When Less is Not Better

January 24, 2017 § 1 Comment

You know those annoying R81 linking continuance orders? The ones that you have to have entered on the return day and every successive continuance day to preserve your process? (R81(d)(5)).

This is what many of them look like to me:

The hearing on this matter is continued to the 8th day of February, 2017, at 9:00, a.m.

I think it should say in addition that the defendant (respondent) was called three times at the designated time, and he did not appear. Why? Because he could come up later and claim he was there all along and no one called out to let him know his case was up to be heard. The only record of what happened is the court’s order (unless you are in one of those rare districts where the docket call is on the record).

What about determination of heirship judgments? If you need to continue, and you simply recite that the matter is continued, a person claiming heirship can later pop up and claim that he or she was there and no one called him into the courtroom. Oops. No record to contradict it.

Often in chancery the only record you will have of what transpired is the order or judgment you present to the court. You should want it to be airtight, so you should include all the fact-finding and procedural recitations that the proceedings support. For instance:

  • In an uncontested divorce with a custody claim. Put on proof of Albright factors and address them in your judgment.
  • In an uncontested divorce with some property and alimony claims, put on proof of Ferguson and Armstrong factors, and add findings to your judgment.
  • The proof you present of those factors does not have to be elaborate. It just needs to be enough to justify the court’s signing off on the judgment you present.
  • In a case where the defendant appeared on a previous date or two and agreed to continuance(s), recite that history in your order or judgment.
  • If you published process, recite when, where, and how often published, and that no responsive pleading or other response was made.

The more detail you add, the more successful you will be later when the other party wakes up, realizes he has missed the train, and gets a lawyer to try to rescue him by filing a R59 or 60 motion. Just remember that whatever you recite in your order or judgment has to reflect what really transpired. You won’t get a chancellor to sign off on Albright findings when you never asked your witness the first question about them.

§ One Response to When Less is Not Better

  • Pieter T says:

    It seems many of us know this, but sometimes fail to document the record properly. Usually when counsel from another state asks why the Mississippi bar examination still has state law essays, I respond: chancery practice.

    Thanks for reminding us of the fundamentals. Sounds like another checklist is in order.

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