JUST WHOM DO YOU REPRESENT?

January 17, 2012 § Leave a comment

Consider this scenario …

You have represented Betty Sue in several matters, including a contentious divorce, contempts, and closing on her new home. Betty Sue was so satisfied that you have ended up doing legal work for many of her family and friends. She has been quite the bonanza in terms of clientelle. One day she comes into your office with her ex and asks you to do an agreed modification so that Junior can go live with his dad in Simpson County to play football. You draft a joint petition and an agreed judgment, have everyone sign off, present it to the chancellor, and Voila! Another minor miracle to impress Betty Sue and her wide circle of family and friends.

As often happens, though, things fall apart. Junior gets into trouble and is kicked off of the football team. He is not getting along with dad, and he decides he wants to return to mom. Dad refuses. Betty Sue returns once again to your office, and you take a retainer, prep pleadings, and file for modification, fully expecting another feather in your cap. So far so good. Until …

In the mail comes a motion to disqualify you in the case on the basis that you represented both parties in that joint motion and agreed judgment. You dig up the file and to your dismay you see that nowhere on the pleading or the judgment is it indicated that you represented Betty Sue alone. The chancellor sees it the other side’s way, and you are out on your ear. Betty Sue and her family, being country folk who don’t have time for subtleties and nuances, feel that you are dropping her and maybe even have gotten in league with her ex. Ouch. To try to make amends you refund Betty Sue’s retainer so she can hire another attorney. But the damage is done.

The problem could have been avoided if you had simply included a paragraph in the pleading that spelled out that you represent Betty Sue alone in the modification, that you have given no legal advice to the ex, and that he signifies by signing that he understands that he may consult with any attorney of his choice; you should also have spelled out at your signature line “Attorney for Betty Sue _____ only,” and added pro se, after the ex’s name. That would have been plenty for the chancellor to refuse to disqualify you.

The same principle applies any time the other party is unrepresented. Be especially aware when you have a joint complaint for irreconcilable differences (ID) divorce that, since it is unethical for an attorney to represent both parties in an ID divorce, your pleading must spell out which party you represent.

And always, in your property settlement agreement (PSA), add a paragraph identifying which spouse you represent, that you have provided the unrepresented party no advice, and that the unrepresented party has had the opportunity to confer with the attorney of his or her choice. That way, when the pro se party signs the PSA, future quibbling over who you represented is effectively sealed off.

Another source of confusion over who represents whom arises in minor’s settlements. Insurance companies often hire attorneys to file the petition and have it approved by the court. Too often, though, that petition does not specify whom the attorney represents. It would seem to be a simple matter for some language like that set out above to be included in the petition and even in the judgment approving the settlement. Leaving the point ambiguous would seem to be an invitation to a fly-specking attorney to try later to get the settlement set aside. If you would like to read about how and why that might happen, check out Carpenter v. Berry, et al.

Finally, confusion over who represents whom can arise when a lawyer lets his or her name slip into the court file. That happened in my court recently when a lawyer showed up in response to an MRCP 81 summons and allowed as how she “might be hired to represent the respondent,” and signed off on an agreed order resetting the hearing. She later tried to take the position that she had never been hired and so was not in the case. Sorry, but she is in the case until the judge signs an order letting her out. Another post on when appearances can lock you into a case is here.

WE CAN NOT WALK ALONE; WE CAN NOT TURN BACK

January 16, 2012 § Leave a comment

Martin Luther King, Jr.’s speech delivered August 28, 1963, at the Lincoln Memorial in Washington, D.C.

——————————————————–

I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.

Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.

But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languished in the corners of American society and finds himself an exile in his own land. And so we’ve come here today to dramatize a shameful condition.

In a sense we’ve come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the “unalienable Rights” of “Life, Liberty and the pursuit of Happiness.” It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.”

But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we’ve come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.

We have also come to this hallowed spot to remind America of the fierce urgency of Now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God’s children.

It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. And those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. And there will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

But there is something that I must say to my people, who stand on the warm threshold which leads into the palace of justice: In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force.

The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. And they have come to realize that their freedom is inextricably bound to our freedom.

We cannot walk alone.

And as we walk, we must make the pledge that we shall always march ahead.

We cannot turn back.

There are those who are asking the devotees of civil rights, “When will you be satisfied?” We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their self-hood and robbed of their dignity by signs stating: “For Whites Only.” We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until “justice rolls down like waters, and righteousness like a mighty stream.”¹

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. And some of you have come from areas where your quest — quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive. Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed.

Let us not wallow in the valley of despair, I say to you today, my friends.

And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; “and the glory of the Lord shall be revealed and all flesh shall see it together.”2

This is our hope, and this is the faith that I go back to the South with.

With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith, we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith, we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

And this will be the day — this will be the day when all of God’s children will be able to sing with new meaning:

My country ’tis of thee, sweet land of liberty, of thee I sing.

Land where my fathers died, land of the Pilgrim’s pride,

From every mountainside, let freedom ring!

And if America is to be a great nation, this must become true.

And so let freedom ring from the prodigious hilltops of New Hampshire.

Let freedom ring from the mighty mountains of New York.

Let freedom ring from the heightening Alleghenies of Pennsylvania.

Let freedom ring from the snow-capped Rockies of Colorado.

Let freedom ring from the curvaceous slopes of California.

But not only that:

Let freedom ring from Stone Mountain of Georgia.

Let freedom ring from Lookout Mountain of Tennessee.

Let freedom ring from every hill and molehill of Mississippi.

From every mountainside, let freedom ring.

And when this happens, when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual:

Free at last! Free at last!

Thank God Almighty, we are free at last!

“QUOTE UNQUOTE”

January 13, 2012 § Leave a comment

“Every trial presents its own field of maneuver, with issues rising up in different places on the terrain. Some issues reach commanding heights, others are just a gentle rise; some have evidence arrayed densely on each side, others have evidence more thin. Whatever the layout, the district court knows the ground better than we do. Its understanding comes from the front lines, whereas we are back in a headquarters tent. And thus we defer a great deal to the district court’s judgment as to whether a particular piece of evidence aligns with one issue, or another, or instead does not belong on the field at all.”  —  US v. Clay, 09-5568 6th Cir. (2012), KETHLEDGE, Circuit Judge, dissenting.

“There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them — inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. … In this mental background every problem finds it setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.”  —  U.S. Supreme Court Justice Benjamin N. Cardozo.

“When we went to school we were told that we were governed by laws, not men. As a result of that, many people think there is no need to pay any attention to judicial candidates because judges merely apply the law by some mathematical formula and a good judge and a bad judge all apply the same kind of law. The fact is that the most important part of a judge’s work is the exercise of judgment and that the law in a court is never better than the common sense judgment of the judge that is presiding.”  —  US Supreme Court Justice Robert H. Jackson

HELPFUL HINTS FOR ATTORNEY’S FEES IN ESTATES

January 12, 2012 § 1 Comment

If you want to get paid in probate matters, you have got to give the judge the information he or she needs to make an award.

UCCR 6.12 says that you have to provide the court with all the information required in UCCR 6.11, and ” … the nature and effect thereof.” The information required in 6.11 is ” … the nature and extent of the service rendered and expense incurred … ” Fees may not be based on the value of any real property.

The factors that the court must consider in determining what is a reasonable attorney’s fee in an estate or probate matter are discussed in this earlier post.

I will not rule on attorney’s fees in a probate matter unless the attorney has given the interested parties notice of what the amount of fees requested is and what services were rendered. After all, the heirs, beneficiaries or ward are paying out of their own pockets, so they should have some say.

Here are some helpful hints to do it right:

  • Make an itemized statement showing the date you performed each service, the nature of the service, and the amount of time spent. An entry might read: 1-22-12   Preparation of Letters Testamentary   1/4 Hr.
  • If there is no dispute about your fee, either attach the itemized statement as an exhibit to your pleading to close the estate, or incorporate it into the pleading itself. That way, when the interested parties join in or sign it they are documenting that they agree with the fee. Include a statement to the effect that ” … based on the [itemized statement], petitioners agree that a reasonable fee is $ ______.”
  • If there is not agreement about the fee, spell out in the petition to close the estate that there is a dispute as to the fee, and set it for hearing.

If your fee is based on a contingent fee contract for wrongful death or some other claim of the estate, remember that UCCR 6.12 requires that your contract must be approved in advance, and that the ultimate award will be ” … such sum as will be reasonable compensation for the service rendered and expense incurred … ” Your claim for fees must set out (1) the total amount recovered, (2) the nature and extent of the service rendered and expense incurred by the attorney, and (3) the amount, if any, offered to settle before the attorney was hired.

To get an idea of the breadth of the chancellor’s discretion in awarding attorney’s fees in an estate, read In re Estate of McCullough, 58 So.3d 701 (Miss. App. 2009) in which the COA upheld the chancellor’s award of only $36,660 where the attorney had sought $88,550. A similar result was upheld in Barnes, Broom, Dallas & McCleod, PLLC v. Estate of Cappaert, 991 So.2d 1209, 1213 (Miss. App. 2008).

Attorney’s fees are the personal obligation of the fiduciary, but where the attorney’s services have benefited the estate, the fees may be paid out of the estate; conversely, if the attorney’s services have not benefited the estate, the estate should not have to bear the expense. Estate of Collins v. Collins, 742 So.2d 147, 148 (Miss.App. 1999).

DOING MUNIMENT OF TITLE RIGHT

January 11, 2012 § 18 Comments

MCA § 91-5-35 allows you to admit a will to probate as a muniment of title only (muniment = evidence or writing that enables one to defend title to an estate or a claim to rights or privileges, according to Webster). It’s an effective procedure where the decdent owned only real property in Mississippi, and especially where the decedent was a resident in another state and owned nothing but realty here.  

The statute enables the beneficiaries to dispense with the formalities of probate and have a judgment recorded that preserves the chain of title.

Your client can take advantage of the statute if the decedent died testate owning real property in Mississippi at the time of death, and the will purports to devise the real property.  

But you have to do it right. Here’s what the statute requires:

  • The petition must be signed and sworn to by all beneficiaries named in the will, and by the spouse if not named in the will.
  • The petition must recite that the value of the decedent’s personal estate in Mississippi at the time of death, exclusive of any interest in real property, was less than $10,000, not including exempt property.
  • The petition must recite that all of the known debts of the decedent and estate have been paid, if any, including any estate and income taxes.
  • Any beneficiary under a legal disability must sign the petition by legal guardian or parent. 
  • Since the petition is sworn, and since the statute lays down specific requirements, it is a good idea to include all of the statutory prerequisites (e.g., that the decedent died owning real property in the state of Mississippi, that no estate or income taxes are due, etc.), and to track the language of the statute verbatim. If I were doing it, I would simply draft my petition tracking the statute phrase for phrase.

I have seen lawyers come to grief over their petitions simply because they got creative. One tried to argue with me that this sentence was enough to qualify under the statute: “The only property the decedent owned at the time of death is the real property described herein.” That’s not good enough, in my opinion, because there must be shown in the petition that “The value of the decedent’s personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed … etc.”). Again: I suggest that you simply track verbatim the language of the statute as far as you can.

I have never had to present live testimony beyond the sworn petition to obtain a judgment under the statute, and I do not require it; however, I have heard that some chancellors do require testimony, so you need to find out how your chancellor does it before you set aside time to present your petition.

The statute specifically provides that the procedure does not deprive any interested party of the right to a formal administration of the estate, or to file a will contest. Thus, probate as a muniment is not an effective, shorthand substitute for actual probate of a will. 

Where to file? That should be governed by MCA § 91-7-3.

Caveat: Do not include language in your judgment that adjudicates ownership, heirship or anything of the sort. An adjudication that the petitioners are all of the named beneficiaries in the will, and that the property is admitted to probate as a muniment of title only is all that the statute contemplates.

THE LAWYER BUBBLE

January 10, 2012 § 4 Comments

Philip Thomas has a thoughtful post on his blog about the shrinking legal sector and its impact on the Mississippi legal profession. His post focuses on the big firms and their purges (i.e., layoffs) of numbers of attorneys. The post is worth a read; in fact, if Mr. Thomas’s blog is not on your regular reading list, it should be as a great way to keep up with developments in the law, courts and legal profession in our state.

One of the significant points of the article is that the slumping legal profession does not offer adequate opportunities for graduates who have accumulated massive law-school-tuition debt to retire that debt.

From where I sit, I will accept that premise insofar as it describes the big-firm experience. I wonder, though, whether it accurately describes the legal profession’s situation out here in the vast hinterland, as opposed to the Jackson metropolitan area where most of the big firms are concentrated. The great preponderance of legal work is done out here by lawyers from firms of 1-5, hardly “big” by any definition. Their work involves representing people — not corporations — in mundane matters involving estates, divorces, land matters, guardianships and conservatorships, commitments, Youth Court, felonies and misdemeanors, zoning, custody, child support, wills, and so on.

How are those small-firm lawyers doing? I don’t have any scientific data, and I haven’t done any real research, but I do have some anecdotal evidence and impressions.   

My sense is that the small-firm lawyers are doing quite well, with a couple of caveats, and I base that statement on these observations:

  • I do not see small law firms cutting associates loose or otherwise downsizing lawyer staff.
  • Ordinarily, in a downturn, we see lawyers appearing in chancery court who ordinarily do not set foot there. I have seen a small handful of that happening, but nothing like what I have seen in the past in much less inhospitable economic periods.
  • Pro se filings are on the rise. We are seeing people filing pro se pleadings even in relatively complex matters, which would seem for the most part to indicate that they do not have — or believe they do not have — enough money to hire a lawyer to do it for them. I view this development as a chipping away at the edge of legal business, not a hacking attack at the core. I believe that, although most lawyers would say they wish they could get those clients into their offices, the lawyers would find that these are the clients who would be slow- or no-pay. So, although on the surface it looks like a loss of business, it appears to me to be a loss of non-lucrative business.
  • I ask lawyers all the time how business is doing, and almost without exception they say they have more work than they can handle. Their frequency in court confirms the fact. I am sure that there are some lawyers who are struggling, particularly with collections, but I believe for the most part that there is enough work representing people to go around to keep lawyers in business.
  • Having made the previous point, I have noticed that some small-firm lawyers have eliminated secretarial positions. Where several years ago a theoretical sole practitioner had a receptionist/file clerk and two secretaries, that lawyer is now making do with one secretary.
  • I have not heard any of the younger lawyers express any concern about paying their student loans, although I concede that is not necessarily the kind of thing they might share, much less with me. Still, a lawyer being sued for default would be the kind of news around small courthouses that one would expect to hear if it happened.
  • Lawyer success in this tough economy rises out of one’s willingness to take on what people are willing to hire one to do, as well as achievement of a reputation for competence, reasonableness, efficiency and integration into the community. 

Last year a law school professor asked me whether I knew of any firms in our area that were hiring, and pointed out that not a single graduate for that term had a job offer. That, my friends, is the “Lawyer Bubble” to which Mr. Thomas refers.

I do believe, however, that there is work enough for new and uprooted lawyers to plant and grow their own legal businesses out here in the small towns and cities of Mississippi where there are non-predatory lawyers who will work collegially with them to help them get established. After all, the legal profession is not a zero-sum game.

My conclusion is that there is indeed a lawyer bubble in the sense that law schools are continuing to pump out graduates at a rate greater than the big-firm legal industry can absorb them, but that there is a niche for lawyers who want to find a place in the legal profession representing people in the myriad of legal problems that confront them. No, that is not likely the path to great (or even near-great) riches, but there is a comfortable living and professional satisfaction for those who take that path.

Of course, my views are based on the geography I inhabit. The experience may be entirely different in other parts of the state, but I don’t know of a place that would be markedly different from our experience here in east Mississippi and the 12th District.           

Your take may be different. I’d be interested in your comments.

JUDGE FAIR’S DAY

January 9, 2012 § Leave a comment

Judge Gene Fair’s investiture as a judge of the Mississippi Court of Appeals on Friday, January 6, 2012.

COA hosts coffee and breakfast refreshments for supreme court, chancery and circuit judges before the ceremony

Chief Justice Waller's address

Judge Barbour administers the oath

Newly invested Judge Fair's address

Crowd gathering for the reception

Chancellor Jim Davidson, COA Judge Gene Fair, Chancellor Joey Kilgore, COA Judge Jimmy Maxwell

RETURN OF THE BOOMERANG

January 6, 2012 § Leave a comment

More actual courtroom proceedings collected from hither and yon over the years …

Putting the “Dire” in Voir Dire

Q:       Would you say that you have strong opinions?

A:       My friends at the barber shop say I do, yes.

Q:       And what do they say about your opinions?

A:       Well, they call me “the hanging judge.”

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Q:       Mr. Eugene Smith, are you related to my client here, the defendant Mr. Dan Smith?

A:       Oh my gosh, no! Heavens no! Thank God I’m not!

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Q:               Ma’am, is there any reason at all why you believe you could not be completely impartial in this case?

A:               Yes, but I’d rather not say.

Q:               Ma’am, we need to know what your reason is.

A:               Judge, do I have to tell?

Judge:      Yes, ma’am, you do.

A:               It’s this lawyer, judge. He’s the most obnoxious person I think I’ve ever been around.

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Q:       Would you say that your pregnancies were uneventful?

A:       I never heard of one that was uneventful.

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Q:       In what state were your children born?

A:       A fairly good state, I would say, except one of ’em had a rash.

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Unidentified Flying Objections

Atty:       Objection. Dead horse.

Court:     Sustained.

~~~~~~~~~~~~~~~~~~~~

Atty 1:          What did you see when you arrived on the scene?

Witness:       I saw the car crashed into a light pole and a man lying in the street in a puddle of blood.

Atty 1:          What happened next?

Witness:       I run up to him and cradled his head in my arms, and he said …

Atty 2:          Objection, hearsay.

Atty 1:          It’s excited utterance, Judge, and dying declaration.

Atty 2:          No foundation for either, your honor.

Court:           It’s lunchtime. We’ll break here, and you lawyers can get some cases together and argue after the break.

[Court is in recess and returns after the lunch break]

Court:          All right, counsel, do you have some authority for me to consider?

[Whereupon counsel each present the judge with several cases and argue their respective positions further]

Court:          I have several appellate court opinions to review here before I rule on the objection. Court will be in recess subject to call by the bailiff.

[The judge retires to chambers and reads the case law. His staff attorney provides some research material. Finally, after an hour the judge returns to the court room.]

Court:          Having read the cases submitted, and having done my own research, I am satisfied that the record to this point establishes that the statement made by the decedent was sufficiently spontaneous and related to the accident to qualify it as an excited utterance, which is an exception to the hearsay rule, and therefore I overrule the objection. Please repeat the question.

Atty 1:         Sir, you said you cradled the decedent’s head in your arms. What if anything happened next?

Witness:      [Annoyed at the delay] Well, I was going to say what the man said.

Atty 1:         The judge has ruled that you can tell us.

Witness:      He said, “duh,” and he died.

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To Insure Domestic Tranquility

Q:       Ma’am, would you please tell the court about your sex life in the year leading up to the separation?

A:      You mean with my husband, or what?

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Q:       As for his drinking, could you smell the odor of alcohol when your husband would come home from work?

A:       No, not really. I can’t smell.

Q:       You can’t smell at all?

A:       No, I lost my sense of smell some years ago. It has to be a very, very strong odor for me to smell it.

Q:       I’m sorry to hear that. It must be a big disadvantage not to have a sense of smell.

A:      Living with him, it’s actually quite an advantage.

JUDGE FAIR’S INVESTITURE TOMORROW

January 5, 2012 § Leave a comment

I was concerned that, up until Tuesday, there was no mention of Judge Gene Fair’s invesiture, much less appointment, on the Supreme Court’s web site. My chancery-court paranoia kicked in, and I wondered whether this was some new specie of persecution for us on the equity side.

My fears (exagerrated for this post, I assure you) were allayed by an anonymous insider, who reassured me that the silence had more to do with the holiday schedule than with an agenda. Whew.

If you can make Judge Fair’s ceremony tomorrow, I encourage you to do so. I plan to be there. Here’s the announcement:

December 29, 2011

An investiture ceremony for Judge Eugene L. Fair Jr. of the Court of Appeals of the State of Mississippi is scheduled for 10 a.m. Friday, Jan. 6, 2012, at the Gartin Justice Building, 450 High Street in Jackson.

The investiture will be webcast on the State of Mississippi Judiciary web site, www.courts.ms.gov. Members of the bench, bar and the public are invited.

Gov. Haley Barbour appointed Judge Fair to the District 5, Place 1 seat on the Court of Appeals. Judge Fair will replace Judge William H. Myers, who is retiring Dec. 31. The appointment is for one year. A special election will be held in November 2012 in the Court of Appeals district which includes Forrest, George, Greene, Hancock, Harrison, Jackson, Lamar, Pearl River, Perry, Stone and parts of Wayne counties.

Judge Fair, 65, of Hattiesburg, said, “I’m both honored and humbled by the appointment of the Governor.”

Gov. Barbour, his Chief of Staff Paul A. Hurst III, and Supreme Court Chief Justice Bill Waller Jr. will speak at the investiture. Former Mississippi Bar President George R. Fair, Judge Fair’s brother, will speak and will introduce special guests. Court of Appeals Chief Judge L. Joseph Lee will preside over the investiture ceremony.

Senior U.S. District Judge William H. Barbour Jr. will administer the oath of office.

Judge Fair’s wife, Dr. Estella Galloway Fair, will assist with the enrobing. Rev. Dr. Stephen Ramp, Judge Fair’s pastor at Westminster Presbyterian Church in Hattiesburg, will give the invocation. Rev. Dr. John C. Dudley of Hattiesburg, Administrative Presbyter of the Presbytery of Mississippi and Judge Fair’s former pastor, will give the benediction.

Judge Fair served for five years as a chancellor on the 10th Chancery Court. The district includes Forrest, Lamar, Marion, Pearl River and Perry counties.

Former Supreme Court Chief Justice Neville Patterson appointed him to the Mississippi Ethics Commission in 1984. Fair served on the commission for 20 years, including 19 years as vice-chair. He was board attorney for the Pat Harrison Waterway District 1988-1992.

Judge Fair grew up in Louisville. He earned a Bachelor of Arts degree from the University of Mississippi and a law degree from the University of Mississippi School of Law. During college, he was editor of The Mississippian for two years, and wrote for the Mississippi Law Journal. He helped pay his way through college with freelance writing for newspapers. He began working as a newspaper stringer at age 15, calling in sports scores and writing obituaries. He did freelance work for the Clarion-Ledger, the now defunct Jackson Daily News, the Meridian Star, the Associated Press and United Press International. He called his work as a news reporter and photographer “wonderful preparation to be a lawyer.”

He helped screen and recommend lawyers to fill judicial vacancies as a member of Gov. William Winter’s Judicial Nominating Committee. A similar group, Gov. Barbour’s Judicial Appointments Advisory Committee, recommended Fair to fill the vacancy on the Court of Appeals.

Fair ran unsuccessfully for election to the Supreme Court in 1988, and for the Court of Appeals in 1994. The 1994 race was for Position 1, District 5, the same position to which he has been appointed. He said, “I have thought about it (serving on an appellate court) for a long time. My uncle was Supreme Court Justice Stokes V. Robertson Jr., and I was greatly influenced by his dedication and love of the law. My cousin Charles Fair, having the same characteristics, had a similar influence on me.” His grandfather, also named Stokes Robertson, served as the first member of the House of Representatives from Forrest County and as Clerk of the House for four years. He was also Revenue Agent of the state of Mississippi, a statewide elective office later renamed State Tax Collector and abolished when William Winter held the office. His great-grandfather, G. C. Robertson, was the last Justice of the Peace of District 2, Perry County, before the county was split to form Perry and Forrest counties.

He served for four years on active duty with the U.S. Navy Judge Advocate General’s Corps during the Vietnam War, attaining the rank of Lieutenant Commander, and spent five years as a reservist in the Jackson Naval J.A.G. Reserve Unit.

He practiced law in Hattiesburg from October 1972 to December 2006. During that time, he tried cases in 57 courthouses across the state. He was admitted to practice law in all state courts, the U.S. District Courts for the Northern and Southern Districts of Mississippi, the Fifth U.S. Circuit Court of Appeals, the Supreme Court of Texas and the U.S. Supreme Court.

He served on the Mississippi Supreme Court Committee on Technology in the Courts 1988-1990, and on the Judicial Advisory Study Committee Technology Consulting Group 1993-1994.

He served as treasurer, secretary, vice-president and president of both the Young Lawyers Section of the Mississippi Bar and the South Central Mississippi Bar Association.

He held numerous leadership positions in the Mississippi Bar. He is a former member of the Board of Bar Commissioners, and is a Fellow of the Mississippi Bar Foundation and a Charter Fellow of the Young Lawyers.

He is a trustee, elder and Sunday School teacher at Westminister Presbyterian Church.

He is a former chairman of deacons, and was church treasurer for 18 years.

He is an Eagle Scout.

He has two daughters and four grandchildren. Melissa Fair Wellons M.D. is assistant professor at the University of Alabama Birmingham (UAB) School of Medicine. Julia Fair Myrick is a screenwriter and producer in Pasadena, Calif.

The 10-member Court of Appeals of the State of Mississippi is the state’s second highest court. The Supreme Court assigns cases to the Court of Appeals, and has discretionary review of its decisions. The Legislature created the intermediate appellate court in 1993 to speed decisions and relieve a backlog of appeals. The Court of Appeals began hearing cases in 1995.

LAWYER, KNOW THYSELF

January 4, 2012 § 9 Comments

Understanding what makes you tick is a key to understanding how you can be more effective as a lawyer, spouse or parent, and in every other role you undertake. A major element of what makes you tick is your personality. The way in which your personality operates defines you as a unique individual.

Carl Jung posited that personality consists of a combination of three components formed from three dichotomies: extraversion or introversion; sensing or intuition; and thinking or feeling. He saw extraversion or introversion as an attitude, and sensing, intuition, thinking and feeling as ways of functioning. According to Jung, every personality is a combination of one of each dichotomy. For example, an extraverted, sensing, feeling person has one type of personality and an introverted, intuitive, thinking person has an entirely different one. Katherine Cook Briggs and her daughter, Isabel Briggs-Meyers, added a fourth dichotomy based on lifestyle: judging and perceiving (judging = organized and on schedule; perceiving = disorganized and not punctual). Under their methodology, the personality consists of a combination of one each of the four dichotomies, resulting in 16 different personality types.

Briggs and Meyers came up with a personality inventory that sorts you into one of the 16 personality types. You can read more about the Meyers-Briggs Type Inventory (MBTI) here. For convenience, the dichotomies are assigned letters: E for extraversion; I for introversion; S for sensing; N for intuition; T for thinking; F for feeling; J for judging; and P for perceiving. The 16 personality types, then, are: INTP, INTJ, INFJ, INFP, ISTP, ISTJ, ISFJ, ISFP, ESTP, ESTJ, ESFJ, ESFP, ENTP, ENTJ, ENFJ, ENFP. Each has its own unique characteristics and ways of functioning.

Each of the 16 types represents the synthesis of preferences that the personality operates under, or the default settings if you will. Each of us can “turn off” those settings or reset them as the need arises. A strongly feeling person, for instance, can tune down the feeling function in order to operate more rationally in the court room. A more introverted person has to set aside that preference in order to get the full benefit of the Kiwanis Club membership. A judging person has to put away the schedules, personal planner apps, internet and cell phone while on vacation.

So which are you? You can take a brief questionnaire based on the Jungian/Meyers-Briggs typology here. The site will score it for you and give you a synopsis of the characteristics of your personality type, and you can read there more about your and other types. The questionnaire is similar to the MBTI and, in my experience, will produce similar results. For that matter, you can Google Meyers-Briggs and come up with plenty of other sites with much more info and other questionnaires. Some even offer in-depth analyses by “qualified” professionals — for a fee, of course.

A great book that explains personality typology in greater detail is Please Understand Me: Character and Temperament Types, by David Keirsey and Marilyn Bates. It includes the MBTI, which you can take and score yourself, as well as explanations of the various types and how they operate in various settings.

Is the MBTI accurate? Some professionals accept it, others question it, and some pan it. I like it because it’s a gateway to getting you to consider just how you function in this world. Realizing how you learn and process information, how you make decisions, how you work effectively and what is ineffective for you, can help you in almost every area of your life.

Most judges are strongly ST. All I’ll tell you about me is that I am not, so I process information and make decisions differently than some others. The rest you’ll have to puzzle out for yourself.

Where Am I?

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