attorney asked to be allowed surrebuttal.  I refused the request and quipped that surrebuttal had been deep-sixed by the MRCP.

I was wrong.  About the MRCP, anyway.

Actually, the MRCP does not even mention surrebuttal.  I do remember a discussion about surrebuttal in the various seminars we had around 1982-3 in preparation for the effective date of the “new” rules.  The common wisdom in those sessions was that the old practice in chancery for liberal surrebuttal was going away.  In the ancient, pre-rules days it was common practice to get trampled by an older lawyer who was invariably afforded one or even more “surrebuttals” that he used skillfully to repair whatever damage you had done or points you had scored in your examination of a witness.

After the new rules went into effect, that practice thankfully died out in our district, and every other one where I set foot, and since then one rarely hears requests for surrebuttal — as on that day in my court not long ago.

The matter is covered by UCCR 3.02, which provides in part:

 The examination of witnesses shall be limited to the direct examination, the cross-examination, and the redirect examination concerning matters brought out on cross-examination. Counsel for either party may be permitted, on request, to inquire about new matters pertinent to the issues which may have been inadvertently omitted. Opposing counsel may also inquire concerning the same matter.

There you have it.  It’s what we used to call surrebuttal.

Nowadays it arises mainly in situations where the court allows evidence in over the objection that the question is “outside the scope of rebuttal.”  In McGaughy v. State, 742 So2d 1091, 1094 (Miss. 1999), the court said, “Where there is doubt as to whether the evidence is properly case-in-chief or rebuttal evidence, the trial court should resolve the doubt in favor of reception in rebuttal if: (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.”

It is error to permit the introduction of case-in-chief evidence in rebuttal where the evidence clearly should have been offered in the case in chief.  Hosford v. State, 525 So.2d 789, 791-92 (Miss. 1988).  But where it is not clear, introduction is within the discretion of the trial judge and will be reversed only if the decision is found to be arbitrary and capricious.  Smith at 1095.

After the court has allowed in the testimony, you may request further questioning under UCCR 3.02.

To preserve the point for appeal, you need to object timely when your opponent offers evidence in rebuttal that should have been offered in the case in chief.  If the court overrules the objection, ask immediately for surrebuttal or explain to the court why you will be unable to meet the evidence and how it will prejudice your client.

In the case in my court, I did not see that surrebuttal was necessary or desirable to meet anything offered in rebuttal, but it’s an interesting point that arises rarely in chancery court.

CASTING LEGAL PEARLS BEFORE SWINE

April 27, 2011 § Leave a comment

I came across a gem of an opinion rendered by Chancellor Shannon Clark in those pre-MRCP days when the concept of equitable distribution was unknown in Mississippi divorce law, and chancellors rendered opinions unencumbered by all of the factors that weigh down our opinions nowadays.

Judge Clark had a wry sense of humor, and had a way of provoking a laugh in the court room even in the most serious proceedings.  This is his opinion in the case of Taylor v. Taylor:

IN THE CHANCERY COURT OF WAYNE COUNTY, MISSISSIPPI

JOHNNIE PEARL TAYLOR, COMPLAINANT

VS.

CLARENCE TAYLOR, DEFENDANT

Cause No. 14, 672

OPINION OF THE COURT

This case comes on for hearing as the last case on the last day of a rather trying term of court. The parties were married on April 4, 1979, at a time when the defendant was incarcerated in the local Bastille. It is obvious that all marriages are not made in Heaven, and certainly not this one. The testimony is that bliss never reigned supreme in this Palace of Love.

The marriage being of a short duration, the only accumulated assets were ten (10) pigs, three (3) grown hogs, and one three months old hog. Later seven (7) more pigs were born during the marriage of the parties.

The parties separated on or about September 16, 1979, leaving care, custody and control of the pigs with the Complainant. The Defendant made no effort to help with the pigs. No support was paid for the pigs by the Defendant. The Complainant provided care for the pigs both before and after the separation. She was a fit and proper person to have their care, custody and control. It was necessary for the Complainant on occasions to seek charity from neighbors to care for the pigs. Urgent and necessitous circumstances having arisen, the pigs, alas, were sold at a private sale for $175.00 without the taking of bids. an emergency having resulted from the pigs’ run-down condition from lack of financial support, no bids were necessary at this point in time. The Complainant had contacted numerous people, including the High Sheriff of Wayne County, in an effort to locate the Defendant, but to no avail. No order relating to the care, custody and control, or for the support of the pigs was obtained. The defendant requested neither custody nor reasonable visitation rights. The pigs being of tender age, it would have been inappropriate to separate them from their mother. No sow support having been paid by the Defendant, he cannot now complain of the Complainant’s sale of the pigs to provide for the pigs’ welfare and support. Having failed in his duty to support, he cannot now be heard to complain of the results of his failure to bring home the bacon.

A divorce is hereby granted to the Complainant on the grounds of habitual cruel and inhuman treatment. It is, likewise, the order of this Court that the Complainant is entitled to attorney’s fees in the amount of $200. All other relief sought by either party is denied.

The Defendant, having lost his swine as a result of this ill-fated marriage, can consider himself lucky that he did not have a donkey.

Court is now adjourned until court in course.

FILED November 29, 1979.

Thanks to attorney Henry Palmer.

DEALING WITH DISCOVERY GAMESMANSHIP

April 26, 2011 § 8 Comments

One of the most frustrating aspects of litigation is the gamesmanship that many lawyers employ in discovery.  If you’ve practiced even a short time, you are acquainted with the repertoire: Late or no answers; failure to supplement; supplementation on the eve of trial; all-encompassing objections; evasive answers; and on and on.

Philip Thomas blogged about the COA’s decision last week upholding a circuit court decision dismissing the City of Jackson’s pleadings for a discovery violation, and followed up with a post highlighting how inconsistent the appellate courts have been in discovery violation cases.

What is the best strategy to cope?

In my experience, most attorneys are too accommodating when it comes to discovery.  You don’t want to press too hard because “what goes around, comes around.”  You call the other attorney who promises the answers “in a few days,” and that stretches into a few weeks and months.  You hate to file a motion because you don’t want to be disagreeable.  The common thread is that these approaches are absolutely ineffective.

If you’re going to get the information you need, you’re going to have to be proactive and make a record.  Here’s what I suggest:

  • Set a hearing to address all those objections.  Make the judge rule on each and every one of them.  Rulings by the judge on the timing and sequence of discovery are discretionary, but her rulings on those objections will be matters of law second-guessable by the appellate courts.  If the judge overrules the objections, you may reap a bonanza of information, and you have disabled your opponent from using them against you at trial.  Remember:  if you don’t make a record, you can’t complain about it on appeal.
  • If you’re going to agree to extend discovery deadlines, get a court order.  Insist on an agreed order documenting the new deadline and any other terms you and counsel opposite agree on.  You can’t enforce an order you haven’t got, and the record does not reflect a handshake deal.  Make your record.
  • Send a good faith letter.  UCCR 1.10(c) requires a certificate that you have made a good faith effort to resolve any discovery conflict with opposing counsel before you can be heard on a motion to compel.  Mention in your letter that if you are unable to reach an agreement you will have no choice but to file a motion.
  • File that motion.  Go ahead and do it.  File your motion to compel. You are making your record.  You can reach an agreement to give more time, or whatever, but don’t wimp out of a hearing unless you get what you need.  Some lawyers consider this approach “ungentlemanly.”  But your duty to your client comes ahead of being properly gentlemanly.  I always considered it more ungentlemanly to play discovery games than to fight them.  This does not mean, by the way, that you should be an aggressive a**h**e.  It does mean that you need to be assertive and firm, standing your ground for the best interest of your client. 

In my years of practicing, I often ran across chancellors who found discovery disputes distasteful.  They made you feel as if you were wasting their time.  My strategy in dealing with them was to treat it like business and make a record.  You’re there to represent your client, not to impress the judge.

Don’t be afraid to be proactive in discovery.  It can make or break your case.

 

INTERNAL AFFAIRS

April 25, 2011 § Leave a comment

In a post aptly entitled Intestinal Fortitude, the blog Mocking Words enlightens us about two recent cases in which various surprising items were discovered in cavity searches of a woman in Scranton, PA and a man in Sarasota, FL.

As the term “cavity” implies, the searches involved rather intimate internal regions of the body accessible only by means that you probably prefer not to think about in detail.

The Scranton woman had concealed 51 packages of heroin, some 30-odd drug baggies, 8-1/2 prescription pills and fifty-two dollars and twenty two cents in her “cavity.”

*Ouch*

In the case of the Sarasota man, the routine cavity search on his booking into jail turned up: 17 oxycodone pills; one cigarette; six matches; a flint (!); an empty hypodermic syringe with an eraser stuck on the needle; one lip balm container; one condom; a drug store recipt; and a coupon.  I don’t know about you, but I don’t care to think about how that stuff got into that — uh — cavity.  I also don’t care to think about whether some unsuspecting bona fide purchaser for value without notice was going to smoke that cigarette or use that lip balm <shudder>.  And how much would you have to be paid to have the job of the store clerk to take that coupon?

Human ingenuity is an amazing thing, isn’t it?  If those two geniuses had devoted as much time and effort toward world peace as they did to hiding stuff in their nether regions, the world might be a better place.  Or maybe not.

DICTA

April 22, 2011 § 1 Comment

  • It’s not very good poetry, but this sonnet does reflect a particular point of view of the insurance defense lawyer.
  • Who’s bugging you?  Here’s a piece on how to tell if your car, home or phone is bugged.
  • BP says that the spill is stopped and everything is hunky-dory in the gulf. So we can relax, right?  Not so fast, my friend.  This article from the Scientific American paints a not-so-rosy picture.
  • What makes a judge popular among lawyers?  Philip Thomas says it’s effort.
  • James K. Vardaman is notorious as one of the most rabid racists ever to inhabit the office of governor in Mississippi, and later the office of U.S. Senator.  Referred to by his followers as “The Great White Chief,” he was known for quotes such as, “If it is necessary every Negro in the state will be lynched; it will be done to maintain white supremacy.”  Less well-known is his populism, which you can read about online at Vardaman’s Weekly, an archive of his 1919-1923 publication of the same name.  Reading these probably won’t change your opinion of the man, but they do offer a glimpse into the politics of the era.
  • It was the original proof of the theorem that size isn’t everything, but today it’s six inches longer, a little over three inches wider and half an inch lower than its predecessor, and the flower vase has given way to a more masculine persona.  The latest incarnation of VW’s New 2012 Beetle looks mighty familiar.
  • Words are inadequate to describe this jaw-droppingly beautiful video, time lapse photography by Terje Sørgjerd on El Teide, Spain’s highest peak located in the Canary Islands.
  • Interactive 3-D solar system and night sky.
  • What do Max Bodenheim, Sterling Plumpp, Bobby DeLaughter, and Oprah Winfrey all have in common?  You can find out here.

“V” is for …

VW

Vardaman

A POTPOURRI OF POINTS

April 21, 2011 § 2 Comments

Every now and then a case comes tumbling down from the appellate stratosphere that is remarkable not so much for the law of that particular case, but rather for the cascade of legal nuggets it unearths that one can mine and tuck away for future profitable use.  Such is Jernigan v. Young, handed down by the COA on April 19, 2011.

Samuel Jernigan and his wife Mae Bell were married in 1997.  Two years later, Samuel conveyed a .38-acre tract of land to Mae Bell by quitclaim deed.  He had filed for disability and was under the mistaken belief that if the land were no longer in his name his chances of a favorable ruling would improve.  Samuel claims that he and Mae Bell had an oral agreement that she would convey the property back to him.  There was no writing evidencing the alleged agreement.

In 1998, Mae Bell conveyed the property to her daughter Amy.  It is not disclosed in the record whether Samuel was aware of the transaction.

In 1999, Samuel and Mae Bell decided to get a divorce on the sole ground of irreconcilable differences.  They proceeded pro se using fill-in-the-blank forms.  In one of the blanks designated to identify what property would belong to each party appeared the handwritten notation “none.”

Four days after the divorce judgment was entered, Samuel filed a document styled “Withdrawal of Consent” and asked that the divorce be set aside.  He also filed a Complaint for Divorce and a pleading asking that the deed to Amy be set aisde, all of which were consolidated.  The case sat idle for seven years until Amy filed for summary judgment.  The chancellor granted summary judgment, which the COA affirmed.

Here are the nuggets from Judge Griffis’ opinion:

  • “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce … What is important is that the agreement be validly expressed on the day that the chancellor is considering the issue.”  Sanford v. Sanford, 749 So.2d 353, 356 (Miss. App. 1999); Harvey v. Harvey, 918 So.2d 837, 839 (Miss. App. 2005).
  • Relief under MRCP 60(b) requires a showing of “exceptional circumstances.”  In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 416 (Miss. App. 2008).
  • No hearing or testimony is required to validate a divorce on the ground of irreconcilable differences.  MCA § 93-5-24(4).  In an irreconcilable differences divorce the parties “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.”  Perkins v. Perkins, 737 So.2d 1256, 1263 (Miss. App. 2001).
  • Although MCA § 93-5-2(2) requires the chancellor to determine whether the parties’ agreement in an irreconcilable differences divorce is “adequate and sufficient,” that is not a “magic phrase,” and its absence in the divorce judgment approving the agreement is not a ground for reversal.  Cobb v. Cobb, 29 So.3d 145, 149 (Miss. App. 2010).
  • It is not in and of itself reversible error for the chancellor not to require financial disclosure via UCCR 8.05 financial statements in an irreconcilable differences divorce.  St. Germain at 417-418.  Where the lack of disclosure allowed a spouse to conceal major assets, however, it could amount to reversible error.  Kalman v. Kalman, 905 So.2d 760, 764 (Miss. App. 2004).
  • An inter vivos deed of gift need not be supported by separate consideration.  Holmes v. O’Bryant, 741 So.2d 366, 370 (Miss. App. 1999).  “A man of sound mind may execute a will or deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even whim or caprice.”  Herrington v. Herrington, 232 Miss. 244. 250-251, 98 So. 2d 646, 649 (1957).
  • MCA § 91-9-1 requires that any trust in land must be in writing signed by the person declaring or creating the trust, or it is void.  The court may impose a constructive or resulting trust on land in the absence of a written agreement, provided that certain criteria are present.  Simmons v. Simmons, 724 So.2d 1054, 1057 (Miss. App. 1998).

And the most important point of all:  You get exactly what you pay for when you get a do-it-yourself divorce without benefit of legal counsel.

TOP TEN WAYS TO DESTROY A CHILD IN A DIVORCE OR CUSTODY CASE

April 20, 2011 § 3 Comments

If you have practiced family law any amount of time, you will marvel at the ingenuity of parents and other family members in devising ways to warp, hurt, demoralize and destroy children.

Here are some of the most effective:

  1. Use the children as pawns.  Trash the non-custodial parent’s mail to the child, or hide birthday or Christmas presents.  Use denial of visitation or contact as a tool to retaliate.  Then tell the child it’s all the other parent’s fault.
  2. Use the children as spies.  Nobody makes as good a spy as an insider.  So what if it puts the children in the  middle, or makes them feel like traitors, or makes them choose sides.  As long as I get what I want, what does it matter, right?
  3. Deny the other parent access to the children.  Very effective, especially when coupled with exagerrated or false claims of physical or sexual abuse.  Utilized long enough, this tactic can completely estrange the children from the non-custodial parent.  This ploy is so effective that children who grow into adults having experienced it often enjoy years of counselling.
  4. Make the children feel guilty for loving the other parent.  This one is guaranteed to create maximum warpage.  “Who do you love the most, me or mommy?”  Some parents even punish the child for a “wrong” answer.
  5. Use the children as messengers.  Mommy and daddy won’t talk to each other like adults, so the child is given notes, medical bills, school records, and so on.  This is an effective way to put the children right in the middle, and to let them in on adult concerns.  Gives them something more to worry about, and shifts the responsibility off of the parents.
  6. Criticize the other parent to the children.  It really feels great to unload all of the hurt and anger you have toward your ex, and who is better than the children to understand exactly where you’re coming from?  It feels super to get that off your chest — right onto the children.
  7. Model vindictive and spiteful behavior.  “Do as I say, not as I do” is the motto of parents who engage in this behavior.  Only problem is, that philosophy has never worked when raising children.  But who cares?  It’s worth it to take a swipe at the old ex, right?
  8. Ignore the children’s stress and negative behavior brought on by the litigation.  Tell the children to quit that silly crying, or stop misbehaving or I’ll whip you, or “Quit acting like a baby.”  None of that sissy stuff like holding and reassuring them, asking them to share their concerns, or simply devoting some one-on-one attention.
  9. Try to “win” the children over by relaxing discipline.  Parents who want to be the child’s best friend, not an authority figure.  Guaranteed to win the child over to that parent’s “side,” and to undermine the authority of the other “mean” parent.  The fly in this ointment is that after a while the child won’t mind you no matter what.  But that’s okay as long as you’re best buds, huh?
  10. Use the children as targets to vent your own anger and frustration.  What’s wrong with lashing out at junior after a particularly frustrating conversation with your ex?  Everything.

As lawyers, you can exercise a lot of influence over your client’s behavior.  I can’t think of a more important subject about which you can influence your client than how to keep the children from being hurt in a divorce.

FIVE TIPS TO IMPROVE YOUR PROBATE PRACTICE

April 19, 2011 § 7 Comments

  • Always accompany the executor, administrator, guardian or conservator to the bank or other financial institution to open the estate account.  That way you can make sure that the funds are properly deposited into a restricted account, and that the fiduciary does what she is supposed to do. 
  • Always ask that a duplicate bank statement be sent to you for the estate account.  If the bank balks, direct that the bank statement be sent to you and not the fiduciary.  Review each bank statement promptly when you receive it to make sure that no unauthorized disbursements are being made.  Also, when the next accounting comes due — Voila! — you have a complete set of bank statements.
  • Have your secretary or paralegal call the fiduciary every couple of months to inquire how things are going, to remind of upcoming deadlines, and to ensure that the address and telephone info in your file is accurate.  This is not only great client relations, it’s one of the best means possible to discover and address problems in their early stages.
  • Accompany your fiduciary to inventory that safe deposit box, and, if possible, bring a witness.  It seems that there is often someone lurking in the wings ready to allege that there were all sorts of valuable items in there that the fiduciary is not accounting for.
  • Do an inventory even when one is not required.  Inventory establishes the baseline for accounting.  It also can help neutralize the claims of many disgruntled heirs and sideline-sitters.

SEASONAL VARIATIONS IN INCOME

April 18, 2011 § 1 Comment

One of the vexing questions in child support cases is how to treat seasonal variations in income.

Let’s say your client is a salesman who brings home only $2,000 per month eleven months out of the year.  Every December, however, he receives a bonus that has averaged $10,000 a year over the past ten years.  What can you tell him to expect about child support for his two children?

What you have here is a seasonal variation in income.  For ten months guideline child support would be $400 per month, and for one month it would be $2,000.

How should you ask the court to address it?

I have heard attorneys argue that the bonus should not be counted because the client is never automatically entitled to a bonus, and he might not get it.  That argument usually does not fly because of the all-encompasing language of MCA § 43-19-101 (3)(a), which defines income for child support purposes.  Consider the following case:

In Alderson v. Morgan ex rel. Champion, 739 So.2d 465, 466 (Miss. App. 1999), the chancellor had based his adjudication of modified child support on total yearly income, including the bonus, divided by twelve.  Using the figures above, the total yearly income, then, would be $34,000, which produces adjusted gross income of $2,833.  The resulting child support would be $566.  In effect, the chancellor’s decision spread the bonus over the entire year.  On appeal, the court of appeals rejected the father’s argument that it was improper for the trial court to base child support on anticipated income.  The court noted that it was proper in that case for the chancellor to assume the bonus based on a one-year history of a bonus.

In the alternative, you could ask the court to find that the seasonal variation in income rebuts the presumption that the guidelines are applicable, and that the court should not apply the guidelines to all twelve months equally.  Your authority is MCA § 43-19-103(d), which specifies “seasonal variations in one or both parents’ income or expenses” as authority for the ccourt to find that it would be unjust or inappropriate to apply the guidelines.  Applying that statute to our scenario, you could propose that the court order $400 for eleven months and $2,000 in December.

What if the bonus that you are asking to except from the guidelines varies?  Say your client receives $10,000 in most years, but has gotten as little as $5,000, and has averaged $8,000.  Logic would dictate that you could suggest a 20% figure of whatever the amount of the bonus might be, but the appellate courts have frowned on percentage child support.  Why not propose a hybrid amount for the bonus month that would be 20% of the actual bonus, but not less than 20% of the average.  In other words, you would be asking the court to rule that child support would be “Twenty percent of the actual adjusted gross income received from the bonus, or $1,600, whichever is greater.”  That gives the court an actual, minimum figure to enforce, and allows the parties some leeway to bring the matter to the court if there is a dispute as to the amount.

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