News Flash

March 16, 2020 § 7 Comments

Chancellor Charles Smith of Meridian was shot as he exited his vehicle at the court house this morning around 7:30. He was taken to Anderson Hospital by ambulance with considerable loss of blood and is in surgery.

Those are all the facts we have at this time.

 

MSSC’s Covid-19 Order

March 16, 2020 § Leave a comment

Last Friday afternoon after business hours the MSSC published an emergency administrative order directing the courts in conducting business amidst the coronavirus outbreak.

The order is at this link.

To sum it up as far as chancery is concerned: courts remain open subject to authority of individual judges to control their own dockets; only parties, witnesses, court personnel, lawyers, and other necessary persons as determined by the court are allowed in the courtroom during court proceedings; no gatherings of 200+. For those of you who do jury trials, there are some restrictions of which you need to be aware.

Nothing earth-shaking here. It’s a reminder that we need to stay aware and alert.

 

 

The Supreme Experience

March 13, 2020 § 5 Comments

Last week, if you checked in on this blog, you were greeted by a cryptic message that I was “out a few days.” I took that time to meet up with my daughter Aimée, who lives in Maryland and works in D.C., for us to attend a session of the US Supreme Court.

Some of you have argued cases before that court, and some may have sat in on argument. I had done neither, so when she suggested we do that, I agreed readily.

On Monday, March 2, we set out early for the Capital. Aimée had learned from a frequent visitor to the court that we needed to get there early. We got in line at 7:00, a.m. Court did not start until 10, but we were already at the end of the block in a line that kept building behind us. Some people at the head of the line had slept there in sleeping bags. We found out later that we were number 78 and 79 in the line. The recurring topic among line-standers was whether we would get in to hear an entire case, or whether we would be shunted to the 3-5 minute line, in which visitors are whisked in, allowed to stand and gawk for 3-5 minutes, and then ushered out to make room for the next group.

Before going on, I need to note that the temperature was in the low 40’s with a 20-mph wind. I was glad to have worn my wool sweater and wool car-coat. Some unfortunates in line had apparently paid more attention to the forecast predicting 60’s by 2:00 that afternoon, and were comparatively — and uncomfortably — undressed for that early morning weather.

Around 8:30, the first 50 in line were taken up on the plaza in front of the building and issued gold-colored tickets. Again, we speculated whether those were the ones who would get to see the main show while we would get a revolving-door peek.

About this time an officer came to police the line and proclaimed that “Everyone here for Wednesday’s case needs to move here.” That’s when we learned that the folks in the sleeping bags had been there since Saturday holding place in line for Wednesday’s case, which involved a challenge to Louisiana’s abortion law. They would sleep over until they got their golden ticket to the Wednesday session, which they would then sell to a pre-arranged buyer who would walk up and take their place in line.

Around 9 we were called up onto the plaza and stood there waiting. An officer explained that they were deciding how much room they had for our group, which by then had grown. We wondered whether we would get to hear even one case.

Around 9:45, an officer began handing golden tickets out to our group, and we were directed to a basement door, through airport-type metal detectors, and lined up on stairs, where we were instructed on court-room etiquette (no cheering, no demonstrations, no speaking, no nonsense) and as to what items were permissible in the court room. Essentially, all you can take in is a pen or pencil and pad of paper. No cell phones, no jackets or coats, no metal of any kind, nothing that can beep — not even an Apple Watch. Then we were loosed on some lockers and coat check area to stow our stuff. From there we went through another metal detector and lined up at the entrance to the court room where we learned for the first time that we were definitely getting to stay for either or both cases set for hearing that morning. An attendant came and collected our gold tickets which would have made great mementos.

And then we were led by an attendant into a vestibule, around a corner, and into the court room at 10:20. We had missed the opening of court, and arguments were in progress. This was the first of two immigration cases to be argued today.

Seated behind the long bench were the nine Justices. From left to right: Gorsuch, Sotomayor, Breyer, Thomas, Roberts, Ginsburg, Alito, Kagan, and Kavanaugh. Immediately in front of them, across from Roberts, close enough for Roberts to hit him with a well-aimed spitball, was a podium where stood counsel for the appellant arguing as best he could among a continuous barrage of questions. In the span of the two cases every Justice but Thomas asked at least one question. Breyer was the most prolific questioner. At one point Sotomayor had to tell the lawyer to quit interrupting her, something none of the lawyers had the nerve to ask the Justices to do.

The lawyers sat at tables behind the podium. Behind and around them were members of the SCOTUS bar. Behind them was a bronze railing set before the general admission area. We were in the third row, in the left section of three sections of long, solid, cushioned pews, 15 in all. A chair was placed at the end of each pew for additional seating, and it appeared that every seat was taken. A guard in a black suit stood facing the onlookers, scanning the crowd repeatedly from one side to the other. Another guard spelled him after a half hour, and they alternated that way for the duration.

The crowd was attentive and quiet. Both cases involved technical interpretation of statutes and the first case even touched on the interplay between habeas corpus and deportation hearings, a dimension that both liberal and conservative justices appeared to latch onto in support of their positions. And yet, for all of its dry technicality, I found the audience intent on trying to follow the argument, rapt even.

When the first case concluded, Roberts simply said, “Case is submitted,” and the attorneys for the next case took the places of those from the first case. Roberts nodded and they commenced their argument.

What struck me was the simplicity and practicality of the proceeding. It was at its heart not much different from a motion hearing one might stumble into in a rural courthouse. Not a bunch of pomp and circumstance or pretension, just lawyers arguing their positions, judges hearing them out and having the lawyers answer the questions they need to have answered before they can make up their minds. Yes, it is the highest court in the land, but it is, after all, just a court doing court business the same as is done thousands of times every day in every county in every state.

That is the majesty of the law in our nation, where the law is sovereign. It does not need external trappings or ritual to lend it gravity and power. Its authority is bestowed on it by our Constitution and by case law. It is paramount in the most modest, rustic courtroom, the same as it is in the United States Supreme Court, and in the very same way in each place.

Philip Thomas’s Long Good-Bye

March 11, 2020 § 3 Comments

As I forewarned in a previous post, Philip Thomas’s blog, Mississippi Litigation Review & Commentary, shut down last week. Philip’s eponymous Last Post, lengthy and replete with personal references, is at this link.

On one level, Philip’s post is a meditation on how the practice of law has changed over the past 25 years, and decidedly not in favor of civil litigation practitioners. He discusses the insane stress that lawyers experience from the practice, the procedures, the office, family, and financial. He muses over other ways to make a living that allow one to be more human, and he relates his experience of the curative powers of wilderness hiking.

On another level, it’s one more disappearance from the Mississippi legal blogosphere that was once more satisfyingly populated, as I pointed out here before.

Between the lines Philip seems to say that we are in the twilight of the law as we have known and practiced it. Changes are curdling the edges of the practice: more ADR; settlement lawyers; mediation; arbitration. Lawyers tell me that clients are more insistent that their cases get settled, and soon, to avoid litigation costs and just get on with their lives. Lawyers who savored the joust and prolonged litigation for their enjoyment are not favored so much any more. Even in chancery, where 15 years ago there were two or more contested hearings a week, the number of actual trials is down, and the number of settlements and agreed judgments is way up.

So here’s a toast to Philip for your thoughtful and thought-provoking posts that spanned 11 years. May your adversities and the jarring demands of the law subside like the turn off of a busy highway onto a peaceful trail sloping gradually through a conifer forest on a cool, breezy day, until you reach a peaceful summit where, reclined against a sun-warmed rock, you view the beauty of the world below, far removed from its clamor.

Peace.

Upward Modification of Child Support

March 10, 2020 § Leave a comment

A recent COA decision reminds of us of what the chancellor is supposed to consider when deciding whether an increase in child support is warranted.

In Best v. Oliver, decided February 11, 2020, the court affirmed a chancellor’s decision to increase child support. Judge McCarty wrote for the unanimous court, Carlton not participating:

¶8. Charles argues the increased expenses associated with K.O.B.’s advanced age and his increased income do not constitute a material change in circumstances warranting modification. He contends Kimberly failed to provide sufficient evidence of the increased expenses, and therefore the increase must be reversed.

¶9. A parent seeking modification of child support must show “a substantial or material change in the circumstance[s]” not reasonably foreseeable at the time of the most recent support decree. Id. at (¶6). Our Supreme Court has noted “[t]hat children’s expenses generally will increase as they get older, that the father and mother’s earning capacity will generally increase from year to year, and that inflation will continue at some level and will partially affect both the children’s expenses and the parents’ earning capacity.” Tedford v.
Dempsey, 437 So. 2d 410, 419 (Miss. 1983) (emphasis omitted).

¶10. While it is foreseeable that expenses increase with the natural growth of a child, the amount of the increase is not. Kilgore [v. Fuller], 741 So. 2d [351] at 353 (¶6). “As the Mississippi Supreme Court has recognized, rare is the child whose financial needs do not increase with age.” Id. (internal quotation marks omitted) (quoting Varner v. Varner, 588 So. 2d 428, 433 (Miss. 1991)). It would be unfair to require under the foreseeability test that the initial child-support award include anticipated future increased expenses. Id. Because it is impossible for a court to foresee in the initial support award what allowances to make for a child years into the future, we leave that for modification proceedings. Id.

¶11. When determining whether modification of child support is warranted, the chancery court may consider the factors provided in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985). [Fn 2] “Possible factors which may constitute a material change in circumstances are
increases in the children’s expenses; a substantial increase in the financial resources of the non-custodial parent; and inflation since the original decree.” Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Evidence of a child’s increased “academic achievements and educational needs together with their extracurricular activities” may be considered in order to justify an increase in child support. Havens v. Broocks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

[Fn 2] In determining whether a material change has occurred, chancery courts may consider “(1) the increased needs caused by advanced age and maturity of the children[,] (2) increase in expenses,[] (3) inflation factor[,] . . . (4) the relative financial condition and earning capacity of the parties, (5) the health and special medical needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the [paying party], (8) the estimated amount of income taxes that the respective parties must pay on the incomes, (9) the free use of residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support as shown by the evidence.” [Adams] Id. (citations omitted).

¶12. We are satisfied that the chancery court’s factual findings were supported by substantial, credible evidence. As evidenced in its order, the chancery court considered all of the Adams factors. The chancery court found that the combination of increased expenses
associated with raising K.O.B., Charles’ substantial increase in income, Kimberly’s changed financial position, and inflation constituted a material change warranting a modification of child support. Furthermore, the chancery court rejected Kimberly’s request for the most part, tailoring the support increase to $1,000 per month rather than the requested $3,000 per month. We find that the chancery court did not abuse its discretion. Accordingly, we affirm.

¶13. Charles also argues that Kimberly’s new husband’s income should be a factor in determining the amount of support to award. However, “[w]e know of no reason in law, morality or common sense why a father’s obligation to support his children should be
minimized because his ex-wife remarries well.” Tedford, 437 So. 2d at 420.

¶14. Because the chancery court’s decision was within its discretion, we affirm.

Some Things are Better Left Said

March 9, 2020 § 1 Comment

There’s no accounting for what a client might say on the witness stand. If you’ve done any courtroom work at all you can attest to that.

In their divorce case, Thomas and Debra Oates were locked in a dispute over the marital estate, consisting of a 39-acre parcel of land subject to a mortgage, along with the usual baggage, physical and metaphysical, that one accumulates over the span of a 13-year marriage. Debra claimed that the 39 acres were a non-marital inheritance. Thomas contended that the property, which had indeed been an inheritance, had lost its separate character. And yet …

When he took the witness stand and testified about it, after being asked what, specifically, he wanted the chancellor to award him in the case, here is what he had to say:

Q. If you could state which of those items you would like to have, what would they be?

A. My motorcycle and the apparel and my pictures, personal properties, my daddy’s stuff.

Q. Slow down. Your motorcycle?

A. My apparel, motorcycle apparel, my daddy’s stuff, and my guitars and amp.

Q. And that is all you want the judge to award you in the marital estate?

A. Yeah. I mean I’d like to have the four-wheeler, but I don’t know if it’s there or not. [My emphasis]

Does that seem rather incomplete to you? (Hint: there is no mention of the 39 acres).

The chancellor took Thomas at his word, found the 39 acres to be non-marital, awarded it to Debra, and let Thomas go forth with his stuff.

Thomas appealed, and you have probably already guessed the outcome. Affirmed by the COA on February 18, 2020, in Oates v. Oates.

Every client is more or less unpredictable when it comes to the pressure cooker of the witness stand. Some like it hot. Some wither. All struggle to a greater or lesser degree to find the right words to say what needs to be said. You can make your client’s testimony more predictable and successful by going over some of, the most important parts in particular, in advance of trial. Remember, it’s perfectly ethical to help a client with how to tell the truth — phrases to avoid, better choices of words –, and it is unethical to help the client make up a story that will win the day. Trial preparation is in most cases critical. I wish more lawyers did it.

“Quote Unquote”

March 6, 2020 § Leave a comment

“For if we open our eyes and see clearly, it becomes obvious that there is no other time than this instant, and that the past and future are abstractions without any concrete reality. Until this becomes clear, it seems that our life is all past and future, and that the present is nothing more than the infinitesimal hairline which divides them.”  —  Alan Watts

“There is only one moment, and yet the moment is always giving way to the next, so that there is not even Now, there is Nothing. True, true. There is nothing, if that is the way to understand how much there is.”  —  M.C. Richards

“Only when one understands that we live life on the precarious edge of the present, which is a mere millionth of a second, as we rush moment by moment at warp speed into an unknown and unknowable future, can one begin to appreciate how courageous and brave is the act of living with only our memory of the accumulating past for balance.”  — Daedelus

March 2, 2020 § Leave a comment

Out a few days.

Next post March 6, 2020.

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