The Better Chancery Practice Blog

Chancellor Gene Fair is one of four chancery judges presiding in District 10 (Forrest, Lamar, Marion, Pearl River and Perry). Here is an interview he gave to 12 CCDM.

Q:  Tell us some of your personal preferences that lawyers from outside your district need to know before they come before you.

I would appreciate their reviewing our local rules, particularly in setting cases.

We have Mondays established as ex-parte days to which Rule 81 returns may be made to the Court in which a chancellor is sitting without a “setting order” or “fiat”. They should be aware that Rule 81 provides for Rule 81 return days to be set by (1) local rules – our Monday rule (2) a “setting order” for the specific case and (3) a general order. We don’t have a general order.

Our Administrators will give a date to a lawyer or secretary to which a return may be made with the understanding, on occasion not verbalized to out of district lawyers, that the person getting the setting will have read and will follow the rules and send a “setting order” to be signed by the Chancellor if the day for a setting preferred not a regular ex-parte Monday.

We are happy to set cases for Tuesday through Friday on a fairly regular basis, but require a special order to insure that those who have trial settings are not delayed justice they have worked toward for weeks or months by a plethora of last minute seven day returns.

Our web page is “www.chancery10.com” and reflects where all four chancellors will be and their dockets for each day they will be in open court. The Local rules also appear.

Otherwise, I prefer to try to follow the Uniform Chancery Rules and the statutes as closely as possible, and believe that, except for those things set out in our local rules, my actions should and would be the same as any other chancellor in the state. I would appreciate applicability of those rules and statutes being noted by Counsel if I seem to be ignoring them.

Q: What are the three attributes that you would consider to set the good lawyers apart from the bad ones?

Good Chancery Court Lawyers:

1. Have read and understand the local rules.
2. Have read and understood the Uniform Chancery Court Rules.
3. Have read and understand as much as is possible the statutes governing the matter they are presenting and the interpretations of the Appellate Courts applicable to their case, since the Civil Rules do not apply to the more than 90% of Chancery filings governed by Titles 91 and 93.

 Bad ones have not.

Good lawyers who litigate also understand and follow the Rules of Evidence, particularly when they follow the rules about making objections and submitting relevancy at the time of objection.

Q:  What is the main thing lawyers should know to avoid doing in your court room during a trial?

Being ignorant of and not following the Uniform rules governing chancery trials and the Rules of Evidence.

 Q:  What part of your job do you enjoy the most?

A good presentation by two good lawyers of an interesting question not easily answered under the case law and statutes, which they also present honestly and with clarity.

 Q:  What part of your job do you enjoy the least?

 “Weevil cases” as defined by a retired judge of my acquaintance, referring to custody cases in which both parents, the only choices for custody, are less than impressive if not downright awful and the choice is therefore one of “two weevils”.

Q:  What is your pet peeve as a judge?

Failure by lawyers to follow the Rules and Statutes and confusing quantity with quality in presenting evidence.

In divorce cases I would note particularly failure to follow Rule 8.05 of the Uniform Chancery Court Rules, (including a work history) and Miss. Code Ann. §93-27-209, the disclosure requirements of names, exact addresses and present whereabouts of those who have lived with a child or children whose custody and visitation are in issue. Those two documents contain, or should contain, the majority of basic evidence necessary to establish perspective and to decide the average divorce case – or to at least focus on matters of custody and visitation. I might also point out that the child support guidelines statute also requires presentation of evidence of health insurance and cost thereof by both parties in cases involving children.

In estate matters, I note Rule 6 of the Uniform Chancery Rules and the statutes in Title 91, (along with checklists on the Blog of Judge Primeaux referring to them).

Finally I am generally perturbed by introduction of documents by a party which either directly impeaches his or her own 8.05 disclosure or, on the other hand, supports an undisputed 8.05 disclosure . For instance – real estate, jointly owned, having been appraised and having an agreed balance owed on it and on which both parties agree in four lines of their 8.05 forms. Having established that, they then file 75 to 150 pages of numbered exhibits including a deed, a deed of trust, a note, a payment history, a payment schedule, the appraisal, photographs, and more than one copy of a bank verification of the balance due, and then never refer to any of those documents in trial. “Why all this stuff?” the Court wonders when writing an opinion. “And why all these tax returns?” A Rule 1006 summary of pertinent items on tax returns for the last 10 years is much more helpful than the ten copies of such returns, which should have been exchanged with opposing counsel and which can be used to impeach if necessary but which don’t need to clutter up the record and make the writing of an opinion by a judge take longer time and require more verbiage, and make him or her wonder what in those many pages might turn the decision one way or another.

The social security three or four page summary of lifetime earnings and entitlements is, likewise, a good document to accomplish the work of a number of others.

Less is more.

Q:  Lawyer tells you, “That’s not how we do it back in ________ County.” Discuss.

Ask the lawyer how they do it and who the judge or judges are in ____ County who allow it to be done their way. Call the judge or judges for information and advice. Who knows, we may be doing things wrong in our counties. I definitely know judges who know more than I do and have much more experience, as well as some definitely worth listening to who are younger and have been on the bench for shorter periods of time.

On the other hand, Judge Dale told me about a respected lawyer in this district who made a similar statement in an estate matter before him. The lawyer emphasized how he “always did it and never had a problem” before another judge in our district. Judge Dale replied to the lawyer that the lawyer “was not going to keep on doing it wrong any more and was lucky to have got away with it as long as he did”.

 Q:  Who do you model yourself after as a judge?

My grandfather, who was not a judge, but was, in his own words, “a lawyer and a good one”, and my uncle, his son, who was a chancellor and a presiding justice of the Supreme Court when he retired. Both suggested that the proper role of a trial judge, and particularly a Chancellor, was to apply the law as written, as interpreted by the Appellate Courts, and in the interest of justice, with the emphasis on justice and on equity. My uncle, when on the Supreme Court, pointed out that in his opinion his role on the Supreme Court was to interpret the law in accord with statutes, rules and prior case law in a manner so that the attorneys and trial judges of the state would clearly understand how to take care of their business. He made it a point to actually read the entire trial record as a Supreme Court Judge, something I saw him doing on Sunday afternoons on more than one occasion, even during the period the appellant and appellee were required to provide a summary of the record to be relied on rather than the record itself. I try to read all exhibits and a rough printout of trial testimony before writing an opinion because of his example and his statement to me when I was a law student that “I presume that the lawyer who sent this to me meant for me to read it all myself and I don’t want to disappoint him or show him or his clients disrespect.”

Q:  Who do you consider to be the best chancellor you ever appeared before, and what set that chancellor apart?

Naming one is impossible, though three immediately come to mind: Sebe Dale, John Clark Love and Bob Oswalt. My uncle Stokes would be number four, but I never appeared before him for obvious reasons. All three I have named radiated a love of the law and a concurrent respect for the litigants and the lawyers. All accepted the awesome responsibility of their duties to children and disabled adults with equanimity and confidence that they would and could do everything possible to protect them, which they did. All maintained a “students of the law” perspective, reading the Court file in full, and new cases and new statutes as they appeared. All attempted to change with the times and the decisions, even if they personally disagreed with them.

 Q:  Share your innermost thoughts and feelings about MRCP 81.

Sometimes I like it. Sometimes I don’t. Sometimes the Appellate Courts say it must be followed strictly. Other times they don’t. I just try to follow it, whatever it says and whatever they say it says. In the context of Title 91 and Title 93 matters, which constitute over 90% of chancery filings being excepted from the Rules of Civil Procedure in favor of statutes, we have to consider only the Rule 81 process paragraphs, which are detailed and specific as to “no answer”, setting in specific ways, and the minimum number of days between service and return day (30 days or 7 days). Judge Ishee, in a recent dissent opined that the Supreme Court should move that process portion of the Rule into Rule 4 of the Civil Rules, a suggestion in which I concur.

Q: What do you do to try and get control of your probate docket?

Judge Gambrell and I share a clerk a clerk and have assigned, in addition to research and writing duties, the duty to learn the ins and outs of a probate proceeding and to draft letters to lawyers and fiduciaries pointing out deficiencies, and suggestions for resolving them. Most result in “oops” type replies and corrective action.

It is occasionally necessary to point out the requirements that fiduciaries (including conservators and guardians, who occupy the same status as executors and administrators according to Miss. Code Ann. §93-13-38) and also their lawyers of record cannot just quit and/or ignore such matters. They have duties mandated by statute and controlled by contempt determinations, which a Court must occasionally enforce that way. I have issued only a very few “show cause why” a contempt adjudication should not be made, and mercifully have had only a smaller number when no cause at all was shown.

In addition, we are blessed with County Probate Administrators who can, and do, step in when fiduciaries die, disappear or refuse to act.

 Q:  There are 19 appellate judges. What would be the ideal number of former chancellors serving on the two appellate courts?

The perfect courts would have equal numbers of former Circuit Judges and Chancery Judges along with equal numbers of former practitioners in each type of court, along with, on the Supreme Court, one or more judges, in an odd number of those who have (or has) participated in both courts, either as judge or practitioner (Judge Jim Roberts comes to mind as having served as both Chancellor and Circuit Judge (and as a Supreme Court Justice as well) . Even though there are more Circuit Court appeals to the Appellate Courts, there are way less long opinions mandated in Circuit Court cases, so the time for research and thinking required overall in the chancery matters would appear to be equal to that of the circuit matters.

Q: Tell us your favorite quote.

“Wherever you go, there you are.” Yogi Berra.

 Q:  Tell us your favorite court room movie.

To Kill a Mockingbird.