April 26, 2017 § Leave a comment

Judges’ Meeting

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Reprise: Lawyers Who Can be Trusted … or not

April 25, 2017 § Leave a comment

Reprise replays posts from the past that you might find useful today …

The Two Types of Lawyers

July 31, 2014 § 4 Comments

There are as many ways to categorize lawyers as there are lawyers, I suppose.

Just off the top of my head, here are a few that come to mind, presented as dichotomies: professional and unprofessional; learned and ignorant; court room and office; courtly and obnoxious; prepared and unprepared; rich and poor; pit bull and diplomat; tenacious and doormat; zealous and lazy; melodramatic and understated; scholar and street smart; and so on.

Lawyers and non-lawyers alike can come up with an almost unlimited number of similar categories.

To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.

If you think about it, much of our legal system rests on the trustworthiness of a lawyer in his or her dealings with the court. The judge relies on the lawyer to be candid and truthful in pleadings, evidence, legal citations, and statements.

The trustworthy lawyer never knowingly makes a false representation to the court, and promptly notifies the judge when he or she discovers that something presented proves to be untrue. He or she is timely and accurate in probate and fiduciary matters, and stays in contact with the fiduciary. The trustworthy lawyer’s pleadings are in order and are accurate. When the trustworthy lawyer cites a case, it is on point. The trustworthy lawyer distinguishes unfavorable law, and acknowledges the weaknesses of his or her case, suggesting how the court can and should address them to the client’s advantage. The trustworthy lawyer is never caught in a lie because she or he never lies. If the trustworthy lawyer has overlooked a court appointment, he or she apologizes and acknowledges the mistake, rather than fabricating a half-baked, incredible excuse. The trustworthy lawyer is in control of his or her case, and never lets a client dictate strategy and tactics. He or she will withdraw from representing a client before allowing that client put him or her in a position of dishonesty, trickery, craftiness, or misrepresentation. A trustworthy lawyer’s word is his or her bond.

A lawyer who can not be trusted is one who has proven that his or her word is worthless. The untrustworthy lawyer tells the court things that prove to be untrue, and bends the truth to the client’s advantage. His or her pleadings are full of allegations that can not be supported by any facts. The untrustworthy lawyer tries to hide the truth from the court, citing only law that is favorable, suppressing what is unfavorable. When caught in a lie, he or she persists in falsehood and makes up flimsy explanations. He or she files incorrect, incomplete and false accountings in probate matters, and regularly loses contact with the fiduciary. The untrustworthy lawyer can not be relied on to be on time or prepared; the judge worries that the client is being prejudiced by poor representation. The untrustworthy lawyer does what the client wants her or him to do, even if it is underhanded and unethical.

There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign.

I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.

The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.

When a lawyer presents case after case as emergencies demanding urgent attention, and those cases prove to be anything but, that lawyer’s trustworthiness takes a hit.

When a lawyer’s accountings in probate matters are full of inaccuracies and miscalculations, and loses track of the fiduciary, that lawyer’s trustworthiness takes a hit.

When a lawyer files motion after motion asking the court to address minutiae and praying for sanctions to rain down on the opposition, that lawyer’s trustworthiness takes a hit.

When a lawyer wastes the court’s and everyone else’s time with frivolous matters that have no chance of success, that lawyer’s trustworthiness takes a hit.

Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.


Magnolia State Chalks up Another Milestone

April 24, 2017 § 4 Comments

Mississippi is unfortunately first among last-place finishes in many categories.

But the latest is a low even by our standards. The February bar examination results are in, and the pass rate was an abysmal 36%. You read that right — 36%. You can read Above the Law’s snarky post on this fiasco at the link.

For comparison, last February’s pass rate was 63%.

What exactly is up with this? Are the law schools doing a poor job preparing students? Have the grading criteria changed? Did someone decide we have too many lawyers and tried to turn off the spigot?

My class still had the diploma privilege when we graduated in the early 1970’s. That meant that graduation from the state-supported law school created a presumption that one was qualified to practice law. The privilege was abolished in the 1980’s, and every graduate from every law school afterward was required to pass the bar exam. I’m not sure that there’s been a major upswing in the qualification level of newly-graduated attorneys since that change.

Notwithstanding my presumed qualification, I took the Tennessee bar exam in 1974, even though my employer did not require it. I still remember opening that letter with shaking hands and the satisfaction I felt at passing. I can only imagine how it must crush one’s spirits to be one of the 64% who did not pass the February exam.

Dispatches from the Farthest Outposts of Civilization

April 21, 2017 § Leave a comment





Attorney’s Fees Sans McKee

April 18, 2017 § Leave a comment

It’s fundamental that the chancellor is required to consider the McKee factors in making an award of attorney’s fees.

But it’s not always fatal if the judge doesn’t. The latest incarnation of that principle is in the case of Baswell v. Baswell, handed down by the COA January 31, 2017. In that case, Bobby Baswell had been ordered to pay his ex, Elizabeth, attorney’s fees of $1,500, in the final divorce judgment. On appeal the COA affirmed. Judge Carlton wrote for the court:

¶21. Bobby also asserts that the chancellor erred by awarding Elizabeth attorney’s fees up to the amount of $1,500 because Elizabeth never submitted evidence of her attorney’s fees. With regard to attorney’s fees, this Court recently stated:

An award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay. However, if a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate. As the issue of whether to award attorney’s fees in a divorce case is a discretionary matter left to the chancellor, this Court is reluctant to disturb such a finding.

Williams v. Williams, 179 So. 3d 1242, 1254 (¶42) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted). “Unless the chancellor is manifestly wrong, his decision regarding attorney[’s] fees will not be disturbed on appeal.” Gaiennie v. McMillin, 138 So. 3d 131, 137 (¶15) (Miss. 2014) (citation omitted).

¶22. “In order to determine the amount of attorney’s fees, a chancellor must look to the factors enumerated in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).” Branch v. Branch, 174 So. 3d 932, 945 (¶57) (Miss. Ct. App. 2015). In Branch, this Court recognized:

The court in McKee stated: We are also of the opinion the allowance of attorney’s fees should be only in such amount as will compensate for the services rendered. It must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary. The specific factors include[:]

[T]he relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case. Further, where the record shows an inability to pay and a disparity in the relative financial positions of the parties, there is no error in awarding attorney’s fees.

Branch, 174 So. 3d at 945-46 (¶58) (internal citations and quotation marks omitted).

¶23. In Branch, the chancellor found that the ex-wife lacked the ability to pay her attorney’s fees. Id. at 946 (¶59). This Court stated that, although the chancellor never “explicitly consider[ed] the individual McKee factors, the chancellor found the [ex-wife’s attorney’s] fees reasonable in accordance with McKee.” Id. Despite some omissions in the chancellor’s findings and the lack of a factor-by-factor analysis under McKee, we concluded that the chancellor accurately relied on the ex-wife’s financial position and correctly awarded attorney’s fees. Id. at (¶¶59, 61). We therefore found no manifest error in the chancellor’s decision to award reasonable attorney’s fees. Id. at (¶61).

¶24. In the present case, Elizabeth testified as to the severity of her overall financial situation. Like in Branch, the record here fails to reflect that the chancellor explicitly considered the McKee factors or conducted a factor-by-factor analysis under McKee. Instead, based on the evidence and testimony before him, the chancellor appears to have simply concluded that Elizabeth had proven her inability to pay her attorney’s fees. The chancellor stated in his order that Elizabeth had incurred attorney’s fees but that she had a “gross inability” to pay the fees. As a result, the chancellor ordered Bobby to pay Elizabeth’s reasonable attorney’s fees not to exceed $1,500 at an hourly rate of $175 an hour, plus actual, necessary, and reasonable expenses. The chancellor further stated that, “[I]f challenged in regard to the issue of attorney’s fees and expenses, [Elizabeth’s] attorney shall submit an itemized bill for same at the hourly rate he did charge, not to exceed that set by the [c]ourt . . . .” However, the record reflects no evidence that Bobby ever requested, or that Elizabeth’s attorney ever provided, an itemized bill for attorney’s fees.

¶25. Upon review, we find no abuse of discretion in the chancellor’s conclusion that Elizabeth lacked the ability to pay her attorney’s fees based on the evidence and testimony of her overall financial situation. We therefore find no manifest error in the chancellor’s decision to award Elizabeth reasonable attorney’s fees. Accordingly, this issue lacks merit.

If there’s one thing that is hard and fast … it’s that there is no hard and fast rule when it comes to award of attorney’s fees in a divorce and need to make a McKee record. You can never go wrong by addressing the McKee factors in your proof, and asking the court to make findings, either in the course of the trial or via R 59.

Here, there was a waiver issue that probably had some influence on the ultimate outcome, and the modest amount of the award likely influenced it as well.

Another One for the Graveyard

April 17, 2017 § Leave a comment

As I have said here before, R54(b) is the graveyard of appeals. Here is one of many posts about it.

The latest iteration is the COA’s decision in Jeffers v. Saget, decided March 21, 2017. In that case, a jury trial in a will contest ended in a mistrial. The chancellor nonetheless entered a “Final Judgment” denying Jeffers’ petition to recover some investment accounts, and Jeffers appealed.

Predictably, the COA pointed out that the chancellor’s ruling disposed of fewer than all of the issues in the case, since the validity of the will had still not been adjudicated. The chancellor had not certified the case per R54(b), and no petition for an interlocutory appeal was filed. Appeal Dismissed.

I get it that it’s better to appeal early and get dismissed than to be told you’re dismissed because you’re late. Yet, the boneyard is filling up.

Early Spring Visitors

April 14, 2017 § 1 Comment


Lying in Wait

April 13, 2017 § Leave a comment

You represent the estate. A creditor timely probates a substantial claim against the estate. You study the claim and realize that it is meritorious. So, should you just go ahead and pay it? After all, MCA 91-7-155 directs that executor to “speedily pay” the probated claims.

There is another option. Professor Weems describes it:

One might conclude that if a creditor validly probates his or her claim, the creditor would not have to do anything else to protect it, but this is not always the case. The administrator may, through deliberation or procrastination, fail to pay the claim. If the administrator does not pay it, the creditor may have to take judicial action to compel payment. Administrators may not be sued for 90 days after taking office [MCA 91-7-239], and there is a four-year statute of limitations with regard to the action against administrators to recover claims against their decedent [MCA 15-1-25]. Consequently, actions to compel payment of such claims must be brought within four years and 90 days of the qualification of the administrator, even though the claim may have been probated. [Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958 (1918); Toler v. Wells, 158 Miss. 628, 130 So. 298, 300 (1930)].

Weems, Wills and Administration of Estates in Mississippi, 3d Ed., § 2.31.

What about MCA 91-7-153, which states that registration of a probated claim, ” … shall stop the running of the general statute of limitations as to such claim …” Doesn’t that insulate the creditor from operation of MCA 15-1-25? No, I don’t think so, because MCA 91-7-153 specifically refers to the “general statute of limitations,” which is MCA 15-1-49, as opposed to the more specific MCA 15-1-25.

An interesting side note arises from the Toler case. There, although the administrator acknowledged the debt and promised to pay it, he was not later precluded from asserting the four-year and 90-day statute of limitations.

So, if you represent a creditor with a probated claim, you would do well to set the matter for hearing at an early date some time after the administrator has been qualified for more than 90 days. Get an order of the court for the administrator to pay the claim and then you can rest easy. The estate can not be closed unless and until the claim is paid. Don’t rely on MCA 91-7-155; the duty imposed by the statute must be enforced by the creditor.

On the other hand, if you represent the estate, you just might, “through deliberation or procrastination,” find it best to lie in wait.

The State of HCIT

April 11, 2017 § 1 Comment

If you need a nifty survey of the current law of HCIT in Mississippi, look no farther than the COA’s decision in White v. White, decided December 13, 2016. In that case, the chancellor found that Barbara White had proven her ground of HCIT against her husband, Anderson, despite Anderson’s claim that her proof was insufficiently corroborated, and that he denied her claims.

Judge Barnes wrote for the court:

¶11. First, Anderson argues that the facts asserted by Barbara at trial do not rise to the level necessary to establish habitual cruel and inhuman treatment. In response, Barbara argues that this Court should do as the chancery court did, and review the acts not in isolation, but as a whole. Finding no error with the chancery court’s analysis, we affirm the chancery court’s judgment.

¶12. In Rakestraw v. Rakestraw, 717 So. 2d 1284 (Miss. Ct. App. 1998), this Court
reiterated the long-held principle that:

Habitual cruel and inhuman treatment may be established by a showing of conduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Rakestraw, 717 So. 2d at 1287 (¶8) (citing Daigle v. Daigle, 626 So. 2d 140, 144 (Miss. 1993)). “[S]uch conduct must be habitual, that is, done so often, or continued so long, that its recurrence maybe reasonably expected whenever occasion or opportunity presents itself.” Burnett v. Burnett, 271 So. 2d 90, 92 (Miss. 1972). “Although the cruel and inhuman treatment usually must be shown to have been ‘systematic and continuous,’ a single incident may provide grounds for divorce.” Rakestraw, 717 So. 2d at 1287 (¶8). “While ordinarily one act or an isolated incident will not establish a charge of habitual cruel and inhuman treatment, one incident of personal violence may be of such a violent nature as to endanger the life of the complainant spouse and be of sufficient gravity to establish the charge of habitual cruel and inhuman treatment.” McKee v. Flynt, 630 So. 2d 44, 48 (Miss. 1993). “[T]he charge ‘means something more than unkindness or rudeness or mere incompatibility or want of affection.’” Rakestraw, 717 So. 2d at 1287 (¶8) (quoting Daigle, 626 So. 2d at 144). Habitual cruel and inhuman treatment must be shown by a preponderance of the evidence. Shavers v. Shavers, 982 So. 2d 397, 403 (¶35) (Miss. 2008).

¶13. “The party alleging cruel and inhuman treatment typically must corroborate the testimony.” Id. Nonetheless, “[c]orroborating evidence need not be sufficient in itself to establish habitual cruelty, but rather need only provide enough supporting facts for a court to conclude the plaintiff’s testimony is true.” Smith v. Smith, 90 So. 3d 1259, 1263 (¶12) (Miss. Ct. App. 2011) (citing Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009) (quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] (2005))).

¶14. On appeal, Anderson asserts that the incidents presented in testimony and outlined by the chancery court in its judgment do not show a continuous pattern or course of habitual cruel and inhuman conduct by Anderson toward Barbara. Specifically, Anderson argues that Barbara failed to sufficiently corroborate her testimony regarding the black eye she received, as well as the events surrounding the cocked-gun incident. The chancery court, however, found otherwise, considering the actions described not in isolation, but as a whole. In doing so, the chancellor determined that “[a]s a whole [Anderson]’s conduct has been habitually mean and heartless[,] . . . exhibit[ing] a pattern or a course of conduct which as a whole amounts to cruelty.”

¶15. Regarding the black-eye incident, Anderson denied hitting Barbara, but admitted that Barbara did, in fact, possess the alleged injury. Anderson further testified, however, that he was unaware of how Barbara received the injury. In reviewing Anderson’s testimony, the chancellor specifically noted in her final judgment that Anderson “nonchalantly testified” regarding this incident, and that “[i]t would seem to the court that a husband would make it his business to know how his wife received a black eye.” In relation to the 2009 cocked-gun incident, Barbara, her mother, and her sister all testified that after an argument between the parties, Anderson angrily ran upstairs, where they then heard a gun “cock” or “click.” Barbara’s mother did, however, testify that she did not realize at that time the noise she heard related to the use of a gun. Anderson admitted he owned many guns, but denied that the incident ever occurred; in support, Anderson III also testified that Anderson did not leave the room where the argument took place.

¶16. Upon review, this Court is reminded that “[t]he chancellor is vested with the sole authority and responsibility to assess witness credibility as no jury is present.” Jones, 43 So.3d at 471 (¶10). The chancellor alone “hears the testimony and sees the demeanor of the witnesses.” Boutwell v. Boutwell, 829 So. 2d 1216, 1220 (¶16) (Miss. 2002). This Court “cannot, and will not, reweigh the evidence or reconsider the credibility of the witnesses.” Hammers v. Hammers, 890 So. 2d 944, 951 (¶19) (Miss. Ct. App. 2004). As such, the chancery court found “[t]he black eye and the gun incidents gave [Barbara] a reasonable apprehension of danger to her life, limb or health,” causing her “to be nervous and scared,” as Anderson’s conduct “occurred continually throughout the marriage and its recurrence [could] be reasonably expected whenever occasion or opportunity present[ed] itself.” In light of the corroborating testimony provided by Barbara’s witnesses, as well as that of Anderson himself, we find the record contains more than sufficient evidence to support the chancery court’s grant of a divorce based upon habitual cruel and inhuman treatment. See Gatlin v. Gatlin, 234 So. 2d 634, 635 (Miss. 1970) (holding testimony of the defendant may also provide corroboration of the plaintiff’s testimony).

The chancellor commented unfavorably on Anderson’s cavalier demeanor during his testimony. It cost him. As I’ve said here before, get your witnesses ready for the crucible of court, or be prepared to watch your patient get carved up like a Christmas goose while you stand by twiddling your thumbs.

Fixing Visitation

April 10, 2017 § Leave a comment

A New York court awarded Allison Estes custody of her minor son and authorized her move to Mississippi. Kevin McKeown, the father, was awarded visitation, and he was obligated to provide Allison with notice of visitation, an itinerary, and the address where he would be staying during visitation.

Following several visitations in which Kevin did not provide advance notice or the required information, Allison filed suit in Mississippi. There was a period in which process repeatedly failed, until Kevin was personally served. He then entered an appearance pro se, and made several objections to jurisdiction. Kevin did not attend the trial, at which he was found in contempt. The chancellor also suspended visitation until Kevin would produce proof of residence, and imposed the condition that visitation could not be exercised without proper notice. He also assessed Kevin with $2,200 in attorney’s fees. Kevin appealed.

In McKeown v. Estes, decided March 7, 2017, the COA affirmed. Judge Barnes addressed the issue of limitations on visitation for the court:

¶23. Finally, Kevin claims that the chancellor showed “little regard to the best interest of [the child], [and] bias and poor discretion in ignoring the ‘totality of the circumstances.’” Kevin does not elaborate regarding how the chancellor allegedly showed bias or ignored the totality of some unspecified circumstances. In any event, Kevin cites Ash v. Ash, 622 So. 2d 1264, 1266 (Miss. 1993), as support for his very brief claim.

¶24. Ash did not involve modification of visitation conditions. Instead, Ash followed an order modifying custody of a child. Id. at 1265-67. The mother’s “continued refusal” to allow the child to visit his father led to custody modification. Id. at 1266. But Ash does not support Kevin’s claim that the chancellor erred by modifying certain conditions of Kevin’s visitation. Kevin does not argue that the modified conditions are unreasonable. Moreover, Kevin does not attempt to explain how those conditions are somehow contrary to the child’s best interest, or how they could negatively impact his relationship with his son.

¶25. “To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.” Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016). “The chancellor is granted ‘broad discretion’ in visitation determinations[,] and [an appellate c]ourt will not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record.” Wilburn, 991 So. 2d at 1194 (¶20). “[T]he best interest of the child is the main concern in determining visitation.” Id. at (¶23).

¶26. Allison testified that the New York visitation order was not working because Kevin was not complying with it, and there were no consequences for his noncompliance. When he provided late, last-minute notice that he would exercise his summer visitation, it was difficult to prepare their child for his long interstate trip. Kevin also failed to return the child when he said he would; so the child missed activities that had been scheduled in advance. Additionally, Allison was not able to contact the child during Kevin’s visitation, and Kevin would not disclose the child’s location. Modifying the visitation order to provide specific provisions rather than ones that are flexible and vague was in the child’s best interest, because it tends to foster a more positive and harmonious relationship between Allison and Kevin. See Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Consequently, we find that the chancellor did not act contrary to the child’s best interest, and it was within his discretion to modify the New York visitation order.

¶27. We recognize that “[a]bsent extraordinary circumstances, the noncustodial parent during visitation should have broad authority and discretion with respect to the place and manner of visitation.” Jaggers v. Magruder, 129 So. 3d 965, 969 (¶21) (Miss. Ct. App. 2014). The chancellor’s decision does not impact Kevin’s broad authority and discretion regarding where he takes his son during his visitation periods. He must simply inform Allison where he will be exercising it, and provide her with adequate notice before he does so. Considering the distance between Oxford and New York City, those conditions are not unreasonable. This issue is meritless.

This case highlights the broad authority of a chancellor to the often vexatious conflicts that arise over visitation. Conditions and restrictions may be imposed where reasonable and necessary to address the problems with visitation.


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