May 30, 2012 § Leave a comment
So you finally have that elusive chancellor hemmed up in the farthest backwater county of the district. Opposing counsel is finally here at the same time, and you have the file with you to present the motion you’ve been desparately trying to get the court to hear. Even your two witnesses and the other side’s three are present. Everything is in place …
… except the court reporter.
The judge smiles benignly and croons in a fatherly fashion “Well, sir, had I known there were to be any contested matters on the docket today, I would have insisted that my court reporter be here. Instead, I let her go to a doctor’s appointment. Now, if you’d like to proceed without a record I will accommodate you.”
What to do, what to do? Do you press forward without a record, or do you wait for a reporter? What do you do when you absolutely, positively have to get the matter heard right now, but you might have to appeal?
MRAP 10(c) has you covered. It says:
If no stenographic report or transcript of all or part of the evidence or proceedings is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement should convey a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant or his counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. If the appellee objects to the tatement as filed, the appellee shall file objections with the clerk of the trial court within 14 days after service of the notice of the filing of the statement. Any differences regarding the statement shall be settled as set forth in subdivision (e) of this Rule.
Subsection (e) leaves it up to the trial judge to settle the matter.
That’s what happened in the COA case of Berryman v. Lannom, decided May 22, 2012. The parties each submitted their own best recollection of what had transpired in court the day of a hearing for distribution of interpled wrongful death proceeds that was tried without a record. The COA decision does not reflect why the parties presented the matter without making a record. The two versions conflicted, and the attorneys could not agree on how to harmonize them, so they submitted them to the chancellor, who ruled that the Lannom’s rendition was an accurate statement of what transpired. The case was decided on different issues, but the MRAP point is in the recitation of the facts.
MRAP 10(c) and (e) are a satisfactory escape hatch if and when you find yourself caught in a bind by uncontrollable circumstances. But I would not recommend that you leave it up to opposing counsel and the possibly foggy and mistakeable memory of a judge (some of us are borderline senile, after all) to decide what facts and findings will form the basis for your appeal. Better by far to have a verbatim transcript. And there are ways to correct and amend a verbatim record, too, but that’s fodder for another cannon.
May 29, 2012 § 3 Comments
Emails, cell phone text messages, FaceBook LinkedIn and MySpace posts and the like, electronic bulletin board comments, metadata, internal organization communications, computerized business and public records and documents, websites, chat room content, computer animations and simulations, digital photographs, market reports and commercial publications …
… all are finding their way into our court proceedings on a more frequent basis. That’s because people are increasingly using these forms of electronically stored data to communicate, do business, save information, and promote their businesses and personal interests.
Chancellor Ed Patten made an informative presentation to the chancellors at the Spring judges’ meeting that introduced us to the evidentiary concerns that are raised by all of these electronically stored data.
Just about everything you need to know about introducing these items into evidence is analyzed in the case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (USDC Md. 2007), a 58-page opinion that exhaustively considers all aspects of admissibility, including authentication, hearsay, best evidence rule and more. It’s a federal case, but the rules that underpin it are, for the most part identical to, or nearly identical to, the MRCP and MRE.
The decision also elucidates various rules that allow authentication by admission, which should give you some ideas about using requests for admission and depositions to do that job for you in discovery while you’re fishing for other info.
If you have a case involving introduction of these kinds of evidentiary matter, I encourage you to read the Lorraine decision and find the analogous Mississippi rules. If you use the latest MISSISSIPPI RULES ANNOTATED or do a little digging, you can come up with a few cases to toss onto the bench once the other side objects. The judge will be impressed and gratified (and maybe surprised) that a lawyer has done that homework before trial, so much so that you will likely get those documents into evidence.
May 28, 2012 § Leave a comment
MEMORIAL DAY. State holiday. Courthouse closed.
May 24, 2012 § Leave a comment
Several chancery matters require proof by clear and convincing evidence.
- Every ground for divorce but habitual cruel and inhuman treatment requires clear and convincing evidence. See, Bell on Mississippi Family Law, 2nd Ed., §4.02[b].
- Proof of the elements of adverse posession requires clear and convincing evidence.
- Proof of undue influence in inter vivos gifts between spouses requires clear and convincing evidence.
- Undue influence and confidential relationship in a will contest requires clear and convincing evidence.
- Lack of mental capacity to make a deed or will must be proven by the challenger’s clear and convincing evidence, although the proponenet of a will needs to prove capacity only by a preponderance.
There are others, I am sure, but you get the point. Muster the necessary quality of proof or fail.
So, what exactly does constititute clear and convincing evidence, anyway? The COA in Hill v. Harper, 18 So.3d 310, 318 (Miss. App. 2005), defined clear and convincing evidence as:
“That weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidnce so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. Moran v. Fairley, 919 So.2d 969, 975 ¶24 (Miss. Ct. App. 2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir. 1995)). ‘Clear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.’ Id. (Citing In re C.B., 574 So.2d 1369, 1375 (Miss. 1990).”
30 Am.Jur.2d, Evidence, §1167, provides this:
“The requirement of “clear and convincing” … evidence does not call for “unanswerable” or “conclusive” evidence. The quality of proof, to be clear and convincing has … been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure — that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term “clear and convincing” evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, so as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the weighing, comparing , testing, and judging its worth when considered in connection with all the facts and circumstances in evidence.
WHEN YOU’RE ANGRY, STEP AWAY FROM YOUR WORD PROCESSOR, COUNT TO 10 SLOWLY, TAKE A DEEP BREATH AND EXHALE SLOWLY
May 23, 2012 § 4 Comments
Sometimes you get so boiling mad when you’re served with outrageous pleadings, or you get an exorbitant discovery dump, or opposing counsel is a jackass, or the judge rules against you and you know — just know it deep down in your aching heart that the ignorant so-and-so did not even look at the cases you gave him and had his mind made up and etc. — or the whole injustice and inequity of it all is so overwhelming, that you sit down at your computer and dash off a rabid response accusing that lawyer and/or the judge of all manner of immoral, unethical, unhealthy, unsavory and illegal misfeasance, malfeasance and faux pas.
Admit it. You’ve done it. Or at the very least dreamed about it. All of us have.
The thing is, most of us then hit the “delete” button, or tear up the paper and wait until reason returns, or smile at the mental imagery and shrug it off.
What happens, though, when you get carried away and don’t find a way to stop yourself from doing something over the top?
The latest example is in Berryman v. Lannom, decided by the COA on May 22, 2012. In that case, the chancellor ruled that the Berrymans had let the statute of limitations expire before filing their wrongful death claim, so she denied their claim to a portion of wrongful death proceeds that had been interpled in chancery court. Then she ruled that their version of the court proceedings offered pursuant to MRAP 10 — because the case was tried without a verbatim record — was not accurate, and accepted the other party’s version of the facts. To cap things off, the Lannoms’ attorneys presented the clerk with the court’s order the very day it was entered and got their interpled funds, all that was there.
Obviously perturbed at the way things had gone, the Berrymans appealed. Although the COA decision does not recite exactly what the appellants charged in their briefs, it does say this:
“¶9. The Berrymans argue the chancellor erred both by denying them any portion of the interpleaded funds and by denying their motion to stay disbursement of the funds to [the Lannoms] pending appeal. They also argue [the Lannom’s] attorneys violated the ten-day automatic stay of judgment by presenting the order of disbursement to the chancery clerk the same day as the hearing.
“¶10. The Berrymans further assert the attorneys’ actions violated ethical rules, meriting sanctions. We find this allegation to be wholly baseless and focus our opinion solely on whether a reversible procedural error was committed. The Berrymans also describe the chancellor’s decision to deny their motion to stay as “a perversion of the administration of justice” and request we appoint a new chancellor on remand because Chancellor Vicki Cobb abdicated her role as “officer of a court of law and equity.” Because this last argument—which has no support in the record—shows disrespect for the chancellor, we sua sponte strike this argument and its contemptuous language from the Berrymans’ brief. M.R.A.P. 28(k). We focus solely on whether the chancellor erroneously applied the law or was manifestly wrong. See McNeil, 753 So. 2d at 1063 (¶21).” [Emphasis added]
Contemptuous language, indeed. Charging a lawyer with ethical violations and a chancellor with abdication of her role as officer of a court of law and equity are serious allegations that you’d better be prepared to back up with evidence, and I mean strong evidence. It’s like pointing a gun at someone who you think is out to do you harm; you’d better be right, and you’d better be sure sure the gun is loaded, and you’d better be prepared to pull the trigger, or you will be the one who gets it. The courts do not consider charges like those to be trivial, and you should never toss them around without a firm basis in fact. If you do, you will be the one who comes off looking unethical and outside the bounds of law and equity. Why would you think that your clients would want their interests to be represented by someone that out of control?
MRAP 28(k) allows the appellate courts to strike any disrespectful language from briefs and even empowers the court to “take such further action as it may deem proper.”
MRCP 12 (f) permits the trial court on motion of any party or on the court’s own initiative, to strike any and all “immaterial, impertinent, or scandalous matter.”
MRCP 11(b) provides that the trial court can sanction an attorney for filing papers that include scandalous or indecent matter, or are filed for the purpose of harassment or delay. The sanctions include reasonable attorney’s fees.
UCCR 1.01 specifically states that “The dignity and respect of the court shall be preserved at all times.”
Rule of Professional Conduct (RPC) 3.5 prohibits a lawyer from engaging in conduct intended to disrupt a tribunal.
RPC 8.2 (a) says that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge … “
The preamble to the RPC includes this language: “A lawyer should use the law’s procedures only for legitimate purposes, and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”
Lawyers make a living on controversy and conflict. But you are there to help your client find a way through it to a better place, not to make it worse. Don’t hit the print button until reason returns. And if you just can’t help yourself, print it and trash it. You owe it to yourself and your client.
May 22, 2012 § Leave a comment
If you practice any significant amount of family law, you should seriously consider joining the MSB’s Family Law Section.
It costs only $15 a year, and you pay it when you pay your annual bar dues. Joining is a simple matter of checking a box on the form and paying the additional few bucks.
This came to mind recently as I re-read the Spring edition of the section’s newsletter, SECTION QUARTERLY REPORT, edited by David Bridges, Esq., of Ridgeland. It’s got a recap of MSSC and COA decisions, as well as a piece on some web sites helpful to practitioners (I plan to pirate some of that for a future post).
In addition to the newsletter, you get access to the section’s listserv, where members can share ideas, ask questions, commiserate, and do victory laps. Members get a discount admission to the Hot Tips CLE seminars, which, I can attest, are well worth your attendance. The section is also mulling over plans for some telephone lunch CLE seminars, which have been a big hit with other sections.
At 339 members, the Family Law Section is the fourth-largest MSB section. If all family lawyers joined, I am sure it would easily be the largest section, and with added resources and membership, could expand its array of services to members.
Some of us have had unpleasant experiences in the past with organizations where the hierarchy is inbred, and much of the time is devoted to self-aggrandizing war stories. That’s not the case with this section, in my experience. There is a genuine interest in advancing domestic relations law in Mississippi, and in improving practice.
Officers are: Dean Holleman, Chair; Sheila Smallwood, Vice Chair; Harold O. Grissom, Jr., Secretary-Treasurer; David Bridges, Past Chair; Debra Branan, Exec Committee; Jak Smith, Exec Committee; and Mack Varner, Exec Committee. All of the officers are accomplished attorneys with years of domestic relations law experience.
$15 is pocket change. You need to do this. It will help you network with other lawyers who may send business your way, and you may tap into some valuable input that will improve your practice.
May 21, 2012 § 3 Comments
Ever since grandparent visitation was enacted by our legislature in 1983, I have heard grumblings from some members of the bar that the statute is unconstitutional. The complaint chiefly is that it intrudes the state into the parent-child relationship and invades the province of parents’ decison-making, which should be beyond the state’s reach when the parents have not violated any laws or hurt their children.
The first test came in the case of Martin v. Coop, 693 So.2d 912 (Miss. 1997), in which the MSSC upheld the constitutionality of the statutes and established factors that trial courts were required to consider in adjudicating whether there should be grandparent visitation in a given case, and its terms.
The matter appeared to be settled until the US Supreme Court’s decision in Troxel v. Granville, 530 US 57 (2000), which held a visitation statute of the State of Washington to be unconstitutional. In Troxel the opponents saw another avenue of attack, and it was only a matter of time before the issue would percolate up from a trial court.
The first case in the aftermath of Troxel was Zeman v. Stanford, 789 So.2d 798 (Miss. 2001), in which the appellants questioned the constitutionality of MCA 93-16-3(1), which affords grandparental visitation when the parents are divorced and one parent has been awarded custody. The court in Zeman held that the constitutionality of that very statute had already been addressed and found constitutional in Martin v. Coop, and that Troxel added nothing new to the conversation.
The most recent iteration on the subject came in the case of Smith v. Wilson, an appeal from Chancellor Jim Davidson’s ruling in Lowndes County Chancery Court. In this case, the grandparents had sought visitation on the basis that their daughter, the child’s mother, had died. The judge granted the visitation in favor of the Wilsons, and the Smiths appealed, questioning the constitutionality of both MCA 93-16-3 and 93-16-5 in light of Troxel.
In its May 3, 2010, opinion authored by Justice King, the court first distinguished the statute deemed unconstitutional in Troxel. That Washington law provided:
Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.
The statute was too broad in scope, since it did not define any specific class of persons who would have standing to petition for visitation, and it did not protect the parent’s right to make decisions about rearing her children. As for other non-parental visitation statutes, the Supreme Court declined to go further, stating:
Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific non-parental visitation statutes violate the Due Process Clause as a per se matter.
Justice King pointed out that the Mississippi statute is not overly broad as was the statute in Troxel, and that both Martin and Zeman correctly dispose of the constitutionality argument through the application of the Martin factors, which protect the parents’ substantive due process rights. The court held that neither of the statutes nor the Martin factors violate the Constitution.
A couple of other points from the decision:
- The Smiths’ argument that the burden of proof should be by clear and convincing evidence, was rejected by the court, which found no authority for the proposition (¶¶ 26-27).
- The court found (¶30) no merit to the argument that chancellors should be required to defer to parents’ wishes. The court stated that “While a chancellor should accord special weight to a parent’s wishes, there is no automatic right to deference.
- Also rejected was the Smith’s argument that a parent must be found unfit before awarding grandparent visitation (¶¶31-32).
- The court held (¶¶33-35) that there is no requirement in the statute providing for visitation by the parents of a dead parent that there have been an unreasonable denial of visitation as a prerequisite.
The decision, joined in by all nine justices, affirmed Judge Davidson’s award of grandparent visitation.
So it would appear that the constitutionality of Mississippi’s grandparent visitation is laid to rest, at least for now. I do not know whether a petition for rehearing has been filed, but that would likely be a futile gesture considering the unanimity of the court. Maybe the appellants are maneuvering for a run at the US Supreme Court. We’ll see.
May 18, 2012 § Leave a comment
- Preservation in Mississippi is a wonderful blog that highlights Mississippi history as reflected in its architecture and artifacts. This post features First Presbyterian Church in Water Valley, a Romanesque Revival structure built in 1896.
- Gail Falk was a COFO worker in Meridian during the Freedom Summer of 1964. Her blog, Freedom Songs, has several posts about her experiences, with photos.
- The anthropological record shows that fully 85% of all societies in history have been polygamous. An interesting paper published by The Royal Society explores the societal benefits of monogamy, and discusses how monogamous societies were able to advance more rapidly than polygamous ones because of their greater stability, ease of commerce and lack of internal conflict. There are implications for our culture’s practice of what amounts to serial polygamy via divorce and remarriage.
- 101 Really Good Ideas for You and Your Law Practice.
- “Judges should avoid even the appearance of impartiality.” Some legal exam malapropisms from Legal Ethics Blog.
- The über-creatif Marshall Ramsey crafts a clever storylet about a high-powered Mississippi lawyer who is in too much of a hurry and finds himself in hot water in the crossroads of Possum Lick. Or is he?