April 30, 2015 § 4 Comments
Reprise replays posts from the past that you may find useful today.
BETTER CHANCERY PRACTICE FAQ
October 8, 2010 § 1 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.
April 29, 2015 § 4 Comments
Output often bears a marked resemblance to input.
One cannot expect to emulate the deep luster and luxe of mahogany with coarse plywood. Nor does ground round yield an acceptable chateaubriand. In either case, the product will look shabbily like the original material.
So why should we expect that the cultural garbage that we daily consume in the form of trash novels (for the few of us who still read), situation comedies, reality dance and bachelor shows, alarmist “news” programs, and television “dramas,” will produce from us any more refined output than the quality of what we have consumed?
What do these rubbish add to our store of wisdom, or our deeper understanding of human nature, or our grasp of how other cultures view the world, or how we can make things better?
This is not to suggest that one should not add a little cultural cotton candy, or broadcast Ben & Jerry’s, or reading Reese’s peanut butter cups to one’s life every now and then. No. What I am saying is that a steady diet of that stuff will transform you from a lithe, supple thinker into a bloated, lazy advocacy short-cutter.
Before I entered law school, a wise judge told me that the more exposure one is able get to the great ideas, to the history behind the way things are, to the principles that influence people in their daily lives, the better one can understand how to use the tools of the legal profession for the benefit of one’s clients. That process takes place over a lifetime, and it does not end when one graduates from law school.
We learn much of what we come to know from our experiences. You decide what you are learning by the experiences you choose.
Anderson made a similar point recently on his blog with reference to writing: the best way to learn the art of persuasive writing is to read persuasive writers.
The quality of what you produce depends on the quality of the raw materials used.
April 28, 2015 § 1 Comment
It’s pretty hard to say “No” to a distraught mother who wants to modify custody or visitation because she is concerned that her 8- and 6-year-old boys are imperiled by the father who is letting the children ride a mini-4-wheeler during his custodial time, and is allowing the children to do things like: running barefoot all over his farm; playing down by the pond where the children might fall in or get swallowed by a water moccasin; or riding a pony; or riding in the back of a pickup or on a trailer across the pasture to and from the chicken houses; or jumping from the hayloft into the hay below.
That’s the fact pattern that a mom alleged against my client back in the 1990’s. A very wise chancellor observed that what town children are allowed to do is quite different than what “our country cousins” experience, and, in the absence of specific evidence that any of the children were actually endangered, he would not change anything.
That same principle came into play in the case of Nurkin v. Nurkin, decided April 7, 2015, in which Caroline Nurkin had complained to the chancellor that her ex-husband Brad was endangering their son during visitation by flying him to and from visitation in a private plane. The chancellor enjoined Brad from transporting the child in a private aircraft, and Brad appealed. Here’s what Judge Lee said for the unanimous court:
¶13. Brad cites to Mord v. Peters, 571 So. 2d 981 (Miss. 1990), to support his position. In Mord, the chancellor restricted the father’s ability to fly his children in his private plane. Id. at 983. The Mississippi Supreme Court reversed the chancellor’s decision and found that absent any showing that flying with the father would be dangerous or that the father was acting without concern for the children’s well being, neither the mother nor the chancellor had the right to restrict the children’s activities during visitation with their father. Id. at 984-85. In this instance, there was no testimony other than Caroline’s unfounded fears that Brad’s operation of a plane would endanger Jake’s life. As the supreme court stated in Mord, “Were we to affirm the chancellor’s position . . . endless litigation possibly would result. We can imagine custodial parents coming to court based on unjustified fears and apprehensions and attempt[ing] to prohibit their children from learning how to drive, fish, hunt[,] or swim when a non-custodial parent is exercising his . . . visitation.” Id. at 986. Furthermore, Brad testified that Jake enjoyed flying with him. There was no testimony that Jake was scared or anxious when flying.
¶14. “A non-custodial parent may determine which extracurricular activities the child participates in during visitation, including certain activities of which the custodial parent disapproves.” Givens v. Nicholson, 878 So. 2d 1073, 1076 (¶14) (Miss. Ct. App. 2004). Finding the chancellor’s decision erroneous, we reverse and render on this issue.
Of no particular relevance, but of minor interest, is that the appellant in Mord was and is a practicing attorney in Mississippi.
The main point is that restrictions on visitation, and in particular on the visiting parent’s conduct with the child, are not favored in our law. A few bullet points:
- The overnight boyfriend or girlfriend. Absent some objective proof of adverse effect on the children, the ancient custom of enjoining overnight guests of the opposite gender to whom the parent is not related by blood or marriage is no longer allowed. See, Harrington v. Harrington, 648 So.2d 543, 547 (Miss. 1994); Robinson v. Robinson, 722 So.2d 601, 605 (Miss. 1998).
- Restrictions on religious practices are always suspect and rarely upheld. A visiting father was permitted to take his child to a snake-handling church service, so long as the child was not permitted to touch or get within danger of being bitten. Harris v. Harris, 343 So.2d 762 (Miss. 1977). Even a chancellor’s comment about a parent’s religious beliefs may call a chancellor’s ruling into question. See, e.g., Muhammad v. Muhammad, 622 So.2d 1239 (Miss.1993).
- Professor Bell lists several other categories in which restrictions on visitation have been upheld to a greater or lesser extent: abusive behavior; family or spousal violence; dangerous conduct; emotional abuse; potential kidnapping; imprisonment; mental health issues; poor parenting r household conditions; sexual conduct; and interference with visitation. D. Bell, Bell on Mississippi Familly Law, 2nd Ed. § 12.08[a] through [i] and .
These can be issues that are fraught with emotion, and it’s not easy to persuade your client that a futile trip to court is not in his or her, or the child’s, best interest. The more you know about this area, the better equipped you’ll be to advise your client.
April 27, 2015 § Leave a comment
April 24, 2015 § 1 Comment
April 23, 2015 § Leave a comment
April 22, 2015 § Leave a comment
April 21, 2015 § 10 Comments
You old timers know of my fondness for what I refer to as “Checklists” — those lists of factors that apply in various cases in chancery court. Newcomers may not be acquainted with the concept, so I republish this list of checklists every now and then to spread the word. It’s a concept I’ve referred to as “Trial by Checklist.”
The idea is that the chancellor is required to address various factors in various types of cases. If you are not putting on evidence to support the judge’s findings of fact under each of those factors, then you are: (a) losing the case; and (b) failing in your duty to represent your client, as well as wasting the court’s time; and (c) committing malpractice.
Here they are:
And here are two checklists that will help you in probate matters:
My recommendation is that you keep each checklist, with citation of authorities, handy, either in a notebook or accessible in your computer where you can photocopy or print them out each time you have a case involving them. For instance, in a divorce case, you might need the checklists for child custody, child support, equitable distribution, and alimony. then, as you prepare, tailor your proof to make a record as to each factor. At trial, you can use each checklist as a template for presentation of your case.
In my courtroom, I keep a notebook on each side of the room with every checklist for lawyers to have handy in a pinch.
Bear in mind that if the judge does not have the proof to support her findings on the applicable factors, your case is in jeopardy on appeal — that is, if the judge somehow ruled in your favor in the first place.
April 20, 2015 § Leave a comment
I’ve never given much thought to how many other judges have blogs. Recently, though, in a ramble through the online ABA Journal, I stumbled upon a list of judge blogs, including mine.
The list may or may not be complete, I am not sure. The ABA site asks readers to send in links to other blogs, so I suspect there are some more. Judge Griffis’s blog isn’t there … yet. The ABA list purports to list only regularly updated blogs, but I found some that are inactive.
Here are the active entries, with links:
Anonymous blog by several UK magistrates (JP’s) who tell of the sad, funny, tragic, and epic cases in their courts and the lawyers and characters who play the parts.
From 1980 to 2008, US District Judge Jerry Buchmeyer had a monthly column in the Texas Bar’s monthly magazine with hilarious actual legal anecdotes and excerpts from depositions, briefs, and trial transcripts. This blog is a serialized archive of those columns. Reading these is like reading our own autobiography for many of us.
Maryland Judge Stephen I. Platt’s bog focusing on the interface between business, law, and public policy. This blog is also published as an op-ed column in the Daily Record, a Baltimore business and legal newspaper.
Retired Arizona judge Thomas A. Jacobs answers actual questions submitted by teens on a broad array of legal topics, such as cyberbullying, criminal procedure, First Amendment rights, alcohol and the law, and many others. He also writes about legal issues of interest to young people. This is not your usual stuffy, legalistic site. The blog has an appearance and style appealing to young people. If someone — Judge or lawyer — in Mississippi is considering taking on the task of authoring a blog, this would be a worthwhile model for a valuable service for Mississippi youths.
The subtitle, “The Role of the Federal Trial Judge,” defines senior status US District Judge Richard George Kopf’s blog. Kopf, of Nebraska, writes on a wide range of subjects with wit, waxing philosophical, and imparting advice to practitioners and other judges alike. Even if you don’t become a regular reader, you owe it to yourself to click on the tab “Generalissimo Francisco Franco and this Blog,” on his home page. Caveat: Judge Kopf has gotten some unwelcome and hostile attention for a post he made that was critical of the USSC’s Hobby Lobby decision, in which he admonished the justices to “STFU.” He also has been criticized for comments that can be considered sexist.
Judge Patricia A. Barnes’ blog covering legal aspects of workplace discrimination. Barnes is a judge with the Pyramid Lake Paiute Tribe (Chief Judge interim) and the Fallon Paiute Shoshone Tribe (Associate Justice, Court of Appeals) in Northern Nevada. She is a licensed, practicing attorney in Pennsylvania.
Oh, but you’re already here. Welcome.
There are several more, but they appear to be defunct. You can access the complete ABA list at this link. And if you click on the tab “Blawgs” on that page, you will find a directory of legal blogs, which the ABA calls “blawgs.”
Inspired by the ABA directory, I googled “Judge Blogs,” and came up with these active sites:
Wisconsin Judge John Dimotto’s blog “to record and convey the daily experiences of a Milwaukee County Circuit Court Judge.” The subjects are practical tips, expositions on the law, and observations.
Judge Kenneth Burke writes posts of interest to judges (which should be of interest to lawyers) for the American Judges Association.
UK Magistrate Trevor Coulart’s blog about life, photography, and his other interests, none of which involve the law.
Anybody know of any others?