May 17, 2012 § 1 Comment
This is the third in a series counting 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.
TOP TEN TIP #8 …
Know the law and have it handy.
Know the law that applies in your case. It’s never a bad idea to check on what the appellate courts have said most recently about whatever it is you are getting ready for trial. Even if you are an experienced, battle-scarred litigator, you can get blindsided by a rank, newly-minted lawyer if you don’t keep up. Complacency is stupidity in the guise of arrogance; it is intentional ignorance that often proves embarrasing, or worse.
Read the COA decisions every Tuesday afternoon and Supreme Court decisions every Thursday afternoon. When you run across something pertinent to a pending case, print out the decision, highlight the language you need, and stick the decision in your file. That way you’ll have it handy when you need it at trial. If you are too lazy to make time to read the decisions, subscribe to either the Ole Miss or MC law school briefing service and receive summaries via email after each handdown.
Even if you are convinced that you know what the law is, re-read your cases before going to trial. Sometimes you will spot a fatal distinction or even a point in your favor you had overlooked or forgotten.
Often when you are researching one point in a givn case, you will stumble on something that will help in another case. Stop right then and copy the material you found, or make a note of the case citation, and insert it into the appropriate client file.
If you know that your case will involve an issue that is out of the ordinary, have your authorities copied and ready to give the judge. Don’t just read off a few case cites; have copies of the decisions to hand the judge. Some judges require you to give a copy to opposing counsel. When you have authorities at hand, it not only aids the judge in making the right decision, it also communicates to the judge in not-so-subtle fashion that you know you are on sound ground and have confidence that the law supports your position. Contrast that with the lawyer who, when asked what authority supports his position, replies “Well, I know there’s a case out there on point, judge, and if you give me about 10 days, I might be able to find it.”
Have your trial factors printed out and handy, with case cites. Use them as checklists to question your witnesses.
Don’t ever misquote a case or argue that a case says something that it does not. I have heard lawyers make arguments citing cases that I know for certain do not support their position. Those lawyers may have impressed the client with their apparent erudition, but it likely won’t get past the judge, because most of us tend to read the cases before we cite them.
Read the statutes every now and then, even statutes that you think you’re familiar with. You’ll be amazed at what you find there. If a statute applies in your case, have a copy of it to hand the judge. Most court rooms do not include a code, and if you don’t have your statute(s) handy, you will have to wait until the judge can get back to chambers or, worse, back to her office in a neighboring county, before the judge can decide the point.
Get a copy of Deborah Bell’s book and use it.
May 16, 2012 § 6 Comments
Sanford v. Sanford, decided May 8, 2012, by the COA is the latest in a line of cases that mandate a written agreement settling all issues between the parties before the trial court may grant an irreconcilable differences divorce.
I will spare you a recitation of the convoluted procedural history that led to the appeal. You can read it for yourself. In essence, what happened is a fairly familiar script:
- Parties and attorneys assemble for some proceeding, perhaps a temporary hearing;
- In the course of negotiations, the attorneys sense that the whole case can be settled. It may be that one or both parties have been intransigent up to this point and the lawyers sense that if they push ahead, maybe they can get the case resolved;
- The lawyers shuttle back and forth cajoling and wheedling, cobbling together a rough product, doing their best to smooth the edges, with uneven success;
- Finally, in hopes that the “settlement” can be held together against the stresses, they recite it into the record, get the parties to mumble their assent numbly, have the court approve it, and get the court reporter to transcribe it as the “written agreement.”
In Sanford, however, Samantha reconsidered and filed a withdrawal of her “consent.” The chancellor denied it, she appealed, and the COA reversed, reiterating its rule that the consent must be in writing, and that it is not sufficient to have the court reporter take the dictated agreement and treat it as an enforceable consent to divorce and/or PSA. In making its decision, the court distinguished a couple of cases that have upheld announced agreements.
Judge Fair dissented, joined by Judges Carlton and Barnes. They would have held that the procedure satisfied the written agreement requirement of the statute. I think most practitioners who have been in that hot-box situation would join in the dissent. But the majority of the court is more comfortable with the formality of a separate, written, signed agreement.
Many lawyers come to court toting along a laptop or at least a zip-drive (i.e., thumb-drive, or USB-drive) or other storage device with form files so that they can hammer out a PSA or agreed judgment or consent while the judge waits. Those of you who are handicapped by being chained to 19th-century technology (pen and paper or quill and parchment) will either have to drag along a secretary with the necessary skills, or upgrade your skills into the 21st century, or tell your client a settlement will just have to wait until some less opportune time.
In any event, the message Sanford sends is pretty clear: get a written agreement signed by the parties if you expect it to pass appellate muster. Shortcuts will not be tolerated.
I used to tell my clients,” We can do it quick or we can do it right.” Translation: “We can cut corners, or we can take a tad longer and make sure we do it in such a way that it can’t be undone.”
May 15, 2012 § 3 Comments
Attorney Thomas Henry Freeland, III, of Oxford, died last Saturday. His daughter Lee’s brief, but touching, obit is posted on son Tom’s blog. You can read it here.
Mr. Freeland’s friends knew him as Hal. I did not know him, but from what I read about him he was one of those lawyers who set high standards for himself and demanded the same from those who worked with him. The respect he earned is clear in the comments on Tom’s blog.
One of those comments, by attorney Danny Lampley of Tupelo, brought me up short, and I hope he and Tom will forgive me for copying a part of it so you can read it here:
Small things I would overlook as an ignorant clerk were revealed to be important. I recall Hal crossing out incorrect phrasing in an acknowledgment and telling me the correct words to use; and he took the time to tell me why those words were better and explained how doing it one way would have an effect different from doing it the other way. I learned that just because everybody says “the law” is thus and such and “the cases say so” does not mean that is really “the law” nor is it necessarily what the cases said. I learned you gotta read ‘em and you have to understand what it is exactly that they say. I learned to always independently research an issue and to never assume that a rule is today what you thought it was yesterday. I learned how to be a lawyer; I only wish I could more often put it into actual practice.
Mr. Lampley learned how to be a lawyer from one who took professionalism seriously and who understood the care, devotion and attention that the law demands. Beyond learning the craft of lawyering, though, he learned the meaning of professionalism. And — this is important — there is a distiction between ethics and professionalism. Ethics requires that you practice in a way that conforms to both the letter and the spirit of rules of conduct. Professionalism is the style in which you approach and carry out those ethical requirements. Professionalism demands more than mere observance of the standards, Or, as Justice Mike Randoph told a gathering of chancery judges a few months ago: “The rules are the basic minimum. We expect much more than that.”
If you are a young lawyer, I encourage you to seek out a battle-scarred old warhorse who would be willing to be your mentor. If you are as fortunate as attorney Lampley, you will learn that mastery of the legal profession lies not in discovering the shortcuts, but rather in learning to love the hard work, devotion, attention to detail, study, creativity and long hours that it takes to achieve excellence.
Mr. Freeland left his family his own personal legacy, including two children who are, themselves, members of our profession. But far more than that, as those blog comments reveal, he left the legal profession richer by inculcating professionalism in those whom he mentored. I hope that someone will be able to write that about all of us when our days reach their end.
May 14, 2012 § Leave a comment
Friday, May 11, was the qualifying deadline for 2012 judicial elections. Although this is not a general judicial election year, some appellate posts are up in their rotation, and there are three special elections. Here are the qualifiers:
- Chief Justice William Waller, Jr., will face Earle S. Banks for Supreme Court Justice District One, Position One.
- Justice Leslie D. King is unopposed for Supreme Court Justice District One, Position Two.
- Justice Mike Randolph will face Talmadge Braddock for Supreme Court Justice District Two, Position Three.
- Josiah Dennis Coleman and Richard (Flip) Phillips are running for Supreme Court Justice District Three, Position Three, which is the position being vacated by retiring Justice George C. Carlson, Jr.
- Judge Ermea Russell is opposed by Ceola James and Latrice Westbrooks in the special election for Court of Appeals District Two, Position Two.
- Judge Gene Fair is unopposed in the special election for Court of Appeals District Five, Position One.
- Chancellor M. Ronald Doleac is unopposed in the special election for Chancery Court Judge District Ten, Place Four.
May 11, 2012 § Leave a comment
“Don’t try to figure out what other people want to hear from you; figure out what you have to say. It’s the one and only thing you have to offer.” — Barbara Kingsolver
“If it is not right, do not do it; if it is not true, do not say it.” — Marcus Aurelius
“I would love to satisfy all, if I possibly can, but in trying to satisfy all, I may satisfy none. I have, therefore, arrived at the conclusion that the best course is to satisfy one’s own conscience and leave the world to form its own judgment, favorable or otherwise.” — Mohandas K. Ghandi
May 10, 2012 § 7 Comments
The following is from the “Attorney Check List” section of the Civil Filing Form Instructions in the Uniform Data Collection Procedures (UDCP) mandated by the MSSC:
“In accordance with the Federal Social Security Act, Titla IV-D, §§ 454(2)(A) and 454A(e)(4), and Miss. Code Ann. § 43-19-31(l)(iii) (Supp. 2000), cases wherein child support is sought must provide the name, date of birth and Social Security number for all parties to the case to the State’s repository for this information (in Mississippi, the Department of Human Services). If child support is contemplated at the time of the initial pleading, filing party must complete Child Support Information Sheet. Initial pleadings wherein child support is contemplated must include this sheet prior to the clerk’s admitting the pleadings for suit; if, at any time after filing initial pleadings, child support becomes an issue and this sheet has not been submitted as part of the Court file, attorney for Plaintiff shall provide the completed form for the Court’s file. Any information not provided at the time of filing, but discovered at a later time up to disposition of the case, may be reflected in a more complete form being filed with the clerk’s office for the court file. The Child Support Information Sheet shall be submitted by the clerk to the AOC along with the disposition form … ” [Emphasis in original]
Do you know anybody who complies with this? The first MSSC order adopting UDCP and mandating reporting was in 1993, and the last amendment was ordered in 2001. Never during the time that I practiced law did I offer such a form to a clerk, either before or after initiating a suit, and I do not know of anyone else who did. I asked a clerk whether she had ever had a lawyer submit such a form, or whether she or the other clerks had ever refused to file pleadings for failure to submit the form, and the answer was negative on both counts. She also said that AOC has never raised the issue.
On another similar tack, we in the 12th District have required Wage Withholding Orders to be submitted in every child support case since they came to be in the 1980’s. Judge Warner insisted on it, and we did it, and continue to do it. Judges in other districts have told me that they not only do not require them, but that their predecessors did not.
All of this probably falls under the category of letting sleeping dogs lie, and I will. I just found these curious.
May 9, 2012 § Leave a comment
Here is the final list of 2011-2012 legislative session bills that passed both houses. Some of these are awaiting the governor’s signature.
HB 159. Revises confidentiality in domestic abuse cases. Although this statute is among the criminal procedure laws, it offers some guidance for the chancery/county court practitioner who handles domestic violence cases about who is entitled to confidentiality in such cases, what information should be treated as confidential, and some means to accomplish it. Signed by the Governor. Effective July 1, 2012.
HB 780. Revises jurisdiction in domestic violence cases. This bill makes several significant changes. Venue is in the county where the alleged abuse occurred, and if the case is filed in the wrong county the judge “shall transfer” the action to the appropriate venue. A chancellor presented with a petition for emergency relief may refuse to consider it, but not for the sole reason that it should have been filed in justice or county court instead. The obvious problem with requests for emergency relief in chancery is that they can be used to “poison the well,” so to speak, or to prejudice the chancellor for or against a party in a pending divorce case. This bill makes many other changes to the law that you need to be aware of if you do any domestic violence practice. It has been signed into law by the governor, and takes effect July 1, 2012.
HB 1157. Conforms DHS child support enforcement to federal requirements. A few minor tweaks to the law, passed in conference, not yet signed by the governor.
HB 1268. Revises various statutes pertaining to adoption. If you do any adoptions at all, you must get familiar with this bill. It amends MCA 93-17-3 to add the requirement that a home study be done in all adoptions, and to provide that no out-of-state residents may adopt unless they have first complied with the Interstate Compact for Placement of Children, and adds some post-placement reporting requirements. It requires that the Indian Child Welfare Act be complied with as a prerequisite to adoption in appropriate cases. It amends MCA 93-17-6 to require DNA testing when the father appears or contests, and, most importantly, clarifies the publication requirements for an unknown father. It adds an interesting qualifier to the provision that the parental rights of a father who has not “met his full responsibilities of parenthood” be terminated by tacking on the phrase “and is unwilling to do so,” changing, in my opinion, the emphasis from past non-performance to past non-performance coupled with future unwillingness. The bill passed conference and is awaiting the governor’s signature.
HB 1588. Appropriations for the judicial branch.
HB 2256. Prohibits sex offender access to MYCIDS, beaches and campgrounds. This bill adds more proscriptions against sex offender activity where they may come into contact with children, prohibiting them from beaches and camp grounds where children gather. They are also prohibited from accessing the youth court MYCIDS data base. The bill also permits youth court referral to drug courts. Signed by the governor. Effective in part on passage, and in part on July 1, 2012.
HB 2367. Clarifies the definition of abuse and neglect of vulnerable adults. Amends MCA 43-47-5 and other statutes to clarify the definition of abuse and neglect as it relates to vulnerable adults. Signed by the governor. Effective July 1, 2012.
Click on this link to view a list, with links, of all the legislation affecting courts that passed during this session.
May 8, 2012 § Leave a comment
After the petitioner has established entitlement to grandparent visitation under the statute, the chancellor must apply the factors set out in Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997). The Martin v. Coop factors are here, in checklist form.
In the recent COA case of Bolivar v. Waltman, decided April 3, 2012, Judge Maxwell outlined the decision-making process:
Once the statutory criteria are established, the chancellor must apply the following Martin factors to determine appropriate visitation:
1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.
Townes v. Manyfield, 883 So. 2d 93, 95-96 (¶17) (Miss. 2004) (quoting Martin, 693 So. 2d at 916). The Mississippi Supreme Court has explained that “making findings of fact under the Martin factors is an integral part of a determination of what is in the best interest of a child.” Id. at 97 (¶29) (quoting T.T.W. v. C.C., 839 So. 2d 501, 505 (¶12) (Miss. 2003)). Because of the “integral” nature of these findings, our supreme court specifically instructs that “the Martin factors are to be applied and discussed in every case in which grandparent visitation is an issue.” Id. (emphasis added).
¶11. There is additional general guidance regarding the amount of visitation that should be awarded. “The visitation granted to a grandparent should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelming[ly] dictate that that amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it.” Id. at 96 (¶21). And in cases where “a chancellor finds . . . a grandparent should be awarded equivalent visitation to that of a parent, those findings must be fully discussed on the record.” Id. at 97 (¶29).
¶12. Further, we note that the grandparent-visitation statute and the Martin factors apply whether the grandparent is seeking visitation from a natural or adoptive parent. T.T.W., 839 So. 2d at 503-06 (¶¶1-2, 7, 10, 17) (finding grandparent-visitation statute and Martin factors applicable where maternal grandparents adopted children, and paternal grandmother sought visitation); see also Woodell v. Parker, 860 So. 2d 781, 785-86 (¶15), 789-90 (¶29) (Miss. 2003). Thus, we find it logical that both the grandparent-visitation statute and the Martin factors should similarly apply to the present situation where a grandparent is seeking visitation rights from the children’s legal guardians. See Townes, 883 So. 2d at 97 (¶29) (instructing that Martin factors must always be applied where grandparent visitation is at issue).
¶13. Because chancellors are required to make specific findings on the Martin factors in every case involving grandparent visitation, the supreme court has vacated grandparent visitation awards unsupported by such findings. Townes, 883 So. 2d at 97-98 (¶30); T.T.W., 839 So. 2d at 506 (¶17); Morgan v. West, 812 So. 2d 987, 992 (¶14), 997 (¶38) (Miss. 2002).
On remand, the chancellor should fully discuss his findings concerning the grandparent visitation statute and Martin factors. Failure to do so may amount to reversible error. See Townes, 883 So. 2d at 97-98 (¶¶28-30).
If your opinion or judgment does not include findings on the Martin factors, file a timely MRCP 59 motion asking the court to make such findings. That assumes, of course, that you put on enough evidence for the court to make such findings. As Judge Maxwell so clearly states, every grandparent vissitation case pivots on the Martin factors. They are vital to your case. Question the witnesses using them. Make your record, and make sure the chancellor addresses them in the ruling.
Only last week the MSSC unanimously upheld the constitutionality of Mississippi’s grandparent visitation statute and application of the Martin factors. We’ll talk about that later.
May 7, 2012 § 2 Comments
Every now and then you run into a statute that requires you to join a relative “within the third degree.” MCA § 93-19-3, for removal of disabilities of minority, requires that, if the parents are not living, you must join as defendants ” … two of his adult kin within the third degree, computed according to the civil law …” A similar provision is in MCA § 93-13-281, dealing with suits involving wards.
So who exactly are the kin within the third degree? Parent, child, brother, sister, grandparent, grandchild, aunt, uncle, niece, nephew, great-grandparent and great-grandchild.
That’s what the Nolan Chart of Relationships and Degrees of Kindred According to the Civil Law tells us. You can find it reproduced in the Alabama case of Owen v. State, 255 Ala. 354, 355, 51 So.2d 541, 542 (1951). It has been cited in Mississippi appellate cases, such as Matter of Estate of Ford, 552 So.2d 1065, 1066-67 (Miss.1989).
You’ll find the Nolan Chart useful in many ways. When you are trying to determine heirs in an estate, it helps you to translate “She was my grandmother’s sister’s daughter’s third child” into a relationship that even a judge could understand.
An added bonus of the chart is that it will help you understand, once and for all, that your first cousin’s children are not your second cousins. Check out the chart for yourself and you’ll see.