The Better Chancery Practice Blog

The MSSC entered an order on May 26 amending MRE 103. The full text of the order and the amended rule are at this link.

This particular rule change adds a subparagraph (3) to R103(a) that reads as follows:

 (3) Effects of Definitive Rulings. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. Moreover, a party who objects to evidence of a prior conviction the court finds admissible in a definitive ruling does not waive or forfeit a claim of error by offering the evidence. But if under the court’s ruling there is a condition precedent to admission or exclusion, such as the introduction of certain testimony or the pursuit of a certain claim or defense, no claim of error may be predicated upon the ruling unless the condition precedent is satisfied.

This brings Mississippi’s R103 closer to the federal counterpart.

I’ll leave it to you to puzzle out exactly how this might affect your practice, but I think the key word is renew, meaning that once the court has ruled definitely on admissibility, nothing needs to be renewed. It does not mean that an offer of proof per R103(a)(2) is not necessary to place the controverted evidence into the record. I also think as a practical matter that this will have greater application in criminal cases, where pre-trial exclusionary orders have been entered, than it will in chancery matters.

State Holiday

Courthouse closed

MRCP 5.1 and the MEC administrative rules require that you redact certain information from pleadings filed electronically. We’ve discussed the topic here previously. I’ve also encouraged you to redact similar information from discovery responses and exhibits in evidence.

But how do you redact? Are you doing it effectively?

The federal courts, which have similar privacy requirements to Mississippi’s, have studied the question. Here’s a link to an article on the web site of the US District Court for the Northern District of California that explains what methods of redaction do the job — and those that do not.

Reprise replays posts from the past that you may find useful today.

BULLETPROOFING YOUR WITNESSES

August 9, 2011 § 5 Comments

If you have never had a witness implode on the stand, this post is not for you.

If, on the other hand, you have struggled inwardly to maintain your composure as your witness apparently has forgotten everything he ever knew about the case, or he has abandoned all common sense, or she blurts out all manner of facts she never revealed to you before and is laying waste to her own case as effectively as if she were her own opposing counsel, then this post may help.

An important part of trial preparation — you do prepare for trial, I hope — is preparing your witnesses. Uh — you do prepare your witnesses, I hope.

It’s pretty clear when a witness is prepared. The witness and the lawyer work almost in tandem. The witness seems to understand where the lawyer is going with the questions and goes along easily, without a lot of leading and prodding. The witness’s testimony is clear. The witness knows how to say what needs to be said, and handles himself well on cross examination.

In other words, the witness is coated in teflon and swathed in kevlar. Non-stick and bullet-proof.

It doesn’t take a lot of time and effort to prep your witness if you focus in on what needs to be addressed. Here are a few helpful tips. Take them as a starting point and fill in with as many others as you can come up with.
•Take a few mintues to explain to your client what it is you have to prove to have a successful day in court. For instance, if modification of child custody is in issue, explain material change, adverse effect and best interest.
•Go over some questions and elicit your client’s answers. Suggest more effective ways to say what the witness is going to testify to. It is entirely ethical to suggest more effective ways to state the facts; of course it is unethical to change the facts or tell the witness to testify to something the witness did not perceive. You can tell the witness how to say it, but you can not tell the witness what to say.
•Remind the witness to testify about facts, and not impressions. Tell what you saw with your own two eyes without using labels. “The windows were all broken out of the car, the side mirrors were broken off and hanging down, the headlights were smashed, and the tires were all flat” is a lot more powerful than “The car was busted up.”
•Tell the witness about courtroom etiquette. Don’t chew gum or chewing tobacco, speak up loud and clear, be respectful of the court and other attorney, wait until the question is finished before answering, don’t interrupt any other speaker, dress conservatively, and avoid confrontation with the other party. If you want to bring something to your lawyer’s attention, write it down and pass a note; the lawyer has enough on her plate without having to deal with interruptions.
•If an 8.05 statement will be used, go over it with the witness. Test memory about figures and identify any trouble spots. Tips for more effective financial statements and financial testimony are here and here.
•Prepare the witness for cross examination. Explain how it works and confront the witness with the most obvious weak points. Suggest ways for the witness to deal with it. Caution the witness about the other lawyer’s typical bag of tricks on cross and offer some strategies to deal with them.
•Explain to the witness that he will be nervous when he takes the stand, but so is everyone else who has to get up there.
•Explain how hearsay works, and that just about every answer that begins, “He said …,” or “I heard her say …” or “The teacher told me that …”, etc. will elicit a reflexive objection. Recommend ways around hearsay.

A few pointers for more effective chancery trials are here.

There are two kinds of witnesses: the kinds who help your case; and the kinds who hurt it. You want every witness called by you to be in the former category. Witness prep will go a long way toward that end.

In days of yore — before the MRCP — discovery was limited. There was a device, however, called the “Bill of Discovery in Chancery” that was recognized as the vehicle by which a party could discover material facts known to or in the control of the other party.

In a recent case the COA affirmed a chancellor’s ruling that dismissed a plaintiff’s Bill of Discovery (BOD) filed in chancery court. The plaintiff, Cynthia Kuljis, had filed the pleading to discover information about her slip-and-fall case involving Winn-Dixie of Montgomery. Kujlis argued that the BOD was prudent so that she could determine whether she had a viable cause of action before filing a law suit. The chancellor dismissed on the basis that the matter should have been brought in circuit court, where discovery should ensue.

The COA affirmed in Kuljis v.Winn-Dixie Montgomery, LLC, decided March 29, 2016.

What I want to point out, though, is the dissent written by Judge Fair, joined by Lee, Griffis, Greenlee, and, in part, James, in which he cites State Oil and Gas Board v. McGowan, 542 So.2d 244 (Miss. 1989) as authority for the proposition that the BOD is viable and effective, even since enactment of the MRCP.

So, is this the end of this venerable instrument? We’ll have to wait and see whether the MSSC gets a shot at this issue.

I have not seen a BOD filed since the MRCP went into effect, and that includes both my time both as a lawyer and as a chancellor. I have twice dismissed efforts to use an estate for discovery of a possible PI cause of action, ruling that the matter should be pursued in circuit with discovery, but in neither case was a BOD sought.

The COA reversed and remanded in a recent case because the chancellor did not award interest on a contempt judgment.

In Oster v. Ratliff, handed down April 19, 2016, Judge Irving wrote for the court:

¶21. Consuelo [Ratliff] argues that under Mississippi Code Annotated section 75-17-7 (Rev. 2009), the chancellor erred in failing to award post-judgment interest on the judgment against Crieg [Oster]. In response, Crieg argues that this issue is barred because Consuelo failed to raise it during the hearing. In the alternative, he argues that an award of interest on the judgment would have been punitive in nature and would have resulted in a windfall for Consuelo.

¶22. In the final judgment, the chancery court did not award Consuelo interest on the judgment. Section 75-17-7 provides, in relevant part: “All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.” Under that section, “it is error, as a matter of law, for a chancellor not to award interest on a judgment for past-due support.” Caplinger v. Caplinger, 108 So. 3d 992, 999 (¶25) (Miss. Ct. App. 2013) (citation omitted). Under a different set of circumstances, we would agree with Crieg that the issue is procedurally barred because Consuelo failed to raise this issue for resolution by the chancery court (see Scally v. Scally, 802 So. 2d 128, 131 (¶¶27-28) (Miss. 2001) (citations omitted)), but because this involves child support, which cannot be waived, we see no reason why interest on it should be waived. Moreover, section 75-17-7 makes it clear that a judge should award interest at a per annum rate on judgments such as this one. The chancery court rendered a judgment in favor of Consuelo for $7,819.50 in past-due child support and insurance premiums and $2,500 in attorney’s fees, which were incurred in attempting to collect past-due child support from Crieg. Interest should be calculated on these amounts.

A few points:

• Not only did Ratliff fail to give the chancellor the chance to address the error via a R59 motion, but I have it from an informed source that she did not even ask in her pleadings for interest. So the duty to impose an interest rate is with the judge, who must assign it whether there is a prayer for it, and whether there is any evidence to support the rate assigned.
• MCA 75-17-7 says that the rate is whatever the chancellor has “determined to be fair,” but what evidence is required to support that determination? In this case, obviously none. And in my experience, lawyers never put on such proof. And what findings must the judge make to support a finding that the rate is fair?
• I talked about various aspects of judgment interest in this previous post.