November 11, 2016 § Leave a comment

State Holiday

Courthouse closed

How the Judicial Races Turned Out

November 9, 2016 § 6 Comments

Here are the contested appellate races:

Supreme Court, , District One, Position 2: Kitchens, 54%; Griffis, 46%.

Supreme Court, District Two, Position Two: Beam, 67%; Shareef, 33%.

Supreme Court, District Three, Position 1: Chamberlin, 31%; Brady, 29%; Kitchens, 25%; Crumpton, 15%.

Court of Appeals, District 2, Position 2: Westbrooks, 57%; James, 43%.

Court of Appeals, District 3, Position 1: Wilson, 50%; Hannan, 37%; Yoder, 13%.

It would appear from these figures, all of which are from AP, that there will be runoffs in MSSC Dist. Three and COA Dist. 3 (the inconsistency in nomenclature is the AP’s).

I have no results from any contested trial court elections around the state. Please feel free to add a comment about any local races if you have some authoritative info.

 

Go Vote …

November 8, 2016 § Leave a comment

… It’s the least you can do for all the brave folks who gave their lives to preserve that privilege for you.

An Acknowledgment is not an Oath, and Vice Versa

November 7, 2016 § 2 Comments

This is an acknowledgment:

Personally appeared before me, the undersigned authority in and for the said county and state, on this the 4th day of October, 2016, within my jurisdiction, the within-named Joe Doe, who acknowledged that he executed the above and foregoing instrument.  (MCA 89-3-7)

This is an oath:

Personally appeared before me, the undersigned authority in and for the said county and state, Jane Doe, who, after by me being first duly sworn, stated on oath that the matters and things set forth in the foregoing Petition are true and correct as therein stated.

Each serves an important function, but their functions are entirely different, and they are not interchangeable.

If you have to file an affidavit, such as an affidavit of known creditors, or an affidavit of diligent inquiry for publication process, or if you must file a sworn pleading in an estate, an acknowledgment simply will not do the job. All of those call for swearing on the part of the maker, and there is no swearing in an acknowledgment.

But, you may say, “It’s notarized; that should do it, right?” Wrong. All the notary is doing is witnessing. In one instance, she is witnessing a signature (acknowledgment). In the other she is administering and recording an oath. It’s two distinctly different things.

I am bringing this to your attention because I have had to send lawyers scurrying back to the staring line when I look at the document that is styled “Affidavit,” which requires an oath, but on closer examination includes only an acknowledgment. Without a swearing, it’s not an affidavit.

Make sure your office staff understands the difference and selects the correct one to meet the function. It can save you time, money, and embarrassment.

“Quote Unquote”

November 4, 2016 § Leave a comment

“True peace is not merely the absence of tension: it is the presence of justice.” – Martin Luther King, Jr.

“Deeds of kindness are equal in weight to all the commandments.” – Talmud

“ … equity, though just, is not legal justice, but a rectification of legal justice. The reason for this is that law is always a general statement, yet there are cases which it is not possible to cover in a general statement.” – Aristotle

photo-oct-28-7-17-49-am

Outsmarting One’s Self

November 3, 2016 § 2 Comments

Sometimes it just seems smart to skip spending the money on lawyers and to represent one’s self. Sometimes it doesn’t seem quite so smart

Take the case of Walter Poole. He had been appointed administrator of the estate of his sister, Vera. Michael Walton, another of Vera’s heirs, filed a motion to remove Poole as administrator. At the hearing, Poole said he had no objection to removal or to Walton’s appointment. The chancellor did what any rational human being would have done and removed Poole, replacing him with Walton.

For some reason not easily discernible, Poole appealed. His appeal was pro se, by the way. He assigned three errors: (1) that the chancellor erred in removing him as administrator; (2) that the chancellor failed to make adequate findings of fact; and (3) that the chancellor erred in refusing to hear evidence as to Vera’s wishes for disposition of her property and appointment of Walton.

In Poole v. Walton, decided October 11, 2016, the COA (predictably) affirmed. In an opinion that was mercifully succinct and not unnecessarily erudite, Judge Lee wrapped up the rationale:

 I. Removal of Poole as Administrator

¶6. Poole contends that he should not have been removed as administrator of Vera’s
estate. However, Poole stated during the hearing that he had no objection to either his
removal as administrator of Vera’s estate or the appointment of Walton as administrator. This issue is without merit.

II. Findings of Fact

III. Other Evidence

¶7. In his other issues, Poole asserts that the chancellor should have allowed him to
submit evidence of “Vera’s true intent” regarding her property and the appointment of an administrator over her estate. Poole implies that Vera had a will but that it was destroyed or withheld by Walton. But Poole admitted during the hearing that he had no proof to support his allegations. We find no merit to Poole’s remaining issues.

Not much there for the scholars to chew on. But for the rest of us, it’s mercifully brief and to the point. Judge Lee didn’t have a lot to say about it. And neither shall I.

Paying Attention

November 1, 2016 § 8 Comments

Has this ever happened to you? You have arrived at the head of the line at Wendy’s (or your customary fast-food joint):

You: I would like a small number one combo to go; hold the cheese and onions.

Wendy: Number one combo. Here or to go?

You: To go. And did you get the no cheese and onions?

Wendy: Number one combo. Large or small?

You: Uh, small. And no cheese and onions, right?

Wendy: You want no cheese and onions?

You: Right. No cheese and onions.

Wendy: Number one combo. No cheese and onions. Small. Here or to go?

[If you weren’t paying close attention, you might want to read through that again slowly]

When you get to your vehicle, odds are 3-1 that there is either cheese or onions, or both, on your burger. Happens all the time.

Not trying to pick on Wendy’s. Or fast-food joints in general. Or the people who work there. It’s just a cultural thing nowadays that people are used to getting their information in small, rapid snippets. They are accustomed to doing three or four things all at once, not doing any of them particularly accurately. They simply are not used at all to pausing to gather enough information and apply a cognitive process to it. That takes too much time and effort.

And our modern apparatuses facilitate this. I have sat at a table in a nice restaurant and observed all four people at a neighboring table studying their smart phones as if they were sacred idols. No conversation. No interaction. When the waiter asks if they are ready to order the scramble is on to pick something off the menu so they can get back to their devices. At home, how many of us spend our evenings staring at the tv screen, or dabbling on a laptop or tablet while the tv is going, or doing all of that and talking on the phone — all while someone else sits across the room doing the same? None of this is paying attention, by the way; it’s scattering attention to render it completely ineffective.

This lack of attention thing seeps into your practice via your clients. You get something like this from your clients all the time: “You said the judge would definitely find my ex in contempt for not allowing me visitation” when you know good and well you never said any such thing. People don’t take time to hear and process.

Oh, and you and your office staff are not immune. You proofread discovery while answering email while returning phone calls and giving directions to office staff. You can’t pay attention to one thing when your attention is divided four ways.

It seems to work so well in everyday life, though. People seem to survive and even thrive while juggling three different devices and information sources.

But what works in pop culture and even in day-to-day business does not necessarily work well at all in the law.

Not paying attention is a luxury in which no one in the law or the judiciary can afford to indulge. Too much is at stake. The law requires precision in language, in thought, and in writing. Poorly worded questioning will allow a slick witness to slither away from the truth, or, worse, will deprive you of a crucial point in the record for appeal. Your unthoughtful arguments will be picked apart by counsel opposite and the court. A sloppily drafted contract or PSA will wind your client back in court nine times out of ten.

Lawyers who have been here in the Far East of Mississippi can confirm that I don’t do telephone conferences except in the most extreme situations. That’s because if you are sitting in my court room or in my office I can observe whether you are paying attention and whether I am making contact with gray matter. Over the phone, I don’t know that; I don’t know that you aren’t practicing your putting, or texting, or working crossword puzzles, or playing Minecraft while I am instructing how I want the order drawn.

Paying attention may be our most essential survival skill. A wildebeest that does not pay attention, for example, gets to enjoy being a lion’s dinner. It certainly applies in the law. Pay attention: the life you save may be your own.

Where Am I?

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