SYMPATHY FOR THE DEVIL

December 12, 2010 § 8 Comments

Curtis Wilkie’s THE FALL OF THE HOUSE OF ZEUS is the story of the rise and fall of powerful trial lawyer Dickie Scruggs.  It is entertainingly well written, as one would expect of an author with Wilkie’s gift for the word, and microscopically researched.  Wilkie’s book complements KINGS OF TORT, Alan Lange’s and Tom Dawson’s treatment of Scruggs’ downfall from the prosecution point of view.  Those of you who savor Wilkie’s keen writing and incisive journalism will not be disappointed by this book.  The subject matter is a must-know for all Mississippi lawyers and jurists, and citizens as well.  I recommend that you buy and read this book.

Although I commend Wilkies’s book to you, I do find it troubling that it is unabashedly sympathetic to Scruggs.  Wilkie finally acknowledges their friendship at page 371, the third-to-last page of the book. 

As a member of the legal profession for nearly four decades and a member of the judicial branch, I can find no sympathy whatsoever for Scruggs at this stage of his life.  His flirtations with unethical conduct and illegality are legion.  Even his acolyte (Stewart Parrish’s excellent descriptive), Tim Balducci, said in a candid moment that his approach to corruptly influence judge Lackey was not his “first rodeo” with Scruggs, and that he knew “where all the bodies are buried.”  Big talk? Perhaps.  But to me it eloquently bespeaks Scruggs’ history:  His involvement at the shadowy edges of Paul Minor’s illegal dealings with Judges Wes Teel and John Whitfield; his use of stolen documents in the tobacco litigation; his use of questionably acquired documents in the State Farm litigation; and the hiring of Ed Peters to influence Judge Bobby Delaughter.  Are there more? 

Wilkie suggests that Scruggs’ increasing dependence on pain-killer medication led him to fall carelessly into a trap laid for him and Balducci by a scheming Judge Lackey, who had it in for Scruggs because of Scruggs’ political attacks on Lackey’s friend George Dale.  He posits that Lackey created the crime, and that Scruggs had set out initially “only” to improperly influence Lackey. 

The pain killers may be a contributing reason, but even a first-year law student knows that is not an excuse.

What about the idea of a trap?  I leave it to lawyers far better versed in criminal law and procedure to address that.  To me, the issue is finally resolved in this sentence on page 337:  “But Scruggs had acknowledged, ‘I joined the conspiracy later in the game.'”  Case closed as far as I am concerned.  Moreover, Scruggs was not an unsophisticated convenience store owner charged with food stamp fraud.  He was a sophisticated, powerful lawyer skilled in manipulating the levers of legal machinery.  He was not a gullible rube who did not grasp the significance of his actions or their consequences.  He was a lawyer and as such was held to the highest standard of propriety vis a vis the judiciary, a standard he trod into the mud.

As for Judge Lackey, the author skillfully excerpts quotes from the judge’s testimony to support his charge that Lackey had an animus against Wilkie’s friend, in particular the judge’s use of the term “scum” to describe Scruggs.  From my perspective, I can understand how someone in Lackey’s position would view the arrogant and powerful lawyer as scum when he saw how Scruggs had seduced the star-struck young Balducci, whom Lackey liked, into impropriety and, indeed, illegality.  Some of Dickie’s and Curtis’ influential and powerful friends in Oxford may buy Wilkie’s and Scruggs’ attempt to tar Judge Lackey, but I do not.  Judge Lackey chose to stay on the side of right and Scruggs chose the other side.  The point goes to the judge. 

Scruggs’ plaint that he only intended to commit an unethical act, not a crime — in other words that the consequences were unintended — is a familiar theme in history.  Henry II of England griped to his knights that he was irked by that troublesome bishop, Thomas Becket.  The knights, knowing from experience how far they could go before incurring the wrath of their king, promptly rode to Canterbury and rid their sovereign of that meddlesome priest, killing him at the altar.  Likewise, Scruggs’ knights, Balducci, Patterson, Langston, Backstrom and the others, knew the ballpark Scruggs was accustomed to playing in, and they set out with his money and influence to promote his (and their) interests in the accustomed manner of doing business.    

Henry II did penance for the rest of his life for what he saw as the unintended consequences of his actions.  Will Scruggs try to redeem himself for the damage he did to the legal profession and the legal system?  Time will tell.  When he is released from prison, he could find ways to devote some of his hundreds of millions of dollars to improving the courts and the legal profession and restoring integrity to the profession that made him rich.  In the final decades of his lfe, he could become known as a philanthropist who advanced the law and the legal profession, with his past a footnote.  I hope that is what he does. 

Read this book and judge it yourself.  You may see it differently than I.  The story, though, and its lessons, are important for Mississippians to know and understand.

Dickie Scruggs and Redemption

November 18, 2015 § 2 Comments

If you’ve been around here for a while, you know that I have not been a fan of Dickie Scruggs and the damage he did to the legal profession and our courts.

Aside from his arrogance and trampling of ethics, it galled me that he seemed to be trying to deflect the blame onto the judges he either corrupted or attempted to corrupt. I almost expected his post-prison persona to be devoted to a rehabilitation of his former formidable self, coupled with casting doubt on the criminal cases that brought him down.

But the exact opposite has happened. I saw a recent interview with Tom Brokaw in which Mr. Scruggs admitted that his criminal conduct came about because “I got too big for my britches,” and “It was hubris” plain and simple. In a Clarion-Ledger interview he said, “I regret what I did. I paid a high price for it. After all, I pled guilty to corruption.” Those are breathtakingly humble admissions from a man who once ran over anyone and everything that stood in the way of what he wanted, ethics and the law be damned.

In prison, he came to grips with how far he had fallen and rediscovered decency. He began tutoring inmates for an adult GED program. Since his release, he has begin promoting adult illiteracy classes. You can read the Clarion-Ledger interview at this link. Scruggs says in the interview that he misses the practice of law, but now he has a worthy cause to which he can bring his advocacy skills.

I wish Mr. Scruggs well in this endeavor, as we should all. He is no longer a colleague, and never again will he be, but he is trying to make a difference in our poor, undereducated state, and that deserves applause and encouragement, no matter who is doing it.

TPR: It Takes More than Non-Payment of Support

September 24, 2014 § 2 Comments

The COA decision in Fuller v. Weidner, decided September 16, 2014, is a reminder of a couple of basic concepts in termination of parental rights (TPR) cases.

James Fuller and Rachel Weidner had a non-marital relationship out of which was born Remmy Fuller on February 13, 2009.

James and Rachel’s association was punctuated with domestic-violence and protective-order actions, and on April 14, 2010, James was ordered to have “no contact involving the child until chancery court establishes custody.”

On April 27, 2010, the chancery court entered a child support order in a DHS case it filed against James, including an assessment of past-due support.

In May, 2012, Rachel filed a TPR action against James. A GAL was appointed per the statute, and when the case finally reached trial in April, 2013, the chancellor found that James had abandoned Remmy, and terminated James’s parental rights. James appealed, arguing that the chancellor misapplied the law and erred in finding that he had abandoned his daughter.

The COA affirmed. Here is the pertinent part of Judge Lee’s opinion:

¶7. Fuller acknowledges his two issues are intertwined and addresses both together. So do we. Mississippi Code Annotated section 93-15-103 (Rev. 2013) lists several grounds for the termination of parental rights. Sections 93-15-103(3)(b) and (f) allow for the termination of parental rights if:

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

. . . .

(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .

In this instance, the chancellor determined that Fuller had not contacted Remmy “for more than the six (6) months mandated by statute.” Fuller contends the chancellor misapplied the law because Remmy was three at the time Weidner filed the termination action; thus, the applicable time period should have been one year. However, the chancellor specifically found Fuller had not seen Remmy since April 2010, and had not attempted to establish any visitation with her. At the time of the hearing in April 2013, Fuller had not seen his daughter in three years.

¶8. Fuller admits he has not seen Remmy since April 2010, but states he was under the mistaken belief that he was not allowed to contact her until the chancery court established custody as required by the restraining order. Fuller acknowledges he did try to contact Weidner after the restraining order had expired but was unable to reach her and did not attempt to contact her directly again, even though he knew where Weidner and Remmy were living.

¶9. The chancellor further determined that Fuller had failed to pay any child support for approximately two years, and only began to pay once Weidner filed her termination action. We do recognize that “[f]ailure to pay child support without more is insufficient predicate for a finding of abandonment.” Carter v. Taylor, 611 So. 2d 874, 877 (Miss. 1992). We reiterate that at the time Weidner filed the termination action, Fuller had not seen Remmy in two years nor made any serious efforts to do so. “A finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated.” G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 338 (¶29) (Miss. 2000). A substantial erosion can be proved by showing a prolonged absence and lack of communication between the parent and the child. Ainsworth v. Natural Father, 414 So. 2d 417, 420 (Miss. 1982). In a similar case, this Court affirmed the chancellor’s decision to terminate a father’s parental rights since the father had admittedly not seen his child in two years and only started paying child support after the termination action was filed. R.L. v. G.F., 973 So. 2d 322, 324-25 (¶¶8-10) (Miss. Ct. App. 2008).

A couple of points from a fairly clear-cut case:

  • Whichever side of the case you’re on, in my experience failure to have contact within the statutory time without serious mitigating factors is pretty much a slam-dunk when it comes to TPR.
  • Failure to support is more of an aggravating circumstance that lends weight to the termination action, but, as the case cite says, it does not warrant TPR in and of itself.

If James had been serious about seeing and contacting his daughter, there are numerous ways that he could have documented his efforts and created substantiating testimony. The inescapable conclusion he left both the chancellor and the COA was that he had really made no effort because he had no proof other than his naked assertions.

If a James comes to your office complaining that he has had trouble contacting and visiting with his baby, advise him of the TPR law and help him document his efforts. Then file an action to establish or enforce his visitation rights. The sooner the better. Oh, and be sure to tell him that a dad who isn’t paying child support gets little or no sympathy from the chancellor.

CHILDREN IN THE VORTEX

February 1, 2012 § Leave a comment

The maelstrom of conflict between parents in a divorce or custody battle often catches up the children and dashes them against the same rocks that brought the marriage to destruction. Even the mildest custody conflict can damage children and their relationships with one or both parents, but the injury can be severe when the conflict is intense and where one or both parties bring the children into the vortex. 

As an attorney, you stand in a position to influence your clients to minimize the damage. Here are some thoughts to share with your custody clients:

  • A custody dispute is not about winning or losing. Custody is decided on the basis of what is in the best interest of the children. No matter what the judge decides, his or her decision will be based on what is best for the children. Help your client understand the Albright factors, how they apply in her case, and how to maximize her strong points while minimizing her exposure on the weak points.  
  • Hate and revenge do not help. If your client’s motivation for custody is hate and/or revenge, he will be operating under a considerable disadvantage because (1) those are not positive factors under Albright for custody, and (2) they communicate to the children that they are spoils of war to be won instead of children who are to be loved no matter what the controversy is between the parents.
  • Never allow the children to make the custody decision. Children do not know what is best for them. They are subject to all sorts of influences, the strongest of which appeal to what they believe they want. It is appropriate to ask a mature child’s opinion, but only as input, never as a final decision. The parent or lawyer who tells a child “You will get to decide when you reach x age” is doing the child a great disservice because the law never gives the child a right to finally decide; that decision is always up to the judge. Children who are made to decide often feel that they have betrayed one parent or the other. Making a child decide is putting the child squarely in the middle of the conflict.
  • Children who are placed in the middle learn to manipulate. Parents who put their children in the middle usually find that the children become master manipulaters, playing both sides against each other to gain whatever it is that the child wants or thinks he wants.
  • Putting the children in the middle complicates the case. When the parties put the children in the middle, the resulting conflict spawns contempts, modifications, more discovery about all kinds of perpheral matters, and adds expense, stress, conflict and injured relationships to everyone’s plates.
  • Drop the drama. The only enjoyable thing about a divorce or custody battle for most people is the attention and sympathy they derive from others over the suffering and pain they are having to endure. So when they find their friends’ and family’s attention wandering, they will ramp up the drama to regain the spotlight. That’s self-defeating because it usually takes some kind of negative action to stimulate the other side into conflict. The best and most productive policy is to drop the drama and act like an adult and a caring parent. 
  • Act like an adult. The best behavior you can model for your children is to act like an adult. Treat the other party with the respect he or she deserves as parent of your child. Eschew juvenile name-calling. Turn your back on invitations to argue. Avoid sarcasm and profanity. No threats, veiled or otherwise. Your children are watching and learning from your every move.

Lawyers are in a superior position to advise clients about where to expect to find pitfalls and landmines as they navigate the no-man’s land of child custody litigation. Don’t be reticent when it comes to guiding your clients and even bringing them up short whan they get out of line. That’s part of what you’re there for.

SOMETHING VENTURED, SOMETHING GAINED

December 30, 2010 § Leave a comment

The germ of an idea for this blog popped up after a conversation I had with a young lawyer. We discussed a matter involving an estate, and I realized it was at least the fourth time that I had had the same discussion with different lawyers. I thought that there must be a better way to address lawyers’ questions and concerns about practice, and I filed the notion away in the recesses of my mind.

A couple of months later a chancellor in another district called me and we discussed our mutual exasperation over lawyers either ignoring or not even being aware of changes to the adoption jurisdiction requirements. Again, I thought there had to be a more efficient way to spread the word about these things.

Then, while reading a blog one day, it hit me: “Duh. This is the obvious way to do it.”

And after a little experimentation, I launched this blog on June 14, 2010, about six and one-half months ago.

It’s been a rewarding experience for me. Lawyers from around the state have told me they keep up with the blog.  I have seen lawyers questioning witnesses using checklists they printed from posts here.  Several lawyers have told me that they print out posts that they find useful and keep them in a binder for future reference.  Out-of-district lawyers have told me they appreciated being able to find out in advance what I expected for a minor’s settlement, an irreconcilable differences divorce, or an intestate estate.  I have had comments and e-mails from attorneys telling me that a post I made helped them resolve a difficult issue in a case.

All of that is what I hoped for when I started this. I hope you have found something here that you can use and that keeps you in touch.

In the six and one-half months of this blog there have been more than 220 posts. There have been 215 comments, but that is misleading because, for some reason, WordPress counts a link to another post as a comment. My guess is that we’ve had around 100 actual comments. We get between 150 and 200 views of the blog on a typical weekday, and 50-60 on a typical weekend or holiday. Those are views of the home page — the one you see when you sign on the blog. When a specific post is viewed separately, it is counted separately. The all-time most viewed post, with 532 unique views (and climbing; there have been 8 this week so far), is Sympathy for the Devil, my rather unsympathetic review of Curtis Wilkie’s The Fall of the House of Zeus. No doubt some of that traffic was driven by Tom Freeland’s mention of it and link on his own, popular NMissCommentor blog.

The all-time top twenty posts in 2010, followed by each post’s unique number of views, are:

SYMPATHY FOR THE DEVIL   533
TRIAL BY CHECKLIST: CHILD CUSTODY FACTORS   256
DEALING WITH CRAZY CLIENTS   216
ABOUT   206
TRIAL BY CHECKLIST   195
TAKING CARE OF BUSINESS   178
NEW LEGISLATION THAT MAY AFFECT YOUR CHANCERY PRACTICE   160
IS MY DIVORCE FINAL? YES. UH, NO. OKAY, YES. AT LEAST I THINK IT IS   152
ADMINISTRATION OF AN INTESTATE ESTATE   149
TEN TIPS FOR MORE EFFECTIVE RULE 8.05 FINANCIAL STATEMENTS   145
THE MARK OF THE BEAST   138
PROPOSED RULE CHANGES THAT MAY AFFECT YOU   138
CHANCERY COURT CONTESTED ELECTION RESULTS   135
TRIAL BY CHECKLIST: ATTORNEY’S FEES   129
OUTLINE FOR MINOR’S SETTLEMENTS   119
FIVE SIMPLE STEPS TO PROVE ATTORNEY’S FEES   114
CHECKLIST FOR CLOSING AN ESTATE   104
TRIAL BY CHECKLIST: GRANDPARENT VISITATION   103
THE BALDUCCI FILES   99
“HIGH WATERS” AND BURLAP SUITS   99

A CHANGE IN COMMENT POLICY

December 14, 2010 § 4 Comments

I enjoy reading people’s different opinions, including those that disagree with my own.  It doesn’t bother me when people get testy and personal when they present their positions; how they say it says as much about their positions as what they say.  The thread of comments below on the SYMPATHY FOR THE DEVIL post is a case in point.  I like the exchange of ideas.

What I don’t approve of, though, is people taking pot shots at others from a position of anonymity.  My name is up there for all to see, and most comment-makers have used their real names.

In my opinion, anonymous opinions are worthless.  Anybody can boldly hold forth if he or she knows reputation is not at stake.  If you have something to say, be ready to put your name behind it.

From here on out, if you have a comment, sign it with your first and last name, telephone number, city and e-mail address.  If the post has to do with case law, I will require in addition your bar number.  When I allow your comment, it will show your real name and city, but not your e-mail address, bar number or other info.  All comments will be moderated for these requirements.  This may necessitate a little longer delay in your comments appearing.  Please be patient.   

No more anonymous or alias posts.

As I have from the beginning, comments by non-lawyers about pending cases, or seeking legal advice,or commenting on judges in particular rulings will not be allowed.

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