April 30, 2012 § Leave a comment

Confederate Memorial Day. State Holiday. Court House closed.

YET MORE SIGNS OF THE IMPENDING APOCALYPSE

April 27, 2012 § Leave a comment

FLYING SOLO

April 26, 2012 § Leave a comment

A couple of weeks ago there was a news item about a woman who had to pilot a small plane to an emergency landing when her husband, who had been at the controls, had a sudden heart attack and collapsed. The story had a happy ending due to the assistance of a good-samaritan private pilot who took to the air, flew beside the first craft, and instructed the woman into a safe, but bumpy, landing.

Pro se litigants are like those untrained pilots who take the controls of their own aircraft. Only there is not a helpful, experienced pilot to guide them to a happy conclusion.  Most of them crash and burn, some fatally, others with considerable cuts and bruises, and all the worse for wear. Here are my 3 most recent experiences:

  • Man appears self-represented for temporary hearing, refuses the opportunity to negotiate with opposing counsel, and turns down any continuance. He sits mute through direct examination (heavy on leading questions), raising no objections. He has no questions on cross examination. After plaintiff rests, he says he has no testimony or evidence to present, after being told he may take the stand, or call other witnesses, or present any documentary evidence. Needless to say, the results were not in his favor.
  • Woman appears pro se in defense of DHS contempt action for non-payment of child support. She has filed no pleadings, but claims in her testimony that the child has been living with her, and that her income is reduced anyway, so that the child support ordered 9 years ago should be modified downward. I explain that she must file pleadings to put DHS on notice of her claims, and I recess the hearing to allow her to do that. I could have simply rendered a judgment against her, but … well … nevermind.
  • Man files pro se complaint for custody. At hearing he calls a single witness who testifies that he has never seen the plaintiff and the minor child together. It’s not clear to me how this helps promote his claim for custody. He then says he has no other testimony, even after I explain that he may take the witness stand and testify in his own behalf. Then he has a change of heart and says he has some papers he wants me to look at. One by one he offers several County Court judgments for child support for other children, which opposing counsel graciously allows in. Then the plaintiff rests. After the 41(b) motion is granted the defendant testifies and, based on her testimony I order visitation and award her the tax exemption for the child.

None of these top the pro se “partition” case I had several years ago. Both plaintiffs and defendant were self-represented. The plaintiffs’ pleadings asked for partition. At hearing, though, the proof was that defendant had lived in the home in which the heirs had an interest and had dismantled the fireplace. The plaintiffs wanted it restored or to recover their damages. I dismissed the complaint and sent them to County Court to pursue a lawsuit.

A Meridian air guardsman in the 70’s crashed his F-4 and suffered a broken back. As he was being wheeled on a stretcher into the hospital, a local tv news reporter stuck a microphone in his face and asked what had caused the accident. Through his pain the pilot replied,”I ran out of air speed, altitude and experience all at the same time.” That about sums it up.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #10

April 25, 2012 § Leave a comment

Starting with this post, I’m going to count down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor. Some of you may find them elementary. Okay. But read them anyway as a reminder. And you just might recognize some bad habits you could work on. Here goes …

TOP TEN TIP #10

Make sure your exhibits make sense in the record.

I can’t begin to count the number of times I have seen a lawyer hand a witness a sheaf of photos or documents, admit them in a clump, and then proceed to ask the witness questions about individual items. “This is a picture of my son’s room, showing the hole in the wall.” Problem is, the judge has no clue which picture the witness is looking at, and the lawyer and witness are successfully conspiring to keep it out of the record so that a snoopy appellate judge won’t find it either.

So here’s the deal: if you’re offering a series of items like twenty photos of the former marital residence, separately put a clearly printed number or letter on the back of each one. Then ask the witness on the record to identfy them and explain what their markings are. For example, the witness says: “The photos are numbered 5 for Exhibit 5, and each is lettered separately A through M.”

That way they can all go into evidence together as a composite exhibit, and you can then question the witness about “the photograph in evidence as Exhibit 5-D, or Exhibit 5-8,” so that the record will be clear and the judge will be sure what you are referring to.

The same applies to any documentary evidence that consists of several items that will be included in a composite exhibit about which you will ask the witness questions directed to the individual items. For instance, if you have a contract consisting of 23 pages, and you’re going to question the witness about provisions scattered over several pages, make sure the pages are numbered and refer the witness to that page number for the record, or make a circle or some other kind of distinguishing mark so that the witness, opposing counsel, trial judge and appellate judge will know what you’re talking about.

Of course, none of this makes much difference at trial if you don’t comply with UCCR 3.05. That’s the rule that requires you, for every exhibit you offer into evidence, to have an original, a copy for the judge, a copy for the witness, and a copy for opposing counsel. I get grumpy whenever a lawyer wants to take the exhibit away from me to question the witness, and I don’t have a copy to follow along. A grumpy trial judge is not a good thing for your case, believe me. Always have enough copies to comply with UCCR 3.05.

NEW RULES FOR MARRIAGE

April 24, 2012 § 4 Comments

Governor Bryant signed into law SB 2851, which makes some sweeping changes in how one applies for and obtains a marriage license in Mississippi. You can read the new law here for yourself.

The law, which takes effect July 1, 2012, changes much of MCA § 93-1-5. The new law clarifies the age limitations to provide that any male 17 years and older, and any female 15 years and older, may apply for a marriage license, provided that they have parental consent or have an order of a circuit, chancery or county court judge waiving the requirement.

Other changes: the three-day waiting period is eliminated, as is the requirement for a blood test for syphilis. You may not obtain a marriage license if it appears to the circuit clerk that you are intoxicated, or are suffering from mental illness or intellectual disability to the extent that you do not understand the nature and consequences of the application for a marriage license (there’s a lot I could say about this last provision, but I’ll let it go for now).

MCA § 93-1-7 is repealed. That is the section that provided the right of “any interested party” to contest issuance of a marriage license.

The biggest change here, of course, is elimination of the waiting period and blood test. Those two requirements in combination sent many a couple here in east Mississippi scurrying off to Alabama to tie the knot on impulse. Now they have no reason to run off somewhere else.  

What impact will this have on the divorce rate? Too soon to say for sure. My own purely opinionated, unscientific guess is that most marriages that are entered into without much thought and reflection beforehand are marriages that don’t last too long. That being said, I don’t think the three-day waiting period accomplished much in the way of time for thought and reflection anyway. Besides, for couples who are “hotter than a pepper sprout,” like the song says, could hop over the line to Alabama and “get married in a fever” no matter what Mississippi law required. All in all, I think these changes eliminate some requirements that were outmoded in the 21st century and we can do without.

PROFESSIONALISM AND THE GAL

April 23, 2012 § Leave a comment

Mississippi Supreme Court Justice Randy Pierce and I were invited to address the Ole Miss GAL Certification CLE program not too long ago about “Professionalism and the Guardian ad Litem; A View from the Bench and Beyond.”

Here are the professionalism principles for GAL’s that we came up with. I hope they provide some food for thought for you GAL’s laboring in the vineyard, and some general standards for judges who deal with GAL’s.

1. Competence. A GAL is required to maintain the required certification. Beyond that, the GAL must maintain CLE and demonstrate knowledge, skill, thoroughness and preparation.

2. Promptness. Complies with the court’s deadlines and does everything possible to move the case forward. A GAL does not delay the cause without justification.

3. Diligence. Interviews all witnesses and reviews all relevant evidence to ensure that the appropriate action is taken for the best interest of the children. Investigates to discover any pertinent information not disclosed by the participants. A GAL does not neglect to perform the task assigned. Timely submits a written report addressing all relevant considerations.

4. Fairness. The GAL’s duty is to protect the best interest of the children, not to advocate for any of the litigant parties. The GAL must have no conflict of interest. The GAL maintains neutrality and the appearance of impartiality consistent with this duty.

5. Zeal in protecting the best interest of children. Pursues the best interest of the children actively through reasonably available means permitted by law and the rules of professional conduct.

6. Knowledge of the applicable law. Is current in the law applicable to the case, and develops legal authority to support the GAL report.

7. Candor with the court. Communicates with the court through properly noticed pleadings as to all matters affecting the best interest of the children, the cooperation of the parties, any impropriety, and need for a change in the role assigned.

8. Fidelity to the role assigned. Acts within the scope of the role assigned by the court.

9. Independence. Maintains and exercises independent judgment about the best interests of the children.

10. Willingness to accept appointments. Rule 6.2 of the Rules of Professional Conduct requires that lawyers not seek to avoid appointments except under certain specified conditions. The fact that the appointment would be controversial or unpopular is not in and of itself a disqualifying factor.

DICTA

April 20, 2012 § 7 Comments

  • Some helpful ideas to consider when designing or revamping your law firm web site.
  • Speaking of which, here’s a link to a web site that focuses on strategies for using the internet to promote your law firm and improve your practice.
  • Using LinkedIn to help market your law practice — seven tips.
  • Like or Unlike. Facebook will have a billion users by the summer. Robert Lane Greene expounds on how FB is changing us and how the internet operates. All I can tell you about this is that 99% of communications I receive on FB are game requests (I don’t play so I don’t respond) and 80% of posts are tiresome rants about President Obama.
  • I don’t get why Florida Circuit Judge Jessica Recksiedler has recused herself from the Zimmerman case involving the death of teenager Trayvon Martin. Of course, all I have to go on is news reports, which can be relied upon to omit important details, but I understand that she recused herself because Zimmerman contacted another member of her husband’s law firm to inquire about representation, and the member turned the case down. That does not sound like a basis for recusal to me, but maybe it was all about an appearance of impropriety in a nationally sensitive case. Until I see the court order, I’ll stay puzzled.
  • The ratio of lawyers to the general population in the US is now 1 to 257, according to this article in the ABA Journal online. The piece questions whether the legal profession is due for a shakeout.
  • Clichés in your legal draftsmanship should be as unwelcome as a skunk at a lawn party and as rare as hen’s teeth, but, unfortunately, they’re a dime a dozen. The cliché site can at least tell you what that hackneyed phrase really means, so maybe you can find a more original way to say it.
  • “We’re from the government and we’re here to help.” <Sigh> TSA extends its protective activities to a city bus stop.

    Potential terrorists awaiting strip search by TSA

UPDATE ON LEGISLATION

April 19, 2012 § 2 Comments

I posted here and here about pending legislation that might affect your chancery court practice.

Here is a list of pending bills affecting the judiciary that are still alive (or as the legislators say, “not dead”).

As you can see, most of what has survived has to do with criminal laws and procedure, or domestic violence, with a couple of exceptions.

HB 484. Judicial and DA pay raise, 2012 version passed both houses and was signed into law.

HB 1268. Makes several significant changes to the adoption statutes, including a provision that an attorney representing an adoption agency must complete training, is in conference.

Believe it or not, that is all from the previous lists I posted that has made it this close to the finish line.

WHO ARE THE PARTIES IN A GRANDPARENT VISITATION CASE? PART TWO

April 18, 2012 § 1 Comment

In an earlier post we talked about how critical it is under the grandparent visitation statutes to join the natural parents.

The COA in Bolivar v. Waltman, decided April 3, 2012, raised the issue on its own and tossed out the appeal, vacating the trial court judgment in the process.

The natural parents of two minor children were divorced in 2006. The mother got custody and the father had visitation. In 2008, the Waltmans, who were maternal grandparents, got guardianship of the children due to both parents’ substance abuse. Initially the Waltmans afforded Bolivar, the paternal grandmother, the same every-other-weekend visitation that her son had enjoyed. Over time, however, the Waltmans began to curtail the time they allowed Bolivar, and she filed suit against the Waltmans in Jones County Chancery Court asking to be restored the full extent of her son’s visitation. The natural parents were not made parties.

Following a hearing the trial court granted Bolivar the same visitation that her son had under the original divorce judgment, and the Waltmans appealed.

In his opinion for the court, Judge Maxwell said:

¶6. Although neither party raises the issue of jurisdiction, we must do so on our own initiative. E.g., Michael v. Michael, 650 So. 2d 469, 471 (Miss. 1995) (citing Common Cause of Miss. v. Smith, 548 So. 2d 412, 414 (Miss. 1989); Cotton v. Veterans Cab Co., 344 So. 2d 730, 731 (Miss. 1977); Byrd v. Sinclair Oil & Refining Co., 240 So. 2d 623 (Miss. 1970)). Whether the chancery court had jurisdiction over a particular matter is a question of law, which the appellate court reviews de novo. In re Guardianship of Z.J., 804 So. 2d 1009, 1011 (¶9) (Miss. 2002) (citing Burch v. Land Partners, L.P., 784 So. 2d 925, 927 (¶7) (Miss. 2001)).

¶7. Mississippi Code Annotated section 93-16-5 establishes the necessary parties to a proceeding for grandparent visitation:

All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children; and the court may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.

(Emphasis added). Section 93-15-107(1) lists as necessary parties in an action to terminate parental rights: “the mother of the child, the legal father of the child, and the putative father of the child, when known[.]” Miss. Code Ann. § 93-15-107(1) (Rev. 2004). Likewise, we find these same parties are also indispensable in a custody determination. See Miss. Code Ann. § 93-27-205 (Rev. 2004) (requiring service of process on “any parent whose parental rights have not been previously terminated” in interstate custody disputes); see also generally Deborah H. Bell, Bell on Mississippi Family Law § 19.01[3] (2005); cf. Smith v. Watson, 425 So. 2d 1030 (Miss. 1983) (finding a third-party with custody of a child is a proper party to a custody dispute between parents but not a necessary party).

¶8. We find section 93-16-5’s mandate clear and unambiguous that the natural parents whose parental rights have not been terminated must be parties to a grandparent-visitation proceeding. And we conclude that the requirement for the joinder of necessary parties in section 93-16-5 is jurisdictional. See Garrett v. Bohannon, 621 So. 2d 935, 937-38 (Miss. 1993) (holding similar mandatory “shall” language in Mississippi Code Annotated section 91-7-25 (Rev. 2004), which establishes necessary parties to will contest, is a jurisdictional requirement); In re Estate of McClerkin, 651 So. 2d 1052, 1058 (Miss. 1995) (holding trial court lacked jurisdiction over will contest because “necessary and proper parties were not before the court.”) (citations omitted). As the supreme court similarly found in Garrett, we find that to give validity and credence to the trial court’s judgment without joinder of necessary parties would undermine the legislative mandate in section 93-16-5. Garrett, 621 So. 2d at 937.

The court vacated the judgment and remanded the case to the chancery court for further proceedings.

Earlier this year, an astute lawyer raised the non-joinder of a natural parent as a defense in a grandparent visitation case and stopped a trial in my court dead in its tracks. To be honest, had he not raised the issue, I would have gone ahead with the trial simply because I had no reason to read the statute. If I had granted visitation, as the learned chancellor did in Bolivar, I guess it would have been reversible on the same ground.

As a practitioner, don’t rely on your rusty memory of the ins and outs of the code sections you are relying upon when you bring an action. Read the code. And, for Pete’s sake, don’t just blindly do a cut and paste job on the last similar set of pleadings you filed back in 2008. Code sections get amended. Case law changes things. Read the code. Stay current. Produce a quality product for your client that can’t be overturned.

DEAN GERSHON RESPONDS

April 17, 2012 § 5 Comments

I posted here about the disappearance of Evidence from the subjects required to graduate from law school, and sent an email to law school deans at Ole Miss and MC, inviting any reply. 

Dean Richard Gershon of the Ole Miss School of Law sent this …

 Judge,

Thank you for your email, and your blog post. I will share it with our faculty.

One thing you should know is that 90% of the law students at the University of Mississippi School of Law take Evidence, even though it is not required. Also, we are adding a required skills curriculum starting with our 2012 entering class. This program will be taught by lawyers and judges. It will take place the first two weeks of spring semester all three years. The first year they will take contract drafting and negotiation. The second and third year, they will choose from a selection of courses, many of which will have elements of trail tactics and evidence.

The truth is, I didn’t learn evidence in evidence class in law school. I learned it in trial advocacy class. That is where it made sense, because I was applying it.

All best wishes,

Richard

I. Richard Gershon,  Dean and Professor of Law,  University of Mississippi School of Law

If I receive a response from Dean Rosenblatt of MCLaw, I will publish it.

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