MRCP 81 Under the Microscope … and a Poll

July 31, 2013 § 7 Comments

The Supreme Court’s Advisory Committee on Rules has set up a subcommittee of chancellors and a couple of appellate judges to study Rule 81 to determine whether it should be changed in any way, and, if so, how. The subcommittee will next meet August 9, 2013.

I am asking all readers of this blog to email me at lprimeaux@comcast.net with any suggestions you have about R81, no matter how minor or major, whether to keep it as is, or whether to change it in some fashion, or even to eliminate it. Or you may just want to make a comment about it. Any and all emails you send me will be shared with the subcommittee, and will be helpful in our task. Many of you do not comment here, and that’s okay, but I would urge you, please, to give me your input on this rule that has so much impact on our practice in chancery court.

WordPress has a poll feature. I’ve never used it, but I thought it might be fun to employ it as a gauge of legal opinion on R81. What say ye? I’ll make sure the subcommittee knows the results.

§ 7 Responses to MRCP 81 Under the Microscope … and a Poll

  • William W. Smith says:

    Rule 81 works well in the district in which I primarily practice which is the 1st Chancery district. The court administrator’s web site has the schedule and all cases that are set for any day. This is very helpful in selecting a day for rule 81 process. This is not the case in other districts. In some districts the Chancellor apparently has their own rules which are not published as local rules and it is impossible to know what the rules are unless you practice in that district frequently. One district provides a date for return on the rule 81 summons but that is not the trial date. Tweaking of rule 81 would probably be helpful, however, if all of the Chancellors would use the same rules for setting cases for trial with rule 81 summons it would be helpful.

  • D. Scott Gibson says:

    Rule 81 (d) has an appropriate purpose and an appropriate place in our procedural jurispurdence. At its best, it provided parties with domestic relations issues and matters of some urgency, temporary/contempt/modification to get before a Judge in a relatively short time with proper notice to the other party. The Rule can still work in that manner assuming you can get on a docket and be heard “in that relatively short period of time,” i.e. 7 days or 30 days. What is clear to everyone is that the problem develops when a party needs to get to Court on a Rule 81 matter in that relatively short period of time and the assigned Court’s docket has no less than 8-10 cases set for trial or hearing each day for the next “relatively short period of time.” I think we have to recognize that different kinds of cases should be “administered” differently by the Courts. Lets face it, a parent’s time with his child during whether court ordered or otherwise, cannot be “made up;” and a mother cannot get back into her apartment because she lost her lease due to dad’s refusal to pay support while she was waiting for her court date. For the purpose of Rule 81 (d) to be rightly realized, busy Courts (and all are) have to address case chacteristics and docket adminstration.

    Procedurely: The rule (d) needs to be tweeked so that it is clear that when an attorney makes an appearance on behalf of a party, Rule 5 notice to that attorney is all that is thereafter required in Rule 81 matters, whether then pending or after arising (contempt/modification of a temporary order in a divorce for example) as long as the underlying case has not been finally concluded. It could be argued that Rule 5 notice to the attorney and a summons to the party are both required in these circumstances. See Boone v. Boone 80 So. 3d 150, 158 (Miss. App. Feb. 2012)

    The Rule needs to clearly distinquish between the process (notice) necessary in pending actions and the process (notice) necessary in new actions.

  • A singular change in the Mississippi Rules of Civil Procedure in Mississippi ocurred 1972. At that time I had been in practice for sixteen years and although I wasn’t happy about having to learn different names and requirements for pleadings, discovery, etc. In a relative short time I became aware of just how simple the MRCP were. No longer did I have to memorize different rules, requirements and procedures for Chancery, County, and Circuit courts as well as the federal courts. The MRCP have changed the practice of law and made our courts uniform in many ways. The MRCP brought about some terrific changes: discovery, process, summary judgments, etc; all of which streamlined and brought us a change for the better.

    Personally, I think we should tweak and up date what we have. One last comment: I truly think that Chief Justice Neville Patterson should be honored for bring about the MRCP and subsequently the MRE. Is their some way we can bring to the attention of the Bar and/or Supreme Court the need to honor Chief Justice Patterson who lead the way into the most significant change in the history of Mississippi jurisprudence. Thanks for asking our opinion. Jon

  • randywallace says:

    As I said in an email to you, I would like to see:

    81(d)(5) revised to remove the “on that day” language so that the order continuing a Rule 81 hearing can be entered at the convenience of the parties and Court.

    81(d)(4) revised to require an answer in all matters.

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