MORE SIGNS OF THE IMPENDING APOCALYPSE

December 16, 2011 § Leave a comment

IT’S OFFICIALLY FAIR

December 15, 2011 § Leave a comment

Here’s the text of Gov. Barbour’s announcement:

GOV. BARBOUR APPOINTS FAIR AS STATE APPELLATE COURT JUSTICE

 JACKSONGov. Haley Barbour today announced the appointment of Chancellor Gene Fair of Hattiesburg as a justice on the Mississippi Court of Appeals. Fair replaces Justice William Myers, who will retire from the bench on Dec. 31.

Fair will hold the District 5, Position 1 seat on the state’s second highest court. The district includes Forrest, George, Greene, Hancock, Harrison, Jackson, Lamar, Pearl River, Perry, Stone and parts of Wayne counties.

“Judge Fair brings extensive legal experience to the bench and will be an excellent jurist for the district,” Gov. Barbour said. “I appreciate Judge Fair’s commitment to serve in this new role.”

The Governor’s Judicial Appointments Advisory Committee reviewed applicants and recommended Fair to serve the remainder of Myers’ term in accordance with Executive Order 914. The 31-member committee includes a chairman and 10 attorneys from each of the state’s Supreme Court Districts.

Fair has served as Chancellor for the 10th District Chancery Court since January 2007. Previously, he was in private practice in Hattiesburg. He also served as a lieutenant commander in the Judge Advocate General’s Corps in the U.S. Naval Reserve.

Fair served as vice chairman of the Mississippi Ethics Commission from 1984 to 2004, on the Judicial Nominating Committee under Gov. William Winter and on the Mississippi Supreme Court Committee on Technology. He also was board attorney for the Pat Harrison Waterway District from 1988 to 1992.  He is an Eagle Scout.

Fair, who was raised in Louisville, earned a bachelor’s degree in journalism and a law degree from the University of Mississippi.

Fair and his wife, Estella Galloway, have two children, Melissa and Julia, and four grandchildren. He is a trustee, elder and Sunday School teacher at Westminster Presbyterian Church of Hattiesburg.

A CHANCELLOR ON THE COA?

December 15, 2011 § 1 Comment

Word on the street is that Chancellor Gene Fair of Hattiesburg will be announced as Gov. Barbour’s appointment to replace COA Judge Wm. Myers, who is resigning effective December 31.

No official announcement yet, and I haven’t been able to get in touch with Judge Fair, but if it’s true this is a good day for chancery practitioners throughout the state.

I’ll update this as soon as I have something more substantial.

‘NUF SAID

December 14, 2011 § 1 Comment

Following is the entire opinion rendered in the case of Denny v. Radar Industries Inc., 28 Mich. App. 294, 184 N.W.2d 289 (1970):

“The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich.App. 259, 169 N.W.2d 326. He didn’t. We couldn’t. Affirmed. Costs to appellee.”

Michigan Court of Appeals Judge J. H. Gillis deserves a medal for getting right to the point.

FINALLY, THE FINAL WORD ON FINALITY

December 13, 2011 § 7 Comments

It makes a big difference whether or not a judgment is final. You cannot appeal from a judgment unless it is a final judgment.

A final judgment resolves all issues, and requires no further action by the court. Scally v. Scally, 802 So.2d 128, 130 (Miss.App. 2001). It puts an end to the action, disposing of the entire controversy on its merits, so that there is no further question for future determination by the court, except perhaps collateral or separate questions, and there is nothing left to be done but to enforce by execution what has been determined. Fortune v. Lee, 725 So.2d 747, 750-51 (Miss.1998).

MRCP 54 says that any judgment that adjudicates less than all the claims or defenses of the parties does not terminate the action and may be revised at any time before entry of a final judgment.  Two recent COA cases reiterated the point that you can not appeal from a less-than-final judgment. There is, however, an exception in that the trial judge can make a finding under Rule 54(b) that there is no reason for delay, and direct entry of a final, appealable judgment as to certain issues. For instance, the judge could in a divorce case adjudicate the divorce, custody, child support and equitable division, and enter a final judgment as to those issues while retaining jurisdiction to adjudicate alimony later, when the parties’ financial situation becomes more settled. See, McNally v. McNally, 516 So.2d 499, 502 (Miss. 1987).

MRCP 58 states that “A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).” Rule 79(a) is the provision that entry occurs when the clerk enters the judgment on the General Docket. Thus, signing by the judge alone does not create a final judgment, nor does simply handing or mailing the judgment to the clerk, nor even file-stamping the judgment. MRAP 4(a) requires that an appeal must be filed within 30 days after entry of the judgment. In most counties, the clerk enters the judgment immediately or amost immediately when received, but in some rural counties where clerks are understaffed, a judgment can sit around awhile without being docketed.

Until the judgment is entered on the docket by the clerk, it is subject to revision and even reversal by the trial judge, even where the court has issued a written opinion. The court’s opinion is not equvalent to, nor does it have the same force and effect as, a final judgment entered per MRCP 79(a). See, Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987).

MRCP 5(e)(1) and UCCR 2.02 allow the court to accept papers on behalf of the clerk and to mark them as filed. The rules, however, do not provide that filing of a judgment in this fashion constitues entry of the judgment. Again, until the clerk has complied with Rule 79(a), the document is not effective as a final judgment.

After the final judgment is entered on the docket, its finality is subject only to a motion to reconsider under MRCP 59, or for relief from judgment pursuant to MRCP 60.

Every now and then, a disgruntled party will attempt an interlocutory appeal from a temporary judgment. I had this experience in Clarke County. The supreme court sent me its order to respond, and I did, pointing out that the order from which the appeal was taken was a temporary hearing in a custody matter, and was therefore unappealable. I received an order dismissing the appeal the following week. The two main cases on point are Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995)  and McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss.App. 2002).

BROKEN RECORD

December 12, 2011 § 1 Comment

Do you ever stop to think about what kind of record you are making as you try a case?

When I first took the bench, I was called upon to judge a case that had been tried two years before, but had never been decided. I was asked by counsel for both parties to read a 200-page trial transcript to determine whether I could adjudicate the case based on it, or whether a trial date needed to be set, all as provided in MRCP 63(a). The attorneys were all experienced and skilled trial lawyers.

It did not take many pages to discover that the record was in woeful shape. Here are some of its problems:

  • The first 22 pages consisted of banter among the lawyers about a hunting camp, a weekend cookout, and exchange of good-natured barbs. That’s 22 pages, not a page or two.
  • When the first witness was called, the questioning was interrupted repeatedly by jokes among counsel.
  • When objections were made, they degenerated into exchanges back and forth among the lawyers.
  • Witnesses were asked questions like, “Let me show you this paper,” followed by questions without a clue as to what the paper might have been.
  • Many of the questions lacked context: “Can you tell us what he was doing when you saw him there?” Who was doing what and where?

There were other flaws, but the coup de grace came in the last pages of the transcript where the then-chancellor announced that the trial would be continued to another day (it never was), so I decided they would just have to start over, given the passage of time and the state of the record. I ordered a new trial.

As a lawyer, you have to realize that putting on your case in a way to persuade your judge is only part of your job. It’s also critically important that you make an effective record for review. That means at least that you need to:

  • Keep banter and comments to an absolute minimum.
  • Confer with counsel opposite off the record or aside at counsel’s table with permission of the court and record any agreements or stipulations with a coherent announcement affirmed on the record by the other side.
  • Before you begin announcing a stipulation, make sure you have an agreement on every point, and on the wording of every point. Even better: your stipulations should be in writing, even if it means asking for a recess to hammer out the language.
  • Always make sure your questions are clear, which means either limiting the number of pronouns and indefinite descriptives or being quite precise in defining them.
  • Make sure that any document, photograph or other item referred to by a witness is clearly identified for the record.
  • If the witness’s response is unclear or confused, ask the witness to restate it or clarify.
  • Don’t interrupt someone else who is speaking, and don’t speak over someone else. Don’t let your witnesses do it.

I try to make sure that the record is free of interruptions, clear of colloquy between attorneys, uncluttered with thinking out loud and other particles of nebulae, any and all of which can obscure the record, even to the point of being unintelligible. But I’m not always 100% successful, and it’s the duty of the attorneys to make their own record.

FYI, here are links to a few posts on trial techniques that can help you make a better record:

A few pointers for more effective chancery trials

Making sure the chancellor sees what you want him or her to see

How to make sure your witness does a good job

VINDALOO

December 10, 2011 § 3 Comments

JSP, Esq. pointed out that I have been neglecting food posts herein, so here’s something for you foodies.

My friends, I offer you Vindaloo for your cooking and dining pleasure. “Vindaloo?” you ask. Yes, Vindaloo, I answer. It’s an exotic melange of Indian flavors, aromas and subleties that will intrigue your palate and comfort you in cold weather without leaving you stuffed and bloated. It’s fairly easy to make, and will reward you with a deeply satisfying meal.

Vindaloo is actually India’s version of a Portuguese recipe that found its way into Indian cuisine through Goa, Portugal’s former colony on India’s west coast. The Indians added potatoes, which enrich the recipe. Goan Vindaloo is fiery pepper-hot. Mine is tamed down for Mississippi tastes, but you have the option of adding heat. My recipe also has an option for broccoli or peas to increase its nutritional value. This version calls for chicken, but Indians also use pork, beef or even lamb. I imagine venison or duck or other game would work as well. You could substitute eggplant for the meat for a vegetarian version. I encourage you to give this a try. You’ll enjoy it. And don’t be discouraged by the long list of ingredients. This is actually a simple dish. Most of the ingredients are seasonings that, in combination, add layers of interesting, delicious flavors.

Before you dismiss this dish as too exotic, I ask you to leave your comfort zone for a bit and try it. After all, you enjoy gumbos and other savory, spicy fare. Indian cuisine only differs by the kinds of spices used. I think you’ll be pleasantly surprised at how flavorful and enjoyable Vindaloo is. And maybe it will open your mind to try some other Indian dishes.

VINDALOO

3           Cups chopped onions

1 1/2    Cups chopped tomatoes, seeded, or grape tomatoes

2 1/2    Tbsp. distilled white vinegar

1            Garlic clove, chopped or minced

1            Tsp. minced, peeled fresh ginger

1            Tsp. tomato paste

1            Garam Masala (store bought or simple recipe below)

1             Tsp. ground turmeric

1/2        Tsp. paprika

1/2        Tsp. ground cumin

1/2        Tsp. ground coriander

1/4        Tsp. cayenne pepper, plus more if desired

3            Tbsp. vegetable oil

               Salt and black pepper

6            Boneless chicken thighs, cut into 1 1/2-inch pieces

1            Pound new potatoes, peeled and quartered

1 1/2    Cups chicken stock or water

1            Cup broccoli florets or sweet peas (optional)

Combine the onions, tomatoes, vinegar, garlic, ginger, tomato paste, garam masala, turmeric, paprika, cumin and cayenne, and blend in a food processor until the mixture is the consistency of a paste.

Season the chicken with salt and black pepper to taste.

Heat 2 Tbsp. of the oil in a heavy pot over medium-high heat and brown the chicken. Remove chicken and set it aside.

Add remaining Tbsp. of oil and paste from the food processor to the pot and cook until the mixture turns golden brown, stirring occasionally, about 5 minutes.

Add chicken and potatoes and sauté 5 minutes.

Add broth and bring to a boil.

Reduce heat to medium low.

Add broccoli or peas, if desired.

Cover and simmer until potatoes are tender, about 15 minutes.

Uncover and simmer until chicken is cooked through, around 5-10 minutes more. Season with salt and black pepper.

For a hotter dish, add more cayenne.

Serve over jasmine or white rice or roti (unleavened Indian flat bread, simple recipes available on the internet). Garnish with fresh cilantro leaves, if desired.

__________________________________

Garam Masala.  Mix 3/4 Tsp. ground cumin, 3/4 Tsp. ground coriander, 1/2 Tsp. ground pepper, 1/2 Tsp. ground cardamom, 1/4 Tsp. ground cloves, and 1/2 Tsp. ground cinnamon.

DICTA

December 9, 2011 § 1 Comment

  • Cocktail parasols if your drink is expecting rain, or for your next party or re-enactment of the killer at the piano bar scene from High Anxiety.
  • Ever find yourself yearning for the old drive-in movies? You can actually rent a full sized, inflatable screen for your next gathering of a “few hundred friends” from Southern Outdoor Cinema. Screens are availale in several sizes, from back yard to cow pasture.
  • The classic 1949 movie Intruder in the Dust, based on Faulkner’s novel, is available on DVD now, just in time to screen at your inflatable drive-in! The film was shot in and around Oxford, and offers views of what the then-sleepy town looked like in the first half of the twentieth century. Caution: some of the language in the film may offend modern sensibilities, but it’s a fair representation of the era it depicts.
  • In 1963, sixteen-year-old San Diego high school student Bruce McAllister sent out questionnaires to writers asking their opinions about the use of symbolism in their and other writers’ work. He received 75 responses, 65 of which survive. The astonishing results of his survey are captured in this Paris Review article, which reproduces the responses of Jack Kerouac, Ayn Rand, Ralph Ellison, Ray Bradbury, John Updike, Saul Bellow and Norman Mailer. Some of the other solicited writers, not excerpted in the article, were A.J. Budrys, Fritz Leiber, Henry Roth, Isaac Asimov, John Cheever, John Updike, Judith Merril, Lloyd Biggle Jr., MacKinlay Kantor, Norman Mailer, Saul Bellow, William Golding and William Melvin Kelley. Wow, just wow.
  • If you’ve ever been to the Sistine Chapel, you will agree that the experience is lacking something special when you’re crammed in there with hundreds of other tourists. So here’s a virtual Capella Sistina, complete with baroque choir, sans the tourists, for your Christmas-tide enjoyment.

WHO OWNS THE FILE?

December 8, 2011 § Leave a comment

In the past few months, on two separate occasions, I have heard a witness say that he or she did not have certain documents because “my previous lawyer has them, and won’t give them to me until I pay my bill.”

When I was in practice I heard the same thing from time to time in various forms.

Now, I have no way to know whether what those statements were true, or whether they were based on a misunderstanding.

But the fact is that it is a long-standing ethical rule in Mississippi that the client has a right of access to the file file in the attorney’s office, regardless whether the client has any unpaid balance of fees or expenses.

Ethics Opinion 144, issued March 11, 1988, includes the following language:

This committee concludes that M.R.P.C. 1.16 modified the prior ethical rules of the Mississippi Bar Association only to the extent that the prior opinions required the unconditional delivery of the file by the lawyer. The current Rule only requires that the lawyer surrender papers and property to which the client is entitled. The Rule recognizes the lawyer’s right to retain papers to the extent permitted by law. Thus, the issue is primarily a legal matter concerning the ownership of the items in the file and the legal enforceability of the attorney’s lien. However, the ethical issue which the lawyer must weigh in the balance with his legal rights is at what point will the enforcement of his legal right breach his ethical duty under 1.16(d) to “take steps to the extent reasonably practicable to protect a client’s interest.” Each case will turn on its own facts, and it is not possible to anticipate each situation. Generally, if retaining the client’s file prevents the client from obtaining another lawyer or from proceeding with his case in a timely manner, then the lawyer may have breached the ethical duty owed to the client.

The ownership of the specific items contained in a file is a matter of law. Informal Opinion ABA No. 790 (Oct. 26, 1964). The client’s file consists of the papers and property delivered by the client or which the client caused to be delivered to the lawyer. DR9-102(b) (4). In addition, the “end product”, or in other words, what the lawyer was hired to do, is usually also considered to belong to the client. Wisconsin Bar Bulletin, June 1970 Supplement (Memo Opinion 4-78). On the other hand, the notes and memorandums are usually considered to belong to the lawyer and be his work product. Missouri Bar Bulletin, May 1978, Informal Opinion (Jan. 6, 1978). Contrary opinions can be found which indicate the client has no absolute right to the files. Maryland Opinions Informal Opinion 76-50 (March 1, 1976). This committee concludes that the better-reasoned opinions generally recognize that to the extent the client has a right to his file, then his file consists of the papers and property delivered by him to the lawyer, the pleadings or other end product developed by the lawyer, the correspondence engaged in by the lawyer for the benefit of the client, and the investigative reports which have been paid for by the client. San Diego Bar Association, 25 Dicta, May 1978 (Opinion 1977-3). However, the lawyer’s work product is generally not considered the property of the client, and the lawyer has no ethical obligation to deliver his work product. [Emphasis added]

That language arises out of professional rules that preceded the current ones, and are no longer in effect. Nontheless, I think the rationale is sound, and the opinion is still on the state bar’s website among the many other ethics opinions.

The kicker in the language above is the phrase ” … which have been paid for by the client” at the end of the italicized language. The problem usually arises when the lawyer wants to keep all those items until they have been “paid for by the client.”

You should read the entire opinion and draw your own conclusions, but I think that a fair reading is that the client is entitled to all documents he or she delivered to you and all end products, and you are entitled to keep all of your own notes, research and paperwork you generated. The client’s entitlement to the file documents should not be based on payment or non-payment, but rather on the prejudice that might result to the former client in the aftermath. For many years before EO 144, the inflexibile rule in Mississippi was that the lawyer had no right to deprive the client of the file due to non-payment.

May you charge the client to copy the file before you let it go? Ethics Opinion 105, issued September 9, 1985, includes this language: “… in the absence of controlling language in any applicable employment agreement, a lawyer discharged by his client in a pending matter may ethically charge his client for the actual cost of duplicating the client’s file but that the lawyer may not ethically condition release of the duplicate file on the prior payment of the copying costs. Because there is no apparent potential for prejudice to the client where the subject of the representation is concluded, the Committee concludes that after the conclusion of a matter the lawyer may charge a client for the actual copying costs for duplicating a file and condition the release of the duplicate file on the prior payment of the copying costs.”

DOING SOMETHING

December 7, 2011 § Leave a comment

Joe Kieronski and Leonard Cobb, both of whom are Meridian lawyers, are in Haiti this week with a work group from First Baptist Church. Their job is to do what they can while they are there to make life even a wee bit better for the people of that island who have been shattered by earthquake, hurricanes, cholera, corrupt government, and crushing poverty.

I’m proud that members of the bar are in the number of those who would make this sacrifice. They are taking time away from busy and lucrative law practices to subject themselves to primitive living conditions (they are living in tents), as well as the risk of malaria and cholera, amidst unreliable police protection and almost non-existent government. That they would do so is in the most noble spirit of our profession.

The cynics among us might snicker at this paltry effort, and it can not be argued seriously that the work of this little band is more than a mere pittance that will do precious little to overcome the monumental problems of this dysfunctional island. But these volunteers are doing something, and for that they deserve our praise. As Edward Everett Hale said …

I am only one; but still I am one.

I cannot do everything; but still I can do something;

and because I cannot do everything,

I will not refuse to do the something that I can do.

“Well done, good and faithful servants.” Matthew 25:23

Where Am I?

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