October 17, 2013 § 1 Comment
Reprise replays posts from the past that you might find useful today.
BETTER CHANCERY PRACTICE FAQ
October 8, 2010 § Leave a Comment
My 8.05 financial statements stink. How can I improve them?
Is my estate ready to close?
Check out this Checklist for Closing an Estate.
I think I need to file a habeas action. Any tips?
This Habeas Corpus Step by Step should help.
One more time: what are those child custody factors I need to prove at an upcoming trial?
The Albright factors are what you’re looking for.
Help! We need to sell some real property in an estate, and I don’t know where to start?
How to Sell Real Property in an Estate may be just what you need.
I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before. What do I need to do?
This Outline for Handling a Minor’s Settlement will get you started.
My mail has an MRCP 41(d) notice in it this morning. I remember you said something about it, but I don’t have time to look for it. Can you remind me what I am supposed to do?
<Sigh> Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door.
I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify. Any ideas on what I should do?
Try looking at Proving Tax Effects of Alimony.
My Chancery Judge is really nitpicky. How can I draft my adoption Complaint to satisfy him?
Are you talking about me? Whatever. Here is a post on pleading Jurisdiction for Adoption.
Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire. Any suggestions? I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.
You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines. Until you do, try reading “High Waters” and Burlap Suits. It won’t change anything, but it may help you to feel better.
October 16, 2013 § 4 Comments
MRCP 32 (a)(3)(E) allows for the use of a deposition at trial of a medical doctor “for any purpose.” R32(a) says that the deposition may be used ” … so far as admissible under rules of evidence applied as though the witness were then present and testifying… ”
In practice, that language has been applied to excuse medical doctors from personal appearance at trial, allowing their testimony to be presented by video deposition, or by reading into the record in jury trials, or by introduction of the transcribed deposition in bench trials. The deposition of a medical doctor, then, per this rule, has been deemed admissible in evidence as though the doctor were present and testifying, simply because the witness is a medical doctor.
When this amendment to rule 32 was adopted. It was seen as a friendly gesture to the medical profession, a way to encourage testimony of doctors without unduly interfering with their schedules. All doctor testimony henceforth would be via deposition. It was a no-cost win-win.
But, as Lee Corso would say, not so fast my friend.
The deposition of the medical doctor is unquestionably a hearsay statement, so how does MRCP 32(a) mesh with MRE 804(a), which creates the hearsay exception for persons deemed unavailable to testify? If you will read MRE 804(a), it is clear that the mere status of medical-doctorhood does not automatically fit one into any of the six definitions of unavailability set out in subsection (a). Nor does that status automatically fit into any of the hearsay exceptions in subsection (b). It may be that the doctor’s statement could be qualified as an exception under subsection (b)(5), but that would require a finding by the court, after prior notice by the offering party to counsel opposite.
The answer is that the MRE controls. That’s what MRE 1003 states: “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.”
This gap between the two rules caught a party unprepared in the case of Parmenter v. J & B Enterprises, Inc., 99 So.3d 207, 219 (Miss. App. 2012), in which the trial judge disallowed the expert testimony via deposition per MRCP 32(a) where there was no proof of unavaiability as defined in MRE 804. The appellant unsuccessfully argued that MRCP 32(a) allowed the introduction. The COA held, to the contrary, that the MRE provision controlled.
Don’t assume that, just because you have gotten that doctor’s deposition, it will automatically be admissible in lieu of the doctor’s personal testimony. To do that, you will still have to prove the doctor’s unavailability as defined in MRE 804. That may be something you can achieve via requests for admission, or by stipulation, or by making a record.
Oh, and don’t overlook (1) that you have to plant somewhere in the record enough proof to satisfy the judge of the doctor’s qualifications to testify as an expert in the first place, and (2) that MRCP 32(a) applies only to medical doctors, not to PhD clinical psychologists. Those were two stumbling blocks for the plaintiff in Parmenter.
October 15, 2013 § Leave a comment
“Courts of equity will not tolerate interference with their orders, nor with their officers in the enforcement thereof.”
This maxim was born in the earliest days of equity courts, when dissatisfied litigants sought to evade duties imposed by the chancellors through contrary orders from law courts. Those days are long past, and the Constitution and statutes determine jurisdiction in the modern era.
Here is what Judge Griffith said about it (with paragraphing added):
… it became in time the established rule that while the chancellors would of their own accord refrain absolutely from interfering with the orders of the law courts and their enforcement thereof, except upon an established equitable ground, yet when a dominant equity so required, all persons, other than the law judges themselves, would be enjoined to give obedience to the decrees in equity as to all the matter comprised therein. For instance, when a receiver is appointed in chancery and all the property has been taken in charge by the receiver, as the officer of the court it is punishable as a contempt for any person to attempt to interfere, although he may have a writ from some other court.
The rule is that if any person suffer by reason of any order in chancery, whatever it may be, he must apply to chancery for a revocation or modification of that order: a resort to some other court will not avail, save only in those cases wherein the order in chancery was absolutely void. Griffith, § 46, p. 48-49.
To put it in more succinct terms: When chancery court enters an order, you can obey it, or you can appeal it.
Today, the maxim underscores the chancery court’s considerable power to enforce its orders and to punish those who thwart them or the officers charged with carrying them out.
October 11, 2013 § 2 Comments
Every lawyer, even the professed non-believer, invokes the power of prayer from time to time in the course of legal combat. Come on, admit it. I suppose one reason for the phenomenon is the old saw that “there are no atheists in the trenches.” And another is the realization that, how else but through divine intervention are we expected to be able to survive in the toxic fog of litigation war?
Here is an admittedly tongue-in-cheek trial lawyer’s prayer that illustrates my point …
Dear Lord: Here I am, back in Church. It’s been awhile, I freely admit, and I apologize for the long string of Sunday absences, but as you know, the demands of my busy practice often require me to work all weekend, Sundays included. That’s true even today, Lord, but today is a special Sunday. So special, in fact, that to skip Mass today would be malpractice, more or less, if you know what I mean, which, of course, you do.
Tomorrow is the big trial. Not only is it big, Lord, but as you know already, it’s huge, the most important trial of my career to date, the trial at which my client stands to collect millions of dollars, in addition to a sizable punitive damage award. With this in mind, Lord, I come to you today at Mass. And even though I may be preoccupied from time to time, which is understandable given the magnitude of my burden, I ask that you have mercy on your humble servant, and hear his prayer.
And so, I pray as follows:
First and foremost, Lord, let your light shine on my opponent, that he may come to me tomorrow morning before the trial begins with the news that he will accept my settlement demand, which as I recall is in the neighborhood of $7 million. Of course, you shouldn’t let your light shine too brightly on my opponent, if you know what I mean, which of course you do, but at least grant him the wisdom to look upon my settlement demand as worthy of his consideration, even if it isn’t, so that the trial won’t even be necessary, and I can begin working on my next big case.
On the other hand, Lord, if it be your plan that before I win, and cement my reputation as a trial lawyer of the first rank, my opponent and I will actually have to engage in courtroom battle, then as your humble servant I will accept your judgment. However, please keep in mind that an early settlement is certainly the better option, as it would immediately alleviate the stress on my heart, and allow me to get some much-needed sleep. You should also know, Lord, that an early settlement will free up my Sundays for at least the next month, making it no problem at all to drop by for the guitar Mass, which is my personal favorite, and which, as you know, always makes me tap my foot and occasionally, sing out loud.
But I digress. I fully understand, Lord, that speaking frankly, there is almost no chance of an early settlement, since in truth, my $7 million demand is outrageous, and my opponent would to be out of his mind to accept it. So I will assume, Lord, for purposes of this prayer only, that I am going to trial in the morning, despite the fact that it is likely to turn my hair prematurely gray, and is even now making my stomach queasy with worry and uncertainty.
And so, Lord, if we aren’t able to settle the case in the morning, and if the Judge doesn’t cancel the trial so that he can go fishing, which, as you know, he loves to do, and perhaps should be omnisciently compelled to do tomorrow, then I will stand before the jury and in my loudest voice, demand that they return a verdict of $7 million.
Be with me when I do that, Lord. It will take guts, and bravado, and a certain amount of recklessness on my part, especially considering the facts, which tend to favor my opponent on many points, including, as you know, all the important ones.
Be with me, Lord, not only when I attempt to use my powers of persuasion to sway the jury to an unreasonable verdict, but also during cross-examination, when I plan to make up the distance between what actually happened to my client, and what I will tell the jury actually happened. What I mean, Lord, is grant me the fortitude to be a good cross-examiner, such that I ferret out the truth when it helps my case, and skillfully conceal it when it doesn’t. Aid me in making it perfectly clear to the jury why I’m right, and why my opponent is wrong, even though, as I said, you should bless him too, but not excessively, and only at the conclusion of the entire case, including any appeal, which often takes months or years.
And finally, Lord, bless my witnesses, that they will remember to stick to the story that I have so carefully prepared for them, and avoid being caught in any damaging inconsistencies, and be spared the embarrassment of sweating profusely out of nervousness, or of losing their tempers when cross-examined by my opponent, or of exposing the bad sides of their characters, thereby alienating the jury, the members of which, by the way, you should also bless, but only once they’re firmly on my side.
It’s a long list, Lord, but it’s a big case. I hope you understand that, which, of course, you do. And now, Lord, I’m afraid it’s back to work.
[Editor’s note … I am giving the author the benefit of the doubt that by ” … they will remember to stick to the story that I have so carefully prepared for them …” he means the trial preparation he has gone through to properly state the facts they observed, which is ethical, as opposed to a story he made up, which is completely unethical.]
October 10, 2013 § 1 Comment
MC Law scores again in the “Useful Things for the Practice of Law Department.” This time, it’s an almost-app you can add to your home screen on your mobile phone, tablet, or even your laptop.
I say “almost-app” because it’s really a link to a web site you access via your mobile, but the text is maximized for mobile use.
The link is http://law.mc.edu/mlr/. Enter it in your browser and follow the instructions to add an app-like link to your home screen.
Here’s what you will find in this mini-library:
- Rules of Professional Conduct
- MCA 1972
- MSSC Opinions
- MCA Opinions
- All Court Rules
- Constitutions of 1890, 1868, 1832, and 1817.
- MC Law Library Online Catalog
- Judicial Data Project
- Legislative History Project
It also includes the federal rules and even has access to PACER.
MC Law continues to lead the way in innovations that are not only useful and helpful for pratitioners, but also in a readily-accessible form. Almost everyone carries a cell phone around, even to court. When the judge says, “If you would read Rule 81, you would know what I am talking about …” you can whip out your cell phone, tap a couple of screens, and scroll to the very subsection in question.
And when you’re sitting in the back of the courtroom for a couple of hours waiting to present your case, it’s comforting to know that you can spend that time reading (or re-reading) the Constitution of 1817.
We’ve talked here before about MC’s ingenious Judicial Data Project. It’s a treasure trove of appellate information, including a database of briefs, videos of oral arguments, decisions, and more.
The Legislative History Project is a video archive of legislative debate over individual bills and select resolutions as they actually took place on the floor of the Mississippi House of Representatives and Mississippi Senate. Searchable by bill number, bill author, and bill description. The site says, “Provided with each video clip is a summary of legislative action taken that day. The project also links to the Mississippi Legislature Web page where more information may be obtained regarding the individual bills and their principal author.”
October 9, 2013 § 5 Comments
For those of you who handle minor’s settlements, here is what should be a familiar scenario:
Minor’s arm broken in a car wreck. Insurance company is to pay policy limits of $25,000. Medical bills to the local hospital in amount of $17,500 are to be paid from the proceeds. Minor is to receive balance of $7,500.
Not much to it, right?
Well, there just might be quite a lot to think about after you read Memorial Hospital at Gulfport vs. Guardianship of Proulx, decided by the MSSC on September 12, 2013.
In that case, the minor was injured in a car wreck and the parents were appointed his guardians. They petitioned the court to approve a policy-limits settlement of $50,000. They also petitioned the court to disapprove claims against the proceeds asserted by several medical providers, including Memorial, that totalled more than $80,000. Memorial’s claims alone were $71,000. The chancellor disapproved the claims, and Memorial appealed.
Justice Chandler wrote for a unanimous court, beginning in ¶ 7:
… Memorial has no lien against the funds. Unlike some other states, Mississippi has no statutory hospital lien, nor has this Court recognized a common-law lien under these facts. Indeed, Memorial does not argue that it has a lien, or does it assert a right to recovery through a contract or under an implied-contract theory. It does not assert that it is the beneficiary of an assignment of the settlement proceeds. Memorial cited no authority for its argument at the hearing that it has a right to a pro rata share of the settlement proceeds.
¶8. Memorial’s position in this case is comparable to that of the hospitals that sought payment of medical bills in McCoy v. Preferred Risk Ins. Co., 471 So. 2d 396 (Miss. 1985), and Methodist Hospital of Memphis v. Guardianship of Marsh, 518 So. 2d 1227 (Miss. 1988). In McCoy, a minor, David James McCoy, was hospitalized after a car accident, and his parents executed an assignment of all liability insurance benefits in favor of the hospital. Id. at 397. Later, the parents disputed the validity of the assignment, and the insurer interpleaded the benefits, which consisted of $20,000 in uninsured-motorist liability benefits and $4,000 in medical benefits. Id. The Court held that the parents had lacked authority to assign the uninsured-motorist benefits due to David. Id. at 397-98. However, because the medical-expense benefits under the policy authorized Preferred to pay all reasonable medical expenses to the entity rendering medical services, the Court permitted the hospital’s recovery of the $4,000 in medical benefits. Id. at 397.
¶9. In Methodist, another minor, Stephen B. Marsh, was injured in a car accident. Methodist, 518 So. 2d at 1228. At the hospital, his mother signed a document entitled “Hospital Lien” in which she agreed to pay Stephen’s medical expenses from any insurance settlement or judgment she recovered. Id. The insurer settled for the policy limits of $25,000 in liability coverage and $2,000 in medical-payments coverage, and the hospital claimed a lien on those funds. Id. This Court rejected the claimed lien on the liability coverage because the mother had no legal authority to execute any document binding Stephen’s estate without prior chancery court approval. Id. (citing McCoy, 471 So. 2d at 396). The Court remanded for a determination of whether the hospital was a direct beneficiary under the medicalpayments coverage and “due these benefits irrespective of any lien or assignment.” Methodist, 518 So. 2d at 1228.
¶10. In McCoy and Methodist, once the assignment or lien was found to be invalid, the hospitals had no further rights against the liability insurance proceeds due the minor, and the claims were denied. McCoy, 471 So. 2d at 399; Methodist, 518 So. 2d at 1228. Memorial does not claim that it has a right to recovery under a lien, an assignment, or a contractual theory. Memorial’s sole argument supporting its claim of a right to the settlement proceeds is that it has a legal duty to seek recovery from any legally liable third party prior to billing Medicaid. This argument does not avail Memorial. The third-party insurers were not legally liable to pay Memorial for the medical bills. McCoy, 471 So. 2d at 397-98; Methodist, 518 So. 2d at 1228. The third-party coverage at issue here was general liability coverage, not medical-pay coverage that reimburses the hospital for medical bills. See McCoy, 471 So. 2d at 397; Methodist, 518 So. 2d at 1228. Memorial does not dispute this basic fact. Because no law entitled Memorial to payment from the settlement proceeds, we affirm the chancery court’s dismissal of Memorial’s claim.
If your minor’s settlements don’t look like what happened in Proulx, you might read it carefully several times and start trying to figure out whether you need to do anything differently.
There are lots of ramifications flowing from this opinion. A few you might want to consider:
- Shouldn’t you open a guardianship and publish notice to creditors before presenting the final settlement proposal to the chancellor? I sent some lawyers back to the drawing board several weeks ago to do that very thing in a case remarkably close to what happened in Proulx. Why? Well, it just didn’t seem right to me that the parents could negotiate away their children’s money like that.
- If you represent the insurance company in a case where the settlement amount is under the statutory amount required to present to a chancellor, how are you going to advise the parents about all of this when (a) you don’t represent them, and (b) you have an insurmountable conflict of interest that precludes you from advising them?
- Why should children be required to pay their own medical bills? And if they should not, don’t the parents have a built-in conflict of interest in serviing as guardians, since they will likely be held responsible via guaranty?
- Would Memorial have been successful in its argument if the third-party coverage in this case was med-pay (¶ 10)?
You need to read this case and be ready to discuss it with the next chancellor you go before on a minor’s settlement. That chancellor will likely be ready to discuss it, too.
October 8, 2013 § Leave a comment
From the earliest days of equity, property disputes were matters for chancery. The concept of property, however, is much broader than the dirt upon which we stand and live.
Judge Griffith explains:
Property and property rights only are within the domain of equitable interference, there being included however not only all those interests in real and personal property which are, or can be, the subject of individual ownership, but also those other interests of quasi-ownership which are the equitable equivalents of property in some form, such, for instance, as the right to labor and engage in a lawful business, the right to health and reputation, the right to the physical senses of sight, hearing and the like, which will make labor, business or property profitable or enjoyable; the right to free speech, free movement and thr right to all the civil privileges which make all those other rights real and preserve them unimpaired — all these are not only in a party’s own right but in behalf as well of all those of his family who are legally dependent upon him. Griffith, § 44, pp. 47-48.
He distinguishes the mentioned matters from “Questions of partisan politics, religious or fraternal controversies, crimes and the like, except when property is directly involved …” as issues that are reserved for jury courts.
The common thread running through the list of equitable matters is that to effect a remedy in each the court must take coercive measures or look past the parties’ current situation and legal forms, and put the parties in a proper relationship to one another. Money damages alone will not cure the problems arising in those matters.
October 7, 2013 § 1 Comment
“He who seeks equity must do equity.”
Judge Griffith characterizes this maxim as “one of the oldest of equity principles.” He says (paragraphing added):
… the court in extending its aid will require as a condition thereof that the complaining party shall accord and render to the adversary party all the equitable rights to which the latter is entitled in respect directly to the subject matter of that suit, and this is true even as to many of those things which the defendant could not compel by an independent suit.
It is through the peration of this maxim that tender or the equitable equivalent thereof is required; the restoring of benefits received and the placing of the opposite party in statu quo, and the like; and that without the necessity of cross demand [note: counterclaim in modern parlance], the decree [read judgment] may often be so drawn and rendered that each party may be given, in respect to the identical transaction, what in equity and in good conscience he ought to have and in the approximate manner in which he ought to have it — settling the whole matter by making any decree at all in complainant’s [read plaintiff’s] behalf conditional upon the allowance of the cognate rights of the defendant: provided, these latter rights are so intimately connected with the transaction as to be equitably inseparable therefrom, and provided that no express principle of the law stands in the way. Griffith, §43, pp. 45-46.
When a litigant invokes jurisdiction of the chancery court, that litigant is thereby bound by all equitable principles. Hooks v. Burns, 168 Miss. 723, 152 So. 469 (1934). It applies only to one seeking affirmative relief. Burton v. Mutual Life Ins. Co., 171 Miss. 596, 625, 158 So. 474 (1935). It protects the substantive rights of a defendant, and may not be extended to impose moral duties. Gaston v. King, 63 Miss. 326, 332 (1885).
I used to tell clients that we wanted to be the ones “wearing the white hats” in court. In part that was a nod to the wisdom behind this maxim. And, it was a recognition of the fact that the judge is always ready to aid the one in the right, and to set right the one in the wrong.
October 4, 2013 § Leave a comment
“I believe that animals have been talking to human beings ever since we were all made and put into this world.” — Barbara Woodhouse
“If cats could talk, they wouldn’t.” — Nan Porter
“In order to maintain a well-balanced perspective, the person who has a dog to worship him should also have a cat to ignore him.” — Peterborough Examiner