MANAGING CLIENT EXPECTATIONS
October 18, 2010 § 4 Comments
One of the challenges of being a Chancery practitioner is keeping your clients’ expectations realistic. And I’m not talking only about expections regarding outcome. I’m talking expectations about you, your firm, the court and the legal process itself.
The Pincus Family Law firm in Columbia, South Carolina has a page on its web site that may just be a home run in addressing client expectations. You may find something useful here. I’ve copied and pasted the text for you:
CLIENT EXPECTATIONS (REALISTIC OR UNREALISTIC)
ABOUT US:
We do not work on the weekends and do not provide emergency numbers for the weekends. There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.
Do not think we are perfect. We make mistakes. We are competent attorneys and paralegals, but we make mistakes. We will correct a mistake if we find it or if you point it out. Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.
We will return phone calls in the order they are received and based on the priority of the situation. If you leave a message, your message will be passed on to the attorney. Calling three or four or multiple times in a day will not get your call answered any faster. Email is the quickest way to get a response from an attorney.
Attorneys work by appointments only. Please do not show up at our offices to speak with an attorney without an appointment.
Please utilize our paralegals to answer your questions and give you status reports. Our paralegals are very experienced and can, most of the time, respond to your request. We bill our paralegal time at less than 50% than what the attorneys charge so take advantage of their experience and knowledge.
ABOUT OTHERS:
You may not get any consideration from your spouse for anything you have done or will do because you are nice. You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it.
Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you. As your attorneys, we are the only reliable source of information regarding the process and status of your case.
The opposing attorney may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office. It is unrealistic to expect that we can control how an opposing attorney handles his or her file or practices law.
The legal pleadings (Complaint, Answer, Counterclaim, etc.) are legal documents filled with allegations that must be pled (and some that are merely made to posture for a client). Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf. It is not worth it.
We cannot control the court’s schedule or docket. The courts schedule cases as they are processed and in line with the thousands of other cases filed. You will not be happy with the time it takes your case to get through the system. There are thousands of family law cases filed in Lexington and Richland counties each year and most contested cases take several months, sometimes more than one year, to finish.
What you can expect during a Trial (Contested Case)
COURT APPEARANCES—Bonnie and Monet generally work files together although one attorney may be your “lead” attorney. Therefore, at court appearances, it may be necessary for one to cover a court appearance for the other. We will try to give you advance notice if your “lead” attorney will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.
SUBPOENAS—the other party can send a subpoena to any third party that MAY have information about you, your spouse, your business dealings, your employment, your education, your children and the like. Banks, lenders, business partners, educational facilities, stock brokers, teachers, churches, etc. can all be issued subpoenas for any records they may have regarding you. We can do the same. There is very little we can do to stop this so be prepared to deal with the frustration you may experience. If there is a legitimate reason to try and stop the subpoena, which there rarely is, we can file a motion to do so. Unless the information is privileged in some fashion, the third party will have to disclose the information requested.
DEPOSITIONS—the other party can issue a notice of deposition to any third party witness. This means that a third party can be required to give testimony under oath usually in one of our offices. The purpose of depositions is to find out information and to find out ahead of time what a person may testify to in court. You and your spouse could each be deposed for the same reason. We can issue notices of depositions as well. A fact witness is entitled to a fee of $25 to appear and professionals (doctors, psychiatrists, etc) are entitled to have their time paid for to appear (by the party that deposes them). A court reporter must be present and is paid to attend as well. The attorneys are paid to attend as well. Depositions are costly.
NOTHING HAPPENS QUICKLY—generally, contested cases take several months to move through the court system. A complicated custody or equitable division case can take one, sometimes two, years to complete. The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, a guardian ad litem investigation, discovery, depositions, pre-trial hearings and motion hearings. It takes a long time to move a contested case through the court system and this will likely be your number one frustration. We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case. Please prepare yourself ahead of time and please do not take this frustration out on us or my staff. We are doing everything we can to move the case along.
DISCOVERY—this is the “formal” name for exchanging information through subpoenas, written questions (interrogatories) and request for documents. Discovery has its own set of rules and deadlines which we will inform you about during the process.
CHILDREN—Marital problems are terribly difficult for children. Do your children a favor and do not “poison” the minds of your children against their other parent. Do not speak about their parent’s faults to children. Do not complain to your children about how much child support you are paying or how little child support you are receiving. Visitation with parents is NOT a bargaining chip or game. Each parent is entitled to visitation privileges with their children. Children are not your property. They are not your pawns. They are absolutely not your messenger. They are innocent individual human beings that need both of their parents, not just the “best” parent.
ADULTERY—Do not become romantically involved with someone other than your spouse if you are still legally married (even if you are separated)! During marital litigation you should behave as though a detective and camera crew were following you and recording you and your conversations at all times.
CHILD CUSTODY CASES—You should behave as though a detective and camera crew were following you and recording you and your conversations at all times. Do not do anything that you would not perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.
ATTORNEY’S FEES—in a child custody case, you could spend the price of a car in attorney’s fees. Most contested custody cases run upwards of 10-20 thousand in fees paid out over the course of the case. This usually includes attorney’s fees, guardian fees, psychological fees and expert witness fees. In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets. Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value. A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in attorney’s fees over the life of the case. The most expensive part of the case is going to be trial preparation and attendance costs. That is why a trial retainer (an “up front” payment) is required in all contested cases. You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.
Thanks to the LegalEthicsForum.com for this.
BETTER CHANCERY PRACTICE FAQ
October 8, 2010 § 2 Comments
My 8.05 financial statements stink. How can I improve them?
Here are Ten Tips for More Effective Rule 8.05 Financial Statements.
Is my estate ready to close?
Check out this Checklist for Closing an Estate.
I think I need to file a habeas action. Any tips?
This Habeas Corpus Step by Step should help.
One more time: what are those child custody factors I need to prove at an upcoming trial?
The Albright factors are what you’re looking for.
Help! We need to sell some real property in an estate, and I don’t know where to start?
How to Sell Real Property in an Estate may be just what you need.
I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before. What do I need to do?
This Outline for Handling a Minor’s Settlement will get you started.
My mail has an MRCP 41(d) notice in it this morning. I remember you said something about it, but I don’t have time to look for it. Can you remind me what I am supposed to do?
<Sigh> Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door.
I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify. Any ideas on what I should do?
Try looking at Proving Tax Effects of Alimony.
My Chancery Judge is really nitpicky. How can I draft my adoption Complaint to satisfy him?
Are you talking about me? Whatever. Here is a post on pleading Jurisdiction for Adoption.
Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire. Any suggestions? I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.
You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines. Until you do, try reading “High Waters” and Burlap Suits. It won’t change anything, but it may help you to feel better.
JUDGMENTS: PARTIAL AND FINAL
October 7, 2010 § 4 Comments
After a few weeks, the judge has issued his opinion in that thorny divorce trial. He granted your client’s wife a divorce and gave her custody and child support, but ordered that you and the other attorney produce appraisals before he will adjudicate the equitable distribution and the alimony claim. Your client is hopping mad at the outcome and demands that you appeal the judge’s ruling immediately. Can you?
MRCP 54(b) provides that the when there are multiple claims for relief or multiple parties, the court may order final relief as to one or more but fewer than all of the claims or parties “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment.” If the court does not so direct, then any order issued that adjudicates fewer than all of the claims or rights of fewer than all of the parties, no matter whether it is entitled as a judgment, is not final, and is subject to revision at any time.
So what does this mean? There are several ramifications. One is that if the partial judgment or order does not specifically direct that it is final, you may not appeal from it until the entire action is finalized. If it does include the required finality language and you do not file a timely appeal, you may find yourself shut out from an appeal on the matters addressed in that order. Another ramification of non-finality is that the Chancellor may change it at any time, even beyond ten days after its date, because the provision of MRCP 59 that allows the Chancellor to alter his judgment within ten days of entry applies exclusively to final, appealable judgments.
And what exactly is a judgment, anyway? MRCP 54(a) states that “‘Judgment’ as used in these rules [MRCP] includes a final decree and any order from which an appeal lies.” Any interlocutory adjudication is an order, and not a judgment; thus, e.g., Temporary Order, Order Compelling Discovery, Scheduling Order, Order Deeming Requests for Admission as Admitted.
JUDGE LACKEY RETIRES
October 5, 2010 § Leave a comment
This from Tom Freeland’s NMissCommentor Blog …
Judge Lackey Retirement Dinner, & request for donations
A retirement party for Hon. Henry Lackey, Circuit Judge of the Third Circuit Court District is being held by the Third Circuit Bar in Oxford on November 4th at the Oxford Conference Center. I’m one of the lawyers collecting contributions toward this dinner, which will also include a retirement gift to Judge Lackey.
Please send any contributions you are willing to make with the check made out to:
Judge Lackey Retirement Party Fund
Send them to me at:
Box 269
Oxford, MS 38655If you send a check, it would be useful to my effort to keep track of donations if you sent me an email telling me you did and how much it was. Send the email to tom (at) freelandlawfirm.com
Invitations to this event will be sent out later this month to members of the Third Circuit Bar and to judges all over the state; if you wish to attend the event and aren’t in the counties of the Third Circuit, send me an email to the address just mentioned and I will see that the information gets to the appropriate person.
Thanks!
[Tom Freeland]
I don’t know how many Twelfth District lawyers have had the privilege to know or practice before Judge Lackey. If you do know him or tried cases in his court, you may want to try to make the event or send a contribution.
I met Judge Lackey back in the 1980’s at a CLE program in New Orleans during Mardi Gras. I had recently finished trying a case before Chancellor Woodrow Brand, sitting as Special Chancellor in Meridian in a trial involving lots of money and a world-renowned manufacturer. At the conclusion of the trial Judge Brand complimented the attorneys on a job well done and took the case under advisement. When he heard that, Judge Lackey raised his bushy eyebrows and remarked with humor and some irony that that sort of compliment was something that lawyers in Judge Brand’s district were simply not accustomed to. We laughed together and swapped tales about practice in our different parts of the state. He knew some Meridian lawyers and judges and asked about them. He was kind, soft-spoken, attentive and humorous, and I enjoyed the little time I spent with him — so much so that I remembered it down through the years.
I ran into Judge Lackey last year at a Judges’ meeting in Tunica, and he remembered the New Orleans seminar and was kind enough to say that he did remember sitting next to me and visiting. He reminded me that there had been an ice storm that Sunday that closed the bridges out of the city so that he and his wife were stranded there an extra day. I had forgotten that. My wife and I had made it out of the city an hour before the bridges were closed.
If Judge Lackey’s long service as a lawyer and as a Circuit Judge were all he accomplished in his career, he would be remembered as a successful public servant. His role in the Scruggs scandal, however, in which he hewed strictly to judicial and legal ethics, and would not deviate an inch from the proper path, elevates him to a higher level of esteem. Not because he did what professional standards required of him, but because of his courage in facing down the beast and bringing it to destruction.
Judge Lackey is a beacon of right shining through the ashy pall that Scruggs and his minions cast over the legal profession and the judiciary. For that let us ever remember him and esteem his memory.
God bless you in your retirement, Judge Lackey.
THE BALDUCCI FILES
October 4, 2010 § 1 Comment
If you’re familiar with the story of Dickie Scruggs’ downfall, you know that the final, climactic act in his Greek tragedy began in the Calhoun City offices of Circuit Judge Henry Lackey, who met with Scruggs operative Tim Balducci and recorded Balducci’s offer to bribe him.
Patsy Brumfield of the Tupelo Daily Journal, has obtained copies of the FBI recordings and has posted them online here. There are four video and three audio recordings. Six are in Lackey’s office, and one is in Scruggs’ office after Balducci has been arrested and has agreed to cooperate with he FBI.
What is most remarkable about them is the prosaic, almost ho-hum nature of the conversations. The tone is business as usual, which is chilling, considering how far-flung were Scruggs’ conflicts with other lawyers similar to the one that led to the Lackey bribe attempt.
Another compelling feature of the recordings is how they show the banal nature of evil. It seldom manifests itself with the dramatic flair we see on tv and in the cinema. It is a handshake, a wink and a nod, an exchange of consideration.
Thanks to Tom Freeland at NMissCommentor for posting about this.
Tom also has a great post today about whether Curtis Wilkie’s upcoming book, FALL OF THE HOUSE OF ZEUS answers some questions about the handling of the Scruggs trial.
FULL FAITH AND CREDIT AND SAME-GENDER COUPLE ADOPTIONS
October 1, 2010 § 1 Comment
In order to adopt a child under Mississippi law, the adoptive parent(s) must be either an unmarried individual or a married couple with both partners joining. MCA § 93-17-3 specifically states that “Adoption by couples of the same gender is prohibited.”
What about the situation where a same-gender couple adopt a Mississippi child in a state where it is legal for them to do so, and they ask Mississippi to alter the birth certificate? Is Mississippi required to recognize the legality of that adoption and enforce their rights here?
In the case of Adar v. Smith, 597 F.2d 697 (5th Cir. 2010), a New York same-gender couple in a New York proceeding adopted a Louisiana child. They applied to Louisiana to change the child’s birth certificate to reflect the adoption. Louisiana objected and took the position that the New York judgment was not entitled to full faith and credit because it was repugnant to Louisiana public policy embodied in its laws that prohibited adoption by unmarried couples.
The U.S. Court of Appeals for the Fifth Circuit held that the full faith and credit clause of the U.S. Constitution requires states to recognize the valid judgments of other states, even where the judgment of the other state violates public policy in the state where it is sought to be enforced; there is no public policy exception.
Some may ask how this impacts Mississippi law that our state will not recognize same-gender marriages performed in other states. The distinction for now, until the courts address the question, is that marriage is a bureaucratic, administrative act, as opposed to a judgment entitled to full faith and credit.
ONLY 3 MORE DAYS TO COMMENT ON MANDATORY PRO BONO
September 28, 2010 § Leave a comment
From the Mississippi Bar’s BAR BRIEFS …
October 1 Is Deadline to Submit Comments on Proposed Mandatory Pro Bono Rule
The Mississippi Supreme Court Rules Committee on the Legal Profession seeks comments on two proposed rule changes. The first proposed change would amend Rule 6.1 of the Mississippi Rules of Professional Conduct. As proposed the change would make pro bono service mandatory, and would increase the fee to be submitted in lieu of performance from $200 to $500. The second proposed rule change is to Rule 46 of the Mississippi Rules of Appellate Procedure. The proposed change would increase pro hac vice admissions fees from $200 to $500. These proposed rule changes may be found on the Supreme Court website at http://www.mssc.state.ms.us/rules/rulesforcomment/rulesforcomment.html . The deadline for filing comments is October 1, 2010. Comments are encouraged and should be filed with the Clerk of the Supreme Court, Gartin Justice Building, P. O. Box 249, Jackson, MS 39205-0249.
* * * * * *
I have read reports that only around 100 lawyers, out of 5,000 or so members of the Mississippi Bar have submitted comments. That’s pretty pathetic … and apathetic. This is a proposal that will impact your practice. At the risk of being boringly repetitious, I beg you to submit your comments. Just click on the link and fire away. You don’t even need to spend a postage stamp.
YET MORE ON MANDATORY PRO BONO
September 27, 2010 § 3 Comments
The only thing I am hearing on mandatory pro bono (MPB) from lawyers in east Mississippi is stony silence. You would think that a measure with so many ramifications for lawyers, particularly small-town lawyers of which we have many, would provoke a major reaction.
Meanwhile, down the board, you will find an earlier post and some insightful comments from lawyers in other parts of the state on the subject, the latest from John Gillis in Water Valley, who makes some points that deserve your consideration.
Although I think Mr. Gillis and others make some valid and even persuasive points, I do disagree with their argument that MPB constitutes a form of involuntary servitude. In my opinion, that argument is is based on a business-model view of the legal profession, a view that is incomplete and incorrect. The law is a profession and not a business. Lawyers have a duty to the administration of justice.
The Preamble to the Rules of Professional Conduct states: “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” [Emphasis added] It goes on to say: “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession … A lawyer should be mindful of deficiencies in the administration of justice and the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all who, because of economic or social barriers, cannot afford or secure adequate legal counsel.” [Emphasis added]
Mr. Gillis is perhaps too young to remember the days when all lawyers were subject to that infamous telephone call from the Circuit Judge to come defend an indigent prisoner. That practice persisted until counties began hiring public defenders to do the job. Back then I did not know a single attorney who refused the judge on the ground that the requirement was a form of Marxism (as Mr. Gillis characterizes it). Those of us who were fairly competent accepted the burden as an obligation of the profession, not always gladly I assure you, but always with the understanding that it was our professional responsibility.
I also do not understand the significance of the point that no other state has MPB. How does that matter?
As for the other arguments, I think they are sound and need to be considered. I am not sold on the idea of MPB, although I do lean toward it as a solution to a major problem facing the courts and the bar.
It does seem to me that two things are necessary before a final decision is made on MPB: First, much more study needs to be done; and second, many more lawyers’ voices’ need to be heard. The silence on the subject is baffling to me.
The Better Chancery Practice Blog 