Maxims: In Personam

September 16, 2013 § Leave a comment

“Equity acts upon the person, or, equity acts in personam.”

The common law courts had no process to enforce the specific performance of a contract. The only remedy available was to award damages for the breach, and to issue execution and possessory writs. As the jurisprudence of equity developed, the chancellors sought not only to improve upon the means available in the law courts, but also to avoid the use of common-law writs that might create a conflict with those courts. The result was that the party in chancery was ordered personally to comply with the court’s order, or, failing to do so, to be subjected to jail or other sanctions for disobedience.

Much of chancery court’s power and authority today rests on this important keystone: that it may compel a person or entity to do any act or thing necessary and incidental to effect relief ordered by the court.

Judge Griffith says it this way:

Although in this state, modern statutes provide that a decree in chancery shall have all the force and effect of a judgment at law, and that when a conveyance, release, acquittance or other writing, it shall have all the force and effect as if the writing had been executed in accordance therewith, and although execution and all other process or similar process as known to law may now be issued out of chancery, nevertheless the decrees in chancery are still drawn largely in the form of orders in personam, and in addition to the statutory methods of enforcement, decrees in chancery are today as fully enforceable by personally compelling the party as they ever were, — except that now there may be no improsonment for debt. Griffith, § 37, pp. 39-40.

In the pre-rules days, all procedural rules and proceedings were statutory. The MRCP supplanted that system. Judge Griffith’s references to statute, of course, are subject today to the provisions of the rules.

It seems elementary to point out that the chancery courts act in personam, but this concept was a profound development in the law, and, as I said before, is a keystone of chancery practice.

MRCP 70 extends the reach of the in personam principle. It allows the court to enforce its in personam orders in several ways that were unknown to pre-rules practice, except through writs of assistance, seizure, and possession. R70(a) provides that, when a party fails to execute a conveyance or do some other act ordered by the court, the court may appoint some other person to do it, at the expense of the dafaulting party, and the act when so done is as effective and legally binding as if done by the person originally ordered to do it. R70(b) allows the court to divest title and vest it in another, rather than having to wait for a party to execute title. R70(c) permits the sheriff with a certified copy of an order for delivery of possession to seize property and deliver it to the person entitled to its possession, without further process of the court. R70(d) makes it clear that all of R70’s remedies are in addition to the court’s contempt power.

Advice for New Law Students

September 13, 2013 § 1 Comment

I found this remarkable piece on, of all places, Facebook. It’s a column penned by Cal-Davis Law School Associate Dean Vikram David Amar for Justia.com. It’s so on-target that I decided to post it here in hopes that many of our Mississippi law students would read it.

Oh, and there’s some food for thought here for some of you veteran practitioners, too.

Advice for the Law School Class of 2016: Ten Suggestions for Incoming Law Students

My biweekly column slot this week roughly coincides with the beginning of the new academic year at most law schools across the country. Even though it seems that fewer people will be starting law school this year than was the case just a handful of years ago, the group of entering first-year students about to embark on their lifelong journey of legal education still numbers in the tens of thousands. For whatever they may be worth, I offer below—based on my experience as a law student, a practicing lawyer, and someone who has taught at four law schools over the past two decades—ten pieces of modern advice (some intuitive and some less so) for incoming law students:

1. Develop a Strong Work Ethic: Done right, law school—and the practice of law thereafter—is hard work, and plenty of it. Discipline, persistence, and stamina are attributes of most successful law students and lawyers, and the sooner one makes peace with that reality, the better. At a charter middle school in San Francisco where I used to serve on the Board, there hangs a banner bearing a message law students would be well advised to internalize: “Don’t pray for a light load; pray for a strong back.”

2. Working Smart Is as Important as Working Hard: The raw number of hours spent in the library (or other place of scholarly work) is not the only, or even the best, measure of what constitutes a good effort in law school. Strategy is important in law school, just as it is in the real world, and what matters most is how—not just how much—time is spent.

After law school, almost every lawyer serves clients and customers. A lawyer’s clients or customers may include individuals, businesses, government agencies, judges, in-house counsel, or (quite often) other lawyers, such as partners, within a practice group. Successful attorneys develop an effective customer-service mindset; the best lawyers are the ones whose clients or customers walk away the most satisfied.

Although perhaps it is not apparent, law students also have clients and customers—most commonly, the law faculty, for whom students produce work product in the form of exams, papers and so on. In the same way that different customers or clients in the real world may be looking for slightly different things from the lawyers they hire, law professors might not all react to the same work product in the same way. The ability to quickly figure out what the client or customer is looking for, and to vary your style and approach accordingly, is a characteristic that the real world values, and thus is the kind of skill that should be developed from the beginning of law school.

3. Read the Materials in Casebooks Actively: It is often said that law school is not about learning or memorizing the content of particular legal rules (which may change over time and for that reason must be looked up anew in the future anyway), but rather about learning how to go about teasing legal rules and standards from ambiguous materials, analyzing how the legal rules can best be defended, how they interact with each other, which alternative legal rules might be suggested to courts and other decision-makers, and the like.

This (oversimplified but still useful) statement of the nature of legal education means, among other things, that it is not enough for you to read a case and understand what the judges said. You must also consider why they chose to say what they said, and in the particular way that they said it. A law school casebook assignment is thus more than an exercise in SAT-like reading comprehension; it is an invitation for you, the reader, to ask questions such as: How does what is said here compare to what is said elsewhere? If what is said here is correct, what also follows from this? Given what is said here, what are the kinds of questions that one would naturally expect other cases down the line to have to address? And so forth.

This kind of analysis requires a student not just to follow along in the case materials, but rather to attack them: to break them down, look at their component parts, reassemble them in different ways, and more. Although I certainly cannot say my own style would necessarily work for all or most law students, I can say that when I was in law school I found that I was not reading energetically and methodically enough if I was not scribbling down a lot of questions and comments to myself (to return to later) in the margins of the casebook as I provisionally evaluated each paragraph and what it added or was trying to add. For me—and perhaps for a good number of other students—active reading involves a fair amount of writing.

4. Talk to Your Classmates About What You Are Learning: It is no secret that lawyers do a lot of talking (perhaps too much!). Oral presentation skills, whether deployed in front of a judge, a jury, a fellow lawyer, an outside client, the press, or a group of interested citizens, are often essential to effective legal representation. The only way to get comfortable using a new language and a (somewhat) distinct way of thinking is to try them out on other folks. And who better as a practice audience than your classmates, who are going through the same set of experiences, and who are going to make the same or similar mistakes in learning this new culture? At most good law schools, a student can learn as much—about what it means to think and act like a lawyer—from his classmates as he can from his professors.

5. Set Aside Time For Just Thinking About the Material: When I was in full-time legal practice, a wise partner and mentor lamented that the standard time sheets that lawyers use for recording how they spend their time, so that clients can receive some detail along with their bills, contained categories for many lawyerly tasks—such as researching, drafting, editing, sending emails, and participating in conferences and telephone conversations—but did not contain a standard category for what good lawyers do that justifies their high billing rates: simply sitting and spending time thinking, carefully and systematically, about what they have read or heard.

Many a law student and junior lawyer thinks that when she has finished reading her assignment, her work is done. To the contrary, when the reading is finished, some of the hardest and most important work—trying to fit all the reading into a detailed big picture that makes sense, and that can be framed so as to benefit one side or another in a dispute—is just beginning. Most areas of law contain ambiguity, a fact that many law students resent but ought to embrace; if legal questions yielded mathematically precise answers, most anyone could be a good lawyer. Playing with and shaping ambiguity is how lawyers earn their keep. But to do that, one really has to sit and reflect on how the small pieces fit together, and at which intersections there is the most room for beneficial manipulation. Law students should, early on, get into the habit of setting aside chunks of time after they are done reading or researching on a topic simply to intellectually digest all that they have just swallowed.

6. Be Cognizant of, but Do Not Obsess Over, the New Economic Realities of the Legal Profession: We all know these are stressful times to be a law student. Debt loads are high, and job prospects three years from now uncertain. In this environment, people have to think carefully before making decisions that might affect their own financial futures. They have to appreciate how what they do in school will enhance their marketability. They’ve got to begin to network – using their classmates and faculty—even while in law school. They’ve got to periodically reevaluate whether the course they are on should be changed; one example is giving serious consideration to whether attempting to transfer to another law school after the first year would make sense. No doubt they’ve got to keep track of more things than previous generations of law students had to. But they don’t have to worry about the long term every day. People who are starting their first year this month have already made the decision—hopefully after careful cost-benefit analysis—to go to law school. So they should throw themselves into the enterprise and avoid constantly revisiting whether they’ve made the right decision. If someone is really uncertain/unhappy after one year, there is the offramp of withdrawing (and at many schools a person who withdraws after having successfully completed one term or one year has a right of return for some period of time without having to reapply.) But folks shouldn’t let their student debt and employment outlook distract them from getting the most they can out of school. And freeing oneself from distraction might enable better law school performance, which in turn is one of the best ways to increase employability.

7. Make Good, But Moderate, Use of Skills Courses, Clinicals and the Like: One complaint often heard about law schools today (and it is perhaps amplified by the new economic normal for law firms) is that they don’t do enough to produce “practice-ready” graduates. Law schools (prodded in part by the ABA) have responded to this criticism by increasing the number of courses that attempt to inculcate practical skills through clinical involvement in real-world cases, simulation exercises, and externship placements in public and private organizations. This in the main has been a healthy development. But even as you partake of the increased number of practical courses, don’t forget the basic, substantive courses in traditional classroom settings that are the foundation of your legal education, and form the single most essential part of your legal training. Learning how to learn and analyze law is more important than learning the techniques of practice. Remember, you’ll likely have an entire career to hone practical modes, but the three years of law school is likely the last time you will ever be able to immerse yourself in a truly academic environment.

8. Don’t Forget the Legal Aspect of Law School: Another development in law school curricula over the past few decades is the increasing prevalence of “law and” interdisciplinary offerings. Examples of this genre might (depending on how one defines things) include law and economics, critical race studies, law and society, law and philosophy, feminist legal theory, and law and psychology. These efforts to locate law in a larger academic context are welcome additions to the curriculum. But as with practice-oriented courses, one should make sure not to overdo things here. Law is its own discipline—a distinctive blend of textual, historical, sociological, empirical, economic and psychological analyses. It’s great to analyze legal problems from other academic and theoretical perspectives, but, to paraphrase Chief Justice John Marshall’s famous quote from the McCulloch v. Maryland case (involving the Bank of the United States), “we must never forget that it is a [law school] we are [operating].” “Law and” offerings can be great, but make sure that there is a legal connection to what is being studied. In other words, make sure that what is being talked about is truly interdisciplinary, and not simply other-disciplinary.

9. Don’t Just Play to Your Strengths: One mistake I see many law students make is that after they realize that they don’t seem to do particularly well in a particular kind of course (e.g., substantive law courses vs. practice-oriented offerings, courses that require papers rather than exams, courses involving public law vs. private law, etc.), they simply stop taking that type of class. And at most law schools, it is fairly easy to craft your second and third year schedule to avoid the kinds of courses with which you seem not to connect. But avoiding what is least comfortable is not the way to improve as a lawyer. All these different kinds of classes are important parts of the law school experience. And so if there are certain types of courses that seem especially foreign to you, that discomfort is a reason to take more, not fewer, of them, so that you may shore up your skills in areas of weakness.

10. Make the Time to Work on Writing Skills: Translating what they have read and analyzed into a written product is what many lawyers get paid for; written communication is a lawyer’s stock-in-trade. Learning to write effectively about legal topics takes time and intense engagement. Unfortunately, the other realities of law school sometimes make it challenging to devote the time that is needed to improve writing skills. To be sure, there are (often required) courses in “legal writing,” but getting (or staying) in good writing shape requires regular exercise for the rest of your career, not just for a semester or two. Writing exams (and practice exams for preparation) and seminar papers will help some, but not nearly enough. You should get in the habit of frequently writing shorter items—a paragraph at the end of your class notes distilling your thoughts about a case or a professor’s presentation of it; an email to a classmate or a professor explaining why you were confused, and posing a crisp question the answer to which should resolve the confusion; a letter to the editor or an Op Ed piece commenting on some recent legal development, etc. The more you practice your writing during law school, the better you’ll be at legal practice after you graduate.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Thanks to attorney Francis Springer.

An Attorney Gets What He Deserves

September 12, 2013 § 3 Comments

I posted here before about the reprehensible conduct of attorney — that’s former attorney — Michael J. Brown, who was jailed for embezzling money — a lot of money — from a guardianship account. Now Brown has been sentenced to prison for his misdeeds. Here’s how the Clarion-Ledger reported it:

A former Flowood attorney has been sentenced to 40 years in prison for embezzling more than $1.2 million from the guardianship account of the grandson of the late civil rights leader Aaron Henry.

Michael J. Brown, 56, was convicted of two counts of embezzlement in Rankin County Circuit Court. He was sentenced to 40 years in prison, with 10 of those years suspended.

A Rankin County grand jury indicted Brown after Hinds County Chancery Judge Dewayne Thomas asked the district attorney’s office to look into the case. Last year, Thomas ordered Brown jailed for contempt for allegedly mishandling the $3 million inheritance of De Mon McClinton.

McClinton couldn’t be reached for comment Thursday.

Thomas said Brown used McClinton’s inheritance money as his own. “He misappropriated $1.2 million, and it looks like he embezzled at least $240,000,” Thomas said.

Thomas ordered Brown to repay the $1.2 million and to repay $398,000 in attorney fees he received from the account.

“There is no greater trust than that between a lawyer and his client,” said Michael Guest, district attorney for Madison and Rankin counties. “Brown was an officer of the court, whose sole purpose was to protect the interest of the minor child.”

Brown, who practiced law since 1994, has been disbarred. He testified he cashed some of the checks, but said the money was given to McClinton’s guardian or to benefit the then-minor. But Brown admitted he had no court order to take money out of the account. No money was supposed to be taken from the account other than $3,000 a month for the guardianship of McClinton at the time.

The McClinton case began on June 16, 2000, when a petition was filed in Chancery Court for Thomas McClinton Jr. of Jackson to become guardian of his son, then-16-year-old De Mon McClinton. De Mon McClinton had lived with his mother, Rebecca Henry, who was Aaron Henry’s daughter, in Clarksdale until her death. Once she died, more than $6 million was split between her two sons.

The guardianship case was closed in 2005, but in 2009 De Mon McClinton, then an adult, asked that the case be reopened.

No further comment necessary other than to point out as I have before that it is cases like this that have chancellors across the state being quite vigilant over accountings,

The Case of the Illusory Agreement

September 11, 2013 § 3 Comments

How enforceable is an extra-judicial agreement to reduce child support? And just what constitutes an agreement?

Those questions were at the heart of the dispute between Donald Brewer and his ex-wife, Penny Holliday. Donald had agreed in a PSA for Penny to have custody of the children, and to pay her $1,185 per month in child support. That agreement was incorporated into a judgment of divorce entered June 7, 2005.

In August, 2005, Donald filed a contempt and modification action asking to change custody. Penny counterclaimed that Donald was unfit for custody. There were several continuances. In July, 2006, the parties engaged in voluntary mediation, at the conclusion of which they entered into an agreed order and memorandum of understanding that effected a change of custody of one of the children and reduced Donald’s child support to $600 a month.

The agreed order was never submitted to the chancellor, but Donald nonetheless reduced his child support to the agreed amount, and Penny responded with a contempt action immediately after the first reduced payment. Penny stated that she “withdrew from the agreed order” because Donald “rejected certain financial obligations” and harassed her.

Donald filed for bankruptcy, and Penny had to file a claim with the bankruptcy court to continue to pursue her action to recover the child-support arrearage.

In February, 2008, after he enlisted in the military, Donald filed yet another modification action, asking to reduce his child support from $1,185 to $737. His pleading made no mention of the mediation agreement.

In July, 2009, Donald filed a pleading seeking to have the agreed mediation order entered nunc pro tunc. He alleged that the order had not been entered due to inadvertence and oversight, and that it had been misplaced by one of the several attorneys who had represented him in this now-epic litigation. The chancellor overruled the motion on November 5, 2009.

At last, on June 14, 2011, nearly six years after the initial filing, the case went to trial. The chancellor found Donald in contempt and entered a judgment against him for $34,515 in child-support arrearage. Donald appealed, claiming that the chancellor erred in not entering the agreed mediation judgment.

The COA, in Brewer v. Holliday, affirmed on March 12, 2013.

In response to Donald’s argument that Penny should be held bound by her agreement, the court pointed out that Donald himself had filed pleadings that asked for a reduction from $1,185 to $737, indicating that the parties had not conformed to the agreement. Penny also filed claims in the bankruptcy, which the COA noted should have tipped Donald off that Penny did not consider the agreement to have taken effect.

As for Donald’s argument that he should not be found in contempt because he paid the amount he reasonably believed was due under the never-entered agreed mediation order, the court looked to the bankruptcy proceedings as an indication that he was aware of Penny’s claims and non-acquiescence in any agreement. Judge Griffis, for the court:

¶25. A party, such as Brewer, “who extra-judicially modifies or eliminates child support payments acts ‘at his peril.’” Rogers v. Rogers, 662 So. 2d 1111, 1115 (Miss. 1995) (quoting Varner v. Varner, 588 So. 2d 428, 434 (Miss. 1991)). “[C]ourt-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Varner, 588 So. 2d at 434. “[A] court cannot relieve the civil liability for support payments that have already accrued.” Thrift v. Thrift, 760 So. 2d 732, 737 (¶16) (Miss. 2000) (citation omitted).

¶26. Even after Holliday filed claims in Brewer’s bankruptcy action for child-support arrearages, Brewer continued to pay only $600, contrary to the only order that obligated him to pay child support. The fact of the matter is that Brewer paid only $600 when there was sufficient evidence to indicate that he was aware that his obligation had not been reduced. We find that there was substantial evidence before the chancellor to find Brewer in willful contempt.

So, to wrap this up:

  • If you get an agreed judgment, get it signed by the judge and entered right away. It happens every day that parties agree to one thing at the court house and then have “buyer’s remorse” later, after talking to aunt Susie and every other legal scholar in the family, and want to back out.
  • Good luck getting a judge to enforce an out-of-court agreement. The only exceptions off the top of my head are: (1) where the parties reached an agreement and it was undisputedly not entered by oversight, and the parties acted in accordance with the agreement, as in Wright v. Wright, 737 So.2d 408 (Miss. App. 1998); and (2) where the court treats unpaid child support as having been “paid” in the situation where one or more of the children has lived with the paying parent by agreement, as in Varner, cited above. In this case, I suppose the only reason that the trial court did not consider Donald’s situation to be within the holding in Varner is that he did not ask for that relief or raise that issue.
  • In my opinion it helped Penny’s case to file a contempt action immediately when Donald first reduced his child support payments. That move was clear evidence to me that she did not consider that the parties had reached an agreement sufficient to submit it to the court for approval.

Maxims: Complete Justice

September 10, 2013 § 1 Comment

The second essential maxim is that “Equity delights to do complete justice and not by halves.”

In pre-rules practice, this was regarded as an important procedural concept that encouraged practitioners to join as many claims as existed in the umbrella of a single suit. As Judge Griffith explained:

The maxim has a complete operation in this state. It is our settled policy that if equity have jurisdiction of the cause of action it should assume full jurisdiction and settle all disputed questions in one and the same suit as far as within the pleadings, and the court will allow and may even suggest such amendments to the pleadings as will permit full adjudication. There not only may, but generally must, be included in the one suit every clearly evident feature of the controversy and there must be made as parties all those substantially interested, so that when the matter is thus settled there will be no doors left open out of which it is probable that furher suits or further contention will spring. In short, equity will not permit litigation by fragments when it can be avoided by bringing the whole cognate matter into one suit. Griffith, § 37, p. 39.   

From a procedural standpoint, all of the principles enunciated by Judge Griffith are incorporated into our MRCP. R15 allows, and even encourages, liberal amendments to make sure that there are no pleading obstacles to complete relief. R8(e)(2) and R18 allow a party to assert as many claims or defenses that he has, whether consistent or not. R14 allows joinder of third parties. R19 and 20 provide for joinder of any and all persons needed for a just adjudication. R21 rules out misjoinder as a ground for dismissal, and allows for severance of claims for adjudication. R24 makes provision for intervention. R25 sets out the rules for substitution of parties.  

From a philosophical standpoint, however, this maxim has had much broader impact. It means that, once the court has taken jurisdiction, it should do what is necessary to effect complete justice, and not to stop because of some perceived pleading impediments or non-joinder. The chancellor should give the parties an opportunity to amend and/or bring in parties necessary to afford full relief, and then proceed. The spirit of the maxim is that a chancery proceeding is not a Gotcha! game in which the parties try to catch each other with their pants down, so to speak, but rather is a search for what is right, fair, and equitable, leading to application of a remedy that will completely achieve that right, fair, and equitable result.

Maxims: No Wrong Without a Remedy

September 9, 2013 § 1 Comment

“Equity will not suffer a wrong without a remedy” is the maxim from which all of equity jurisprudence springs.

Over centuries the idea of “wrong” has been refined to include matters that are actionable, and to exclude those that the law deems not actionable. Judge Griffith explained it this way: ” … the maxim at this day is subordinate to positive institutions, and cannot be applied either to subvert established rules of law or to give a court of equity a jurisdiction beyond established principles.”

When the equity court has jurisdiction over the subject matter and the parties, it should be given wide latitude to fashion a remedy to correct a wrongful situation. As Judge Griffith stated:

“The maxim now means this: It is not necessary that some exact precedent must be found for extending relief in a given situation, if the case be such that under the established law of the land some relief is clearly requisite and a practical remedy consonant with established principles of procedure may be applied, — such a remedy is not to be denied merely because it cannot be found that the remedy was ever before applied in just that manner to that exact state of case. Under the operation of the maxim, modern equity is not authorized to create a substantive right where none such exists in the law of the land, nor to invent a distinctly new procedure to fit the case, beyond or outside of the procedural methods already established.” Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 35, p. 38. 

When the law bestows a right, it also extends a remedy that can be granted in equity. Conversely, a court of equity will not supply a cause of action where none exists in the law.

In its early days, as the law developed procedures and forms of operation, claimants were limited to a few writs by which they could bring causes of action before the courts. The variety of writs was necessarily restricted in number, lest the courts be overwhelmed by multiplicity of suits. This system worked adequately as long as the parties were feudal lords who were relatively few in number. As commerce grew, however, and as more and more individuals acquired property interests and wealth, more and more controversies arose that simply did not fit within the confines of the recognized writs. Claimants were forced to appeal to the conscience of the King for relief from wrongs for which the writs did not afford a remedy. The King, having other matters of state to deal with, delegated that responsibility to the chancellor, who soon needed counterparts to handle the caseload. Over time the chancellors established precedent and certain principles — the maxims — that they followed in cases presented. The legal system administered by the King’s chancellors came to be known as equity, separate and distinct from the law. 

At the very heart of equity is the principle that, if the court has jurisdiction, it will not allow a wrong recognized by our law to go unremedied, and it will always extend a remedy to a person who has a right conferred by the law. It is this principle, more than any other, that sets equity uniquely apart from the law.

“Quote Unquote”

September 6, 2013 § Leave a comment

“What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it… What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.

“What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”  —  Learned Hand

“Of course, there are dangers in religious freedom and freedom of opinion. But to deny these rights is worse than dangerous, it is absolutely fatal to liberty. The external threat to liberty should not drive us into suppressing liberty at home. Those who want the Government to regulate matters of the mind and spirit are like men who are so afraid of being murdered that they commit suicide to avoid assassination.”  —  Harry S. Truman

“It is incorrect to think of liberty as synonymous with unrestrained action. Liberty does not and cannot include any action, regardless of sponsorship, which lessens the liberty of a single human being. To argue contrarily is to claim that liberty can be composed of liberty negations, patently absurd. Unrestraint carried to the point of impairing the liberty of others is the exercise of license, not liberty. To minimize the exercise of license is to maximize the area of liberty. Ideally, government would restrain license, not indulge in it; make it difficult, not easy; disgraceful, not popular …”  —  Leonard E. Read

016

The Maxims of Equity

September 5, 2013 § 10 Comments

I made the statement several weeks ago that:

” … when all of the parties are assembled and within the jurisdiction of the court, and the judge makes a fundamental ruling that affects the relationship among the parties, the chancellor should have the authority to reach out and effect complete relief. Our chancery courts are still courts of equity, according to the Mississippi Constitution. The MRCP did not erase the great maxims of equity from our jurisprudence …

Yes, the maxims of equity. Have you heard of them? If you graduated from law school before 1982, you probably spent some time in the law library committing them and some of their key cases to memory. Since then, I’m not so sure. When the MRCP went into effect, it seems that there was a de-emphasis on teaching the idea of equity in chancery. If the procedures were in most matters identical to circuit practice, why was all that folderol about equity necessary?

Today, in an age when even evidence has been eliminated as a required subject in law school, I shudder to think that there might no longer be any formal effort to educate law students in the philosophical underpinnings of chancery and, indeed, the entire system of equity that is administered in our chancery courts.

The Mississippi Constitution, § 159, specifically confers on chancery courts full jurisdiction in “All matters in equity … ” as well as certain other enumerated areas.

Equity is distinguished from the law in civil cases in that the law may grant a money judgment (and by statute may even enter an injunction), but equity courts act on the person, imposing duties and obligations, creating equitable remedies to carry out the court’s orders to set right what is found to be wrong. The court of equity is a court of conscience. As the great Judge Griffith stated,

“It is more than a trite phrase that the court of equity is a court of conscience; and it is immaterial what rights a party could assert in a court of law, — a court of equity will limit him to those rights of which he could conscientiously avail himself. It has been tersely expressed that nothing but conscience, good faith, and reasonable diligence can call forth the activities of a court of equity, and when these requisites are wanting, the court is passive and does nothing.” Griffith, Mississippi Chancery Practice, § 32, p. 35.

The foundation and spirit of equity have been distilled into aphorisms known as the Maxims of Equity. Every equitable proceeding touches on or embodies them in one way or another, whether expressly or impliedly. They inform not only the form, but also the substance, of all equity matters. Traditionally there were 12 great maxims and 12 so-called lesser maxims. Judge Griffith combined them into 14 essential statements of equity principles.

The 14 essential maxims are:

  1. Equity will not suffer a wrong without a remedy.
  2. Equity delights to do complete justice and not by halves.
  3. Equity acts upon the person.
  4. Equity acts specifically, and not by way of compensation.
  5. Equity looks to the intent, and will regard substance rather than form.
  6. Equity follows the law.
  7. Equity aids the vigilant and not those who slumber on their rights.
  8. He who comes into equity must come with clean hands.
  9. He who seeks equity must do equity.
  10. To protect and enforce property rights is the object of equity.
  11. When parties are disabled equity will act for them.
  12. Courts of equity will not tolerate interference with their orders nor with their officers in the enforcement thereof.
  13. No person bound to act for another can act for himself.
  14. No person should be condemned without a legal chance to be heard.

The last two are equally applicable in law and equity courts.

If you’re going to spend time in chancery, you have got to understand how these maxims act as the very structure of equity upon which the chancellor bases his or her rulings.

This begins a series of posts that will focus on the Maxims of Equity. I will quote liberally in each from Judge Griffith’s 1950 monumental work on chancery practice. Although his tome is of only academic interest insofar as it relates to the pre-MRCP practice in chancery courts, Judge Griffith’s masterful grasp of the law of equity and its philosophy is unmatched. His book, now out of print, was once considered the authoritative work on Mississippi chancery practice, and was even employed as the law school textbook on the subject in the pre-MRCP era.

My goal is to acquaint a new generation of Mississippi solicitors (the traditional term for practitioners in Mississippi chancery courts) with these concepts, and to try to reintroduce them into the 21st century discussion of chancery court practice for the rest of us.

 

Helping Your Client to Ease the Pain of Visitation

September 4, 2013 § 2 Comments

Yes, I said pain. What should be a joyous reunion for the children with the non-custodial parent is often fraught with anxiety and insecurity.

That’s because the children are aware of the animosity and tension between the combatant parents. Some children have seen angry confrontations and even violence between the two persons whom they love more than anyone else. They want to have a relationship with each parent, but they are afraid to hurt the feelings of one if they show any enthusiasm for the other.

You are in a unique position to influence your clients to do a better job in making it easier and healthier for the children in these situations. Here are a few suggestions for the custodial parent:

  • Reassure the child that you will be okay while he or she is away. A child I spoke with years ago told me she did not want to go visit with her dad because she was worried that her mother would be lonely and sad without her. Remember that children have seen their parents sad, crying, upset and emotional during the heat of the divorce. They feel it is their responsibility to try to fix it. The custodial parent can alleviate the child’s concern by assuring him or her in the few days leading up to visitation that the parent has plenty to do, and will be happy to see the child go off for an enjoyable visit.
  • Let the non-custodial parent participate in the children’s lives. The transition to visitation is much easier when the non-custodial parent is not a stranger who drops in every other weekend. Encourage the children to call the other parent, to send birthday and holiday cards, to Skype every now and then, to call with news like good grades or a smiley face for good behavior in school. Let the children invite the other parent to school and church programs, sports, and award preseentations.
  • Leave the visitation schedule free for visitation. Never schedule outings, events, or even sports activities during the other parent’s visitation without his or her permission.
  • Be flexible in scheduling. Both parents should yield to the other’s reasonable requests for rescheduling due to family reunions, weddings, family holidays, and the like. If the non-custodial parent can only schedule Disney World with the children during the first week in July, why shouldn’t the custodial parent give up her July 4 holiday for some other time?
  • Make exchanges amicable. Leave the drama at home when it comes time to exchange the children for visitation.
  • Share school pictures. Get extra copies for the children to give to the non-custodial parent, the grandparents and other members of the family. The little wallet-sized and 4×6 sizes are not that expensive. Get a few copies of the order forms to give to the other parent and family so that they can order as many and whatever size photos they want.
  • Listen to the children’s experiences when they return home. Show interest in their experiences, and encourage them to share their enthusiasm, but never pry into what is going on in the other home or use the children as spies.  
  • Understand that parenting styles are different, and that’s okay. The children may come home with wide-eyed tales of being able to stay up to midnight, or to watch a scary movie, or being able to eat popcorn in bed. Reassure them that the rules can be different in different places, and the important thing is that they honor the rules set down by each parent.

You can come up with some more, based on your experiences as a family lawyer. The important thing is that you are not only a legal advisor; you are a wise counselor who can help defuse and heal some hostile situations. Clients remember that kind of help when their friends ask who they would recommend in their own divorce situations.

Before someone brings it up in a comment: Yes, I am aware that sometimes the other parent is beyond reason and commits all manner of atrocities in the visitation process. That does not mean, however, that your client should not try to “wear the white hat,” and do the right thing. One one hand, it’s the best thing for the children, and it’s the right thing to do. And on the other hand, it always puts your client in a better standing with the judge when he or she has been the one to do right.

Settling for Something

September 3, 2013 § Leave a comment

We’ve discussed here the lawyer’s power to bind the client, as in a settlement announcement where the agreement was to dismiss the lawsuit with prejudice upon payment of a settlement sum. The specific case we focused on was Williams v. Homecoming Financial, a COA case handed down July 23, 2013.

In Williams, the disappointed plaintiffs felt that there was not enough money on the table, and sued to get out of the settlement agreement. The attorney countered that the terms of the settlement had been thoroughly discussed with and agreed to by the Williamses before the settlement was announced. They were unsuccessful in their quest to escape the agreement.

How and what you communicate with the client about settlement is critical. That’s because Mississipi Rule of Professional Conduct 1.2 specifies that there is only one decision in chancery court where the client retains absolute decisional autonomy, and that is whether to accept an offer of settlement. That means that your client calls the shots when it comes to how the case will settle.

An extreme case where the lawyer ran right over, around and through that autonomy is Culpepper v. Miss. Bar, 588 So.2d 413 (Miss. 1991), in which the attorney: (a) did not communicate the terms to the client before announcing it in open court; (b) failed to advise the court that his client thought the case was being settled on different terms; (c) did not disclose to the court that the settlement agreement was different from one his client had signed; (d) represented to the court that the parties had agreed to the terms of the agreed judgment, knowing that was not true.

Three clear duties arise from R 1.2:

  1. The duty to communicate any offer or demand to the client, no matter how unreasonable;
  2. The duty to confer with and avise the client about the pros and cons of settlement, and the strengths and weaknesses of both sides’ cases; and
  3. The duty to zeaalously represent the client to accomplish the client’s settlement goals, unless the lawyer feels that they are so unreasonable, frivolous, or otherwise unmeritorious that withdrawal is warranted.

The autonomy of the client can be varied by contract, but not eliminated. For instance, the lawyer-client contract can provide that the lawyer may settle the case within certain parameters. That would be ethical. But an agreement that vests in the lawyer sole, final decision-making authority would be unprofessional, because only the client can make that final decision. See, Jackson and Campbell, Professional Responsibility for Mississippi Lawyers, 2010, § 8.4 – 5, pp. 8-6 – 8-8.

The only exception to the rule is in MRPC 1.14, which addresses how to deal with impaired clients.

It’s true that a lawyer should not let the client dictate the strategy and tactics of representation. But the end of the litigation is always within the client’s discretion. You have the power to bind your client, but if you invade the client’s province to settle, you may face some unpleasant consequences.

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