How Cases are Decided at the COA, Part Two
May 15, 2014 § 1 Comment
Continuing with COA Presiding Judge Griffis’s paper:
C. The Decision Process
1. Initial Assignment
A case is assigned to the Court of Appeals by a notice of assignment. The Clerk prepares the notice and sends a copy to the parties. The Clerk also provides the Court with a list of cases assigned.
The case assignment list identifies each case assigned and makes an initial writing assignment to a Judge. That assignment is based on a random assignment protocol. The protocol tries to balance the workload among the Judges.
The case assignment list is sent to each Judge. If a Judge decides to recuse, the case is reassigned on a random rotation.
After the case asssignment list is circulated, the Clerk’s office delivers the appellate materials to the assigned Judge’s chambers. The appellate materials include all of the copies of the briefs, the record excerpts, the record, the transcript, the exhibits, and the Clerk’s file. The assigned writing Judge then initiates the review of the case.
2. Panel Conference
a. Sittings
The Court divides its work into six “sittings.” A sitting is similar to a term of court. Each sitting lasts for two months.
During a sitting, the Judges are divided among three panels. A panel includes at least three Judges, assigned by the Chief Judge. The Chief Judge or a Presiding Judge presides over each panel. The panel assignments are not disclosed.
Each panel considers the cases assigned to the panel by the panel Judges. Before the sitting begins, each JUdge decides which of the cases assigned will be submitted to the panel. On average, each Judge assigns ten cases to each sitting. The assigned Judge delivers each panel Judge a ccopy of the briefs and record excerpts for each case. The assigned Judge retains the record, transcript and the clerk’s papers.
The Docket Calendar is a published list of the cases assigned to each sitting. The Docket Calendar is disclosed on the Court’s website at the beginning of each sitting.
b. Oral Argument
The panel decides whether to grant oral argument. The panel’s decision is final and is not subject to review. The Court Administrator notifies the counsel of record when an oral argument is set.
The assigned Judges will participate in the oral argument. Non-panel Judges do not attend the oral argument but often watch the internet broadcast.
The internet broadcast of Supreme Court and Court of Appeals oral arguments may be accessed through the “Oral Argument Webcast” link on the Court’s website — www.court.ms.gov.
Oral arguments take place in the Court’s main courtroom, located on the first floor of the Carroll Gartin Justice Building. The Court also regularly hears oral argument at other locations.
The “Court on the Road” program has held oral arguments at Mississippi State University, the University of Southern Mississippi, Mississippi College School of Law, and the University of Mississippi School of Law. The Court has also held arguments at Mississippi Valley State University, William Carey College, Jones County JUnior College, and the Lamar County Courthouse, to name a few. Requests for Court on the Road programs to be held in your area may be made to the Court Administrator.
c. Panel Conference Dates
The Chief or Presiding Judge coordinates with the other Judges on the panel to set the conference dates. At a panel conference, all panel Judges meet to discuss each case. The panel conference makes a preliminary decision on the case, establishes the writing assignment, and starts the clock on internal deadlines to produce an opinion.
The Chief or Presiding Judge ensures that each case moves forward to a decision and preparation of an opinion without unnecessary delay. The Chief or Presiding Judge sets the dates for panel conferences and presides over the discussion. Panel conferences are normally set weekly for the first five or six weeks of each sitting.
Next: From Panel consideration through Circulation of the Opinion
“Pay no Attention to That Man Behind the Curtain”: How Cases are Decided at the COA, Part One
May 14, 2014 § 5 Comments
Like the great and mighty Wizard of Oz, appellate judges wield immense power from on high, and their ways are shrouded in mystery.
COA Presiding Judge Kenny Griffis set out to de-mystify how the court goes about its business, and put the details in a paper he delivered to the judges’ meeting last Fall. I’ve gotten his permission to republish it here, for your benefit, verbatim. Due to the length, it will take several posts to get through.
Here’s Part One:
A Texas appellate judge once noted the perception “that appellate judges watch from on high the legal battle fought elow, and when the dust and smoke of battle clear they come down out of the hills and shoot the wounded.” Black v. State, 723 SW2d 674, 677, n.1 (Tex.Crim.App. 1986)(Opinion, P.J. dissenting). Lawyers hear this and laugh, nervously. Trial judges hear it and laugh out lud, some even shout “amen.”
More than one trial judge has told me that they do not understand how appellate courts decde cases. This article should help you understand how the Mississippi Court of Appeals decides a case and writes the opinion.
I. How a decision is made at the Court of Appeals
A. Background
The Court of Appeals was created in 1993 to address the heavy workload of the Supreme Court. The purpose of the Court is to reduce delays in the resolution of appeals.
The Court consists of ten judges elected from five designated Court of Appeals districts. The judges are elected from a district, but they exercise statewide authority. Judges serve eight year terms, and their elections are staggered. The Chief Judge is selected by the Chief Justice of the Mississippi Supreme Court and serves a four year term.
Of the current judges, five were initially elected, and five were initially appointed. The current judges have also served as: chancellors (2), circuit judge (1), county judge (1), municipal judge (2), justice court judge (1), prosecutor (3), and supreme court law clerk (2).
B. Jurisdiction
Every appeal is filed with the Mississippi Supreme Court. The Supreme Court then decides which cases to assign to the Court of Appeals. The Supreme Court may assign a caseto the Court of Appeals at any time. There is no limit on the time that a case may be assigned to the Court of Appeals.
The jurisdiction of the Court of Appeals is limited to cases that are “deflected” or assigned by the Supreme Court. The Court of Appeals is often considered an “error correction” court. The Supreme Court may not assign cases that involve: (1) the imposition of the death penalty; (2) utility rates; (3) annexations; (4) bond issues; (5) election contests; or (6) a statute held unconstitutional by the trial court.
Miss. Code Ann. §9-4-3(1). The Supreme Court must retain all cases involving attorney discipline, judicial performance, and certified questions from federal court.
MRP 16(d). The Supreme Court will also retain cases that involve: (1) a major question of first impression; (2) fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the Supreme Court; (3) substantial constitutional questions as to the validity of a statute, ordinance, court rule, or administrative rule or regulation; and (4) issues on which there is an inconsistency in the decisions of the Court of Appeals or the Supreme Court or conflict between the decisions of the two courts.
The Supreme Court has a process to decide which cases to assign to the Court of Appeals. The Supreme Court retains about one of every five cases that are eligible for assignment. The Supreme Court routinely assigns cases within certain clearly defined categories. For example, the Court of Appeals will be assigned all cases that involve workers’ compensation, domestic relations, post-conviction relief, and adminidtrative agency decisions.
THe decision to assign a case to the Court of Appeals is final. No motion to reconsider an assignment may be filed. Only the Supreme Court can change the assignment of a case, and this happens rarely. When it does, the assignment is changed because the case was assigned to the Court of Appeals in violation of section 9-4-3(1).
The decisions of the Court of Appeals are final. The Supreme Court may review the Court’s decisions only by writ of certiorari. MRAP 17. Certiorari may be granted upon the vote of at least four Supreme Court Justices. Miss. Code Ann. §9-4-3(2).
Next: The Decision Process from initial Assignment Through Oral Argument
The Nefarious Practice of Trial Briefs
May 7, 2014 § 11 Comments
The COA case of Dean v. Slade, et al., decided April 22, 2014, references a practice that I consider to be deceptively nefarious.
It’s the practice of presenting the trial judge in advance of trial with a document discussing the anticipated testimony and exhibits, the applicable law, and argument on the merits. These offerings are variously styled as “Trial Brief,” or “Trial Memorandum,” or the like.
In Dean, the content of the trial brief is described by the COA as ” … a summary of facts and the pertinent law on adverse possession.” The COA rejected the appellant’s argument that it was an improper ex parte communication because he had failed to raise it in an earlier appeal on the merits, and the court held that he could not relitigate the issue in this later appeal on other issues.
The COA did not address the propriety of this practice because that issue was not squarely presented, but it is a practice that I think needs to be addressed.
In a custody case I tried before the turn of the century, counsel opposite presented the judge at the opening of the trial with a so-called “Trial Binder” that included summaries of the expected testimony of each of his side’s witnesses, a copy of each exhibit he expected to offer in evidence, and a brief setting forth his argument on the law applicable to each contested issue. I vigorously objected, arguing that the documents included inadmissible hearsay, that some of the witnesses, some testimony, and some exhibits may not even make it into evidence, and that it was improper to attempt to influence the judge in that manner. The judge swept aside my objections, stating that there had been exhaustive discovery, and that she was sure there were no surprises. After a five-day trial, the judge ruled in favor of the other party. We appealed and the COA reversed on other grounds. The issue of the trial binder was not raised; there was enough other error that we did not need it.
A lawyer in this district told me of a recent experience he had in north Mississippi. He said that he was handed a “Trial Brief” immediately before the opening of trial, and was pretty steamed to see a certificate of service showing that a copy of the document had been mailed to the judge several days before. The trial brief included all of the same type information described above. When the chancellor opened court, the lawyer stood to voice his objection, but the judge cut him off with the announcement that he had received the trial brief, and when he discovered what it was, sealed it back in its envelope and set it aside without reading it. When his staff attorney told him that she had also received a copy, he directed her not to look at it either.
Good for him.
The chancellor’s job is to hear and consider all of the admissible evidence taken in open court, and to make an independent, impartial decision, untainted by outside information or influence. As the COA said recently in Burnham v. Burnham, “Chancellors are charged with the duty of being independent fact-finders … ” To me, these so-called trial briefs are nothing more than a naked attempt to influence the trial judge with information on the merits outside the trial that may be inadmissible and even inflammatory. I think it’s fair to say that it’s an underhanded way for an attorney to get the judge to see and possibly consider evidence that the lawyer knows he will be unsuccessful in getting into evidence at trial.
When a chancellor says, “Let it be admitted into evidence,” what she is really saying is, “I can hear or look at this evidence because it meets the threshhold requirements of the rules of evidence.” That can only be done in the context of a trial, where both sides have the opportunity to object and cross examine.
Another aspect of the experiences noted above is the ex parte nature of the communication. As I have pointed out here before, just because you hand opposing counsel a copy of the document that does not mean it is not earwigging. Uniform Chancery Court Rule (UCCR) 3.10 states in part:
No person shall undertake to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith. No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.
That reference to briefs in the rule does not alter, amend or cancel the language preceding it.
In Dean, the trial memo called into question the impartiality of the sitting chancellor to the extent that she recused herself from further participation in the case. The same can happen in your cases.
The only way that a pre-trial brief can be proper, in my opinion, is if a chancellor asks the parties for one addressing certain matters in advance of trial. Assuming it asks for argument on the law, I would think that would be perfectly permissible, because it puts both sides on an even footing. I can hardly imagine a chancellor, though, who would ever ask parties to include prospective evidence in the submission. The law, yes; evidence, no.
In my court, I would be offended by an attempt to present me with extra-evidentiary material in a matter pending before me. I believe most chancellors would agree, or at least would do as the north Mississippi chancellor did in his case. I want my opinion to reflect only what is in the record (sometimes I do a better job of that than other times), and nothing more. The old saying, “You can’t unring a bell,” is applicable here.
I wish there were an explicit ban against this practice. Maybe a rewording of UCCR 3.10 is in order.
Wow. Just Wow
May 6, 2014 § 5 Comments
I am continually amazed, confounded and stupefied at how nonchalantly some lawyers approach their professional duties to their clients.
Thank goodness that most of the shoddiness I witness falls in the venial category — that merits only remonstrance and mere trial judge disgruntlement — usually involving minor dilatory, tardy, and unpreparedness misconduct, and resulting in few legal fatalities.
It’s one thing to step on a chancellor’s toes, but it’s an entirely different ballgame to run afoul of the Mississippi Supreme Court. Jane Tucker offers up this recent breathtaking example in which counsel for appellee had been ordered to appear before a panel of MSSC justices at 1:30 to show cause why he should not be sanctioned for asking for and getting extensions for, and then not filing, an appellee’s brief. Oh, and this same panel had sanctioned another dilatory lawyer earlier in the day, so whatever benevolence they had started the day with had been whittled away. Here’s Jane’s take:
Vicksburg Healthcare v. Dees – this is an interlocutory appeal from the denial of summary judgment in a med mal case where the plaintiff is seeking damages for bed sores. The case against the nursing home went to arbitration. Vicksburg Health Care moved to dismiss based on the plaintiff’s failure to have expert testimony regarding the alleged malpractice. When the motion was denied, it filed a petition for interlocutory appeal which was granted. Here is its brief.
It is almost 2:00 and the attorney for Dees has not appeared. The weird thing is that there is no requirement that the appellee file a brief. There’s no default rule automatically reversing a case if the appellee fails to file a brief.(I’m not advising that appellees not file a brief, of course). I know from my own experience that when the appellee does not file a brief and there is oral argument, the appellee does not get to make an argument. (I was representing the appellant that time). Apparently Dees’ attorney made three requests for extensions (as explained in this order) and never filed a brief which is why her attorney was hit with a show cause order. The lesson here, then, is that if you are the appellee and you are too busy to file a brief, don’t ask for extensions. Here’s the response to the show cause order.
Dees’ attorney finally arrived. So the first question he is asked is why he was late. Not a good start. Same panel as this morning. Generally my method of fixing a screw up is to apologize, apologize, apologize. This attorney is taking the opposite tactic.
The Court recessed before starting with the show cause hearing. They came back and sanctioned him $500 for being tardy.
Another lesson – keep your address listing with the Miss. Bar current.
Lesson 3: if you’re scheduled for a show cause hearing at the Miss.S.Ct., don’t be late. And if you are late, don’t tell the Court you had an emergency meeting with a client in Canton.
The Miss.S.Ct. has always been extremely understanding when it comes to extensions for time. As far as I know, no one was ever executed in this state after having had their brief refused because it was a day late (that would be Virginia). It is one of the many reasons I would much rather practice in the Mississippi Supreme Court than the Fifth Circuit. I hope a few bad apples don’t screw it up for the rest of us.
All in all, this is painful. I may be having nightmares about this for years. It is so bad that the panel is exceedingly concerned about the attorney’s other cases. Justice Kitchens asked him whether there were people who would be going to jail if he screwed up their cases like he screwed up this one.
At 3:49 the Court recessed to deliberate. Dees’ attorney was told to stay and await a ruling.
Ruling: Around 4:30 the panel reconvened and ordered the following: the brief filed on behalf of Dees on February 26, 2014 at around 9 p.m. with the guard’s office that doesn’t appear on the docket and wasn’t served on the Appellant will be accepted. The $500 for being late to today’s hearing will be paid at $100 a month starting June 1. Dees’ attorney will also have to pay $1500 in expenses to the lawyers for the Appellant at $100 a month. Also, he is to report to the Miss. Judges and Lawyers’ Assistance Program within ten days. Since the Court cannot force him to do this, if he does not do this the Court will have the transcript of the hearing sent to the Miss. Bar to do with it as it sees fit. A copy of the order will be sent to Ms. Dees. Justice Randolph expressed some dismay at the fact that these show cause hearings used to be few and far between but that this was the third one this year.
Jane sent a few more observations from the debacle for me to add here:
In this case, all I can say is “Wow. Just wow.”
And, by the way, if you’re not a regular reader of Jane’s Law Blog, you’re missing out on a super resource.
Four Rules up for Comment
April 8, 2014 § 7 Comments
The MSSC has four rules posted for public comment at this link. In a nutshell, they are, with their respective deadlines for comment:
- Appellate Mediation Pilot Program, deadline May 2, 2014. Would create a voluntary procedure to hold appeals in abeyance so that they can be mediated. This proposal arose out of the practice in other states, where the result has been a reduction in pending appeals and the time it takes to resolve them.
- Amendment to MRCP 16, deadline May 26, 2014. Would amend MRCP 16 to require that, once a trial date is set, deadlines for summary judgment motions, expert motions, propounding and completion of discovery, and other procedural matters would automatically be in place. The provision that the parties or the judge may call for a pretrial conference remains unchanged.
- Amendment to MRE 105, deadline April 28, 2014. Would amend the rule to put the responsibility on the court to ensure that there is a jury instruction as to the proper scope of evidence whenever the court admits evidence for a limited purpose. The requirement may be waived by the party affected.
- Amendment to MRCP 3(c), deadline May 2, 2014. Would change the procedure for filing in forma pauperis to conform to statutes.
All of our rules of court directly affect your everyday practice of law. This is your opportunity to have a voice in those rules. You do not have to be a senior partner in a high profile law firm for your opinion to count.
Connected to the Court
March 28, 2014 § 4 Comments
Lauderdale County Chancery Court implemented electronic filing this year, and it became mandatory March 1. I have informally polled lawyers about their experience with and views of the system. Here is the feedback from my random, unscientific survey:
“I hate it.”
“I’m having trouble signing on, but once I get that straightened out, it should be no problem because I use PACER and file electronically in Alabama.”
“I am still trying to learn it, but so far I don’t care for it.”
“My secretary does it; I haven’t heard anything negative from her.”
“It’s okay.”
“I think it will be fine once I learn how to do it.”
“The categories for pleadings don’t fit.”
“No big deal. It’s the same as federal court.”
“Maybe when I get used to it, it will be good.”
“It’s an improvement.”
“It makes it easier for me to stay on top of my cases.”
“I had to update my computers and internet connection, so that was probably good. I’m getting the hang of it.”
Stay tuned for further developments over here in the far east.
Grass Roots Rules of Court
March 17, 2014 § 9 Comments
Before you set off on a trek to a far-flung chancery court district, it would behoove you to discover how they do business there. As an example of what a lack of behooving can do for you, consider my own rueful experience:
Years ago I called a court administrator in a distant county and told her I wanted to set a motion for a hearing. She gave me a date, and I, in turn, gave her the CA number, the parties, my name, and that of opposing counsel. I filed my motion, sent out the notice of hearing and, on the day appointed, travelled 90 miles or so to court.
I noticed when court opened that opposing counsel was not there. The judge called the docket and my case was not there, either. I approached the bench after docket call and inquired about my motion hearing. The judge flipped through the file and pointed out that I had not obtained a fiat setting the case for that day. Ergo, no setting. A fiat to set the hearing was required in that district by local rule.
A fiat, as anyone who operated in the pre-MRCP legal world can tell you, is simply an order directing that process or notice of hearing be issued for a given day. It’s the court’s way of ensuring that the case is set for an appropriate day. And it’s that district’s way of complying with R81(d)(5), which says that the date for a hearing in a matter like that “… shall be set by special order, general order or rule of the court.”
Had I bothered to look for a local rule, I would have gotten that fiat before setting the hearing, and I would not have wasted a trip.
In this district, where we have no local rules, a lawyer simply calls the court administrator, finds a date assigned by the court for hearing of matters such as the one the lawyer desires to set, and notifies the court administrator of the identity of the matter being set, and the time required. The lawyer then notices it for hearing, either via R81 or R5, whichever applies.
In the first instance above, the hearing is set per local rule, and in the second, by R81.
So, how do you discover how to do it?
You can find a complete set of local court rules approved by the MSSC at MC Law’s Mississippi Legal Resources web site. While I’m on the subject, that site is a super resource where you can find instant access to all kinds of Mississippi legal resources that you use daily. And it works as a mobile app, too. You can also find the local chancery court rules on the MSSC’s Mississippi Judiciary site at this link.
Note that all local rules must be approved by the MSSC before taking effect. They must be consistent with the MRCP, and, in the event of a conflict, the MRCP prevails.
Of the now-existing twenty chancery districts, thirteen have their own local rules, and seven do not. The seven districts without local rules are:
- Third. (DeSoto, Tate, Panola, Yalobusha, Grenada and Montgomery). Chancellors Cobb, Lundy and Lynchard.
- Ninth. (Humphreys, Issaquena, Sharkey, Sunflower, Warren and Washington). Chancellors Barnes, Weathersby and Wilson.
- Twelfth. (Lauderdale and Clarke). Chancellors Mason and Primeaux.
- Thirteenth. Local rules repealed in 2006. (Covington, Jefferson Davis, Lawrence, Simpson and Smith). Chancellors Shoemake and Walker.
- Fifteenth. (Copiah and Lincoln). Chancellor Patten.
- Eighteenth. Local rules repealed in 2006; BUT SEE ERRATUM BELOW. (Benton, Calhoun, Lafayette, Marshall and Tippah). Chancellors Alderson and Whitwell.
- Twentieth. (Rankin). Chancellors Fairly and Grant.
ERRATUM: The 18th District Rules were renumbered and codified by order entered May 18, 2006, but not repealed. I apologize for the mistaken information.
In the districts without their own local rules, you can call the court administrator, who should be able to help you get done what you need to get done. If you encounter a judge who has no court administrator whom you can identify (I know of only one), you might try calling the clerk first, and, if that is unproductive, then call one of the court administrators of another judge in the district.
NOTE: Since grass is green, the title of this post qualifies as appropriate for St. Patrick’s Day.
And thanks to attorney Sean Akins of Ripley for pointing out my error about the 18th District.
Some Changes Coming to a Chancery District Near You?
March 3, 2014 § Leave a comment
There is legislation wending its way through the halls of the Capital that might end up making some changes in your chancery court district.
HB 1026 has passed the House and is before the Senate. If it would pass in its current form here are some of the changes you could expect in chancery:
- Third District (DeSoto, Grenada, Montgomery, Panola, Tate, Yalobusha). Adds one additional chancellor to bring the total to four. Two chancellors would be elected from DeSoto, and two would be elected from the remaining counties. Current chancellors are Lynchard, Lundy, and Cobb.
- Fourth District (Amite, Franklin, Pike, Walthall). Adds one chancellor. Current lone chancellor is Halford. This district is now one of only four one-judge chancery districts in the state. If this change goes through, that would leave the following one-judge districts: Second (Newton, Scott and Jasper) Clark; Fifteenth (Copiah and Lincoln), Patten; Nineteenth (Jones and Wayne), McKenzie.
- Ninth District (Washington, Sunflower, Humphreys, Sharkey, Issaquena, and Warren). Would surrender Humphries to a newly-created Twenty-First District, leaving Washington, Sunflower, Sharkey, Issaquena, and Warren . Current chancellors are Barnes, Weathersby and Wilson.
- Eleventh District (Madison, Yazoo, Holmes, Leake). Would surrender Yazoo and Holmes to a newly-created Twenty-First District, leaving Madison and Leake in the eleventh. Current chancellors are Goree and Brewer.
- Twentieth District (Rankin). Would add one chancellor. Current chancellors are Grant and Fairly.
- Twenty-First District (Humphries, Holmes and Yazoo). Would create this district. Number of chancellors is not specified in the bill, as far as I can tell.
- There are numerous changes to arrangement of precincts within subdistricts. If your district has subdistricts, you might want to check the bill to see whether any changes are being made.
There are also changes made in circuit court districts and judgeships.
Of course, this legislation still has to make it through the Senate, and then through conference, and then get the Governor’s signature before it becomes law, and it may see some substantial revisions in the process. If it does survive to become law, however, it will make some of the most visible changes in the chancery landscape that most of us have seen in many years.
Deference to the Chancellor’s Findings of Fact
January 23, 2014 § 1 Comment
Language along the following lines opens the great majority of appeals from chancery court rulings:
“We employ a limited standard of review on appeals from chancery court. Miller v. Pannell, 815 So. 2d 1117, 1119 (¶9) (Miss. 2002). We will not disturb the factual findings of a chancellor so long as the chancellor’s findings were supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Biglane v. Under The Hill Corp., 949 So. 2d 9, 13-14 (¶17) (Miss. 2007). ‘We use a de novo standard when analyzing questions of law.’ Id.”
Indeed, that is the very language of the COA’s decision in the case of Legacy Hall of Fame, Inc., et al. v. Transport Trailer Service, et al., decided January 21, 2014. In that case, Judge Fair’s opinion for the majority affirmed the chancellor’s ruling denying Legacy’s claim that its officer was non compos mentis when he executed a contract for the corporation. Judge Fair stated in response to the appellant’s argument that the chancellor had failed to give proper weight to the testimony of its witness, Dr. White, on the issue of competence:
¶21. This Court’s “standard of review is indeed deferential, as we recognize that a chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is in the best position to judge their credibility.” In re Estate of Carter, 912 So. 2d 138, 143 (¶18) (Miss. 2005) (citing Culbreath v. Johnson, 427 So. 2d 705, 708 (Miss. 1983)).
¶22. The chancellor made it clear in his bench opinion that he was considering Dr. White’s testimony. We find that the chancellor was not clearly erroneous in finding that Legacy Hall did not overcome the presumption of competency. Therefore, we affirm the chancellor’s decision.
That same day the COA handed down its decision in the case of Borden v. Borden, affirming a chancellor’s award of custody to Mr. Borden based on an Albright analysis. The appellant argued that the chancellor was in error in how he analyzed the Albright factors, and in how he reached his conclusions based on the proof. Judge Roberts, for the majority, explained:
¶16. The record clearly shows that the chancellor carefully weighed each Albright factor, and he acted within his discretion when he held that six of those factors favored Shannon, as opposed to only one that favored Mary Jane. Although reasonable minds could weigh the evidence and reach different conclusions, the chancellor did not abuse his discretion when he applied the Albright factors. The dissent would reverse the chancellor’s judgment and award Mary Jane custody of the children, thus rendering a judgment in Mary Jane’s favor. With utmost respect for the dissent, our standard of review does not include reweighing the evidence or substituting our opinion for the chancellor’s. It is the chancellor’s responsibility to “hear the evidence, assess the credibility of the witnesses, and determine ultimately what weight and worth to afford any particular aspect of the proof.” Tritle v. Tritle, 956 So. 2d 369, 373 (¶8) (Miss. Ct. App. 2007). “Even if we would have given greater weight to different testimony, so long as substantial credible evidence supports the chancellor’s decision, we will not substitute our opinion for the chancellor’s.” Id. The chancellor could have certainly found that Mary Jane was evasive during her testimony as an adverse witness. We find no merit to Mary Jane’s claim that the chancellor awarded Shannon primary custody of the children as a means to punish her for her inappropriate conduct with other men or her false allegations of child abuse. Thus, we affirm the chancellor’s award of primary custody to Shannon.
That is the way it is supposed to work: as long as the chancellor’s findings are based on substantial credible evidence in the record, they should be undisturbed on appeal if they are based on a correct application of the law.
The MSSC requires the COA to review the chancellor’s findings and to make a determination whether the chancellors’decision was supported by substantial credible evidence. That necessitates an examination of the record and scrutiny of the trial judge’s findings. But it does not mean that the appellate court becomes a second-line chancellor making its own conclusions on the facts. That is the chancellor’s job. You might keep that in mind the next time you’re confronted with the decision whether to take an appeal from a chancellor’s findings of fact.
The Thing About Judges …
November 7, 2013 § 5 Comments
Phillip Thomas has an excellent post on his blog about judges and how they are perceived by lawyers who come before them. Although it is framed in the context of the epic Eaton v. Frisby litigation, there is truth there for every lawyer who ever has to deal with a judge, which would be an overwhelming percentage, I am sure.
Most often, in my experience, lawyers view judges based on memorable experiences, good or bad, and not on the judge’s total body of work. For instance, the judge who yells at you for wasting an afternoon on a meaningless motion is perceived quite differently from the judge who kindly calls you into chambers and points out that, in the future, you should not waste everyone’s time. Those are what sticks in the mind, not the whole history of mundane, routine matters that the judge handles by the dozens day by day.
As Mr. Thomas points out, some lawyers become dark conspiracy theorists about judges. They see a personal animus in every adverse ruling. They attribute bad results to the judge’s dislike for where the lawyer or client came from, or the color of suit he wore, or that the judge hates lawyers who represent certain kinds of clients.
The thing about judges is that we are just like you, with our own personality quirks, points of view, ways of approaching things, likes and dislikes, patience and impatience, and on and on. Each judge has to make a decision based on the law and the facts, no matter how well or poorly presented, no matter how thorough or slapdash the job done by the lawyers, no matter whether either lawyer bothered to come equipped with some authority for a decision. Faced with that smorgasbord of factors, some judges react like Saint Francis, and some like Jack the Ripper.
It’s true that some judges are more energetic than others, some are more intelligent than others, and some are more persnickety than others. But what has impressed me since I took the bench is that all judges — within those parameters, and within the sphere of their own personalities — are dedicated to getting it right.
We don’t always get it right, though. Judges are not perfect, and we are not required to be. That’s why we have appellate courts.
Thank goodness.
The Better Chancery Practice Blog 