NAVIGATING IN THE BACKWASH OF THE BEST EVIDENCE RULE

October 17, 2012 § 1 Comment

We visited MRE 1002, the so-called “Best Evidence Rule,” in this post. It can be confusing and a pitfall for attorneys and judges alike. To put it concisely, the rule requires that you produce the original of a writing if you are trying to prove its contents.

So you’re cruising through cross-examination of the opposing party and the other side makes an objection based on the Best Evidence Rule, which the judge sustains. The problem for you is that you don’t have the original; all you have is the copy you had started questioning the witness about. What do you do now?

That’s where MRE 1003 and 1004 come in. They point possible ways past your dilemma.

MRE 1003 says that you can use a duplicate unless there is a “genuine question” as to its authenticity, or where it would be unfair to admit the duplicate in place of the original. In the case of Ellzey v. James, 970 So.2d 193, 195 (Miss.App. 2007), the court upheld a chancellor’s finding that the duplicate was not admissible where it was only a partial copy, and there was an issue of possible alteration. Some cases in which the trial court’s findings of authenticity supported use of a duplicate include: Trull v. State, 811 So.2d 243, 246 (Miss.App. 2000); Foster v. Noel, 715 So.2d 174, 182 (Miss. 1998); and Seals v. State, 869 So.2d 429, 433 (Miss.App. 2004). In DeLaBeckwith v. State, 707 So.2d 547, 602-3 (Miss. 1998), the court held that copies of 1964 trial transcripts were properly authenticated as judicial records, and affidavits of attorneys who were present at the 1964 proceedings to the effect that the transcripts were inaccurate were not adequate to impeach the authenticity of the judicial records.

MRE 1004 offers several other ways out of the trap. The original is not required, and the court may admit other evidence of its contents if …

  1. The original is lost or destroyed, and not due to a bad-faith act of the proponent; or
  2. The original is not obtainable by any available judicial process; or
  3. The original is in possession of the opponent who has not produced it after being put on notice that it will be at issue at trial; or
  4. It is not closely related to a controlling issue.

It’s up to you, once the judge has ruled, to satisfy him or her that one of the exceptions applies. That usually will require some evidence unless counsel opposite concedes the point.

Some other exceptions to the Best Evidence Rule recognized in Mississippi case law:

  • When a sound recording is enhanced to eliminate background noise, and the conversations on it are not changed in any way, the recording is admissible as an original. Cook v. State, 728 So.2d 117, 121 (Miss.App. 1998). 
  • Writings used to refresh a witness’s recollection need not be admissible in evidence, so the Best Evidence Rule does not apply. Hunt v. State, 687 So.2d 1154, 1162 (Miss. 1997).
  • Because the contents of a letter were not related to the issues before the court, the Best Evidence Rule did not apply. Farris v. State, 906 So.2d 113, 117-8 (Miss.App. 2004).
  • Where the document is offered merely to prove that it exists, and not to prove its contents, the Best Evidence Rule does not come into play. Kinard v. Morgan, 679 So.2d 623, 625 (Miss. 1996).
  • A true copy of a handwritten note was admitted over the original handwritten note in a case where an insurance agent was shown to have altered the original handwritten note, and the copy showed it before alteration. Dixie Insurance Co. v. Mooneyhan, 684 So.2d 574, 581-2 (Miss. 1996).  

WHO HAS PRIORITY TO SERVE AS CONSERVATOR?

October 16, 2012 § 2 Comments

Conservatorships are becoming more commonplace as we baby-boomers and those at the end of the previous generation age.

With the increase in numbers of conservatorships we are seeing more disputes over who gets to serve as fiduciary for the ward. Should it be the neighbor who has always been there while the uncaring children were doing their thing in Phoenix and Chicago? Should it be the only living brother who has a questionable past? Should it be the sister who lives on the other side of town and has visited the ward every day, or should it be the sister who lives in the county and sees the ward every day, or both? Or should it be someone named by the ward before she slid off into incapacity?

Family members often have competing interests. There may be an honest difference of opinion as to what is best. Or there may be bad blood. Or there may be ulterior motives. Any combination of these and other undertones can lead to a court confrontation.

The latest case comes out of Madison County.

Caryn Quilter filed a petition to be named conservator for her aunt, Medora Weaver. Caryn had begun visiting Medora at her home in Houston, TX, after Medora’s husband died. Caryn heard from neighbors that aunt Medora wasn’t doing well, so she moved her to an assisted-living home in Riddgeland, MS, near where Caryn lived.

Caryn filed a petition with the chancery court, supported by the proper physicians’ affidavits. But Caryn’s father, John Salter, filed a counterclaim, asking that he be appointed conservator, since he was the older brother of Medora. In his pleading he admitted that a conservatorship was necessary, he just did not agree that Caryn should serve in that capacity. He also said that Medora requested that he, not Caryn, serve as her conservator.

Chancellor Cynthia Brewer heard testimony from the contending petitioner and counterclaimant, as well as from Medora herself, and she considered the physicians’ affidavits. Based on the proof, she ruled that a conservatorship would be in Medora’s best interest, and that the conservator should be “an objective, non-related person,” and she appointed Arthur Johnston, Chancery Clerk of Madison County, to serve.

John appealed, claiming (1) that the chancellor was in error in determining that Medora needed a conservator, (2) that he was more suited to serve since he had experience in a similar role, (3) that Medora had designated him to serve, and (4) that he was more closely related.

In Salter v. Johnston and Quilter, rendered October 9, 2012, the COA affirmed Judge Brewer.

As for Salter’s argument that it was error to find that a conservatorship was in Medora’s best interest, the COA found that substantial evidence supported the chancellor’s decision. And, besides, the court pointed out that Salter had pled himeslf for appointment of a conservator, and Salter’s own attorney at hearing announced that his client did not dispute that a conservatorshipw as necessary in the case. The COA rejected this argument.

The court disposed of the remaining arguments as follows:

¶13. Salter alternatively contends that, if a conservatorship is needed, he is the proper party to act as conservator. He bases this contention on the fact that Weaver has requested that he act as conservator and on the fact that he has previous experience as a conservator. Salter also contends that he should be given preference as conservator because he is Weaver’s brother.

¶14. We note at the outset that our laws concerning conservatorships give no preference to an individual’s next-of-kin to act as conservator. See Miss. Code Ann. §§ 93-13-251 to -267 (Rev. 2004 & Supp. 2011). Furthermore, the chancery court determined that it would be in Weaver’s best interest if a non-relative served as conservator after hearing testimony regarding the contentious relationship between Salter and Quilter. Given these facts, the chancery court did not err in appointing Johnston to serve as conservator. This issue is without merit.

This case highlights that it is well within the chancellor’s discretion to decide whether a conservatorship is necessary, and who should be appointed to serve as fiduciary. Interestingly, the statute also provides that the chancellor shall be the one to determine the number of witnesses and quality of testimony necessary to decide the issues in the case. Here, the chancellor quite prudently allowed a full hearing at which the parties were at liberty to develop the proof that they felt was necessary to support their claims.

PINNING DOWN THE MEANDERING LINE OF DEMARCATION

October 15, 2012 § 2 Comments

You might recall that I whined back in July about the Cuccia case from the MSSC that sent a case back to the chancellor to establish the line of demarcation for accumulation of marital equity. There was a temporary order in Cuccia, which under the case of Pittman v. Pittman, 791 So.2d 857, 864 (Miss.App. 2001), would have seemed to settle the question. Not so, said the high court, and sent it back.

So, with Cuccia and Pittman in mind, let’s look at this scenario: You represent the husband who at the time of the separation in 2004 has around $120,000 in a 401(k) account, and $270,000 in a pension fund, some of the latter of which is pre-marital. The parties file divorce pleadings in 2005, and continue legal sparring, but neither brings any request for temporary relief before the court.

In March, 2011, the chancellor adjudicated the case, dividing the 401(k) account as of the date of the divorce, and dividing other marital assets, including the pension, as of the date of the separation.

Your client is unhappy with the facts that (a) all of the other assets except the 401(k) were divided using the date of separation, and (b) the chancellor included the entire 401(k) value in the division, since it had appreciated by about $85,000 in the seven years from the separation to the final judgment, without any direct or indirect contribution by his wife. He tells you to appeal.

The above is what happened in Welch v. Welch, decided by the COA October 9, 2012.

As for the inconcistency in division dates among the assets, the COA brushed that argument aside by pointing out that Mr. Welch (Henry) had not contested the division of the pension, and, without saying so, that if he had he would have been even more unhappy because he might have lost even more ground to his wife (Susan). Judge Irving’s opinion explains why:

¶13. Based on the above, it is clear that the chancery court used the date of separation forpurposes of classifying the marital and separate portions of Henry’s pension. However, Henry does not challenge the court’s classification of his pension; instead, he argues that the same approach should be applied to his 401(k). Therefore, according to Henry, the chancery court should have found that any appreciation in the balance of his 401(k) account following the couple’s separation on December 23, 2004, was his separate property.

¶14. However, because there was no temporary-support order or separate-maintenanceorder entered in this case, the end date for the tallying of marital property was the date of the final judgment of divorce. Henry points out the inequity of awarding Susan one half of the entire value of his 401(k) given the Welches’ lengthy separation prior to divorce. However, this Court has previously held that a husband’s investment accounts were marital even though both accounts were opened after the couple separated and the husband was the sole contributor to the accounts. Stone v. Stone, 824 So. 2d 645, 647 (¶6) (Miss. Ct. App. 2002). This Court noted that even though the Stones were “separated and living apart prior to the divorce, [they] did not seek any order of separate maintenance[.]” Id. at 648 (¶7). Consequently, there was “no clear line of demarcation” after which the couple’s assets stopped being marital other than the date of the judgment of divorce. Id.

¶15. In Stone, the parties had been separated for over five years when the chancery court granted their divorce. Id. at 646 (¶¶1-2).  Nonetheless, this Court held that property acquired during the separation was marital. While the Welches were separated for over seven years, we do not find that the length of their separation warrants a departure from our holding in Stone or existing supreme court precedent. As all of Henry’s contributions to the 401(k) account and its appreciation in value occurred during the marriage, the chancery court did not err in classifying the entire balance as marital property. This issue is without merit.

Here are a few points to ponder:

  • I am sure Henry and his lawyers were delighted when Susan did not press for temporary support. After all, paying money to an estranged wife is like buying oats for a dead horse, isn’t it? But look at what the non-entry of a temporary order in this case wound up costing Henry in terms of his 401(k), and could have cost him had the chancellor applied the judgment date to division of the pension and other assets. It could be that Henry saved money over the long (seven year) run, or maybe he didn’t. We’ll never know for sure. But the holding in this case is something you need to discuss with your client before taking the bait and letting the case go ahead sans a temporary order.
  • Read Cuccia, Godwin, Pittman and Welch and get an appreciation for how important it is to set a demarcation date. The trend seems to be away from discretion in the chancellor, and toward bright-line rules, but if there’s any wiggle room, exploit it for the benefit of your client. Try to persuade the judge to set the line where it will do your client the most good.
  • This case did not address the propriety of the chancellor using different demarcation dates for different assets. Is that kosher? We don’t know for certain, because the COA did not take it on directly due to the way Henry framed his issues on appeal. My guess is that, unless the chancellor has a really well-reasoned, substantial reason, it’s not a good idea to use different demarcation dates.

HAVE A CRISPY FRIED DAY

October 12, 2012 § 2 Comments

These puns are better than you deserve, but I’m going to share them anyway. Supply your own rimshots.
__________________________________________________
The fattest knight at King Arthur’s round table was
Sir Cumference.  He acquired his size from too much pi.
__________________________________________________
I thought I saw an eye-doctor on an Alaskan island,
but it turned out to be an optical Aleutian.
__________________________________________________
She was only a whisky-maker, but he loved her still.
__________________________________________________
A rubber-band pistol was confiscated from an algebra class, because it was a weapon of math disruption.
__________________________________________________
No matter how much you push the envelope,
it’ll still be stationery.
__________________________________________________
A dog gave birth to puppies near the road
and was cited for littering.
__________________________________________________
A grenade thrown into a kitchen in France would
result in Linoleum Blownapart.
__________________________________________________
Two silk worms had a race.  They ended up in a tie.
__________________________________________________
A hole has been found in the nudist-camp wall.
The police are looking into it.
__________________________________________________
Time flies like an arrow.   Fruit flies like a banana.
__________________________________________________
Atheism is a non-prophet organization.
__________________________________________________
Two hats were hanging on a hat rack in the hallway.  One hat said to the other: ‘You stay here; I’ll go on a head.’
__________________________________________________
I wondered why the baseball kept getting bigger.  Then it hit me.
__________________________________________________
A sign on the lawn at a drug rehab center said:
‘Keep off the Grass.’
__________________________________________________
The midget fortune-teller who escaped from
prison was a small medium at large.
__________________________________________________
The soldier who survived mustard gas and
pepper spray is now a seasoned veteran.
__________________________________________________
A backward poet writes inverse.
__________________________________________________
In a democracy it’s your vote that counts.
In feudalism it’s your count that votes.
__________________________________________________
When cannibals ate a missionary, they got a taste of religion.
__________________________________________________
If you jumped off the bridge in Paris, you’d be in Seine.
__________________________________________________
A vulture carrying two dead raccoons boards an airplane.  The stewardess looks at him and says,
‘I’m sorry, sir, only one carrion allowed per passenger.’
__________________________________________________
Two fish swim into a concrete wall.
One turns to the other and says, ‘Dam!’
__________________________________________________
Two Eskimos sitting in a kayak were chilly, so they lit a fire in the craft.  Unsurprisingly it sank, proving once again that you can’t have your kayak and heat it too.
__________________________________________________
Two hydrogen atoms meet.  One says, ‘I’ve lost my electron.’  The other says, ‘Are you sure?’
The first replies, ‘Yes, I’m positive.’
__________________________________________________
Did you hear about the Buddhist who refused Novocain
during a root-canal?  His goal: transcend dental medication.
__________________________________________________
There was the person who sent ten puns to friends, with the hope that at least one of the puns would make them laugh.  No pun in ten did.

CAREER ON THE ROCKS

October 11, 2012 § 2 Comments

The saga of Hinds County attorney Michael J. Brown, addressed here in a prior post, reached its latest, most forecastable milestone last week with the order for his disbarment by the MSSC on October 4, 2012, in the case of Mississippi Bar v. Michael J. Brown.

Brown’s multiple transgressions in the handling of the Demon B. McClinton guardianship were brought to light in the Chancery Court of Hinds County where Judge Dewayne Thomas demanded that Brown produce an accounting, which Brown claimed he was unable to do due to destruction of records by water damage. Thomas appointed a guardian ad litem, who executed a search warrant on Brown’s residence and located the records that Brown claimed had been destroyed. At hearing the proof established that:

  • Brown had caused $550,000 of the minor’s funds to be loaned to one Linus Shackelford. Other than the loan in question, Shackelford’s relationship to Brown or McClinton is not revealed in the record.
  • Brown personally had signed a promissory note indicating that he personally had borrowed $507,745.81 from the minor McClinton.
  • Brown had forged two checks from Regions Bank in the sum of $205,020.81 and $32,725, respectively.
  • Brown caused the court on September 7, 2001, to approve a fee of $398,000, which the chancellor determined to be outrageous and unreasonable, and which fee was approved based upon Brown’s commission of a fraud upon the Court. To compound the malfeasance, Brown had plagiarized an opinion letter justifying the fee, which was the fraudulent act.
  • Brown perjured himself by claiming under oath that the records had been destroyed.
  • Brown cashed and deposited into his escrow account, rather than the guardianship account, life insurance proceeds paid on the death of the ward’s mother.

When Brown finally produced an accounting, it showed that he had disbursed $1,295,783.81 of guardianship funds, all from his escrow account and not from any approved guardianship account. None of the disbursements were authorized by the court. $235,000 in checks were made out to cash or to Brown, or were endorsed by Brown. The loan to Shackleford was never approved by the court.

So, based on his outrageous and entirely unjustifiable conduct, the MSSC disbarred him.

The next development is in the hands of the District Attorney for Hinds and Rankin Counties, who has been provided with the chancery court judgment and likely the file. 

You may be sitting there smugly thinking “Well, I will never do anything like that,” so that you can skim past this. But here’s the deal: even if you never engage in this kind of outright contempt, fraud, embezzlement, perjury and breach of fiduciary duty, if you handle the fiduciary matters entrusted to you in a sloppy fashion your good intentions and lack of criminal intent will not be enough to shield you from contempt, possible bar disciplinary action, money damages, and destruction of your reputation and standing with the court. Think about it: if you can’t account properly and in full for money entrusted to you, it doesn’t really matter if you weren’t acting criminally.

WHAT DOES IT TAKE TO TRIGGER RELIEF FROM FRAUD ON THE COURT?

October 10, 2012 § 4 Comments

Basically, all you have to do is bring it to the court’s attention, and the judge can do the rest. That’s what the COA decision in Finch v. Finch, handed down October 2, 2012, says.

But before we talk about Finch, let me remind you of the MSSC decision in Trim v. Trim, which held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court. There is no time limit to when that issue can be raised. So to allow your client to submit a false 8.05 is to allow the judgment always and forever to be vulnerable to possibly fatal attack, as was the case in Trim.

Only two months ago the COA held in Rogers v. Rogers that if you are going to claim fraud on the court, you will have to prove all of the classic elements of fraud, or you will fall short.

Now we have Finch, further defining the scope of fraud on the court. In Finch, Rosemary and Stewart, no longer love birds, got an irreconcilable differences divorce in which the special chancellor awarded Rosemary alimony based on financial proof submitted by the parties, including Rosemary’s claim that she was paying certain marital debts that she claimed she had been paying throughout the marriage.

The special chancellor’s appointment expired, and a newly-elected chancellor took the bench and assumed responsibility for the case.

In post-divorce litigation, Stewart asked the court to find Rosemary in contempt and to modify the alimony to take into consideration that Rosemary had “falsely represented” to the court that she had been paying the marital bills. He claimed and proved that she had failed to pay an American Express account, forcing Stewart to borrow some $38,000 to pay it. Also, she had not disclosed other family debt in the divorce that affected Stewart.

The chancellor found that Rosemary’s actions were a fraud on the court, and she decided that the fraud permitted her to reduce the alimony under MRCP 60(b). Stewart had not filed a 60(b) motion, had not specifically requested any 60(b) relief, and did not specifically plead or charge fraud. Rosemary appealed, claiming that it was error for the chancellor to grant 60(b) relief sua sponte, which had the effect of setting aside and doing away with issues to which the parties had agreed and settled before the original trial.

Judge Ishee’s opinion for the court states:

¶18. While Stewart did not file a Rule 60(b) motion, he did allege fraud in the petition for contempt and modification. Furthermore, “[t]he chancery court is vested with broad equitable powers with which it is able to decide if the original order was entered by mistake, fraud of a party, or for another reason justifying relief from the judgment under Rule 60(b) and may do so upon its own motion.” Tirouda v. State, 919 So. 2d 211, 214 (¶7) (Miss. Ct. App. 2005) (citing Edwards v. Roberts, 771 So. 2d 378, 386 (¶28) (Miss. Ct. App. 2000)).

Rule 60(b) even states: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.” Accordingly, the chancery court did not err by finding fraud upon the court and altering the final divorce decree without Stewart filing a Rule 60(b) motion.

Rosemary also tried to claim that the fraud, if any, was on Stewart and not on the court, which argument the COA rejected, based on Trim. She argued in addition that there was inadequate proof in the record of the elements of fraud, which the COA likewise rejected, based on the proof in the record and the findings of the chancellor.

To return to my initial point: all that was necessary in this case was to give the chancellor a suggestion that there may have been a fraud on the court, and she picked it up and ran with it. The chancellor has broad, equitable power when it comes to relief under MRCP 60(b), which the court can exercise on its own motion. In this particular case the problem was fraud, but 60(b) vests the court with the same equitable powers to address mistake, “or any other reason justifying relief from judgment …”

RECIPES FOR INDIRECT CONTEMPT

October 9, 2012 § 2 Comments

We talked here before about the distinction between indirect and direct criminal contempt. Indirect contempt is also called constructive contempt.

Here are some examples where the courts have found it proper to proceed for indirect criminal contempt …

  • Acts committed outside the presence of the court that hamper its functioning. In Hinton v. State, 222 So.2d 690, 691 (Miss. 1969), the court found that defense counsel’s failure to disclose to the DA (and, presumably, to the court) that he represented a juror’s wife was constructive criminal contempt.
  • Acts that hinder or prevent service of process, with or without force. Aarons v. State, 105 Miss. 402, 62 So. 419 (1913). 
  • Published materials that address pending court matters and tend to prejudice potential jurors may be punished for constructive contempt; however, there are free speech ramifications that must be carefully weighed by the court. See, Jeffries v. State, 724 So.2d 897, 899 (Miss. 1998).
  • Abuse of process. In Higgins v. State, 218 Miss. 883, 891, 56 So.2d 61, 63 (1952), the filing of 58 suits for the purpose of harassing the Rankin County Sheriff was found to be constructive criminal contempt.
  • Contemptuous language in a motion. Wood v. State, 227 So.2d 288, 290 (Miss. 1969). 
  • Contacting or attempting to influence jurors. Young v. State, 230 Miss. 525, 527 (1957). Even a request to bribe a juror, which was not actually attempted despite the request, has been found to be indirect contempt. Brewer v. State, 176 Miss. 803, 809, 170 So. 540, 541 (1936). 
  • Filing false affidavits of return of process with the court clerk. Corr v. State, decided September 20, 2012, and In re McDonald and Cheshire, decided October 4, 2012, both by the MSSC.

MARITAL FAULT AS SOMETHING ELSE

October 8, 2012 § Leave a comment

I’ve talked here before about how lawyers on appeal often argue that the chancellor’s decision should be reversed on the basis that he or she used custody as a sanction for marital misconduct. And there is case law that supports that argument. Brekeen v. Brekeen, 880 So.2d 280, 287 (Miss. 2004); Smullins v. Smullins, 77 So.3d 119, 129 (Miss.App. 2011); Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).

The thing is that custody may not be used to punish the misconduct, nor may the misconduct be the sole basis, but misconduct may properly be considered as one among the other several applicable Albright factors, and it may be considered as proof of several other factors.

In the case of Collins v. Collins, decided by the COA on October 2, 2012, the chancellor had proof of Kim Collins’ adulterous relationship with a man (Haley) other than her husband, Jarrad. The evidence was that she took trips to rendezvous with the man, leaving her son Conner with someone else, presumably her husband. She spent dozens of hours talking on the phone with her paramour and texting him. Judge Russell’s opinion says:

¶18. It appears from the record that Kim’s adultery was important to show how her behavior with the minor child changed during that period. There was testimony that since her involvement with Haley, Kim appeared to be gone more often and was not around Connor as much as Jarrad. Jarrad’s mother testified that Kim had not been a good mother the last two years because Kim put her relationship with another man before her son.

* * *

¶20. As in Smullins, the chancellor expressed concern over Kim’s involvement with another man because of its impact on her relationship with Connor. Thus, the chancellor’s findings “were not a sanction against an adulterous parent . . . .” Smullins, 77 So. 3d. at 129 (¶46).

When you present your child custody case, don’t put all your eggs in the adultery or other misconduct basket without adding how you want the judge to fit that testimony into the other Albright factors. For instance, when your client testifies about the misconduct, ask why that behavior concerns him or her vis a vis custody, and prepare the witness to address continuity of care, stability, parenting skills, demonstrated willingness and capacity to provide care for the child, physical and mental health, emotional ties, and any other conceivable relevant factors. Only after you have done that should you harp on the moral fitness factor.

in Collins, the chancellor had an ample basis to find that Kim had undercut her own case for custody by choosing to put her relationship with the other man ahead of her attention for her son. When the chancellor put it in those terms, the COA had no way to go but to affirm.

FREEDOM TRAIL

October 5, 2012 § Leave a comment

Last week marked the fiftieth anniversary of James Meredith’s enrollment at Ole Miss. The tumult and combat that surrounded the diminutive Meredith’s entrance to the university has often been characterized as “the last battle of the Civil War.” It’s an event we have talked about here before.

But as much as Meredith did to bring down the oppressive reign of white supremacy, there was much struggle to come after. The bloody summer of 1964 — “Freedom Summer” — was especially noteworthy, because its murders sent a shiver of revulsion through the collective conscience of the nation that directly gave rise to the 1964 federal Civil Rights Act. Gradually, with the weight of the federal government behind it, the civil rights movement demolished barrier after barrier.

And so, as the weeks click by, we will be clicking off fiftieth anniversary after fiftieth anniversary of milestones in the Civil Rights Era.

I saw that one of the events to commemorate Meredith’s feat was the unveiling of a marker on the Mississippi Freedom Trail at Ole Miss. To date, the Freedom Trail has markers at Bryant’s Grocery in Money, Medgar Evers’ home in Jackson, The Greyhound Bus Station in Jackson, Jackson State University, and Mississippi State Penitentiary at Parchman.

A list of the sites planned for the first 30 markers is here.

It’s a bit of a surprise to me that there is no marker slated for Meridian, which: had the biggest COFO operation and Freedom School in the state in 1964; was the base of operations for Schwerner, Goodman and Chaney, who were murdered in nearby Philadelphia; and was the site of the state’s Freedom School Convention in 1964.

There is a group in Meridian that has secured ownership of the old Fielder & Brooks drug store, which housed the COFO headquarters. They plan to restore it and create an educational center there. As always, funding is the main obstacle.  

Knowing and understanding our history is vitally important. We have to comprehend the forces that have shaped us, our ethos and the place where we live in order to be able to see clearly where we can and should go from here. The history of racial conflict and gradual reconciliation is so deeply ingrained in our culture that we must know and understand it so that we can know and understand ourselves.

No place on earth is better equipped by experience to show and tell the way out of racial oppression than Mississippi. Others can talk about it, but we are living it, day by day, increment by increment. To bear that witness, however, we must be able to tell our history. 

James Meredith bravely blazed a trail to freedom in 1962. Many others, in ways large and small, blazed similar courageous paths. Mississippi’s Freedom Trail will help us remember.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #1

October 4, 2012 § 2 Comments

This is the tenth and last 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 are 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 #1 …

Be Professional. Safeguard your reputation with the court.

Being professional is a combination of a lot of traits that include preparation, punctuality, competence, and a professional demeanor. Here is a bulleted list of some things to bear in mind:

  •  Be on time. It is rude in the extreme to keep the court and everyone else waiting while you mosey your way to the court house. Some judges hate it so much that they treat it as contempt. UCCR 1.05 specifically says, “When any civil action has been set for, or adjourned to, a particular hour, all officers, parties , witnesses and solicitors [ed.’s note: solicitor is the old-fashioned term for a practitioner in chancery court] whose presence is necessary for the trial shall be present promptly at the time set. Any negligent or willful failure to obey this rule shall be punished by contempt.” Even if you aren’t found in contempt, why start off on the wrong foot with your judge?
  • Avoid histrionics. You are not in chancery to impress a jury with your dramatic skills or oratorical flourishes. Most judges I know find that sort of showboating to be off-putting.
  • Be respectful of the court. Even when the tide is flowing strongly against you, be courteous and respectful to the judge. When you show disrespect, you are acting contrary to your role as officer of the court. UCCR 1.01 states that “The dignity and respect of the court will be preserved at all times.”
  • Be prepared. Have your exhibits ready, your trial notes in order, and your witnesses on hand and briefed. have any statutes or case law in shape to present at the appropriate time.
  • Be courteous to opposing counsel. Sometimes this is easier said than done, I know, but make the effort.
  • Observe all of the requirements of UCCR 1.01.

Safeguard your reputation with the court as if it were a cache of precious gold. Your reputation with the court is in essence how the judge assesses your truthfulness, reliability, candor, competence and integrity. It is a treasure built up over time in your dealings with the court. Some lawyers squander their treasure by making false excuses or misleading statements to the court, by levelling false accusations against opposing counsel, by missing court appearances, by doing sloppy, unprepared work in pleadings, discovery and trial, and by being unprofessional as spelled out above. Don’t misspend your treasure that way.

Keep your promises. If your word is not your bond, you really should consider finding another line of work. When you tell the judge you are going to do something, do it. And if it becomes genuinely impossible, let the judge know right away. Don’t tell opposing counsel a case is settled unless it is, and don’t make promises you can’t keep or have no intention to keep.

Never even suggest anything improper to a judge. I can not think of any more instantaneous way to destroy — probably irreparably — your credibility with a judge than to make even a suggestion of impropriety. A hint of a quid pro quo, an ex parte suggestion for a favorable ruling or criticism of the other party or attorney, and the like are poison for your reputation with the court.   

Your work product speaks volumes about your competence. If your pleadings are sloppily done and make no sense, your arguments are incoherent, and your witnesses make no sense, you have no one to blame but your own sloppy self when the judge turns her nose up at them. Take pride in your work. Make sure it’s right and well-presented. Make a favorable impression on the court. I can assure you that it is a true pleasure to take the bench and try a case that is well-presented by capable lawyers who know what they are doing and have given the court clear pleadings, authority and testimony on point. And I can equally assure you that it is agony to try a case where the lawyers fall considerably short of that mark.

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