WRITING YOUR WAY TO A WIN
February 28, 2012 § 12 Comments
Imagine you have concluded a grinding trial in a hotly contested case. The chancellor turns to you and says, “You write the opinion. Stick to the facts in the record, recite the applicable law, analyze the factors, and rule in your client’s favor.” After pinching yourself to make sure you’re not dreaming, you’d jump at the chance, wouldn’t you?
There is actually a tool available for you to do that very thing, and, interestingly, few attorneys voluntarily avail themselves of it.
It’s called Proposed Findings of Fact and Conclusions of Law (PFFCL).
Typically when PFFCL are called for, it is at the behest of the judge, and more often than not they are called for in complex cases. But there is no good reason why a lawyer may not request it, and there is no good reason to limit its application to complex cases only. I can not think of a single type of chancery case where PFFCL would not work.
I have seen good PFFCL and bad. The good read like a trial court opinion that would be affirmed on appeal: findings of fact are supported by evidence in the record; the applicable law is set forth; factors are analyzed and conclusions reached; rulings are set out clearly and distictly, resolving every issue in dispute. The bad are, well, bad: facts are injected that never made it into the trial; the law is inapplicable or misapplied; factors are not addressed, or they are not properly addressed; the rulings have no basis in fact or law.
The traditional rule in Mississippi was that if the trial judge adopted your PFFCL verbatim, the appellate court would give the trial court ruling less deference or subject it to heightened scrutiny. In Rice Researchers v. Hiter, 512 So.2d 1259, 1266 (Miss. 1987), the court said:
In our view, the matter of whether a trial court may adopt verbatim, in whole or in part, the findings of fact and conclusions of law of a party is within the court’s sound discretion. See 54 A.L.R.3d 868, supra. Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.
The rule was tossed out only last year in Bluewater Logistics v. Williford, 55 So.3d 148, 157 (Miss. 2011), where the Mississippi Supreme Court ruled that it would continue to apply the “familiar abuse-of-discretion standard” to review of chancery court decisions, even where the chancellor adopted one party’s PFFCL verbatim.
My little opening vignette is unrealistic in one sense: the judge will always allow all parties to submit their own PFFCL. But the judge can pick and choose elements of all that were submitted, or simply adopt one, or use them as a template to do his own, or ignore them.
So there you have it. As long as the findings are supported by substantial evidence in the record and the law is properly applied, the trial court ruling will be upheld. And you can be the one to write it.
[…] fact and conclusions of law are more work, I wonder why more lawyers don’t offer to do them. As I have posted here before, it can be an unequalled opportunity to write the final judgment in the […]
What if an attorney provides false information within the PFFCL and it is directly contradicted by testimony as well as documents submitted by this same attorney authoring the PFFCL within the complaint, response to interrogatories, and other supporting evidence? Of course the material within any findings of facts and conclusions of law would be materials because only material facts are to be included within the PFFCL, in my opinion..
The final opinion is the chancellor’s. It’s her or his duty to make sure that the pffcl actually reflects the proof. If the final opinion, based or not on pffcl, is not supported by the eivdence, it should be reversed.
It’s the judge’s job to make sure that the findings match up with the proof.
[…] a Rule 59 motion and ask the judge to supplement his findings. Better yet, provide him or her with proposed findings of fact and conclusions of law on the point that address every applicable McKee […]
[…] The MSSC decision in Bluewater Logistics v. Williford, 55 So.3d 148 (Miss. 2011), is notable for several reasons. First, it’s of value to lawyers who litigate over LLC’s and contracts as a guide to the parameters of litigation in that field. Second, it spelled the demise of the “heightened scrutiny” and “lessened deference” rules formerly applied when judges adopt verbatim one side’s proposed findings of fact and conclusions of law; a post in which I touched on that point is here. […]
I just wanted to tell you how much I still enjoy reading your blog. I’m still suprised how frequently it’s mentioned by my professors in class. My administrative law professor actually just made a reference to it.
I hope all is well in Meridian,
Thanks, Ben. I’m sure you’re still making straight A’s in law school! I’m glad the blog is useful. If there’s ever a subject you or any students want to be addressed, let me know. I can’t guarantee I’ll get to it, but i’ll try. Good to hear from you.
Judge: do you have any of what you consider to be “good” examples of FFCCL that are accessible on the net? Jak Smith
Don’t know where on the internet you could find one. I will try to get a copy of one filed in a case I was assigned to in another district and send it to you.
This would be helpful for me as well, especially as a young lawyer.
This would be most helpful to me as well, especially as a young lawyer.
Let me suggest you contact the chancery clerk in Newton county and see whether they can email you a copy of the proposed findings of fact and conclusions of law submitted by both sides in Griffin v. Griffin, no. 2009-N0189. Their files are all digital, so sending it to you in this fashion should be no problem.