October 13, 2015 § 1 Comment
Some of you posted your rants about the MRCP last week, and there was some real food for though there. Now the MSSC is following up with that examination of the rules that I posted about previously. This from the MS Bar Briefs e-newsletter for October 12, 2015:
Submissions for Mississippi Rules of Civil Procedure Project
The Supreme Court’s Rules Committee on Civil Practice and Procedure is conducting a comprehensive review of the Mississippi Rules of Civil Procedure. This is the first of its kind since the Rules were adopted almost 35 years ago. Members of the Bar are requested to submit proposed revisions to the Court’s Rules Committee on Civil Practice and Procedure by December 31, 2015. Proposed revisions may be substantive, grammatical or stylistic. All submissions will be scanned and posted on the Court’s website as they are received.
The court’s address is P. O. Box 117, Jackson, MS, 39205. The notice does not preclude email; the court’s email address is email@example.com.
Here’s your opportunity to influence possible changes in our rules.
October 12, 2015 § 2 Comments
MRE 803(6) is an important exception to the hearsay rule. It allows you to admit into evidence certain documents even though they are in essence hearsay. The rule reads this way:
Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
The document is admissible (1) if the information recorded was by a person with knowledge, and (2) the document was kept in the course of regular business activity, and (3) keeping such information in that form was the regular practice of the entity.
It is not necessary for every person who participated in compiling the data to come to court to testify about it to make it admissible. It can be authenticated by a “custodian or other qualified witness,” or it can be self-authenticated, as we will discuss below.
The court will determine whether the source and method of preparation are trustworthy enough to support admissibility.
Self-authentication is covered in MRE 902. To put it in simple terms, self-authentication means either that
- The document itself bears insignia or signs of authenticity so that a custodian or other person is not necessary to identify it and establish its authenticity. Some examples are set out in the rule, and you can expand on those to come up with other categories of documents to authenticate in this fashion.
- The document is accompanied by a certificate of authenticity as provided in MRE 902(11). This category is a little more ticklish to accomplish, so we will look at it in greater detail.
MRE 902(11) provides as follows:
(A) The records of a regularly conducted activity, within the scope of Rule 803(6), about which a certificate of the custodian or other qualified witness shows (i) the first hand knowledge of that person about the making, maintenance and storage of the records; (ii) evidence that the records are authentic as required by Rule 901(a) and comply with Article X; and (iii) that the records were (a) made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (b) kept in the course of the regularly conducted activity; and (c) made by the regularly conducted activity as a regular practice. Such records are not self-authenticating if the sources of
information or the method or circumstances of preparation indicate lack of trustworthiness.
(B) As used in this subsection, “certificate” means, (i) with respect to a domestic record, a written declaration under oath or attestation subject to the penalty of perjury; and, (ii) with respect to records maintained or located in a foreign country, a written declaration signed in a foreign country which, if falsely made, would subject the maker to criminal penalty under the laws of that country. A certificate relating to a foreign record must be accompanied by a final certification as to the genuineness of the signature and the position in the regularly conducted activity of the executing individual as is required for certification of Foreign Public Documents by subsection (3) of this rule.
So to comply with this part of MRE 902(11) you must file an affidavit under criminal penalty of perjury that the affiant swears that all of the requirements of MRE 803(6) are satisfied, and that the affiant is a person who could establish authenticity if he or she were to testify. You should track the language in both paragraphs in drafting your affidavit. Note that if the affidavit is by a person in a foreign country you must comply with MRE 902(3).
Now that you have done all that, there is more that you need to do to make the document(s) admissible at trial. MRE 902(11)(C) is critical:
(C) (i) Records so certified will be self-authenticating only if the proponent gives notice to adverse parties of the intent to offer the records as self-authenticating under this rule and provides a copy of the records and of the authenticating certificate. Such notice must be given sufficiently in advance of the trial or hearing at which they will be offered to provide the adverse party a fair opportunity to consider the offer and state any objections. (ii) Objections will be waived unless, within fifteen days after receiving the notice, the objector serves written specific objections or obtains agreement of the proponent or moves the court to enlarge the time. (iii) The proponent will be responsible for scheduling a hearing on any objections and the court should hear and decide such objections before the trial or hearing at which they will be offered. If the court cannot rule on the objections before the trial or hearing, the records will not be self-authenticating. (iv) If in a civil case, on motion by the proponent after the trial
or hearing, the court determines that the objections raised no genuine questions and were made without arguable good cause, the expenses incurred by the proponent in presenting the evidence necessary to secure admission of the records shall be assessed against the objecting party and attorney.
You must give timely notice to your opponent of your intent to offer the records under this rule, and if the opponent objects, you must set a hearing for the court to resolve the issue. Note the language of the rule: “Records so certified will be self-authenticating only if the proponent gives notice …” No notice = no self-authentication.
Sometimes lawyers agree on a handshake to let the document(s) in. That’s okay when it works, but every lawyer has a tale of woe about an opponent who said one thing in the halls of the courthouse two weeks ago, and then does not quite remember it the same way on the floor of the courtroom at trial. Better practice is to file that notice with a certificate of service. At a minimum, you should document the notice via email or regular mail. Any documentation is better than none, but some forms are better than others.
MRE 902 is a marvelous road map for how to get documents into evidence without a sponsoring witness, but you’d better follow it in every detail if you wish to succeed.
October 9, 2015 § 13 Comments
What changes would you make if you could? How would you improve them?
Comments by lawyers and judges are welcome and invited. You may post as anonymous or use a screen name, but you must include a valid email address so that I can verify that you are a member of the legal profession. Your email address will not appear.
No personal attacks. Please do not name particular lawyers or judges. Please be brief and to the point. All comments by persons who have not been approved before are moderated, so it may take a while for your comment to appear if it is approved.
Have at it.
October 7, 2015 § Leave a comment
Some law firms are trapped in 1995. Is yours?
October 6, 2015 § Leave a comment
The recent COA decision in Vogt v. Blann, handed down September 15, 2015, includes some interesting language that you might want to take to heart next time you have a custody modification case.
Brian Blann and April Vogt were divorced from each other in 2007. They had one daughter, Adyson, and April was awarded custody of her. In 2012, Brian filed a petition for modification of custody. At trial the proof established some questionable circumstances that had arisen since the divorce:
- April dated various men, lived with one, and gave birth to a child whose father she could not identify.
- Adyson attended several different schools, and had absences due to moves.
- When in kindergarten at one school, Adyson missed 12 days of school, nine unexcused.
- At another school during the same school year, Adyson missed six days and was tardy 12 times.
- At the time of trial, Adyson was in first grade, and had seven absences and four tardies. She had an “F” in reading.
- Adyson had several illnesses, including strep, hand-foot-and-mouth disease, and April did not always get her suitable medical care.
- Police were called to an altercation between April and her boyfriend; she was arrested, “went off” on the police, and tried to kick the window out of the squad car where she was detained.
- DHS took custody of all three of April’s children (including Adyson) for six months.
- Adyson had serious dental issues that April had not adequately addressed.
The chancellor found there to have been a material change and an adverse effect, and awarded Brian physical custody. The parties were to share joint legal custody, and April was given visitation rights. April appealed.
In his opinion, Justice Irving said this:
¶19. The chancellor determined that there had been a material change in circumstances that adversely affected Adyson’s well-being based on the following findings: April’s “numerous moves,” which created instability; “numerous men” in Adyson’s life; “numerous tardies and absences at the school[s,]” some of which were unexplained; and Adyson’s “suffering” grades. The chancellor also noted, with respect to the police incident, that the “reaction that the mother did [sic] at that time to that circumstance was certainly not smart.” The chancellor also pointed out that April did not know if “the children [had woken] up and look[ed] outside” and had seen their mother’s behavior.
¶20. The record is silent as to April’s living conditions at the time of the initial custody order, so we have nothing to compare. [Emphasis mine] …
Now, let’s stop right there.
It’s fundamental that modification of custody requires (a) material change in circumstances of the custodial parent’s living circumstances; (b) adverse effect on the child; and (c) a determination that it is in the child’s best interest to change custody.
Yet here, “the record is silent” as to April’s conditions at the time of the original custody determination in the divorce. Oops. That could have been a fatal mistake, but for the chancellor who was undoubtedly making findings that he felt he had to make for the best interest of Adyson.
If you find yourself in a similar case, be sure to put on proof to show what were the custodial parent’s living circumstances at the time of the initial custody determination. It may come in via adverse testimony of the respondent herself, or through your client. It may be by third parties. It could even come in through the chancellor’s original opinion and judgment at the time of the initial custody determination, which you can get into the record by a certified copy, or by asking the court to take judicial notice.
But however you do it, you have got to show that there has been a change, and to prove change you have to show what the situation was that has now changed. This is true in every type of modification. If it is child support, you have to show the parties’ financial situation, and the age of the child at the time of the initial judgment. Change is the prime mover in modification.
October 5, 2015 § Leave a comment
The MSSC’s internal committee on rules of civil procedure has sent out a letter soliciting comments and suggestions for changes to the MRCP. Deadline for comments is in December.
The letter, which was addressed to various constituent groups, appellate judges,the chairs of the trial court conferences, and others, said that the committee, consisting of Justices Dickinson, Randolph, and Coleman, intends to do a thorough study of the rules, review suggested changes, and re-draft the rules as the committee deems appropriate. Changes would then be sent to the court’s rules advisory committee for study and further work.
An upcoming article in the Mississippi Lawyer will provide further details.
October 2, 2015 § Leave a comment
“Waking up this morning, I smile. Twenty-four brand new hours are before me. I vow to live fully in each moment and to look at all beings with eyes of compassion.” — Thich Nhat Hanh
“Our job is to love others without stopping to inquire whether or not they are worthy. That is not our business and, in fact, it is nobody’s business. What we are asked to do is to love, and this love itself will render both ourselves and our neighbors worthy if anything can.” — Thomas Merton
“When death, the great Reconciler, has come, it is never our tenderness that we repent of, but our severity.” — George Eliot