Pro Se Times Five

June 9, 2015 § 5 Comments

Every now and then one of those tv commentators with a big head, staring all-knowingly into the eye of the camera, will pontificate that members of my generation believe — somewhat arrogantly, they say — that we can do anything.

I take issue with that. I know, for example, that I would not be a very successful brain surgeon, what with my less-than-steady hands and absolute ignorance of surgical techniques, not to mention minimal understanding of brain and skull structure. Of course my lack of success in that field would make me a spectacularly successful defendant — from the perspective of plaintiffs.

You would probably agree with me, as would most rational people, that it is singularly ill-advised for laypeople to attempt brain surgery on someone else, or even themselves.

Brain surgery requires a high degree of education, smarts, and practice. As does the law.

Why, then, do ordinarily sensible people — who would not dream of doing brain surgery, and who have had the wherewithal to reach adulthood without blowing themselves up or being devoured by wild beasts or falling into any similar calamity  — insist on representing themselves in litigation and — horrors — on appeal?

That’s what happened in the case of Estate of Forrest: Forrest v. Forrest, decided June 2, 2015, by the COA. In that case, Diane Forrest had a falling-out with the sons of her deceased husband over assets and expenses of the estate. When Diane filed a petition to close the estate, the sons showed up at the hearing, ready to do battle. But the chancellor, in solomonic fashion, conferred with the parties and announced that they had reached a settlement agreeable to all. The COA opinion by Judge Ishee describes what happened next:

¶5.  After reading the agreement into the record, the chancellor asked the parties if they understood and assented to the agreement as dictated into the record. All parties responded affirmatively. Diane then filed this appeal.

Pro se, I might add.

Diane’s appeal was doomed because Diane’s attorney (herself) apparently did not grasp the fundamental concept that an appeal involves legal argument. Judge Ishee explicated:

¶7. Diane filed her appellant’s brief pro se. In her brief, Diane failed to cite any authority in support of her claims. Pursuant to Mississippi Rule of Appellate Procedure 28(a)(6), an appellant’s brief must “contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” It is well settled under Mississippi caselaw that “failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment.” Norwood v. Miss. Dep’t of Emp’t Sec., 105 So. 3d 408, 410 (¶5) (Miss. Ct. App. 2012) (citation omitted).

¶8. Although Diane has chosen to appeal this matter without the assistance of counsel, the Mississippi Supreme Court has consistently held that “[a] pro se litigant shall be held to the same standard as an attorney.” Bailey v. Wheatley Estates Corp., 829 So. 2d 1278, 1281 (¶11) (Miss. Ct. App. 2002). As such, we decline to address Diane’s assignments of error because she failed to cite any authority in her briefs.

Actually, Diane’s failure to cite any authority is probably indicative of the fact that there is no authority that would support reversing the chancellor in this case. Diane made her deal, affirmed her agreement in open court, and then tried to renege via appeal. That’s not a formula for success.

Oh, and did I mention that all four of the sons, who were appellees, are listed as pro se also? So were they better lawyers than Diane because they won? Not necessarily. Their one defensive ploy was to move to strike Diane’s brief because it was filed too late. The COA dismissed that issue as mooted out by the larger and much more obvious issue of failure to cite any authority.

I know what you’re probably thinking: “it’s obvious that they were pro se because they did not want to pay lawyers.” I get that. I know that lawyers, particularly in bulk, can be expensive. But that’s sort of beside the point. The point is that a pro se appeal is about as futile as doing brain surgery on oneself — and about as messy and painful.

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§ 5 Responses to Pro Se Times Five

  • Tracy Steen says:

    Sadly, this is the same Diane in Forrest v. McCoy, 996 So. 2d 158 (Miss. App. 2008).

  • Bob Wolford says:

    Not up to the legislature- your local “justice of the peace” is an Article 6 judge under the MS Constitution (see Section 171). Municipal court judges, however, are creatures of statute and are required to be lawyers.

  • HDCII says:

    Uniform Chancery Court Rule 6.01 requires that an attorney be retained to represent the fiduciary in an estate. By what authority did Diane appeal?

  • Bill Featherston says:

    Also a good analogy for why the legislature should require Justice Court Judges to be lawyers.

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