The Maxims of Equity

September 5, 2013 § 10 Comments

I made the statement several weeks ago that:

” … when all of the parties are assembled and within the jurisdiction of the court, and the judge makes a fundamental ruling that affects the relationship among the parties, the chancellor should have the authority to reach out and effect complete relief. Our chancery courts are still courts of equity, according to the Mississippi Constitution. The MRCP did not erase the great maxims of equity from our jurisprudence …

Yes, the maxims of equity. Have you heard of them? If you graduated from law school before 1982, you probably spent some time in the law library committing them and some of their key cases to memory. Since then, I’m not so sure. When the MRCP went into effect, it seems that there was a de-emphasis on teaching the idea of equity in chancery. If the procedures were in most matters identical to circuit practice, why was all that folderol about equity necessary?

Today, in an age when even evidence has been eliminated as a required subject in law school, I shudder to think that there might no longer be any formal effort to educate law students in the philosophical underpinnings of chancery and, indeed, the entire system of equity that is administered in our chancery courts.

The Mississippi Constitution, § 159, specifically confers on chancery courts full jurisdiction in “All matters in equity … ” as well as certain other enumerated areas.

Equity is distinguished from the law in civil cases in that the law may grant a money judgment (and by statute may even enter an injunction), but equity courts act on the person, imposing duties and obligations, creating equitable remedies to carry out the court’s orders to set right what is found to be wrong. The court of equity is a court of conscience. As the great Judge Griffith stated,

“It is more than a trite phrase that the court of equity is a court of conscience; and it is immaterial what rights a party could assert in a court of law, — a court of equity will limit him to those rights of which he could conscientiously avail himself. It has been tersely expressed that nothing but conscience, good faith, and reasonable diligence can call forth the activities of a court of equity, and when these requisites are wanting, the court is passive and does nothing.” Griffith, Mississippi Chancery Practice, § 32, p. 35.

The foundation and spirit of equity have been distilled into aphorisms known as the Maxims of Equity. Every equitable proceeding touches on or embodies them in one way or another, whether expressly or impliedly. They inform not only the form, but also the substance, of all equity matters. Traditionally there were 12 great maxims and 12 so-called lesser maxims. Judge Griffith combined them into 14 essential statements of equity principles.

The 14 essential maxims are:

  1. Equity will not suffer a wrong without a remedy.
  2. Equity delights to do complete justice and not by halves.
  3. Equity acts upon the person.
  4. Equity acts specifically, and not by way of compensation.
  5. Equity looks to the intent, and will regard substance rather than form.
  6. Equity follows the law.
  7. Equity aids the vigilant and not those who slumber on their rights.
  8. He who comes into equity must come with clean hands.
  9. He who seeks equity must do equity.
  10. To protect and enforce property rights is the object of equity.
  11. When parties are disabled equity will act for them.
  12. Courts of equity will not tolerate interference with their orders nor with their officers in the enforcement thereof.
  13. No person bound to act for another can act for himself.
  14. No person should be condemned without a legal chance to be heard.

The last two are equally applicable in law and equity courts.

If you’re going to spend time in chancery, you have got to understand how these maxims act as the very structure of equity upon which the chancellor bases his or her rulings.

This begins a series of posts that will focus on the Maxims of Equity. I will quote liberally in each from Judge Griffith’s 1950 monumental work on chancery practice. Although his tome is of only academic interest insofar as it relates to the pre-MRCP practice in chancery courts, Judge Griffith’s masterful grasp of the law of equity and its philosophy is unmatched. His book, now out of print, was once considered the authoritative work on Mississippi chancery practice, and was even employed as the law school textbook on the subject in the pre-MRCP era.

My goal is to acquaint a new generation of Mississippi solicitors (the traditional term for practitioners in Mississippi chancery courts) with these concepts, and to try to reintroduce them into the 21st century discussion of chancery court practice for the rest of us.

 

DICTA

September 14, 2012 § Leave a comment

DICTA

August 17, 2012 § Leave a comment

  • The Mississippi Law Journal online has an interesting Comment, authored by Jeffrey Brown, about the struggle of LGBTQ (lesbian, gay, bisexual, transgender, or questioning) for a harassment free education.
  • Are law journals of much benefit to practitioners? Law commentator Walter Olson in the Atlantic says no, in an article entitled Abolish the Law Reviews!
  • In a paper cited by Olson, Professor Ross Davies argues for a return to helpful legal scholarship.
  • A Calif. US Dist. Ct. judge ordered Oracle and Google, opposing parties in an intellectual property dispute, to disclose all financial ties to any bloggers who might have written about technical aspects of the smartphones in dispute between them. In the interest of full disclosure, I have no financial ties to anyone other than my wife and our financial accounts, my children and grandchildren, and, on the recipient side, to the State of Mississippi which deposits a paycheck into my account every month. Just sayin’.
  • Are judges’ expectations of lawyers as officers of the court too burdensome? Lonnie T. Brown, Jr. of the UGA School of Law thinks so in this research paper you can download.
  • The gradual disappearance of win-win thinking and its impact on our culture. A column by Bill Crawford.

DICTA

June 8, 2012 § 4 Comments

  • America’s worst colleges.
  • Recipe for disaster = Law degree + $150,000 in debt + no job.
  • Just a bit of info: there are 10,729 members of the Mississippi Bar, of whom 8,764 are in active practice. There are 1,965 inactive members. On average that’s 106.87 lawyers per county, and one lawyer for every 339.9 people in the state. Of course, lawyers are not evenly distributed among all of the counties (e.g., there are only 5 active attorneys in Clarke County), and the numbers do include members of the Mississippi Bar practicing in other states.
  • Should victims in the Sandusky molestation trial be required to disclose their full names on the record? The judge ruled that they must in the Pennsylvania trial.  
  • Two things I learned growing up: it’s impolite to wear a hat indoors, and never chew gum in church or in a formal setting like a court room. My, how things change over the years. And don’t get me started about driving in the left lane on a 4-lane highway.
  • The entire text of Fred Rodell’s then-scathing 1939 assessment of the legal profession, Woe Unto You, Lawyers! is available for you to read or download. It’s quaint in some ways, but scary-true in others.
  • Jed Perl reflects on Picasso’s Struggle to Reconcile Feeling and Form, with some thoughts about how the artist whom many revere as the iconoclast of realism might have viewed the work of that supreme realist, Rembrandt.  

DICTA

May 18, 2012 § Leave a comment

  • Preservation in Mississippi is a wonderful blog that highlights Mississippi history as reflected in its architecture and artifacts. This post features First Presbyterian Church in Water Valley, a Romanesque Revival structure built in 1896.
  • Gail Falk was a COFO worker in Meridian during the Freedom Summer of 1964. Her blog, Freedom Songs, has several posts about her experiences, with photos.
  • The anthropological record shows that fully 85% of all societies in history have been polygamous. An interesting paper published by The Royal Society explores the societal benefits of monogamy, and discusses how monogamous societies were able to advance more rapidly than polygamous ones because of their greater stability, ease of commerce and lack of internal conflict. There are implications for our culture’s practice of what amounts to serial polygamy via divorce and remarriage.
  • 101 Really Good Ideas for You and Your Law Practice.
  • Judges should avoid even the appearance of impartiality.” Some legal exam malapropisms from Legal Ethics Blog.
  • The über-creatif Marshall Ramsey crafts a clever storylet about a high-powered Mississippi lawyer who is in too much of a hurry and finds himself in hot water in the crossroads of Possum Lick. Or is he?

DICTA

April 20, 2012 § 7 Comments

  • Some helpful ideas to consider when designing or revamping your law firm web site.
  • Speaking of which, here’s a link to a web site that focuses on strategies for using the internet to promote your law firm and improve your practice.
  • Using LinkedIn to help market your law practice — seven tips.
  • Like or Unlike. Facebook will have a billion users by the summer. Robert Lane Greene expounds on how FB is changing us and how the internet operates. All I can tell you about this is that 99% of communications I receive on FB are game requests (I don’t play so I don’t respond) and 80% of posts are tiresome rants about President Obama.
  • I don’t get why Florida Circuit Judge Jessica Recksiedler has recused herself from the Zimmerman case involving the death of teenager Trayvon Martin. Of course, all I have to go on is news reports, which can be relied upon to omit important details, but I understand that she recused herself because Zimmerman contacted another member of her husband’s law firm to inquire about representation, and the member turned the case down. That does not sound like a basis for recusal to me, but maybe it was all about an appearance of impropriety in a nationally sensitive case. Until I see the court order, I’ll stay puzzled.
  • The ratio of lawyers to the general population in the US is now 1 to 257, according to this article in the ABA Journal online. The piece questions whether the legal profession is due for a shakeout.
  • Clichés in your legal draftsmanship should be as unwelcome as a skunk at a lawn party and as rare as hen’s teeth, but, unfortunately, they’re a dime a dozen. The cliché site can at least tell you what that hackneyed phrase really means, so maybe you can find a more original way to say it.
  • “We’re from the government and we’re here to help.” <Sigh> TSA extends its protective activities to a city bus stop.

    Potential terrorists awaiting strip search by TSA

DICTA

March 30, 2012 § 2 Comments

  • State trial courts’ use of judicial interrogation and Daubert gatekeeping techniques are highlighted in this interesting article at the Social Science Research Network. The trial judge as interrogator is a subject I’ve talked about here before. And I touched on Daubert analysis step by step at this post and here.    
  • A few of you may be old enough to remember door-to-door salesmen. They came to our homes bearing all manner of goods. One particular specie of the sales creature was the encylopedia salesman, and I am sure many sets of Collier’s, World Book, Americana, Book of Knowledge, and the venerable Brittanica arrived on household shelves (often to gather dust) across America via those Willy Lomans of yesteryear. Now the word is that Encyclopedia Brittanica is suspending print publication after 244 years. You will still be able to access it online by subscription, but I wonder, in an age when genuine scholarship seems to be demanded less and less in our schools, whether it will survive against the less authoritative but free online Wikipedia. We’ll see.   
  • Speaking of Wikipedia, Ohio State University’s Journal of Law and Policy for the Information Society has an interesting article in .pdf on citations to Wikipedia in law review articles.
  • The 10 most popular law schools (highest percentages of accepted applicants who enroll) and the top ten with an increase in enrollment for 2011-2012. 
  • Clifford Winston in the NYT says law schools and bar exams are unnecessary and the legal profession should be deregulated. Andrew Ziaja disagrees. Articles from Oct 2011 that I’ve only now come across.
  • Should law school be more academic or more practical? That is the question behind this article: The Better Angels of Our Profession.
  • Looking to the flip, non-angelic, side of the profession, Tom Freeland at NMC blog continues his coverage of the Scruggs saga with reportage of the testimony and analysis of Scruggs’ motion to withdraw his guilty plea in Scruggs II (which involved then-Judge DeLaughter). Freeland’s coverage is day by day, and linked is only one day. You will have to click around on the site to catch all of the proceedings, but it is fascinating reading, as it has been for the nearly six years that the criminal cases have been pending and Freeland has been covering from his unique vantage point next door to the federal court house in Oxford.

DICTA

February 24, 2012 § 5 Comments

  • A bill pending in the Mississippi legislature may have far-reaching consequences for the people of Mississippi who need access to courts, as well as for the legal profession. It’s a bill that describes itself as “An Act to Provide for the Payment of Costs and Expenses Incurred by a Prevailing Defendant in a Civil Action …” What that means for chancery court, I believe, is that if a party in good faith seeks modification of custody to rescue a child from an abusive situation, and that party loses, he or she will have to pay the other side’s attorney’s fees and expense. You can imagine what effect that law would have on the willingness of people to risk bringing an action to have that addressed. Philip Thomas has a post here on the subject, with a link to the bill itself, and another post here, and here. This is really important to your clients and the legal profession. You need to educate yourself about this and talk with your legislator.
  • The formidable Garry Wills, a Catholic himself, skewers the church’s position on contraception and health insurance in this acerbic article, Contraception’s Con Men, in the New York Review.
  • So, which is the best language to learn? Robert Lane Greene opines in More Intelligent Life. HintIl n’est pas le Mandarin des Chinois.

DICTA

January 20, 2012 § 2 Comments

  • For map freaks and Mississippi River afficianados: Spectacular Corps of Engineers map of the ancient courses of the Mississippi River.
  • SOPA (Stop Offshore Piracy ACT) and PIPA (Protect IP Act) have generated a lot of controversy recently. If you’re a user of the internet — and you are if you’re reading this — you should be vitally interested in how these laws might affect your access to and use of internet content if they are adopted. CBS (which backs the laws, by the way) has a piece on what you need to know about SOPA and PIPA. Forbes offers its take, asking What are SOPA and PIPA and Why All the Fuss? Yielding to pressure encouraged by sites such as Google and Wikipedia, Congress has delayed taking up the matter, and President Obama has stated he opposes it, probably dooming it; you can read about it here. Unless you’re happy with the idea of the government playing a bigger role in the internet, this is a law that you need to be vigilant about.
  • Sous-Vide cooking.
  • Before you spend that extra $$$ to buy some really special olive oil, you might want to read this NPR piece on Tom Mueller’s book about olive oil scams.
  • Some powerful ways to use LinkedIn for law firm marketing.
  • Tantalizing cooking ideas from New Orleans’ June Yamagishi.

DICTA

December 9, 2011 § 1 Comment

  • Cocktail parasols if your drink is expecting rain, or for your next party or re-enactment of the killer at the piano bar scene from High Anxiety.
  • Ever find yourself yearning for the old drive-in movies? You can actually rent a full sized, inflatable screen for your next gathering of a “few hundred friends” from Southern Outdoor Cinema. Screens are availale in several sizes, from back yard to cow pasture.
  • The classic 1949 movie Intruder in the Dust, based on Faulkner’s novel, is available on DVD now, just in time to screen at your inflatable drive-in! The film was shot in and around Oxford, and offers views of what the then-sleepy town looked like in the first half of the twentieth century. Caution: some of the language in the film may offend modern sensibilities, but it’s a fair representation of the era it depicts.
  • In 1963, sixteen-year-old San Diego high school student Bruce McAllister sent out questionnaires to writers asking their opinions about the use of symbolism in their and other writers’ work. He received 75 responses, 65 of which survive. The astonishing results of his survey are captured in this Paris Review article, which reproduces the responses of Jack Kerouac, Ayn Rand, Ralph Ellison, Ray Bradbury, John Updike, Saul Bellow and Norman Mailer. Some of the other solicited writers, not excerpted in the article, were A.J. Budrys, Fritz Leiber, Henry Roth, Isaac Asimov, John Cheever, John Updike, Judith Merril, Lloyd Biggle Jr., MacKinlay Kantor, Norman Mailer, Saul Bellow, William Golding and William Melvin Kelley. Wow, just wow.
  • If you’ve ever been to the Sistine Chapel, you will agree that the experience is lacking something special when you’re crammed in there with hundreds of other tourists. So here’s a virtual Capella Sistina, complete with baroque choir, sans the tourists, for your Christmas-tide enjoyment.

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