December 21, 2016 § 6 Comments
Taking a holiday break from the blog.
Next post January 3, 2017.
Judicial Election Malfunction
December 20, 2016 § 2 Comments
Only last week I posted about some of the vicissitudes of judicial elections. Then I ran across this on the Lowering the Bar blog:
… in Illinois a woman who is currently under indictment for allegedly impersonating a judge was elected Tuesday to be a real judge. The state supreme court had already ruled that Rhonda Crawford could not take the bench if she won, but she got over 74,000 votes anyway.
This all stems from an odd incident in August when a judge let Crawford—then a law clerk—wear her robe one day. That’s fine, but prosecutors allege Crawford also heard and ruled on three cases, which isn’t. As Prof. Steven Lubet has written, this is not quite as crazy as it sounds, because Crawford was not only seeking a judgeship at the time, she had already won the Democratic primary by then and (this being Chicago) was running unopposed in the general election. So that was basically a done deal, and apparently the judge let Crawford get in a little practice beforehand. But even though only minor traffic offenses were involved, this is just not something one can do before actually taking the bench, and the chief judge suspended both of them pending further investigation. The high court later suspended Crawford’s law license as well. Another judge decided to mount a write-in challenge, given the circumstances, and the high court barred Crawford from being sworn in even if she won.
Which she did.
According to Tuesday’s report, the state board of elections has declared Crawford the winner, but the seat will remain vacant because she cannot take office. If she were to lose her license or be convicted of a felony, then she’d be permanently disqualified and the high court could appoint someone to serve until the next election in 2018. Presumably if Crawford were to be cleared before then, she would be able to take the bench, but it isn’t clear when the ethics and criminal charges will be resolved.
It also isn’t clear whether the 74,000 voters who supported Crawford knew about all this, or knew but just didn’t care. Her opponent said she got “several thousand” write-in votes, but conceded it was not nearly enough to win. She said she was shocked by how many of the voters she talked to knew nothing about the scandal, although maybe she shouldn’t have been. “She’s not the winner,” the opponent said, “she’s just the person who got the most votes.” Well, that does make her the winner, actually, it just makes her a winner who can’t accept the job, at least for now.
This is apparently not a significant aberration for Illinois voters. As Lowering the Bar points out:
In 2012, Illinois voters elected Rep. Derrick Smith to another term in the state House although he had not only been indicted but kicked out of the House for taking a $7,000 bribe. (Bonus points: Smith was caught on tape referring to the money as “cheddar” and counting it out one bill at a time.) The House could not expel him a second time for the same offense, so he reclaimed his seat and served for two more years before losing in the next primary. In fact, he continued to serve even after he was convicted in June 2014, possibly because he was not actually sentenced until the following April, by which time he had left office.
Troubling, but it still doesn’t look like a trend. But the way things go nowadays, one never knows.
The Average Valuation Case
December 19, 2016 § 1 Comment
Three things are fundamental when it comes to equitable distribution:
- It’s incumbent on the chancellor to determine the fair market value of the assets before determining division; and
- It’s up to the parties to offer evidence of the values; and
- It’s up to the chancellor to determine the weight and credibility of the evidence.
When Chad and Catherine Potts showed up in court for their divorce in 2015, one item at issue was equitable division of the former marital residence and 40 acres of land. There was no dispute that the property was marital. Catherine presented a 2011 appraisal that valued the property at $138,000, and Chad offered an eight-month-old 2014 appraisal placing the value at $86,000. After quizzing Chad over the discrepancy between the two valuations, the chancellor averaged the two and determined the value to be $112,000.
Dissatisfied, Chad appealed, contending that the judge should have adopted his more recent value. On November 22, 2016, in Potts v. Potts, the COA affirmed. Judge Irving wrote for the unanimous court:
¶8. “Property division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division.” Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Pursuant to Ferguson, Chad argues that the chancellor should have relied solely on the appraisal he submitted to the court because it was more recent and, therefore, a more accurate determination of the fair market value of the property at the time of the divorce. He asserts that the chancellor erred by applying an average of both appraisals that were submitted to the court rather than simply applying the most current appraised market value of the property.
¶9. Catherine responds that the chancellor was not in error in determining the value of the marital home and land by averaging the appraisals submitted by the parties. She argues that Chad’s appraisal showed a $52,000 reduction in the fair market value of the property, and no evidence was presented to the court explaining the reduction in value. In addition, she argues that the overall award in the case was fair, reasonable, and equitable.
¶10. “A chancellor is responsible for determining the fair market value of the marital assets.” McKnight v. McKnight, 951 So. 2d 594, 596 (¶6) (Miss. Ct. App. 2007). It appears that the chancellor found it disturbing that the property had lost a considerable amount of its value and he attempted to obtain an explanation to assist in the determination of the property’s fair market value. The chancellor addressed this issue during the proceedings with Chad as follows:
Chancellor: Property values are about the same now as they were three or four years ago?
Chad: Yes, sir.
* * * *
Chancellor: Have you taken away a lot of the improvements to the property in the past few years?
Chad: Taken away? What do you mean?
Chancellor: Are they gone from what they were from, say, 2009 until 2014? Have a bunch of the improvements been gone?
Chad: No, I haven’t.
Chancellor: Are they deteriorated very much, or have you kept them up pretty well?
Chad: Yes, sir, I have.
¶11. There was no evidence offered to support the reduction in value as both appraisals were conducted by the same entity. In addition, Chad testified that the property values were about the same as they were at the time of Catherine’s appraisal, that no improvements had been removed, and that the property had not deteriorated. “To the extent that the evidence on which [a] chancellor base[s] his opinion [is] less informative than it could have been, we lay that at the feet of the litigants and not the chancellor.” Williams v. Williams, 129 So. 3d 233, 241 (¶31) (Miss. Ct. App. 2013) (citation omitted). Chad failed to give a reasonable explanation for the diminishment in the value of the property from 2011 to 2014, even though property values generally had remained steady. The appraisals were the only evidence submitted to the chancellor to determine the value of the property. As stated, there was a considerable difference in the value arrived at by the two appraisals with no apparent explanation for the difference. The chancellor split the difference, as in his discretion he was permitted to do, to arrive at a reasonable value. McKnight, 951 So. 2d at 596 (¶7). After reviewing the record, we find nothing to suggest that the chancellor abused his discretion. This issue is without merit.
The chancellor actually did Chad a favor by giving him the opportunity to explain why his value of the property had decreased as much as he claimed in the period between the two appraisals. As you can see, Chad didn’t do much to help his cause. By the way, MRE 614 specifically allows the judge to examine any witnesses, and even to call witnesses herself. In this case, I think the appellate result would have been exactly the same whether or not the judge asked any questions.
It’s ingrained in our law that the chancellor may average values when presented with competing valuations. If you want to have a basis to challenge averaging, you have to put some evidence in the record as to why your client’s valuation is the more credible. For instance, had Chad called one or both of the appraisers to testify, that may have produced a different result. In the absence of that testimony, he may perhaps have been able to explain some deterioration of the property or some other factor affecting value negatively. Absence of that kind of proof left a vacuum which the chancellor filled with an average. And it deprived Chad of much to argue on appeal.
Dispatches from the Farthest Outposts of Civilization
December 16, 2016 § Leave a comment
Should State Judges be Appointed?
December 15, 2016 § 7 Comments
Phillip Thomas addresses the question of appointed vs. elected judges in a post on his Mississippi Litigation Review and Commentary blog earlier this month. The post was based on a Clarion-Ledger article.
One point of alarm to Mr. Thomas is a survey showing that 50% of judges believed contributions to judicial candidates do influence decisions. As for me, as a state trial judge, I have never been asked to participate in such a survey, or, at least, I have never responded to such a survey if the opportunity were actually presented. So let me say for myself that I do not believe that contributions influence trial court decisions, but I do believe that they certainly do give reasonable people reason to believe that they do. The statistics reported by the Clarion-Ledger bear that out.
One of the many flaws of an elected judiciary is that it forces judges and judicial candidates to have to raise money to run. There is no such thing as a successful election campaign without adequate funds to pay for signs, advertising, and all the other trappings necessary to get one’s name out to the electorate and to energize them to vote. With money comes at least the appearance of influence. Lawyers know and understand that no judicial candidate can solicit or accept contributions directly; that must be done through an independent committee, and the candidate is not supposed to be allowed access to the financial reports. I am confident that the public, however, does not understand this. Some other drawbacks:
- Judicial candidates should only be able to promise to be fair, to be dedicated, and to follow the law. Yet, we hear candidates promising to be tough on crime and criminals, or to be friends of law enforcement, when the job of a judge may demand setting a prisoner loose, or to rule against law enforcement officers. A judge really has no friend other than the law itself when called upon to rule.
- Voters in this part of the world can be swayed to vote against “liberal” judges, and to vote for “conservative” judges without really understanding what those terms imply in practice in our courts. Is a judge “liberal” because he sets aside a clearly erroneous guilty verdict? Or is he doing exactly what the law requires of him? And is she “conservative” because she denies custody to a drug-addicted mother? Or is she doing exactly what the law requires of her?
- PACS have introduced vicious attack ads into our judicial races. Lawyers view them critically and get the misleading and often false accusations. But voters pummeled with attack ad after attack ad often figure that where there’s smoke …
- Our judicial races have become non-partisan in name only. I leave it to you to consider the evidence and draw your own conclusions.
There are other flaws in the judicial election process that you can add for yourself.
So, is the solution to appoint state judges? At first blush, that would appear a viable solution. After all, it works arguably well at the federal level. Life appointment in federal court assures judicial independence. With the advice and consent of the Senate as a check, the federal judiciary remains for the most part balanced. It could possibly work the same way at the state level, but here are some concerns:
- In a one-party system such as we have in Mississippi, the governor pretty much gets to appoint whomever he chooses. A corrupt governor could turn judicial appointments into a cash cow (Note: this statement is purely hypothetical; I am not referring to any past, present, or future governor(s)).
- Favoritism and political affiliation can overrule merit and experience.
- An appointing authority with an agenda can ensure that he or she will have enough votes on the appellate court to enact it. That’s less of an issue at the trial level, but it’s a possibility.
Again, there are other flaws in an appointed system, too.
Some states have tried to neutralize the negatives of appointments by limiting the governor’s appointing authority to a panel of qualified candidates nominated by a blue-ribbon panel. That does not rule out some of the negatives mentioned above.
Other states have tried to strike a medium by providing for initial election or appointment for a term, and then requiring the incumbent to stand for a “retention” election at the conclusion of the term. If the vote is more than 50% to retain, then the incumbent continues in office; if less than 50%, then he or she stands for re-election with likely opposition. An obvious negative is that it replaces one election with two, with all the concomitant equipage of elections.
Still other states have employed variations on the foregoing themes. All have admirable as well as questionable qualities.
Bottom line is that there is no clear-cut, most advantageous approach.
In 1817, when the debate first arose over what form of judicial selection would be most likely to ensure judicial independence and integrity in our Mississippi courts. The decision back then, and in every successive constitutional debate, has been to retain the elected judiciary.
Reprise: Best Ways to Destroy a Child in the Course of Litigation
December 13, 2016 § 6 Comments
Reprise replays posts from the past that you may find useful today.
TOP TEN WAYS TO DESTROY A CHILD IN A DIVORCE OR CUSTODY CASE
April 20, 2011 § 2 Comments
If you have practiced family law any amount of time, you will marvel at the ingenuity of parents and other family members in devising ways to warp, hurt, demoralize and destroy children.
Here are some of the most effective:
- Use the children as pawns. Trash the non-custodial parent’s mail to the child, or hide birthday or Christmas presents. Use denial of visitation or contact as a tool to retaliate. Then tell the child it’s all the other parent’s fault.
- Use the children as spies. Nobody makes as good a spy as an insider. So what if it puts the children in the middle, or makes them feel like traitors, or makes them choose sides. As long as I get what I want, what does it matter, right?
- Deny the other parent access to the children. Very effective, especially when coupled with exagerrated or false claims of physical or sexual abuse. Utilized long enough, this tactic can completely estrange the children from the non-custodial parent. This ploy is so effective that children who grow into adults having experienced it often enjoy years of counselling.
- Make the children feel guilty for loving the other parent. This one is guaranteed to create maximum warpage. “Who do you love the most, me or mommy?” Some parents even punish the child for a “wrong” answer.
- Use the children as messengers. Mommy and daddy won’t talk to each other like adults, so the child is given notes, medical bills, school records, and so on. This is an effective way to put the children right in the middle, and to let them in on adult concerns. Gives them something more to worry about, and shifts the responsibility off of the parents.
- Criticize the other parent to the children. It really feels great to unload all of the hurt and anger you have toward your ex, and who is better than the children to understand exactly where you’re coming from? It feels super to get that off your chest — right onto the children.
- Model vindictive and spiteful behavior. “Do as I say, not as I do” is the motto of parents who engage in this behavior. Only problem is, that philosophy has never worked when raising children. But who cares? It’s worth it to take a swipe at the old ex, right?
- Ignore the children’s stress and negative behavior brought on by the litigation. Tell the children to quit that silly crying, or stop misbehaving or I’ll whip you, or “Quit acting like a baby.” None of that sissy stuff like holding and reassuring them, asking them to share their concerns, or simply devoting some one-on-one attention.
- Try to “win” the children over by relaxing discipline. Parents who want to be the child’s best friend, not an authority figure. Guaranteed to win the child over to that parent’s “side,” and to undermine the authority of the other “mean” parent. The fly in this ointment is that after a while the child won’t mind you no matter what. But that’s okay as long as you’re best buds, huh?
- Use the children as targets to vent your own anger and frustration. What’s wrong with lashing out at junior after a particularly frustrating conversation with your ex? Everything.
As lawyers, you can exercise a lot of influence over your client’s behavior. I can’t think of a more important subject about which you can influence your client than how to keep the children from being hurt in a divorce.
Preserving the Unexpected as an Issue for Appeal
December 12, 2016 § Leave a comment
Andrea and Thomas Taylor went to chancery court in a dispute over college-education language in the PSA that accompanied their 2003 divorce. Andrea took the position that it did not address college education tuition and expenses for their son, Austin. Thomas claimed that the agreement did address the issue, and he sued Andrea for contempt, demanding that she contribute to the more than $70,000 that Austin had incurred as student loans pursuing a commercial aviation degree at Delta State.
The chancellor did find that the PSA obligated both parents to contribute equally to their son’s college education expenses, and he found that those expenses totalled $61,136. He then ordered each party to pay $30,568 toward the judgment.
Here is where things get a little weird. The chancellor rendered the judgment not in favor of Thomas, and certainly not in favor of Andrea. The chancellor awarded the judgment to Austin, who was not a party; no one had requested that relief.
In Taylor v. Taylor, handed down October 6, 2016, the MSSC affirmed. Here is the entire discussion from Justice Maxwell’s opinion:
¶6. “It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of Supervisors of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936) (citations omitted); see also Pierce v. Pierce, 132 So. 3d 553, 567 (¶ 37) (Miss. 2014) (citing McNeese v. McNeese 119 So. 3d 264, 267 (Miss. 2013)); In re Adoption of Minor Child, 931 So. 2d 566, 579 (¶ 36) (Miss. 2006) (citing Chantey Music Pub., Inc. v. Malaco, Inc., 915 So. 2d 1052, 1060 (Miss. 2005)); and Burnham v. Burnham, 185 So. 3d 358, 361 (¶ 10) (Miss. 2015) (citing Mills v. Nichols, 467 So. 2d 924, 931 (Miss. 1985)). Here, neither party challenged or objected to proceeding on Austin’s tuition and school expenses, or to the chancellor’s interpreting the underlying property settlement agreement from the couple’s 2003 divorce. Furthermore, after confronting the tuition and expenses issue, Andrea’s attorney asked several questions about the chancellor’s decision and allocation of the judgment. He even offered to prepare the order from which Andrea appeals. So both parties acquiesced in the manner in which the chancellor decided this matter. Because Andrea neither challenged nor objected to the chancellor’s authority to grant an award to her son at trial or in post-trial motions, this issue is forfeited and barred from our appellate review. [My emphasis]
Justice King dissented, joined by Randolph, on the basis that Austin was a necessary and indispensable party who should have been joined. That argument, though, presents a kind of a chicken-or-egg conundrum. The majority obviously went with the chicken (or is that the egg?).
In the course of a chancery bench trial, every issue presented and heard by the court serves as a basis for appeal, with or without a post-trial motion, assuming you timely object to unfavorable rulings. You do not even need to file a post-trial motion when the judge rules against you on the merits within the bounds of the relief prayed for.
BUT … when the chancellor reaches out beyond the scope of the pleadings and proof at trial and acts as the chancellor did here, you must preserve the issue for appeal by making a timely objection. So, how doe you do that?
You file a timely R59 motion not later than ten days after the date of entry of the judgment. Andrea could have done that, pointing out to the judge that it was error to award the judgment in favor of Austin, since he was not a party, and that the judge’s action was beyond the scope of relief sought by either party. By not giving the chancellor an opportunity to address her objections she waived them and lost her right of appellate review.
Discovery on Steroids
December 9, 2016 § 5 Comments
I know things can get tense out there, friends, but I hope it doesn’t come to this here in Mississippi:
A San Diego lawyer disbarred in a default judgment after walking out of his disciplinary trial says he plans to sue state officials involved in the proceedings.
The former lawyer, Douglas James Crawford, was accused of bringing pepper spray and a stun gun to a deposition, threatening to use them on opposing counsel if things got out of hand, and discharging the stun gun while pointing it toward opposing counsel, according to a summary of his case in the California Bar Journal. He was disbarred in September.
Crawford tells the San Diego Union-Tribune that he plans to sue for civil rights violations. He says he walked out of the disciplinary trial because he believed lawyers for the State Bar of California misrepresented facts and improperly kept him from presenting witnesses and evidence.
“As far as the disbarment, I could care less,” Crawford told the Union-Tribune. “It’s not really a group of people I want to associate myself with.”
A state bar court had found Crawford culpable in four of eight misconduct charges against him, according to the California Bar Journal summary and a July 2015 decision by the bar court hearing department. The bar court found he engaged in moral turpitude in the pepper spray and stun gun incident.
Crawford told the Union-Tribune that he brought the stun gun and pepper spray to the deposition because someone had brought a gun to another deposition and he felt unsafe. He said he displayed the stun gun and pepper spray to disclose that he was armed, but he never threatened anyone with them.
People bringing guns to depositions? People feeling unsafe at depositions? My Lord. And the disbarred lawyer is planning to sue for “civil rights violations.” Really.
I didn’t make this up. You can read the article at this link.
Communicating: Improving a Basic Skill
December 7, 2016 § 1 Comment
At its heart the legal profession is all about communicating, which consists of at least several elements:
- First, one must understand that which must be communicated. This entails analysis of the situation to break it down into its legal elements, and then application of the law to those elements.
- Second, the analysis has to be translated into understandable words.
- Third, the understandable words have to be presented in an organized, understandable, persuasive manner.
You can probably improve on that, but it suits my purposes for now.
At the trial level, effective communication involves well-written pleadings and briefs or memoranda of law, and oral argument, as well as the way you examine witnesses. At the appellate level, brief-writing and oral argument depend heavily on how well the lawyer can communicate.
Some things that get in the way of effective communication are poor grammar and spelling, improper word choice and usage, and disorganized thinking. And, it should go without saying that your communication is for naught if your legal analysis is flawed.
Here are a few tools to help you craft your communications effectively:
- The Elements of Style, by William Strunk and E.B. White. This little gem at fewer than 100 pages (at least in the worn edition I have), is crammed with useful insights into effective writing. Here you will find such usage solutions as how to create the possessive plural of names ending in s, proper use of semi-colons with clauses, whether to use a singular or plural verb forms with words such as “or” or with linking verbs, and the proper case of pronouns, all presented in clear language with easy-to-grasp examples. There are other sections on principles of composition, matters of form, misused words and expressions, and suggestions for improving your style of writing.
- Fowler’s Dictionary of Modern English Usage, by H.W. Fowler, Jeremy Butterfield, editor. When should one use italics? What is the difference between reciprocal and mutual, or apprehend and comprehend, or unless and until? Why the word “literally” conveys the opposite sense of what you intend? Do we still observe rules such as avoiding split infinitives and ending sentences with a preposition (hint: it’s usually okay to)? You will find answers to these and many, many other questions that routinely pop up as you write in this useful book that is arranged by subject alphabetically.
- Any good thesaurus. When you say the same thing over and over using the same words, your words have no impact.
- A good dictionary. Before you use that word, you might want to look it up (takes three seconds) to make sure it means what you think it does.
- The Law Prose blog. A gold mine of information on proper and potent use of legal terminology. This is one you should bookmark.
- Adams on Contract Drafting offers guidance on how to draft contracts in ways that avoid ambiguity and clearly state the intent of the parties. Even if all of your drafting practice consists of property settlement agreements, you can learn something here about how precision in the use of language can make a big difference between success and failure of your instruments.
- Here’s a link to an article in the ABA Journal Online on How to Bring a More Conversational Tone to Your Writing, which is meritorious in its own right, but illustrates also that there are resources all over the internet that you can bring to bear in your quest to be a more productive communicator.
You may be surprised how, when you concentrate on making your language more concise, correct, and powerful, you will simultaneously discover weaknesses in your legal analysis and thought process that you can shore up and strengthen before you ever dispatch that communication to counsel opposite and the court. That’s the kind of strength that distinguishes a really good lawyer from a mediocre one.