BOOKS WITHOUT BATTERIES

July 29, 2011 § 5 Comments

To Kindle or not to Kindle. That is the question.

On the one hand, books have played a significant role in my life. I love them. I love their heft, their solid feel, the way the pages riffle as you fan them. I love the aroma of a good book, the enticing allure of the dust jacket, the texture of the pages, the quality of the binding. I love to see the words in print, to savor the typography, to marvel at never-before-seen illustrations. I love to find a nugget of the author’s personal story on the inside sleeve. I could never opt for an electronic book reader if it meant the extinction of books with real paper pages and bindings.

On the other hand, I have hundreds of books, and an electronic book would help reduce the numbers I have to deal with. Too, with an e-reader, you can literally carry an entire library onto a plane or across town. It’s like having a Bookmobile in your hand.

But what is the effect of e-readers on the availability of book stores? I would be lost without access to a good book seller who is local, knows what I want, and offers a stock of tomes that appeal to my sensibilities. Book shops are one of the great pleasures in my life. I remember spending youthful hours in the Sans Souci Bookstore in Lafayette, LA., a modest shop with books filling every space in abundance, something a small-town boy could barely imagine. Over the years I have spent countless hours browsing in book shops. I have gone out of my way to find book sellers in Paris, London, Munich, Rome, New York, Boston, San Francisco and God knows how many other locales. Each local shop offers a different stock in trade to please the palate of its local clientelle. What a pleasure to see the parcels of books ordered awaiting pickup, and to hear the familiarity between seller and reader inquiring about a title or just exchanging pleasantries.

Over the years the book-selling trade has been taken over increasingly by chains and e-tailers like Barnes & Noble, Amazon, Books-A-Million and (now almost extinct) Borders. They were preceded by the Walden Books and Brentano’s chains, who now are past. Chains are giant corporations that make deals with publishers to hype certain books, for which the chains make millions, pushing many deserving authors to the back shelves or out of the store entirely. Of course, any bookseller in a way dictates the readers’ choices by what is in stock, but the big chains go for the big bucks. Regional writers get lost in the shuffle. I wonder whether you would find Eudora Welty, Larry Brown, Ernest Hemingway or Will Faulkner on the bookshelves of the big chains today if those magnificent authors were unknown and just starting out.

Right here in Mississippi we have three phenomenal independent booksellers: Square Books in Oxford; Lemuria in Jackson; and Turnrow in Greenwood. These three stores are as good as any independent shops you will find anywhere. They offer books that the local owners know will interest their readers. Your book choices are not dictated out of corporate headquarters in a skyscraper in a big city up north. The shelves are not stocked by a corporate drone with eye fixed solely on the bottom line. The owners stock titles they know will enrich their patrons and the community as a whole. The local bookseller looks you in the eye and says, “Here is an author that will interest you” or “Have you read this?” They listen to what interests you and respond. The local readers and local sellers become an organic unit.

So that is my dilemma. I am not adverse to supplementing my love of books with an e-reader if … (1) it does not make books any less available … and … (2) it does not adversely impact the availability of independent booksellers.

In the midst of my dithering over this dilemma, I received the Square Books Dear Reader Newsletter that included the following:

KINDLE = Amazon only. ALL OTHER DEVICES = Square Books. Want Choice? Don’t get left to their devices. Google e-books are available at coompetitive prices from www.squarebooks.com and are compatible with any device (smartphones, laptops, tablets and e-reading devices including the Nook and the Sony Reader), except the Kindle. Those who surrender to Amazon’s monopoly reduce local economics, diminish their consumer power, and imperil freedom of choice!

Voila. An answer to my quandary. I can buy a Kindle and work against my interests, or I can acquire another e-reader that uses Google e-books and protect my interests.

I am not particularly fond of the idea of battery-powered books, but I recognize the advantages. I just might pick up one of those new-fangled gadgets after all, but there’s no way that it will take the place of my need for books without batteries.

WHEN IT COMES TIME TO BAIL OUT

July 28, 2011 § 5 Comments

Sometimes it happens that you find it necessary to withdraw from representing a client. Maybe an ethical dilemma has reared its head. Or perhaps you and your client have developed irreconcilable differences. Or it could be that your client has not met the terms of the employment contract as to cooperation or payment or in some other way.

Once you have entered an appearance in a case, you are in it until the court lets you out. You may not avoid responsibility simply by not participating further. So when the need arises, how can you make an effective exit?

Uniform Chancery Court Rule (UCCR) 1.08 provides: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”

In other words, it’s not good enough to get an agreed order signed by counsel opposite and present it to the judge. Nor is it adequate to get your client to sign off on an order.

Here is what you have to do, step by step:

  1. File a motion to withdraw. Set out a general statement of your reason without compromising the interest of your client in the litigation.
  2. File the motion and send a copy of it with certificate of service to opposing counsel and the client.
  3. Notice the motion for hearing.
  4. If your client and opposing counsel will sign an agreed order allowing you to withdraw, present it to the court for entry.
  5. If either your client or opposing counsel, or both, object, hold a hearing and ask the court to rule on your motion.

Several caveats:

  • If the case is set for trial, most chancellors will allow you to withdraw only in the most urgent and exigent circumstances.
  • No chancellor will allow you to withdraw if to do so will seriously prejudice your client.
  • You may not withdraw in any probate matter unless there is an attorney who will substitute for you. UCCR 6.01 requires that the fiduciary retain an attorney, unless the fiduciary is a licensed attorney.
  • Be general in stating a reason. Okay: “The undersigned attorney and the plaintiff have differences of opinion about handling this case that can not be resolved.” Not okay: “My client has filed three bar complaints against me and has retained counsel to sue me for malpractice, and I have reason to believe he is concealing assets from the court.”
  • Don’t include any language in your order that absolves you of any responsibility for anything you did in the case, or approves everything you did; that’s overreaching. You may state that you are relieved of all further responsibility from and after the date of the order allowing withdrawal.
  • Many chancellors will not permit you to withdraw if the only basis is non-payment of fees. Their rationale is that you took on a professional duty to represent the client when you entered an appearance, and that duty is higher than your desire to be paid.

A MINI-GLOSSARY OF PROBATE TERMS

July 27, 2011 § Leave a comment

Administration. Supervision of an intestate estate under the auspices of a court exercising jurisdiction.

Administrator. (f: Administratrix) One appointed by the court to take responsibility for an administration. Also used with certain modifying terms to designate a person appointed to replace an executor named in a will.

Administrator with the Will Annexed. (Administrator cum testamento annexo, or CTA) When the will names no executor, or where the nominated executor is unable or unwilling to serve, the court will appoint an administrator CTA (literally with the will in hand) to do the job.

Administrator de Bonis Non. (Administrator DBN) The original term was “Administrator de bonis non administratis,” which literally means administrator of the goods not [already] administered. The administrator DBN is appointed to administer the effects of a decedent that were not administered or omitted in a previous administration.

Administrator DBN CTA. An administrator appointed to replace an executor who had died or must otherwise be replaced before completing administration of the estate.

Administrator de Son Tort. One who, without any authority in a will or court order, assumes to act as executor or administrator of an estate, disposing of its goods and meddling in its affairs. Literally “Administrator in his own wrong.”

Beneficiary. One named in a will to receive a bequest, legacy or devise, or in a trust to receive the trust proceeds. Note that not all heirs are beneficiaries.

Bequest. Disposition of personal property by will.

Codicil. Written supplement to or addition to a will.

Decedent. The person whose death has occasioned the opening of an estate.

Devastavit. Literally “he or she has wasted.” An action against an executor or administrator charging him or her with mismanagement or neglect of duty that has caused loss and which obligates the fiduciary to the heirs, creditors or beneficiaries.

Devisavit vel non. The ancient name given to a proceeding in chancery court to determine whether or not the testator did devise, and whether the document presented was his will. Literally “Did he devise or not?”

Devise. Disposition of real property by will.

Devisee. Person to whom property is devised.

Executor. (f: Executrix) One appointed by the court to take responsibility for probate of a testate estate.

Fiduciary. Term embracing administrators, conservators, executors, guardians, trustees and others who have a special duty of good faith and responsibility to the court and interested parties in relation to the matters entrusted to him or her.

Heir. One who is designated under the laws of descent and distribution to receive the estate of a decedent not disposed of in a will. Although an heir may be a beneficiary, all beneficiaries are not necessarily heirs.

Holographic will. A will written entirely in the handwriting of the decedent.

Intestate. The state of not having written a will; also refers to the individual himself or herself.

Legacy. Same as bequest.

Legatee. One to whom a legacy or bequest is made.

Nuncupative will. An oral will knowingly made in extremis before the required number of witnesses.

Probate. The procedure to prove a will. Also, the collective term used for estates, administrations, guardianships, conservatorships and judicially-administered trusts, the common characteristic of which is appointment of a fiduciary to be responsible to the court and interested parties.

Probate in Common Form. Admission of a will to probate ex parte, without formalities.

Probate in Solemn Form. Admission of a will to probate after notice to all interested parties and a court hearing.

Residuary Estate. All that remains of an estate after the expenses of administration, debts, legacies and devises have been satisfied.

Settlor. One who creates a trust.

Testate. The state of having written a will; also refers to the individual himself or herself.

Testator. (f: Testatrix) The maker of a will, and one who dies leaving a will.

Trustor. Same as settlor.

Wrongful Death Beneficiaries. Statutory designation of persons who are entitled to a distribution of damages for another’s injury and death. Heirs and wrongful death beneficiaries are not necessarily the same persons. See MCA § 11-7-13.

PLEADING THAT WHICH MUST BE PLED

July 26, 2011 § 2 Comments

If you will read the statutes that apply in your case, you will find exactly the language you need to plead a proper claim and lay out jurisdiction and venue. It’s right there in the code. The closer you adhere to the statutory language, the more likely it is that your complaint will withstand an MRCP 12(b)(6) motion.

For example, in a divorce case, you must plead all of the following: either one or more grounds set out in MCA §93-5-1, and/or irreconcilable differences as in MCA § 93-5-2; and proper venue as in MCA § 93-5-11; and that one of the parties meets the residence requirement of MCA § 93-5-5. All of the language you need to do that is right there in the statutes for your penalty-free plagiarization.

As a side note, many older chancellors through the years required the complaint to quote the language of the residency statute for divorce that, ” … [plaintiff] has been an actual bona fide resident within this state for six (6) months next preceding the commencement of this suit.” If you varied by a single word, you had pled yourself out of court. There may still be chancellors adhering to that practice. Whether your chancellor does or not, you can’t go wrong tracking the language of the statute.

Some lawyers copy other lawyers’ pleadings. That’s fine as long as the copied pleadings are adequate. Several years ago a few new lawyers used pleadings filed by a weathered, older lawyer as their template. You could tell because they slavishly replicated the older lawyer’s misstatement that “Plaintiff is entitled to a divorce from the defendant on the ground of habitual cruel and inhuman treatment as codiciled in Section 93-5-1, MCA.” If you’re going to copy, at least put some thought into what you’re doing.

The MRCP offer another source of pleading material. For instance, if you will read Rule 57, you will find every word you need to plead to obtain a declaratory judgment. Same with Rule 56 summary judgment. Same with Rule 65 for temporary restraining orders, temporary injunctions, and preliminary and permanent injunctions.

In modification of custody cases, you will be out of court on your ear unless you plead specifically in your petition that (1) there has been a material change in circumstances that (2) is having or has had an adverse effect on the minor child(ren), and (3) that it is in the best interest of the child(ren) to change custody to your client. McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002). Note that in McMurry, the petitioner had pled only a material change justifying modification. The respondent moved to dismiss for failure to state a claim at the outset of trial, and the judge even prompted counsel that the word “adverse” was absent. The judge dismissed the pleading with leave to amend, and counsel for petitioner moved ore tenus to amend to add the language that an adverse effect would occur if modification were not granted. At that point, the chancellor found the pleadings insufficient as a matter of law and dismissed with prejudice. The COA affirmed.

As McMurry illustrates, faulty pleading will cause nothing but trouble. And it can be fatal. Look what happened there: the judge granted leave to amend as is prescribed in MRCP 12(b), but when counsel failed to fix the problem by amendment, the judge took the case off of the respirator and it died.

What if counsel for the respondent had said nothing about the adequacy of the pleadings before trial, but then had objected to every question about any adverse effect on the basis that it had not been pled? I saw that on more than one occasion when I was in practice, and the judge always sustained the objections, effectively gutting the petitioner’s case, or, more accurately, letting it gut itself. If you’re in that situation and you’re not too discombulated to think clearly, you might try making a Rule 15 motion for leave to amend. Maybe the judge will let you off the hook. At least you will have it in the record.

THE AFFIDAVIT OF “REASONABLY DILIGENT INQUIRY” FOR CLAIMS AGAINST THE ESTATE

July 25, 2011 § 11 Comments

MCA § 91-7-145(1) requires the estate fiduciary to make “reasonably diligent inquiry” to identify persons who have claims against the estate, and to notify them by mail at their last known address that failure to probate a claim within the statutorily-prescribed time will bar their claims.

MCA § 91-7-145(2) provides that:

“The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail … to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have same probated and registered by the cleerk of the court granting the letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim … ” [Emphasis added]

Most lawyers refer to this as the “Affidavit of Creditors.”

Clearly, then, the statute requires these measures, in this order:

  1. First, identify those having a claim against the estate;
  2. Send them notice conforming to the statute;
  3. File an affidavit with the clerk stating compliance with the statute;
  4. Publish notice to creditors.

Skip a step and you will have to start over. Go out of order and you will have to start over. Notice the language of the statute: it says that publication is undertaken “[u]pon filing such affidavit …” That clearly requires that you may not publish until after the affidavit has been filed. And, of course, the affidavit can not be filed until after you have made diligent inquiry and mailed your notices, if any.

In the case of In re Estate of Petrick, 635 So.2d 1389 (Miss. 1994), the untimely claim of a creditor was allowed because the administratrix published without notifying a creditor whom the court found was “reasonably ascertainable.” The court added that notice may be published only after the affidavit has been filed (at 1394).

In Houston v. Ladner, 911 So.2d 673 (Miss. App. 2005), the COA found the chancellor in error for finding a probated claim time-barred without first finding that the creditor was a reasonably ascertainable creditor. The creditor had not been sent notice by mail, and the COA pointed out that publication notice was not a substitute for mail notice; it was required in addition to mail notice.

Here are a couple of practice tips to help you comply with the statute:

  • Always question your fiduciary about bills of the decedent. It will be hard to argue that BOA Visa was not a “reasonably ascertainable” creditor when your fiduciary had been paying the bill herself for three months after the decedent died and before the estate was opened. It will be harder still to argue that the attending physician at the time of death was not “reasonably ascertainable.”
  • Why not include the required affidavit in your petition to open the estate, or in the fiduciary’s oath, whichever is the appropriate point for you? Maybe by eliminating one extra piece of paper you will be more likely to do it right.

Reminder: MCA § 93-13-38 makes the foregoing provisions applicable to guardianships and conservatorships, as well as estates.

The statutory requirements are technical and mandatory. Read the code and do what it says. Doing so can save you considerable grief down the road.

“QUOTE UNQUOTE”

July 22, 2011 § Leave a comment

“By means of all created things, without exception, the divine assails us, penetrates us, and molds us.  We imagined it as distant and inaccessible, whereas in fact we live steeped in its burning layers.”  —  Pierre Teilhard de Chardin

“Sometimes I think that just not thinking of oneself is a form of prayer.”  —  Barbara Grizutti Harrison

“God answers all our prayers.  Sometimes the answer is yes.  Sometimes the answer is no.  Sometimes the answer is “You’ve got to be kidding.”  —  Jimmy Carter

A COSTLY LESSON IN PSA DRAFTSMANSHIP

July 21, 2011 § 3 Comments

What does this fairly commonplace paragraph from a PSA mean:

School and Extracurricular Expenses. Husband and Wife shall each be responsible for one-half (1/2) of all school and extra-curricular expenses incurred by the minor child including but not limited to the cost of books, activity fees, lab fees, school uniforms, tuition, and sports equipment.

Does that provision refer to private elementary and/or high school? Or does it refer to college? Is the language ambiguous?

In McLeod v. McLeod, decided July 19, 2011, by the COA, those questions were presented squarely to the appellate court.

Judge Griffis wrote the opinion that held the language above to encompass all levels of education, and rejected both the arguments that the language was ambiguous and that private elementary and high school expenses are usually included in child support as the court had held in Southerland v. Southerland, 816 So.2d 1004 (Miss. 2002), and Moses v. Moses, 879 So.2d 1043 (Miss. App. 2004). The opinion distinguished the two cases from the facts in this case. The COA decision is worth a read, and I will not rehash it further here.

The point I want to make is how important it is to be aware of precision in your draftsmanship. It would have been a simple matter for the husband’s attorney to clarify the language to specify that it pertained to college, if that was, in fact, the agreement.

Some PSA’s lack clarity. The meaning is hidden behind a cloud of words. That was not the problem in this COA case, but it’s a common problem nonetheless. You can read some ideas for clearer draftsmanship here.

Mostly, though, it seems that we sometimes get in too much of a hurry. The client may be pressing or you put off tending to it until you had no more time to spare. Haste is the enemy of precision.

Make time to set aside what you have drafted for at least a few hours or a couple of days. Then pick it back up and look at it through fresh eyes. Put yourself in the role of a judge who is reviewing it. You know what you meant to say, but will that judge looking through different eyes see it the same way? Are there more precise words that could be used? Is what you have written susceptible to more than one interpretation? Is there something there that can come back and bite your client?

You want your PSA’s — and everything you draft, including pleadings, contracts, briefs — to say exactly what you mean to say and to promote the best interest of your client. Take your time on draftsmanship. Haste is the enemy of precision.

COA SINKS ANOTHER APPEAL FROM A LESS-THAN-FINAL JUDGMENT

July 20, 2011 § 4 Comments

It was only last month that the COA dispatched two appeals to dismissal-land because they were taken from less-than-final judgments. You can click the link to read about Jackson v. Lowe and S.E.B. v. R.E.B. The underlying principle is, you will recall, that an appeal only lies from a final judgment, and if any issues remain unadjudicated and not addressed as required in MRCP 54(b), your appeal will be dismissed.

The COA once again confronted the issue in R.A.S. Jr., K.S., A.S, V.S. and M.S. v. S.S., rendered July 19, 2011. In that case, the appellant, referred to as “Matt,” had filed a Chancery Court modification action seeking to reduce his $6,900 per month child support. His ex, “Anna,” responded by charging him with molesting one of their children. The charges were nol prossed, and Matt countered with a chancery motion for an accounting of the child support. Later, he filed an amended petition asking to “reform” original decree provisions for child support and custody.

The chancellor held a motion hearing and, without hearing any evidence, ruled from the bench that he was going to leave physical custody and legal custody as they were. He stated, “I’m not here today to decide [the modification issue] … I’m not going to address those motions stoday as to whether or not they meet the legal standard.” The judge later entered an order denying Matt’s request for an accounting, reserving ruling on the modification.

Matt filed a motion for a new trial (Note: in chancery this is a motion for rehearing, traditionally referred to as a motion for reconsideration), and Anna filed a motion for payment of certain expenses provided in the original judgment. The judge overruled Matt’s motion and denied Anna’s motion without addressing certain transportation expenses she had requested.

Matt complained on appeal that the chancellor refused to allow him to present evidence on his modification pleading, instead putting off a hearing so that Anna’s parenting could be monitored. A guardian ad litem had been appointed.

In every one of the chancellor’s rulings cited by the COA, it is clear that the judge was not making a final ruling. The COA said at ¶ 20 that

“The chancellor’s orders here were not final. We fully recognize that child-custody decisions are always subject to modification until the children’s emancipation. And no judgment entered is final in the sense of ending the case until that point. However, that the case involves custody modification does not eliminate the requirement that the chancellor enter a final, appealable judgment. Absent proper Rule 54(b) certification or the supreme court’s permission to proceed on an interlocutory appeal, which are both lacking here, piecemeal appeals are not allowed.

The chancellor clearly deferred ruling on contested issues, which he had not revisited when the parties appealed. Because we find the chancellor did not enter a final, appealable judgment, we dismiss this appeal for lack of jurisdiction.”

The court also pointed out that the supreme court has held in Michael v. Michael, 650 S0.2d 469, 471 (Miss. 1995), that parties may not appeal from a temporary order.

From Judge Maxwell’s opinion in this case, it appears that the record was somewhat confused. It may have been confusing to counsel as to exactly what matters were being addressed in which proceedings. I suggest you get a clear understanding with your chancellor either before hearing or when he casts the pleadings at the outset of trial as to what matters will be addressed. If you’re perplexed that the judge won’t address a certain issue at a certain time, try to pin him down on the record as to when, exactly, you can be heard on the issue.

In any event, the COA has once again sent an important message to trial and appellate counsel: If you don’t have a final, appealable judgment, your appeal will be dismissed.

ALL THAT GLITTERS IS NOT GOULD

July 19, 2011 § 1 Comment

The hamlet of Gould, Arkansas, population 850 or so, has a lot in common with 1939 Munich, Germany. If the Gould City Council has its way, citizens in Gould will enjoy the same lack of basic civil rights that Germans did under the Nazis more than 70 years ago.

You see, the City Council of Gould last week enacted a city ordinance that states “No new organizations shall be allowed to exist within the city of Gould without approval from majority of the city council.”  The Mayor vetoed the ordinance, complaining that it was patently unconstitutional, but the council is expected to override the veto.

I have not read the ordinance in its entirety, but I saw one of the council members interviewed on Memphis news last weekend, and she explained that any group will need to convince the council of the merits of their group. Once satisfied, the council will grant permission for it to meet, and will decide what limitations will be imposed. “You can’t just come in here, get with four people and decide to start an organization,” she said, adding, “You will go through your city council with legal documentation and get approval.” The councilwoman said that someone has to be in control, and the city council is there for that purpose. That’s the way it works, she said; you go to the person in control and get permission.

Prohibited would be unauthorized meetings between citizens and the mayor, meetings of civic groups and church groups, and even family conversations about politics over the dinner table — unless the council grants its blessing.

It seems that the council was reacting to a local group that had been formed to question and criticize the council’s actions in not funding improvements to the community sewer system, or some such dispute, and the council did not appreciate the criticism. Their solution to the criticism was to eliminate it rather than address its substance. In other words, when you are faced with opposition, eliminate it.

There is no question that government without opposition is much more efficient and easy than when plain old voters get in the way. Ask any Nazi or Soviet, or any other totalitarian; they’ll tell you how much easier things flow when the citizenry doesn’t get in the way. Democracy is messy and contentious. Feelings get hurt. Things get said. Due process gums up the works. Dictatorship flows so much more smoothly.

But the First Amendent unquestionably gives the citizens of Gould, as citizens of the United States, the right to assemble peaceably, to speak out, to criticize, and to be heard by their elected officials. Our government is designed to let “we the people” mouth off, gripe to high heaven, and raise all manner of ruckus. Our forefathers launched a revolution based on the fact that the English tyrant would not pay any heed to their grievances. It’s no accident that the fundamental rights to speak, assemble and petition are in the very First Amendment to our Constitution.

I hope that someone from Little Rock pays a friendly visit to the misguided town council of Gould and convinces them of the obvious: that they are in violation of the law, and that they will save their town and taxpayers a lot of money by not requiring this sad episode to go to litigation involving lots of scarce dollars for attorneys fees. Scarce dollars that could be used to fix that sewer system.

PUBLICATION PROCESS: THE NIGHTMARE CONTINUES

July 18, 2011 § 1 Comment

Thank goodness most, if not all, lawyers are paragons of mental health.  Otherwise they would regularly be reduced to quivering, sobbing hulks curled in a fetal position on the office hook rug, terrorized by the veritable panoply of unseen legal bugaboos that can bite them, sometimes fatally, in the butt.  These legal viruses are not mere phantasms; they infest your files, lurking there invisible like the dust mites that feast on your body while you sleep.  <Shiver>

MRCP 4(c)(4)

I have already warned you about the dangerous propensity of MRCP 4 publication process to devour entire cases whole. It’s a rule that can transform your case from a delightful, playful puppy dog into an undead, zombie-esque creature that will turn on you and try to drink your blood and eat your skin.

Just when you were growing comfortable with your new-found awareness of Rule 4’s parlous proclivities, here comes something else to worry about.

It’s Article 6, §169 of the Mississippi Constitution, which is entitled, “Style of Process.” It states in pertinent part: “The style of all process shall be ‘The State of Mississippi …’ ”

Given the fact that the MSSC and COA have strictly interpreted Rule 4 as it applies to publication, I think you would be wise to look at your process forms and make sure that every one includes THE STATE OF MISSISSIPPI. Look at MRCP Forms 1C, 1D and 1DD. Notice that each includes the style of the case, which includes the court, county and state, and the language THE STATE OF MISSISSIPPI. Redundant? Perhaps. An additional line you have to pay for? Absolutely. Necessary? You bet; it’s required by our state constitution!

Chancellor George Warner consistently found process inadequate that did not include the requisite language. Over the years, we have grown less vigilant, and now you can find process in the newspaper that lacks the proper style. I predict that someone will raise this point on appeal and that the appellate court will say, “Sorry, you goofed up and violated the Mississippi Constitution; your process is no good, the court had no jurisdiction, and this case is reversed.”

Now uncurl yourself from that fetal ball, brush yourself off, and start fixing your forms. THE STATE OF MISSISSIPPI. Add the words in where they belong. Take pride in the fact that you have avoided being a victim of this peril. And rest easy for now … until the next legal plague that will try to drink your blood and eat your skin.

                                                

Thanks to attorney Leonard Cobb.

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