ALL COMMENTS ARE NOT CREATED EQUAL

October 5, 2011 § Leave a comment

Comments are most welcome on this blog. I encourage you to question, react or add your opinion. The law is an art, not a science, so ideas and interpretations can vary.

Having said that, though, I have to say that all comments are not on a level playing field. There are some subspecies of comments that are, well, different.

For one, there are the so-called “spam comments,” which apparently are generated either by machines or by humans with the linguistic skills and intelligence no greater than that of machines. Here are three recent examples:

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And how about this whopper:

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The foregoing specimens were trapped in my spam filter, which claims to have snagged 4,608 of them over the life of my blog, which is now 16 months old. That’s an average of 288 spam comments a month, or 9.6 per day.

The above are exemplars of the English-language variety spam. Spam comments also arrive in Russian (in Cyrillic, no less), French, Italian, Bulgarian and Romanian (I know the latter two only from the suffix on the name of the web site, since those languages are beyond my ken). These comments may actually have been intelligent commentary on something I posted, for all I know. For lack of knowing, I send them the way of spam.

Spam comments are intended by the sender to plant a link on your blog that will either generate traffic for the sender or allow the sender to inundate your blog with ads and other unpleasantries. I delete all spam comments and send them to spam hell, wherever that is.

Another genre of comments is the disgruntled litigant. I have had several proposed comments from litigants critical of their judge (in one instance me as judge), the legal system, their attorney, and the appellate courts. Most come from outside Mississippi. A major reason I moderate comments is to screen those out.

There are also commentors who ask for legal advice. Sorry, judicial ethics preclude me from doing that. Besides, that’s not the purpose of this blog.

Then there are the commentors who ask for a slot on my blogroll. One proposed commentor asked me to add a link to his blog, but I politely declined because it was a blog promoting dissolution of the legal system, abolition of the legal profession, and encouraging self-representation until the courts can be done away with. Anybody who has read this blog for any length of time will recognize that those topics are somewhat inconsistent with what I am doing here. He was very polite, though; I’ll grant him that.

So, all of you “blog crazed persons” out there, keep your comments coming. For all your comments, I “Truly thank you a large amount.”

FATHER FOREVER

October 4, 2011 § 7 Comments

I posted here about the new statutory procedure to disestablish paternity.

One of the interesting aspects of the new code section is that it enumerates the reasons that would disqualify a father from attempting to prove he is not the father.

The flip side of the coin, then, is that these are the bases that conclusively establish paternity and preclude the mother or anyone else from denying his parentage. From the statute, the man is the father if he did any one of the following:

(a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father;

(b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact;

(c) signed a stipulated agreement of paternity that has been approved by order of the court;

(d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father;

(e) had been named as legal father or ordered to pay support after he declined to undergo genetic testing; or

(f) failed to appear for a genetic testing draw pursuant to a valid court order.

I am not aware of any other place where these bases for paternity have before been listed in such a handy form.

KICKING THE CAN DOWN THE ROAD

October 3, 2011 § 1 Comment

What you thought would be a simple irreconcilable differences divorce has proven to be anything but. You’re bone-weary of your client’s whining. The other party is an intransigent j*ck*$$ over every minor detail. Counsel opposite has been an uncommunicative pain and no help at all with his client. Getting all the issues nailed down has taken a monumental effort. And now, with the final draft of the property settlement agreement nearing the finish line, all that remains is to settle the personal property.

But, that is where the parties are stuck. Husband wants this and that. Wife wants this and that. Counsel opposite is no help at all. You could spend some more time insisting that the parties resolve the personal property issues, but you don’t want to make the effort, especially without any help from the other attorney.

So you say to yourself, “What the heck; let someone else deal with it,” and you draft some language to fill in that pothole in the agreement. Parties sign and judge signs the judgment.

Deal done. Case closed. For now.

Only problem is, the parties will likely be back in court sooner or later battling over that pothole.

I call that “kicking the can down the road (KCDTR).” You do enough to get by, but in the process you draft a ticket back to court for your clients. You kick the can down the road where the next person coming along will have to pick it up and deal with it.

Of course, case weariness is only one source of the KCDTR phenomenon. Some lawyers KCDTR out of sheer laziness, others out of lack of drafting skills, others from haste, and others from oversight or lack of care.

Consider a recent case I had in which the property division read, “Husband shall have ownership of the former marital residence, and wife shall have ownership of the furnishing [sic].”

Wife moved and took with her all of the furniture and her personal effects. She also took the light fixtures and window blinds, along with a barbecue grill, a fountain (she left the base), a yard sweeper implement and various other items in the yard. Husband punched his ticket back to court.

After three days of trial (there were other issues involved), it was left to me to determine whether all the stuff that wife took was “furnishing.”

No need to go into detail about my ruling. You can probably guess how it came out. My point here is that if the drafting lawyer had said, “No, I am not going to put this PSA in final form unless and until you can give me a list of all the items that you two agree that wife will remove,” we would have avoided having to try that issue later.

Incidentally, the COA case of Aegler v. Gambrell, decided April 26, 2011, offers an insight into what exactly are considered “furnishings,” “personal things,” and fixtures.

Some other KCDTR examples:

  1. “The former marital residence shall be sold at a price to be agreed between the parties.” What if the parties can’t agree?
  2. “Husband shall be responsible for one-half of the school expenses.” Husband thinks this means he will pay for daughter’s cheerleading expenses. Wife thinks it means that husband will pay one-half of the private school tuition and assessments.
  3. “Husband and wife shall each pay one-half of the child’s extra-curricular activities.” What activities are included, and who decides?

I could go on and on, but I hope you get my point. A lawyer is paid to draft an agreement that will avoid future problems. If you are not accomplishing that in the instruments you draft, you are taking your clients’ money and not delivering what was paid for.

FYI … you can read some tips for PSA drafting here and here. A post on some hidden dangers in some commonly-used PSA language is here. A post on the hidden costs of divorce is here. An object lesson in the ramifications of drafting is here. A few tips from Ernest Hemingway that may help improve your legal writing are here.

Draftsmanship is one of the hallmarks of a good lawyer. The good ones draft PSA’s that are clear and unambiguous, address all that needs to be addressed without unnecessary prolixity and fluff, and are not only enforceable on their own terms, but also are stout enough to withstand attack.

Good lawyering = good draftsmanship. Not-so-good lawyering = KCDTR.

LEGAL ARCHAEOLOGY

October 2, 2011 § 6 Comments

From The Daily Mississippian, March 12, 1973.

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