Q & A WITH JUDGE CLARK

October 13, 2011 § Leave a comment

Chancellor H. David Clark, II, sole chancery judge of the Second Chancery District (Jasper, Newton and Scott) shared some of his thoughts on chancery court practice with 12 CCDM.

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

A:  Based on my observations both as an attorney and as a Chancellor, litigation, especially divorce, custody and child support, is not only expensive and time consuming, it is extremely stressful on the parties as well as their children. The sooner the litigation is completed the sooner the litigants, and the children can put the matter behind them and move forward with their lives. I use our computer program [Court Clerk] to monitor cases and move them along toward completion in a reasonable manner and within a reasonable time. Thus, attorneys should be prepared to present and conclude matters within the suggested time standards contained in Administrative Order 2001-00001 entered by the Supreme Court on November 15, 2001.

All cases that are set for trial in the Second Chancery Court District are also set for Settlement Conference prior to the trial date. As the name suggest, the purpose of these conferences is to attempt to resolve the issues between the parties [i.e.: settle the case]. If the matter cannot be fully resolved, these conferences are used to dispose of any outstanding motions or issues and to narrow the issues so that there will be no impediment to completion of the matter on the date it is set for trial. Thus, it is vitally important that all parties and their counsels appear at these Settlement Conferences.

Some trials cannot be complete in one day. In that event, be prepared to return and complete the matter the next day. Personally, I do not like to try cases piecemeal over 3, 4 or 6 months. Let the Judge know how long you anticipate the matter will take to complete, and be prepared to try the case to completion.

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

A:  A “good” lawyer:

✓ Is always prepared and knowledgeable of the issues, the facts and the law and can support her/his positions with applicable legal authority;

✓ Takes care of her/his client’s business [“TCB”] in a timely manner and at a reasonable cost;

✓ Communicates regularly with her/his client to keep them apprised of the status of the case and with counsel opposite regarding scheduling and resolution of issues.

A “bad” lawyer:

✓ Is seldom prepared to discuss the issues, facts or the law. They are more prone to just “Shoot from the hip.” Research is what they do when they have lost their car keys;

✓ Accept employment in more cases than she/he is able and/or willing to work on and complete. “Bad” lawyers delay litigation in an effort to “milk” every case for all they can get and are never interested in streamlining procedures, narrowing issues or resolving matters.

✓ Can never be found by his/her client, by counsel opposite or by the Court. A “bad” lawyer seldom returns telephone calls, emails or letters. A “bad” lawyer is “AWOL” most of the time.

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

✓ Don’t begin a trial unless you are ready. Always be prepared!

✓ Never walk in to a courtroom with only one copy of documents or exhibits. You should have sufficient copies of every document for all counsels and for the Court. It does no good to hand the witness a document and begin questioning the witness regarding the contents of that document if the Chancellor, the trier-of-fact, does not have a copy to view and understand.

✓ Never submit to the Court an 8.05 you are not throughly familiar with. If you have not reviewed it and do not understand it, the Court will not understand it either, and you will be dealing with one frustrated Judge.

✓ Oh, and while we are talking about things not to do, never ask a Chancery Court to approve a wrongful death claim for adult heirs-at law. The Court’s only concern is with estates and minors. We have no control over how adults settle their claims.

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

A:  19!

Seriously, if you have a Chancery Court background, and if you regularly read cases rendered by the Supreme Court and the Court of Appeals, you know that there exist a serious dearth of Chancery perspective on both courts. I won’t go into that here, but would strongly encourage a change in the present demographics. [Circuit vs Chancery vs academic vs practitioner vs other] Think about it.

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