THE LATEST ON DISCOVERY GAMESMANSHIP
February 13, 2012 § Leave a comment
Discovery gamesmanship has been the subject of a prior post on this blog. It’s a troublesome phenomenon, not only for the lawyers who have to confront and deal with it, but also for chancellors who have to decide whether, when and how to impose sanctions.
The most recent pronouncement from our appellate courts came in the case of Williamson v. Williamson decided by the COA on January 10, 2012, at ¶¶ 29-31.
In Williamson, the appellant, Will, argued that the chancellor had improperly assessed him with attorney’s fees for failing to file complete and timely responses to the other side’s discovery requests. Judge Carlton’s opinion disposed of his claim:
¶29. Additionally, as to Will’s argument that the chancellor erred by awarding Mary attorney’s fees for her costs in filing the motion to compel, we, likewise, find no merit. We recognize the chancellor possesses sole discretion as to whether sanctions should be imposed for discovery violations, and we employ an abuse-of-discretion standard of review when considering a chancellor’s order of sanctions. Williams v. Williams, 43 So. 3d 517, 521-22 (¶19) (Miss. Ct. App. 2010) (citing Hayes v. Entergy Miss., Inc., 871 So. 2d 743, 747 (¶11) (Miss. 2004)). Mississippi Rule of Civil Procedure 37(a)(4) provides:
If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
¶30. The record shows that Will failed to provide complete and timely responses to Mary’s requests for discovery prior to Mary filing her motion to compel. The record also reflects Will provided no adequate reason for his failure to comply. Thus, in accordance with Rule 37, we find no error in the chancellor’s order requiring Will to pay Mary’s attorney’s fees for her cost incurred in bringing the motion to compel. See Russell v. Russell, 733 So. 2d 858, 862-63 (¶16) (Miss. Ct. App. 1999).
¶31. Accordingly, we find no merit to Will’s arguments as to chancellor’s … award of attorney’s fees to Mary.
In this district, attorneys have a long-established custom of trying to work with each other through discovery problems, but sometimes the payback for that civility is abuse of the system. The judges generally view the initial motion to compel as a warning shot resulting in an order to comply, with a second trip to court triggering sanctions if warranted by the proof. I often will impose a $25 per day fine for each day after the court-imposed deadline that a party fails to comply, and I do not limit my sanctions to that. I also use scheduling orders in almost all cases, particularly divorces, and a party who pushes the deadlines and fails to compy risks running afoul of the court on that count.
As Williamson clearly indicates, you play games with discovery at your and your client’s peril. Thankfully, most attorneys in this part of the world have grown past the gamesmanship in chancery court, and for the most part discovery proceeds in an orderly fashion with both sides able to accumulate the evidence they need to present their respective cases to the court in a complete fashion. For those who persist in non-compliance, however, read Williamson and be warned.
THE VALUE OF VALUATION
November 17, 2011 § 3 Comments
Some lawyers like to play a cat-and-mouse game in which they go light on some proof, expecting the chancellor to fill in the blanks in their client’s favor. Sometimes that strategy fails calamitously.
The latest case in point is Powell v. Powell, decided by the COA on November 8, 2011, an equitable distribution case. Sherida Powell and her husband James were locked in a battle over the marital estate, the major components of which were the marital residence, some future payments from the sale of a business, and James’s retirement account. The chancellor decided the values based on the proof, and sherida hit the appeal button, complaining that the judge’s adjudication of values was incorrect.
The COA, via Judge Irving, disagreed with Sherida. The opinion is instructive about what works and does not work as proof of values, so I am quoting it here:
¶20. Sherida first attacks the value that the chancery court assigned to the marital home, which James testified was worth $80,000 before he renovated it prior to his marriage to Sherida. Sherida complains that numerous documents could have been provided to prove the value of the home. While such documents could have been provided, they were not–not by James, and not by Sherida. Sherida was entitled to provide whatever documentation she could obtain regarding the value of the home; in the absence of such, we decline to find error with the chancery court’s valuation of the home. * * *
¶21. Sherida next complains that the chancellor erred in “failing to calculate the value” of the future payments on the promissory note from ASAP’s sale. We note that Sherida made no effort to provide a calculation of the future value of the payments. In the absence of any valuation of the ASAP promissory note payments, we decline to hold the chancery court in error in its valuation of the payments.
¶22. Sherida also complains that James’s retirement account should have been considered a marital asset. In her brief, Sherida concedes that the only evidence as to the value of the account came from her trial exhibit 31. That exhibit was simply a summary of Sherida’s valuation of certain assets, including James’s retirement account. It appears that Sherida’s “value” for the account is simply the percentage that she believes she should receive of each of his monthly disability checks. This did not provide the chancery court with an adequate valuation of the retirement account. No other evidence was presented by either party that conclusively established the account’s value. Under these circumstances, the chancery court did not err in declining to evaluate the account as a marital asset.
A few nuggets from this case:
- The chancellor has no duty to go out and develop your proof for you. It’s up to you to put adequate proof in the record to support your client’s position. If you don’t do so, the appellate courts are not going to entertain your complaint that the judge should have found a different way.
- The chancellor can pick and choose what to believe from equivalent proof. In other words, if each party simply lobs up a guess as to a value, the judge can pick which one to swing at and hit. It’s up to you to come up with weightier proof, like an appraisal from a qualified appraiser, or some other weightier source, if you want to have the upper hand as to values.
- If you want the judge to calculate future values or some such, then offer an expert, or a stipulated table, or something of the like. Don’t expect the trial judge to perform actuarial and trigonometric calculations when you have not provided the template to do so.
- If you fail to provide adequate proof of the valuation of a retirement account and the parties’ relative contributions to it, you do so at your client’s peril. Here, the fallout was a finding by the trial court that the account was not marital. In Pierce v. Pierce, 42 So.3d 658 (Miss.App. 2010), the fallout was a remand for further findings of fact.
- If you don’t put evidence into the record, don’t expect to be able to argue about it on appeal. And don’t expect the trial judge to rule in your favor, either.
- Once again … the more difficult you make it for the trial judge to figure out, the less likely you will prevail, as I have often said here before.
- When you have a valuation case, jump on it early. Get your client to bring you as many documents as possible, such as account balances, valuations, appraisals and financial statements. Get tax returns with depreciation info. Collect closing statements and property tax data. Use discovery to get admissions as to admissibility and authenticity of documents, and to admit values. Discover the existence of any other documents. If valuation will be contested, line up your experts. And remember that experts must be designated no later than 60 days before trial, per UCCR 1.10, if you were requested to disclose them in discovery.
There’s another interesting aspect to this case, and you can read about it here.
DISCOVERY AND THE UCCR
May 2, 2011 § Leave a comment
The MRCP sets out the rules that establish discovery in our courts.
Just as important as the MRCP are the Uniform Chancery Court Rules (UCCR), where some critical discovery provisions reside. UCCR 1.10 provides:
A. All discovery must be completed within ninety days from service of an answer by the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension. Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.
B. When responding to discovery requests, interrogatories, requests for production, and requests for admission, the responding party shall, as part of the responses, set forth immediately preceding the response the question or request to which such response is given. Responses shall not be deemed to have been served without compliance to this subdivision.
C. No motion to compel shall be heard unless the moving party shall incorporate in the motion a certificate that movant has conferred in good faith with the opposing attorney in an effort to resolve the dispute and has been unable to do so. Motions to compel shall quote verbatim each contested request, the specific objection to the request, the grounds for the objection and the reasons supporting the motion.
I have enforced that 90-day deadline whenever asked to do it. It’s there, and it’s enforceable. It’s also there to expedite litigation, which is almost always a good thing for the litigants.
As for the 60-day requirement for disclosure of experts, I posted about it here.
I’ve noticed some younger lawyers in our district not complying with 1.10(B). To save yourself some trouble, get counsel opposite to email the discovery requests to you so that you don’t have to retype them.
Week before last I had a motion to compel presented that did not repeat the discovery request or response. Let me assure you that it is always counterproductive to put the judge to unnecessary inconvenience and trouble, particularly when you have not complied with the clear requirement of the rules.
DEALING WITH DISCOVERY GAMESMANSHIP
April 26, 2011 § 8 Comments
One of the most frustrating aspects of litigation is the gamesmanship that many lawyers employ in discovery. If you’ve practiced even a short time, you are acquainted with the repertoire: Late or no answers; failure to supplement; supplementation on the eve of trial; all-encompassing objections; evasive answers; and on and on.
Philip Thomas blogged about the COA’s decision last week upholding a circuit court decision dismissing the City of Jackson’s pleadings for a discovery violation, and followed up with a post highlighting how inconsistent the appellate courts have been in discovery violation cases.
What is the best strategy to cope?
In my experience, most attorneys are too accommodating when it comes to discovery. You don’t want to press too hard because “what goes around, comes around.” You call the other attorney who promises the answers “in a few days,” and that stretches into a few weeks and months. You hate to file a motion because you don’t want to be disagreeable. The common thread is that these approaches are absolutely ineffective.
If you’re going to get the information you need, you’re going to have to be proactive and make a record. Here’s what I suggest:
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Set a hearing to address all those objections. Make the judge rule on each and every one of them. Rulings by the judge on the timing and sequence of discovery are discretionary, but her rulings on those objections will be matters of law second-guessable by the appellate courts. If the judge overrules the objections, you may reap a bonanza of information, and you have disabled your opponent from using them against you at trial. Remember: if you don’t make a record, you can’t complain about it on appeal.
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If you’re going to agree to extend discovery deadlines, get a court order. Insist on an agreed order documenting the new deadline and any other terms you and counsel opposite agree on. You can’t enforce an order you haven’t got, and the record does not reflect a handshake deal. Make your record.
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Send a good faith letter. UCCR 1.10(c) requires a certificate that you have made a good faith effort to resolve any discovery conflict with opposing counsel before you can be heard on a motion to compel. Mention in your letter that if you are unable to reach an agreement you will have no choice but to file a motion.
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File that motion. Go ahead and do it. File your motion to compel. You are making your record. You can reach an agreement to give more time, or whatever, but don’t wimp out of a hearing unless you get what you need. Some lawyers consider this approach “ungentlemanly.” But your duty to your client comes ahead of being properly gentlemanly. I always considered it more ungentlemanly to play discovery games than to fight them. This does not mean, by the way, that you should be an aggressive a**h**e. It does mean that you need to be assertive and firm, standing your ground for the best interest of your client.
In my years of practicing, I often ran across chancellors who found discovery disputes distasteful. They made you feel as if you were wasting their time. My strategy in dealing with them was to treat it like business and make a record. You’re there to represent your client, not to impress the judge.
Don’t be afraid to be proactive in discovery. It can make or break your case.
THE UNDESIGNATED EXPERT
April 4, 2011 § 3 Comments
Uniform Chancery Court Rule (UCCR) 1.10 states that, “Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.”
The question arises from time to time whether Rule 1.10 requires disclosure where there has been no discovery request asking information about expert witnesses. The question was answered succinctly in City of Jackson v. Perry, 764 So.2d 373, 383 (Miss. 2000), in which the Mississippi Supreme Court was confronted with a situation in a circuit court trial where the trial judge had allowed the testimony of two expert witnesses who had not been designated under the circuit court rule counterpart to UCCR 1.10. The high court’s opinion states the law as follows:
“The City and Edwards argue that the trial court erred in allowing Officers Charles Smith and Tim Corbitt to testify as experts without being designated pursuant to Rule 4.04A of the Uniform Rules of Circuit and County Court. Rule 4.04A of the Uniform Circuit and County Court Rules, states that, “[a]bsent special circumstances, the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least 60 days before trial.” The City argues that Perry did not offer any special circumstances, at trial for not having designated either Officer Smith or Officer Corbitt and therefore, the trial judge abused his discretion when he allowed them to testify. The City argues that this Court should rule that the testimony from Officers Smith and Corbitt inadmissible.
“¶ 52. The City’s reliance on Rule 4.04A is misplaced. Rule 4.04A does not stand alone. In order for there to be a violation of a discovery request, there must first be a discovery request. Here, neither party made a discovery request pursuant to Rule 26(b)(4) of the Mississippi Rules of Civil Procedure. Here, the City failed to propound any discovery and conceded there is no discovery violation. The trial court stated that a party “can[not] object to them [Perry] offering it [expert witness] if you don’t ask for it in a discovery request.”
“¶ 53. There was no violation of Rule 4.04A because there was no discovery request pursuant to Rule 26(b)(4).”
If you want to invoke Rule 1.10, you must have made the discovery request for designation of experts. And on the the flip side, if you’re asked to designate experts in discovery, you’d better do so more than sixty days before trial unless you can prove “special circumstances.”
I recently found special circumstances and allowed the testimony of an expert on less than sixty days notice where the case had been put on a fast track to trial due to exigent circumstances, no order expediting discovery had been sought or entered, and the discovery responses were not due under the rules until the day of trial.
Thanks to Professor Guff Abbott at Ole Miss Law School for the cite.
RULE 8.05, AMENDED
November 5, 2010 § Leave a comment
The Supreme Court yesterday entered an order amending Uniform Chancery Court Rule 8.05, in part. You can read the amended rule here.
In essence, the amended rule keeps in effect the financial statement with which we are all familiar, and adds a more detailed statement as an option to be used, “By agreement of the parties, or on motion and by order of the Court, or on the Court’s own motion … ”
Check out the more detailed form. There will likely be cases where it will be more suitable for your use than the original form.
DODGING THE MRCP 36 BULLET
November 3, 2010 § 1 Comment
FN1. “Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow…. Miss.R.Civ.P. 36(a).
“Such admissions, however, are not necessarily irrevocable. Sawyer, 556 So.2d at 697-698 (citing Educational Placement Services, 487 So.2d at 1318). Rule 36(b) provides the procedure to revoke admissions:
“Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission …. [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Miss.R.Civ.P., Rule 36(b).
“The Martins made no attempt to withdraw or amend the Requests for Admissions under Rule 36(b); they merely untimely filed the Answers to the Simmons’ Request for Admissions. Essentially, the Martins argue that the filing of a late response to Request for Admissions is the equivalent of requesting withdrawal or amendment of the admissions. The Simmons respond that even if this were true, they have been prejudiced due to the death of Wesley Simmons, a material witness. Cf. Brook Village North Asso. v. General Electric Co., 686 F.2d 66, 70 (1st Cir.1982).
“A number of courts do allow untimely Answers to Requests for Admissions, when to do so would aid in the presentation of the merits of the action and no prejudice would ensue to the party who made the request. See e.g., Aldrich & Co. v. Donovan, 778 P.2d 397, 399 (Mont.1989); Herrin v. Blackman, 89 F.R.D. 622, 624 (W.D.Tenn.1981); *257 Bittner v. State for Use & Benefit of Alaska Laborers, 627 P.2d 648, 649 (Alaska 1981); Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580, 586 (N.D.1981); Latendresse v. Latendresse, 294 N.W.2d 742, 747-48 (N.D.1980); Marshall v. Dist. of Columbia, 391 A.2d 1374, 1379 (D.C.Ct.App.1978); Hadra v. Herman Blum Consulting Engineers, 74 F.R.D. 113 (D.C.Tex.1977); See also, 8 Wright & Miller, Federal Practice and Procedure § 2257 at 719-720 (1972); 4A Moore’s Federal Practice 2d ed., Admission of Facts-Procedure § 36.05(4). Other courts allow untimely answers to a request for admissions when there has been excusable neglect or compelling circumstances. See e.g., Dukes & Barber v. S.C. Ins. Co., 770 F.2d 545, 548-49 (5th Cir.1985); Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir.1966).
“The problems encountered by the Martins in this case could easily have been eliminated if a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b) and if there were justifiable excuse. See Sawyer, 556 So.2d at 698; Educational Placement Services, 487 So.2d at 1318. However, we need not reach the issue whether withdrawal or amendment may be allowed when there is no excusable neglect but a party is not prejudiced because the chancellor was not called upon to exercise his discretion to allow the withdrawal of the amendment of the answers to the admissions under Rule 36(b). See Diversified Communications v. Godard, 549 A.2d 362, 363 (Maine 1988). Since the lower court was never asked to exercise its discretion under Rule 36(b), the trial court properly followed our holding in Educational Placement Services v. Wilson, 487 So.2d 1316 (Miss.1986). We therefore are not called upon to determine if an abuse of discretion occurred and we find the chancellor properly applied Mississippi law to this issue.”
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.
The Better Chancery Practice Blog 