Ten Tips for a Clearer Record
October 30, 2014 § 1 Comment
As I have said here before, your primary job as a trial lawyer is to make a comprehensible record.
There are two obvious reasons for this: (1) if you fail to make the trial judge understand what your favorable facts are and what your theory of the case is, you lose, plain and simple; and (2) if you lose, you have got to have everything in the record — clearly stated — that you need to win on appeal.
It does you no good to try a case for three days and have the record transcribed only to find to your dismay that it is full of [Unintelligible], and interrupted, incomplete sentences, and references by the witnesses to documents that were never identified or offered into evidence.
Here are ten tips to get you thinking about making an adequate record:
1. The court reporter can not get two (or more) people speaking at the same time. Lawyers who have come before me know this is a pet peeve of mine. The record is required to be verbatim, meaning that everything said audibly in court must appear in the record, and must identify who said what. Even the best court reporter can not make a verbatim record of more than one person speaking at the same time. After several warnings, I have told my court reporter to stop trying and just record it as [Unintelligible] if she can not accurately record what is being said and identifying the speaker. That does not produce a record that might prevail on appeal, you can rest assured.
2. No nods or shakes or shrugs. The court reporter is not an interpreter. If your witness nods, the reporter will report it as [witness nods], not as a “yes.” It will be up to the trial judge and appellate court to do the interpreting, which may not yield the intended result. When your witness offers a physical gesture instead off a verbal response, follow up with something like, “Does that mean yes?” or “Please answer verbally.” It’s not the judge’s job to ask that, although some judges will just to resolve their own doubt.
3. What in the world are you talking about? You hand the witness a photograph and ask what it depicts, and never offer it into evidence (counsel opposite is not going to help you). Or you hand the witness a sheaf of documents already in evidence and ask questions about them, never identifying them by exhibit number. Either is a good way to keep the trial judge and the appellate court from knowing what it is you’re trying to prove.
4. Read at your peril. Some people talk fast, but everybody reads much faster than they speak normally. When you read, consciously slow down. And then slow down some more. You read faster than you talk because you’re not having to think about what you are going to say. If your goal is an intelligible record, you will have to read a lot slower than it seems like you should, but the product will be a record that is accurate.
5. Speak up! Projecting one’s voice seems to be a lost art, but it’s essential if you want the judge and court reporter to catch what you’re saying. That’s true even if you and your witness have a microphone. Speak up. When you have a soft-speaking witness, encourage him to speak louder. Don’t stand too close to the witness because that usually degrades into a conversational, coffee-table exchange.
6. Distractions distort the record. Anything that distracts the court reporter will detract from the accuracy of your record. Shuffling papers, drumming a miked table, loud whispering, jangling cell phones, are a few of the most attention-grabbing. If you or your client have a hacking cough, have some lozenges at the ready or ask the judge to allow a cup of water. If all else fails, suggest that your client to go out into the lobby until the paroxysms subside, making sure you either ask the judge for a recess or announce that your client is okay with proceeding in her absence.
7. Let the court reporter mark the exhibits. You’ve just handed the court reporter that crucial exhibit, and before she can do anything else, you launch into your next question. As a rule, most judges or court reporters will stop you, but I saw a court reporter some years ago simply take the document and lay it on the table, resuming taking her record without ever marking the exhibit. That’s on the lawyer.
8. Nothing is stricken. Something said in court can not be unsaid, so do not even ask. It’s the court reporter’s job to make a verbatim record of everything that happens. If you don’t like what was said, cover the offending answer in redirect or cross.
9. S-p-e-l-l. You know the witness’s name and spelling, but neither the court reporter nor the judge do. It’s a good practice to ask the witness to spell names other than the most common. And that goes for persons and places identified in testimony, as well as case citations.
10. Clarify pronouns. As handy as they can be, pronouns introduce vagueness into your witness’s testimony. “All four arrived together, but I saw him leave later with her, and I was with him until she and he came back.” If you don’t define all of those pronouns using names, you have left the court with an indecipherable lump of information.
Separate Property and Family Use
October 29, 2014 § 2 Comments
It’s no secret that family use of an asset during the marriage can convert it from separate property to marital property.
Steve Cupp tried to argue that his Lake Cormorant house was separate property, not subject to equitable distribution, because: (1) he acquired the property before his ten-month marriage to his wife, Jenny; (2) he titled it in his sole name; (3) he made all of the mortgage payments from his separate account; and (did I already mention this?) (4) he and Jenny lived together only ten months before they separated.
The chancellor agreed with Jenny that family use had converted the property from separate to marital, and included it in the equitable distribution. Steve appealed.
The COA affirmed in Cupp v. Cupp, handed down October 8, 2013. Judge Maxwell’s opinion explained:
¶16. We first address Steve’s argument that the chancellor erred in classifying the Lake Cormorant property as marital, and, therefore, the property should not have been included in the division of marital assets. Steve asserts that because he acquired the property prior to the marriage, titled the property solely in his name, and made mortgage payments from his separate account, that the property is not marital in nature. Jenny counters Steve’s claims by noting that she lived in the home with her son and Steve before Steve moved to Sevierville. At that time, Jenny contributed domestically to all maintenance on the home for a number of months until she joined Steve in Sevierville.
¶17. Mississippi employs the family-use doctrine when determining whether a couple’s separate property has become marital due to the family’s use of the property. See, e.g., Stewart v. Stewart, 864 So. 2d 934, 937-38 (¶13) (Miss. 2003); Rhodes v. Rhodes, 52 So. 3d 430, 438 (¶¶25-26) (Miss. Ct. App. 2011); Brame v. Brame, 98-CA-00502-COA (¶20) (Miss. Ct. App. Mar. 28, 2000), rev’d in part on other grounds, 796 So. 2d 970 (Miss. 2001). Property that was acquired prior to the marriage by one of the parties can become marital property when used by the family. See id. Furthermore, a party’s contribution to the maintenance of a family home, whether monetary or physical, is considered when dividing the home equitably. See, e.g., Ferguson, 639 So. 2d at 928; Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994); Tatum v. Tatum, 54 So. 3d 855, 861 (¶21) (Miss. Ct. App. 2010).
It seems to me that the only way to avoid having property succumb to the family use doctrine is to do everything that Steve did here, except to allow his wife to set foot on the property. Ever. He should have kept it padlocked and given her a letter informing her that if she entered the property she would be prosecuted for trespass.
Of course, I am being facetious. But only in part. What else must one do to keep property separate? It seems that the so-called family-use doctrine can have a decidedly un-family-friendly whipsaw to it. Imagine telling your wife she can’t set foot on your lake property because you want to keep it separate. Imagine telling your child that you can’t take her fishing there because it’s separate. Imagine telling your musically-gifted son he can not practice on the grand piano you keep locked up in a warehouse because you promised grandma that you would keep it in the family.
In my opinion, it would be better to say in a case like this that it is separate property, the value of which causes a disparity in the financial situations of the parties, opening the possibility for time-limited alimony for Jenny.
¶18. The record reflects that the chancellor determined that the property in question was converted to a marital asset by means of the family-use doctrine. The chancellor also noted “that while [Steve] made the primary financial contributions to the accumulation of marital assets, [Jenny] made significant domestic contributions to the marriage.” We agree. Steve, Jenny, and Jenny’s son all lived in the home for some time prior to their move to Sevierville. Jenny also physically maintained the home by herself for several months after Steve moved. We cannot find manifest error in the chancellor’s determination that the Lake Cormorant property was part of the marital estate. This issue is meritless.
The Attorney as an Expert Witness
October 28, 2014 § Leave a comment
Lecia Spriggs and her husband, Kurt Buehler, were involved in a divorce trial. Lecia had consulted with Dennis Horn, an attorney, about disability policies and their requirements, and she tried to call him as an expert witness. Kurt objected on the basis that the law does not recognize expertise in the practice of law. Lecia countered that his testimony would be focused on insurance industry practices, and not on the practice of law. The judge rejected the testimony as speculative.
Thus thwarted, Lecia tried to call Horn as a fact witness, which drew an objection based on failure to identify him as a fact witness in discovery.
In its decision in Spriggs v. Buehler, handed down April 8, 2014, the COA addressed the situation this way:
¶38. Lecia argues that Horn’s expert testimony regarding “the normal and customary actions of disability carriers” should have been admitted. Horn was to give his opinion that a van Lecia had observed near her home “was likely someone conducting surveillance of her on behalf of Northwestern.” Lecia also claims that Horn “should have been allowed to testify as to what he advised Lecia to do in order to minimize the possibility of termination of her payments[.]”
¶39. Mississippi Rule of Evidence 702 governs the admissibility of expert testimony, providing:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
“Relevancy and admissibility of evidence are largely within the discretion of the trial court[,]” and the trial court’s decision will only be reversed “where that discretion has been abused.” Terrain Enters. Inc. v. Mockbee, 654 So. 2d 1122, 1128 (Miss. 1995) (quoting Hentz v. State, 542 So. 2d 914, 917 (Miss. 1989)). We agree with the chancery court’s conclusion that the “expert” information offered by Horn (i.e., how litigation concerning disability claims could last up to two years, and how insurance companies often conduct surveillance on claimants) was speculative and not based on any sufficient facts or data or reliable principles or methods. Counsel for Lecia acknowledged at trial: “The purpose of Mr. Horn’s testimony is to discuss his experience in these types of actions and what could happen and what may happen in the event [Lecia] does certain things. And if this does happen, what are her consequences after that?” (Emphasis added). Accordingly, we find no abuse of discretion in the chancellor’s decision to exclude Horn as an expert witness.
¶40. Horn was also excluded as a fact witness due to Lecia’s failure to include him as such in the scheduling order. As we have already stated, a trial court has “considerable discretion” in managing pretrial discovery. See Bowie, 861 So. 2d at 1042 (¶14). Lecia does not dispute that Horn was not listed as a fact witness in discovery according to the scheduling order. Therefore, we find no abuse of discretion in the chancellor’s decision to exclude Horn as a witness.
In the case of Robertson v. Robertson, 812 So.2d 998, 1004 (Miss. App. 2001), which involved a strikingly similar situation at trial, the COA went further. In that case, counsel for respondent in a child-support modification case sought to call Covington, his former attorney, to testify about the parties’ intent in including certain language on a property settlement agreement. Judge Payne, for the court:
¶ 18. The chancellor excluded Covington’s testimony stating that as chancellor she has expert knowledge of appropriate child support and interpretation of language contained in property settlement agreements. Therefore, the chancellor found that Covington’s testimony would not be necessary to assist the court in determination of any of those issues. The chancellor further found that Debbie would be at a substantial disadvantage because the identification of Covington as an expert did not give Debbie adequate information that Covington would be called as a fact witness, and Debbie’s only source of evidence to defend against Covington’s testimony would be Debbie’s own attorney. Since Mississippi Rules of Professional Conduct 3.7 prohibits an attorney from being both a witness and counsel in the same case, the prejudice would be that Debbie would have to hire a new attorney before the trial could continue or forego her defense which could be proven only by her attorney of record as a witness.
MRCP 4(h) and the Divorce Complaint
October 27, 2014 § Leave a comment
We talked here last week about the applicability of MRCP 4(h) to R81 actions. Whichever side of that particular issue you come down on, you need to be aware that, yes indeed, R4(h) does apply to divorce complaints. And it can bite you in uncomfortable regions of your anatomy if you’re not careful.
In Webster v. Webster, 834 So.2d 26 (Miss. 2003), Charles Webster had left his wife, Jean, and moved to Texas, where he obtained a divorce judgment against her.
On October 5, 1999, Jean filed her own action in Mississippi, claiming that Texas never obtained personal process on her, and that she had never lived in Texas. She attempted several times unsuccessfully to effect certified mail process. On February 8, 2002, she filed a motion to allow out-of-time service of process, which the chancellor granted, finding that good cause existed to allow an additional 120 days.
On June 21, 2000, outside the 120-day extension, Jean filed an amended complaint and issued a new summons. Charles was served with process on July 3, 2000. On October 30, 2000, the chancellor entered a judgment granting alimony and other relief that Charles found distasteful enough that he filed a R60 motion complaining that the court did not have personal jurisdiction because of the out-of-time process. The chancellor overruled the motion, and Charles appealed.
The MSSC reversed and remanded.
Was Jean’s motion for extension of time untimely? Jean waited until after the initial 120 days had run before she filed for additional time. The court took note of a split of authority in other states, but noted that there is nothing in the rules that requires filing a motion for extension within 120 days. It did point out that a diligent attorney should file within the 120 days, and would actually support a finding in favor of the extension.
Did Jean show good cause for not meeting the 120-day requirement? The court said no. You can read the opinion for yourself, but to me there are two salient points to take away: (1) Jean did not support her motion with affidavits, which would have made a record; and (2) You have to make a convincing effort to find and serve the defendant; a few random, half-hearted stabs at it will not suffice.
I also wonder whether that amended complaint was done properly. We’ve talked about that here before.
The moral of this story is that failure to get process on a defendant within 120 days of filing your complaint is one of those fatal problems that can lurk in your record until it rises, zombie-like via a R60 motion, and then on appeal, causing you to lose a case you and your disappointed client had thought you had won.
Do you think this is an academic point you’re not likely to see in your lifetime? Not so fast, my friend. The following scenario happens every day: You file a complaint for divorce on HCIT and alternatively on ID, anticipating, based on your client’s confidence, that everything will be worked out swimmingly. After six months the defendant still has not come to terms — and he has not been served with process. Finally, you issue process and get the case moving. Your 192-day process is ticking away in your case like a time bomb.
Best practice is to wait no longer than 60-90 days to get a waiver and agreed PSA. Immediately after that, have the defendant served with process. You can then continue to attempt a settlement, but R4(h) will no longer be a concern.
Does MRCP 4(h) Apply to R81 Cases?
October 21, 2014 § 2 Comments
R4(h) states:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
In the case of Roberts v. Lopez, decided September 23, 2014, the COA said this:
[¶9] Notwithstanding the provisions of Rule 4(h), Rule 81(a)(9) provides, in pertinent part:
Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures [:] . . . Title 933 of the Mississippi Code of 1972.
(Emphasis added).
¶10. Rule 81(d)(2) provides that modification of custody matters “shall be triable 7 days after completion of process in any manner other than by publication . . . .” Rule 81(d)(5) provides in part:
Upon the filing of any action or matter listed in subparagraphs (1) and (2) [of Rule 81(d)], summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order[,] or rule of court.
David was served with a Rule 81 summons commanding him to appear at the August 24, 2012 hearing. Therefore, it is of no moment that Liza’s initial complaint and amended complaint, which sought to set aside or modify previous custody orders, were filed more than 120 days prior to David being served with the Rule 81 summons. The modification of custody orders that Liza sought was governed by Rule 81(d), not Rule 4(h) as David contends …
This is a novel rationale. The court did not cite, nor have I been able to find, a prior case that supports this assertion. There is nothing in the language of R4(h) that excepts R81 matters. I had always understood the limitation language of R81(a) as applying to statutory provisions that set out specific deadlines such as some estate and guardianship matters.
As a practical matter, R4(h) is usually applied in circuit court actions where its application has statute-of-limitations ramifications. In chancery, since statutes of limitation seldom apply, the 4(h) dismissal is without prejudice, and one can simply shrug it off and refile. David, in his case, tried to use 4(h) as a sword to set aside the trial court’s judgment. He failed, though, based on the court’s reasoning above, but most importantly due to this:
Moreover, David appeared and participated generally in the August 24, 2012 hearing. So even if process were defective, which it was not, David waived the defect by his appearance and general participation in the hearing. See Isom v. Jernigan, 840 So. 2d 104, 107 (¶9) (Miss. 2003). Thus, this issue is without merit.
As we all know, a voluntary general appearance waives any objection to personal jurisdiction.
So, does Roberts v. Lopez establish the rule that R4(h) simply does not apply to R81 matters based on the language quoted above? I think I’m going to treat that language as dicta, since the dispositive fact here was that David waived the objection. It was unnecessary for the court to go into that R4 vs. R81 analysis when all that had to be said was that David’s general appearance subjected him to personal jurisdiction regardless of any defect of process. Your chancellor may see it differently.
Custody as Punishment
October 20, 2014 § 3 Comments
The MSSC’s decision in Borden v. Borden, handed down October 9, 2014, is a reminder of the principle that fault should not be used as a sanction in child custody awards.
You can read the decision for yourself. The upshot of it is that the chancellor found against the mother in a custody fight, based on her inappropriate conduct. The chancellor found against the mother on three Albright factors: parenting skills; moral fitness; and stable home environment. The evidence established that the woman had inappropriate extramarital contacts, none of which amounted to adultery. She posted sexually explicit Facebook communications, socialized with men at bars and even met one at a hotel (until interrupted by the man’s wife), and re-established contact with men with whom she had had previous adulterous relationships (her husband claimed).
The MSSC found that the chancellor correctly found her conduct weighed against her on the factor of moral fitness, but the court held that the chancellor erred in finding that the same behavior weighed against her on the factors of parenting skills and stability of home environment.
It’s clear that the high court felt that the chancellor in this particular case was using the denial of custody as punishment in this case, which is a well-established no-no.
What is not so clear is how this case seems to say that the same behavior or misbehavior can not sound in two, three, or more factors. For instance, if a father customarily left the young children alone at night to go out and make drug buys while the mother worked, does that not show that he: has poor parenting skills; is maintaining an unstable home environment; and is not morally fit? Or must the chancellor limit his finding to one of the above? That makes no sense.
I may be reading the case too narrowly, but I hope it does not signal a too-limited scope of inquiry in these cases. Too formulaic an approach does not serve the best interest of the children.
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