Understanding the MEC Privacy Requirements

January 8, 2018 § 2 Comments

Section 9(A) of the MEC administrative procedures imposes a duty to protect sensitive information of parties and children in filings with the court. Social Security numbers, names of minor children, dates of birth, and financial account numbers are prohibited and must be redacted. Attorneys are directed to use caution with personal identifying numbers (e.g., driver’s license numbers), medical records, employment history, individual financial information, and proprietary or trade-secret information.

There are exceptions, however, set out in Section 9(B). It states:

The redaction requirement shall not apply to the following:

  1. The record of an administrative or agency proceeding.
  2. The record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed. See Section 5(D) for a listing of restricted access cases.
  3. Documents filed under seal.
  4. Documents filed as Restricted Access if the private information is necessary and relevant to the case. See Section 5(D) for listing of restricted access cases.

Section 5(D) designates certain cases as “Restricted Access” (RA), meaning that persons other than the attorneys of record and clerks will only be able to view remotely the case’s docket page; as with other unsealed cases, the public may view documents on file in RA cases at the terminal in the clerk’s office.

Cases designated as RA include:

Debt Collection; Garnishment; Replevin; Child Custody/Visitation; Child Support; Divorce, both fault and irreconcilable differences; Modification; Paternity; Termination of Parental Rights; Birth Certificate Correction; Conservatorship; Guardianship; Minor’s Settlement; Protection from Domestic Abuse Law.

Note that adoption is not listed. That’s because adoptions are under seal, and so are exempted under 9(B)(3), above.

Also not listed are estates. That means that the redaction requirements do, indeed, apply to them.

Even if your case is not designated in the rule as an RA case, you may still move the court to restrict a document or the entire case for good cause, per Section 5(D)(3).

Just because your case falls in an RA category does not mean that can or should ignore your client’s right to privacy. Social Security numbers, financial account numbers, passwords, and personal identifying numbers should always be scrubbed from documents filed with the court, exchanged in discovery, and introduced into evidence, unless your client has specifically authorized you to release that specific information.

And remember that MRCP 5.1 extends the MEC privacy rules to districts using non-MEC electronic filing.

Family Values

November 28, 2017 § 2 Comments

A point I have harped on often around here is that you should not spare your effort to produce proof on valuation of assets — particularly retirement funds, equity, and the like. It can make a huge difference in what your client takes away in equitable distribution and/or alimony, and if you have to appeal it may be the difference between affirmance and reversal.

A recent example is the COA’s decision in Inge v. Inge, decided October 3, 2017. Denise Inge appealed, complaining that the chancellor had erred by not finding the present value of the parties’ future retirement benefits. The COA found no error. Judge Wilson succinctly rejected her argument for a 10-0 court:

¶19. Moreover, to the extent that Denise’s complaint is that the chancellor failed to make findings as to present values of the parties’ respective future benefits, we simply note that Denise failed to present such evidence or calculations. The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. See Pruitt v. Pruitt, 144 So. 3d 1249, 1252-53 (¶11) (Miss. Ct. App. 2014). The chancellor received evidence of the future payments that each party could expect to receive under their respective retirement plans and concluded that it was fair and equitable for each party to keep his/her own benefits. Again, we cannot say that the chancellor abused her discretion. The division of assets, as a whole, was fair and equitable. Dogan [v. Dogan], 98 So. 3d [1115] at 1124 (¶20) [(Miss. Ct. App. 20120]. [My emphasis]

Let that sink in: The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. In other words, it’s up to you to make a record. The more thoroughly you do that the better equipped you will be on appeal.

A few other points to ponder (with links to some previous posts):

The Right to Confrontation

November 6, 2017 § Leave a comment

I posted here previously about the case of Miller v. Smith, in which the COA had ruled that there was no error when the chancellor excluded the parents from the courtroom during a child’s testimony in a child-custody case. Here is a link to my post.

The MSSC reversed the COA in the latest version of Miller v. Smith, decided October 26, 2017. Here is what Chief Justice Waller wrote for the court on the point:

¶19. The issue regarding Miller’s removal from the courtroom during the testimony of Kristen had relevance only while an issue existed concerning the custody of Morgan. A subsequent custody ruling of the trial court has granted custody of Morgan to Miller. We address the issue, though, because of conflicts in our caselaw as discussed below. See Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1214 (¶ 8) (Miss. 2010) (issue not moot if question concerns a matter “detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.”) (citation omitted).

The Confrontation Clause of the Sixth Amendment

¶20. Miller argues the Confrontation Clause of the Sixth Amendment applies in this case, even though it is a civil case. By its own language, the Confrontation Clause extends only to criminal cases. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him . . . .”) (emphasis added); Hannah v. Larche, 363 U.S. 420, 440, 80 S. Ct. 1502, 1513, 4 L. Ed. 2d 1307 n.16 (1960) (“[The Sixth] Amendment is specifically limited to ‘criminal prosecutions’ . . . .”). As the Court of Appeals correctly observed, “The Confrontation Clause only applies to criminal cases. . . . So [Miller’s] first argument fails.” Miller [v. Smith], 2016 WL 6876509, at *3 (¶ 17) [(Miss. Ct. App. Nov. 22, 2016)].

¶21. According to Miller, the Court of Appeals’ decision is contrary to this Court’s precedent. To support his argument, Miller relies on In Interest of C.B., where we held “[t]his is not a criminal case, but we are of the opinion that the right of confrontation should be accorded to an accused parent in” youth-court cases. In Interest of C.B., 574 So. 2d 1369, 1374 (Miss. 1990). [Fn omitted] In a recent concurrence, though, Justice Beam wrote that our statement in In Interest of C.B. “was nonauthoritative dicta.” In re J.T., 188 So. 3d 1192, 1205 (¶ 71) (Miss. 2016) (Beam, J., concurring in part and result).

¶22. This Court cannot ignore the plain language of the Sixth Amendment, which limits its own application to “criminal prosecutions.” To the extent we held in the case of In Interest of C.B., 574 So. 2d at 1374, that the Sixth Amendment applies in civil proceedings, today we overrule it.

Article 3, Section 25 of the Mississippi Constitution

¶23. Miller argues his removal from the courtroom violated Article 3, Section 25 of the Mississippi Constitution. “No person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Miss. Const., art. 3, § 25. The Court of Appeals rejected Miller’s argument, finding no violation “[b]ecause [Miller’s] counsel was present during Kristen’s testimony . . . .” Miller, 2016 WL 6876509, at *4. However, the provision prohibits debarment of the individual “by him or herself.” Miss. Const. art. 3, § 25. The presence of Miller’s counsel did not cure the error that Miller, individually, was removed from the courtroom. As a result, a violation of Article 3, Section 25 occurred.

Harmless-Error Analysis

¶24. While the removal of Miller was error, the issue may be reviewed under harmless error analysis. Smith v. State, 986 So. 2d 290, 300 (¶ 30) (Miss. 2008); see also United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007).

¶25. First and foremost, while Miller was absent, his attorney was present during the entire questioning. And Miller fails to explain how the examination would have changed had he been present alongside his attorney. See Jones v. State, 912 So. 2d 973, 977 (¶ 16) (Miss. 2005) (“Assertions of error without prejudice do not trigger reversal.”).

¶26. While a Sixth Amendment case, the decision in Rollins v. State is instructive on the issue of removing a defendant from the courtroom. Rollins v. State, 970 So. 2d 716 (Miss. 2007). In Rollins, the grand jury returned a multicount indictment charging the defendant with crimes related to sexual battery of children. Id. at 717 (¶ 2). The trial court allowed the children to testify through closed-circuit television. Id. at 717 (¶ 3). The defendant was removed from the courtroom to watch the television screen alone. Id. at 719 (¶ 5). However, technical difficulties arose, and the defendant was unable to view the witnesses on the screen. Id. at 721 (¶ 11). Because of the inability to see the witnesses and view their demeanor, the defendant raised confrontation issues, claiming a violation of his right required reversal. Id. at 722 (¶ 13). However, this Court held, “in order to receive a new trial, [the defendant] must show the denial of his right to view the demeanor of the minor witnesses prejudiced him.” Id. The Court continued: “[S]ince [the defendant] does not argue that he was prejudiced or demonstrate how he was prejudiced, this argument is without merit.” Id.

¶27. This Court finds that the same reasoning in the Sixth Amendment cases of Jones and Rollins should apply to Miller’s objections under Article 3, Section 25 of the Mississippi Constitution. Smith [sic] must show how he was prejudiced by the procedure used by the trial court. See Goins v. State, 155 Miss. 662, 124 So. 785, 786 (1929) (holding a constitutional error “did not require a reversal, because it did not result in any injury to the defendant . . . .”).

¶28. The trial court should have provided a mechanism, such as closed-circuit TV, for Miller to observe witness testimony when he was removed from the courtroom. However, as the U.S. Supreme Court has held, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302
(1991)). We hold that, due to the lack of prejudice to Miller, Miller’s erroneous removal was harmless.

So, Article 3, Section 25 of the Mississippi Constitution requires that the parents, in cases such as this, be provided with means such as closed-circuit tv to observe the testimony of the child(ren) if the court decides that it is not in the child’s best interest for the parents to be present during the testimony. I imagine the 21st century equivalents FaceTime and Skype would suffice.

If your client is excluded over your objection, be prepared to explain how it prejudiced your client.

Perjury or Trial Strategy?

October 23, 2017 § 1 Comment

Thomas and Christy Ethridge consented to a divorce on the ground of irreconcilable differences and agreed that the chancellor would adjudicate custody. The chancellor awarded physical custody to Christy and awarded joint legal custody to both. After the judge denied Thomas’s R59 motion for a new trial, Thomas appealed.

In Ethridge v. Ethridge, handed down September 26, 2017, the COA affirmed. The court first addressed and rejected Thomas’s argument that the chancellor’s Albright analysis was erroneous. It then turned its focus on his claim that Christy had committed perjury at trial, and that the judge had committed error by not granting him a new trial. Judge Irving wrote for a unanimous court:

¶15. The judgment of divorce was entered on January 5, 2016, and Thomas filed his motion for a new trial on January 11, 2016. In seeking a new trial, he alleged that the trial court had, in its Albright analysis involving the physical and mental health and age of the parents, found that both he and Christy were in good health. However, he alleges that Christy has a history of inpatient treatment for mental-health issues, including depression and suicidal ideation, having been treated as an inpatient for such at Pine Grove Recovery Center. He alleges that she intentionally failed to disclose these facts and committed outright perjury at trial in order to affect the outcome of the case. Thomas asserts that the reason the issue of her mental fitness was not brought before the court was because his trial counsel was involved in a hit-and-run accident and was distracted when he returned to the court. In response, Christy points out that Thomas’s counsel rested before the break for lunch, and after lunch, the judge announced his ruling from the bench, so Thomas’s counsel’s incident during the break had no effect on the proceedings.

¶16. In rejecting Thomas’s post-trial motion for a new trial based on the allegation that Christy had committed fraud during the trial, the chancellor stated:

At oral argument [Christy]’s counsel represented that all parties and [Thomas]’s trial counsel were aware that [Christy] had a prior stay at Pine Grove in Hattiesburg as a result of a break up with a prior fiance before her marriage to [Thomas]. Those records were provided in discovery and appear to concern the years 2010 through 2012. Copies of those records were provided by [Christy]’s counsel to the Court and [Thomas]’s current counsel at the motion hearing. Those records are being filed under seal in the court file. The records are not in evidence from trial.

The use, non-use, or relevance of such information by [Thomas] at trial is deemed by the Court to involve trial strategy. The information was apparently known to [Thomas] and his counsel at trial. It was not introduced nor offered into evidence. Thus, there is no new or unknown evidence intentionally withheld by [Christy] that supports [Thomas]’s motion for a new trial on the grounds of perjury or fraud upon the Court.

¶17. As noted, the chancellor found that there was “no new or unknown evidence intentionally withheld by Christy that supports Thomas’s motion for a new trial on the grounds of perjury or fraud upon the Court.” If Thomas believed that Christy gave false testimony when his trial counsel questioned her about her mental fitness to care for the parties’ minor child, it was incumbent upon him to confront her with her medical records at that time if he thought they contradicted her testimony. Thomas does not claim, and there is no evidence, that he was somehow prohibited from bringing Christy’s past mental history to the court’s attention during the trial.

¶18. The standard for obtaining relief based upon an allegation of fraud upon the court has been succinctly addressed by the Mississippi Supreme Court:

Relief based on fraud upon the court is reserved for only the most egregious misconduct, and requires a showing of an unconscionable plan or scheme which is designed to improperly influence the court in its decision. Mere nondisclosure of pertinent facts to the court does not add up to fraud upon the court for purposes of vacating a judgment under Rule 60(b). Furthermore, the fraud must be proved by clear and convincing evidence. Doe v. Smith, 200 So. 3d 1028, 1033 (¶15) (Miss. 2016) (internal citations and quotation marks omitted).

¶19. As noted, the chancellor found that “there [was] no new or unknown evidence intentionally withheld by [Christy] that support[ed] [Thomas’s] motion for a new trial on the grounds of perjury or fraud upon the [c]ourt.” We agree. This issue is without merit, and we find no error in the April 26, 2016 order denying the relief requested by Thomas.

It appears from the opinion that Christy was never confronted on the witness stand with the information that Thomas claims was so damning. If she was not given the opportunity to lie about it, how can she be accused of lying? Also, the information had been disclosed in discovery and was in Thomas’s possession during the trial. When Christy did not volunteer the information, he had the opportunity to confront her with it.

So, was Christy’s failure to volunteer the information tantamount to perjury or fraud on the court? If you say yes, what is your authority for that position? I don’t believe it was.

Finally, this case underscores a key consideration: you can not try to introduce new evidence via a R59 motion unless you can show that it was newly obtained evidence that was previously unavailable. The outcome would probably have been different if Christy had concealed the existence of the records and Thomas only discovered them after trial. Unlikely, but stranger things have happened.

Ex Parte Communication with a Treating Physician in an Estate Matter

May 16, 2017 § Leave a comment

Most of us are familiar with the prohibition in MRE 503(f) against ex parte communication with the treating physician of an opposing party, even when that party has put his own physical, mental, or emotional condition in issue.

Does that prohibition apply in a will contest where both parties claim to be personal representatives of the deceased?

In a case of first impression, the MSSC answered that it does not.

At the trial level, in a will contest involving Katherinne Lyons’ estate, between the testator’s brother (Larry Lyons) and nephew (Anthony Lobred), counsel for Lobred had ex parte communication with the testator’s treating physician before her depostion. Lyons filed a motion to strike the depostion testimony, which the chancellor granted. In the case of Estate of Lyons v. Lyons, handed down April 6, 2017, the MSSC reversed and remanded. Justice Coleman’s wrote for a unanimous court:

¶17. Although the facts surrounding Katherine’s testamentary capacity and Larry’s alleged undue influence are hotly disputed, the facts pertinent to the narrow issue before the Court on interlocutory appeal are not in dispute. It is undisputed that Lobred’s counsel communicated with Dr. Clement regarding Katherine’s medical condition prior to Dr. Clement’s deposition. The specific issue before the Court today is whether the testimony of the testator’s treating physician should be excluded based on contact between the treating physician and a party without the opposing party’s consent in a will contest wherein both parties are personal representatives of the deceased.

¶18. A panel of the Court ordered Larry to file a response to Lobred’s petition for permission to appeal addressing “whether the rule prohibiting ex parte communication with a treating physician applies in an estate matter.” The Court has held that the rule prohibiting ex parte communications under Mississippi Rule of Evidence 503(f) applies in the context of personal injury and medical malpractice cases. Scott v. Flynt, 704 So. 2d 998, 1000-01 (Miss. 1996). The comment to Rule 503 states that the “primary impact of subdivision (f) will be in personal injury actions, although the exception by its terms is not so limited.” According to the comment, the ex parte rule contained in Rule 503(f) could apply in estate matters. Thus, the question initially framed by a panel of the Court may be answered in the affirmative. However, the inquiry does not end here because the Court has yet to address how or if the rule prohibiting ex parte communications would apply in the context of a will contest where both parties can claim to be personal representatives of the deceased.

¶19. At the time of the trial court’s order on Larry’s motion to strike Dr. Clement’s testimony, Rule 503(f) provided:

(f) Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.

Miss. R. Evid. 503(f) (2015). Amended Rule 503(f) [Fn omitted] now provides:

(f) Waiver by Pleadings; Ex Parte Contact. A party whose pleadings place in issue any aspect of that party’s physical, mental, or emotional condition thereby–and to that extent only–waives the privilege. The exception in this subdivision (f) does not authorize ex parte contact by an opposing party.

Miss. R. Evid. 503(f) (2016).

¶20. In Scott, the trial court ordered the plaintiff in a medical-malpractice case to execute an unconditional medical waiver and permit ex parte conferences by the defendants with any medical provider of the plaintiff. Scott, 704 So. 2d at 999. On interlocutory appeal from the trial court’s order, the Scott Court addressed “two interrelated questions of law[,]” which were framed as “(1) the scope of the medical waiver as contemplated by Mississippi Rule of Evidence 503 and (2) whether or not ex parte contacts with medical providers are permissible under the rules of discovery in the Mississippi Rules of Civil Procedure.” Id. at 1000.

¶21. The Scott Court recognized that a “significant argument about ex parte interviews revolves around who is the holder of the privilege.” Id. at 1004. Before answering the question of how or if the ex parte rule would apply in the context of a will contest, the Court must determine who holds the medical privilege of the testator in a will contest. One of the two permitted methods stated by the Scott Court for obtaining relevant medical information ex parte from a treating physician is through “voluntary consensual disclosure by the patient who is the holder of the privilege.” Id. at 1007. Here, the patient is deceased, so consent would have to be obtained from whoever holds the privilege of the deceased. We hold that in the instant case both parties were personal representatives of the deceased and, therefore, under either the rule or the statute, no prohibited ex parte contact occurred. Because the result is the same whether we employ the rule or the statute, we do not today address any argument or disseminate any holding addressing which governs over the other.

¶22. Mississippi Code Section 13-1-21(1) provides:

(1) All communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such party shall not be required to disclose the same in any legal proceeding except at the instance of the patient or, in case of the death of the patient, at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will. (Emphasis added.)

¶23. Under Section 13-1-21(1), “the personal representative or any of the legal heirs or any contestant or proponent of the will” may waive the medical privilege. However, Rule 503(c) identifies the “personal representative” only as an individual who may waive the general medical privilege of a deceased patient. Rule 503(c) [Fn omitted] states:

(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the patient. Miss. R. Evid. 503(c).

¶24. Under Rule 503(c), a deceased patient’s “personal representative” may claim the medical privilege. Black’s Law Dictionary defines a “personal representative” as: “Someone who manages the legal affairs of another because of incapacity or death, such as the executor of an estate. Technically, an executor is a personal representative named in a will, while an administrator is a personal representative not named in a will.” Personal representative, Black’s Law Dictionary (10th ed. 2014).

¶25. Katherine unequivocally stated in her 2005 will: “I hereby nominate, constitute, and appoint my nephew, Anthony Lobred, Executor of this my Last Will and Testament and I authorize and empower my said Executor to do any and all things which in his opinion are necessary to complete the administration and settlement of my estate, including full right, power and authority, without the necessity of obtaining an order from any Court and upon such terms and conditions as my said Executor shall deem best for the settlement of my estate, to bargain, sell at public or private sale[,] convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate.” Here, Lobred carried out his duty as Katherine’s personal representative by probating her 2005 will as muniment of title. Katherine’s 2012 will contained a similar provision designating Larry as executor. As a result, both Lobred and Larry hold the general medical privilege as Katherine’s “personal representative” under the plain language of Rule 503(b).

¶26. Lobred argues that there is no conflict because Rule 503 is silent regarding will contests, whereas Section 13-1-21(1) specifically addresses the medical privilege in the context of will contests and provides rights not otherwise provided for by the rules of evidence. While we agree with the result urged by Lobred, we disagree that the result stems only from the combination of the statute and the silence of the rule. Rather, because Rule 503 provides that the personal representative may claim the privilege on behalf of a deceased person, and in Scott we held that the party who may claim the privilege may waive the privilege, it is not the silence of Rule 503 but its content that undergirds our holding.

¶27. Section 13-1-21(1), on the other hand, specifically addresses waiver of the medical privilege in the context of a will contest. Under both Rule 503 and Section 13-1-21(1), the medical privilege belongs to both Lyons and Lobred. Under Section 13-1-21(1), the medical privilege may be waived by the personal representative, any legal heir, or any proponent or contestant of a will. Thus, Section 13-1-21(1) authorizes Lobred to waive the entire medical privilege as a personal representative and contestant of the 2012 will. Because Rule 503(c) and Section 13-1-21(1) both authorize Lobred to waive the entire privilege, the ex parte rule of Rule 503(f) does not operate to bar his attorney from speaking alone with the physician witness.

Excluding a Party from the Court Room During Trial

December 5, 2016 § 6 Comments

NOTE: The MSSC reversed the COA in Miller v. Smith, decided October 26, 2017. The Supreme Court’s decision held that a party may not be excluded from the courtroom, per Article 3, Section 25 of the Mississippi Constitution.

When it comes time for children to testify in a chancery court trial, there is a host of factors to take into account. Is it in the child’s best interest to testify? Is the child competent? Is it really necessary to subject the child to that experience?

Once the decision is made to allow the child to testify, the question arises as to how the testimony should be taken. Should the parents be present?

That question arose at trial in the case of Miller v. Smith, decided by the COA on November 22, 2016. In that case, the chancellor had excluded both the father and the mother from the court room in a contested child-custody modification case where an adolescent step-child offered testimony of sexual abuse. In an opinion affirming the trial judge, Judge Fair wrote for the COA:

¶18. At trial, Jessica’s daughter Kristen testified to several instances where Dale sexually harassed and/or abused her. The chancellor stated that due to the nature of the testimony, she preferred to clear the courtroom for Kristen’s interview, having present only the lawyers and the court reporter. The testimony was recorded, and a transcript appears in the record on appeal. Kristen testified that she went to the police to report one of the incidents (the police report was in evidence and part of the GAL’s report), but the police did not investigate further because there was no physical evidence of abuse. Also, the Mississippi Department of Human Services (MDHS) conducted an investigation (the report was also in the record and part of the GAL’s investigation) but found no physical evidence of sexual abuse. Kristen was cross-examined by Dale’s attorney, and Dale gave rebuttal testimony to his version of the events.

¶19. Dale argues the chancery court erred in allowing Kristen to testify outside of his presence. He specifically argues that doing so violated the confrontation clauses of both the United States and Mississippi Constitutions. He further argues that his forced absence from the courtroom violated Mississippi Rules of Evidence 615 and 617.

¶20. The Confrontation Clause only applies to criminal cases. “In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him . . . .” Miss. Const. art. 3, § 26 (emphasis added). So Dale’s first argument fails.

¶21. Article 3, Section 25 of the Mississippi Constitution simply provides that “[n]o person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Because Dale’s counsel was present during Kristen’s testimony, there was no violation of Article 3, Section 25.

¶22. Further, Dale’s argument that the chancery court violated Rule 617 is misplaced. No interview was taken using closed-circuit television, as provided in Rule 617. [Fn 7]

Rule 617 provides:

(a) Grounds. On the motion of a person named in subdivision (b), or on its own, the court may order that a child’s testimony be taken outside the courtroom and shown in the courtroom by means of closed-circuit television if the court determines that:

(1) the child is under the age of 16 years;

(2) the testimony is that an unlawful sexual act, contact, intrusion, penetration, or other sexual offense was committed on the child; and

(3) there is a substantial likelihood that the child will suffer traumatic emotional or mental distress if compelled to testify:

(A) in open court; and

(B) in a criminal case, in the presence of the accused. (Emphasis added).

¶23. Dale asserts that Rule 615, commonly known as “the Rule,” and occasionally more properly “the exclusionary rule,” deprived him of due process. Rule 615 states:

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person . . . .

¶24. The chancellor disregarded Dale’s objection to being forced to leave the courtroom during Kristen’s testimony. Because Dale was a party, he argues that, under a strict interpretation of the Rule, the chancellor did not have the authority to exclude him from being present. The procedure used by the chancellor in this case (excluding parents and/or stepparents in basically an “in camera” proceeding) is common, either by agreement or without objection of parties, in custody cases. See Robison v. Lanford, 841 So. 2d 1119, 1121 (¶21) (Miss. 2003) (holding that, as a matter of first impression, records of in-chambers interviews with children during child custody modification proceedings were required to be made).

¶25. There are exceptions to the Rule. For example, in Rule 617, parties who are alleged to be guilty of sexual abuse of a child may be excluded from the personal presence of children ages sixteen and under. M.R.E. 617. There is not, however, reported precedent of enforced exclusion of a party under the present circumstances of testimony by a seventeen year-old stepchild.

¶26. In a number of criminal cases, our supreme court has found that failure of enforcement of the exclusionary rule does not automatically result in reversal, holding that prejudice must accompany failure to exclude. See Avery v. State, 119 So. 3d 317, 320 (¶9) (Miss. 2013); Woulard v. State, 832 So. 2d 561, 565 (¶13) (Miss. 2002). Here, Dale has failed to show how he was prejudiced from the chancellor’s error. Not only was his attorney present during Kristen’s testimony, he cross-examined Kristen. The chancellor also allowed Dale to give rebuttal testimony to factual assertions by Kristen. Consequently, we find that no reversible error has been shown under this issue.

The situation described here is, as Judge Fair notes, fairly common in chancery court. In my experience, the parties often agree that they will leave the court room during the child’s testimony, as long as their attorneys can remain and participate. Most parents do not want to appear to be trying to pressure the child or to be putting their own interests ahead of the child’s, so they agree. In those cases where they both do not agree, however, and the chancellor finds that it would be in the child’s best interest for them to be excluded, this case is authority to support that action.

The Pause that Refreshes

October 12, 2016 § Leave a comment

In a divorce case, your client Harold is testifying about the condition of the former marital residence when he returned home from work and discovered that Maude, his wife, had left him and taken many household items with her. Now, when you ask Harold to list the items taken, he draws a blank:

Harold: Well, I remember the fireplace logs and the stuffed squirrel lamp, but my memory’s kind of hazy about the rest.

“No problem,” you think, recalling that Harold told you he made a complete list later the evening of the day in question, after he had time to take stock of what was missing. You sift through the bales of paper on the courtroom table and find the dog-eared document. You snatch it up and hand it to him.

You: Here; look at this paper. Does that help you recall?

Counsel opposite: Objection. That document is not in evidence. Best Evidence Rule. Hearsay. Privileged. Unduly prejudicial. Surprise.

“Yikes,” you think. What did I do wrong?

When a witness is unable to recall, your first remedy is MRE 612. That rule provides that a witness may use a “writing, recording or object” to refresh his memory, if by referring to the item it refreshes his present ability to recall. But there is a proper way to do it:

  1. You have to establish that the witness is unable to recall.
  2. You must try to jog the witness’s memory before resorting to refreshing memory. In federal court, leading questions are permitted; I’m not so sure of authority in state court, but it seems that this would be “necessary to develop the witness’s testimony” for which leading is permitted per MRE 611(c).
  3. If the witness still can not recall, ask him whether there is anything to which he could refer to refresh his recollection.
  4. Hand the witness the item and ask him to study or read it silently. After he has had a chance to do so, ask him if he now has a recollection independent of the writing or other item. If yes, his recollection has been refreshed, and you may then question him as to that recollection. Take the object away and question him based on his newly-refreshed recollection. If you have gone through this and he still has no independent recollection, you have to proceed under MRE 803(5), as explained below.

Notice that no foundation for the document or thing has to be established, other than that the witness does not recall and needs to refer to a given object. The thing does not need to be admissible in evidence; however, counsel opposite may review the entire item that the witness referred to, and may use it in cross-examination and may demand that all or part of it be introduced into evidence.

Some older lawyers still (after 31 years) still insist that you have to lay a non-hearsay foundation for the document or thing, but that requirement went out the window when the MRE was adopted in September, 1985. If you run into this particular buzz-saw and have a puzzled-looking judge, simply refer the judge to the fifth paragraph of the Advisory Committee Notes (former known as “Comments”) to MRE 612, which offers a helpful explanation of the distinction.

Some lawyers confuse MRE 612 with the rule for Recorded Recollection, which is MRE 803(5), and is an exception to the hearsay rule. It does require that you lay a foundation. But remember, you don’t need to go to 803(5) if the witness’s recollection is refreshed by looking at the object.

If you’ve reached Step 4, above, and your witness still is stuck, here is how to avail yourself of MRE 803(5):

  1. If you establish that there is a record (i.e., memorandum, report, data compilation, electronically stored information, or the like) that pertains to a matter the witness once knew about but can not now recall well enough to testify fully and accurately, and
  2. The record was made or adopted by the witness at a time when the matter was fresh in his memory; and
  3. It accurately reflects the witness’s memory,

Then, the witness may testify from it and even read all or part into the record, but it may be received into evidence only if offered by the adverse party. The classic situation where we encounter this in chancery is a private detective who has notes she made during and shortly after surveillance and now, two years later, has no clear recollection of dates, times, and other details.

I hope this helps clear up some confusion on this point. I sometimes find myself squirming along with attorneys struggling to figure out how to help the witness over the hump in the face of objection on top of objection.

Questioning the Child Witness

July 14, 2016 § 1 Comment

Children are often called as witnesses in chancery court. It should go without saying that some children, due to various factors, have to be handled gingerly in how they are questioned. Age, emotional maturity, emotional content of the testimony, education and cognitive development, and the courtroom environment all affect a child’s effectiveness as a witness. Other factors may as well.

The Children’s Advocacy Centers of Mississippi have published a booklet entitled A Guidebook for Accommodating Children in Court that includes some helpful information on the subject. Here are some key points:

  • Use simple grammar and concrete words; the child can better understand the questions.
  • Children have a right to be asked questions they understand and should be informed that they should let the court know if they do not understand. Even so, some children may be reluctant to admit they do not understand if they think it is a question that they should understand, and some children may think they understand the question when they really do not. Every now and then a check question like “What do you think I just asked you?” may help make sure there is no misunderstanding.
  • Children use the vocabulary they have. For instance, a child may describe having been “stabbed” in an episode when there was no knife used or even present; what the child is describing is what the experience felt like, because there are no other words in his or her vocabulary for it.
  • Young children may not organize their thoughts logically, and often have limited understanding of space and time.
  • To promote more accurate answers, use common, everyday words and phrases, and avoid legal words and jargon such as attorney, deny, subsequent to, take the witness stand, court (in reference to the judge), allegation, defendant, statement, oath, testify.
  • Use names and places instead of pronouns and adverbs. Instead of “Was he there then?” ask “Was John at the apartment when you arrived?” Instead of “Were they all there?” ask “Were your mom, aunt Sue, and your brother Bill at the park with you?”
  • Negative questions are most often misinterpreted. Avoid no, not, and never in your questions. “Did you go into the house?” is better than “Did you not go into the house?” And avoid double negatives.
  • Start questions off with the main idea. “Did you hear the bell go off when you were eating with your family?” is more effective than “When you were eating with your family, did you hear the bell go off?”
  • Avoid multi-part and multi-idea questions.
  • Pausing is productive. Pausing between phrases, sentences, and after questions allows children to process their thoughts, which aids comprehension for more accurate communication.
  • Cultural and ethnic differences can lead to differences in demeanor on the witness stand. Native Americans, for instance, may have long pauses in communication that can be incorrectly interpreted negatively.

If you can get a copy of this booklet, I think you will find it helpful. CAC’s address is P. O. Box 5348, Jackson, MS, 39296. Phone 601-940-6183. Their website is at this link.

Five Sure-fire Ways to P*** off Your Chancellor

June 2, 2016 § Leave a comment

It should go without saying that chancellors have god-like powers over your cases, and it behooves you (and your client) to respect those powers when it comes to interactions with the court.

There are some irascible chancellors, I will grant you. But in my experience the great majority are sympathetic, patient, focused on doing the right thing the right way, and interested in improving practice in their courts.

So, whether you are dealing with a splenetic judge or one with the disposition of Saint Teresa, you want to be sure you avoid behaviors that will be sure to get you on the chancellor’s bad side.

Here are my top five:

5.   Being chronically late for court. Everyone has occasional emergencies that affect the ability to be on time, but when it’s chronic, it’s an annoyance beyond measure. Your judge may have a higher pain threshold than I, but to me being late merely because you’re late is an ultimate insult not only to the judge, but also to everyone else involved in the case. It communicates that you consider yourself more important than anyone else awaiting your arrival, and I assure you that, in that situation, you will be the only one there who agrees with your opinion. If you find yourself being late more than on rare occasions, you’d best do some rearranging of your priorities and your ways of doing business.

4.  Not learning from your mistakes. It gets tiresome having to deal with the same lawyers making the same mistakes over and over, such as late and incomplete accountings, improper process, failure to comply with discovery orders, and failure to present orders after being ordered to do so, to name only a few. It’s not the judge’s job to pull your irons out of the fire. And if it’s a contested case, it would be improper for the judge to aid one side or the other. If this is your problem, don’t be surprised if one day the judge loses patience, throws her hands up, and says, in effect, get your own self out of this mess; I’m not doing it any more.

3.  Being unprepared. You have to ask the court to delay your divorce or modification hearing to give you time to throw together an 8.05. Or you try to convince the judge to take a particular position, but you don’t have any case law to cite because you haven’t done a lick of research. Or you have to ask for a continuance because your pleadings are not in order. Or you neglected to tell your client to be there for court. These are not only symptoms of unpreparedness; they also indicate lack of competence. Once you convince the judge that you are unprepared and/or incompetent, you can expect that everything you do will be carefully scrutinized, slowing down your ability to get things done for your clients.

2.  Being disrespectful. We all have bad days in court. Those are compounded when the judge has one, too. No matter the outcome, it is your professional duty as a lawyer to suck it up, keep your thoughts to yourself, and show respect. Like a bell that can not be unrung, a snide or flip comment will continue to resonate with your judge long after you regretted saying it. Likewise, being disrespectful of opposing counsel, opposing party, witnesses, and anyone else involved will diminish you, and not the object of your disdain. Arrogance is a trait best left at your office.

1.  Lying. This is the cardinal sin — the one that may earn you years of or even permanent distrust from your chancellor. Never lie even when the truth will hurt. If you’re in the wrong, admit it and ask the court’s indulgence. Lame excuses sound like lies and often are. If you find out that something you represented to the court turns out to be untrue, get with the judge as soon as possible to straighten it out.

A Bluewater Bravo

February 9, 2016 § 3 Comments

The old rule that, if a trial judge in a ruling adopts one party’s proposed findings of fact and conclusions of law verbatim, her ruling is subject to less deference and greater scrutiny was abolished several years ago in the Bluewater Logistics case. I’ve posted about it here and here.

Now the COA has joined the party, so to speak, in the case of Carlson v. Brabham, decided January 19, 2016, in which the chancellor had adopted one party’s proposed findings of fact and conclusions of law verbatim. Although it was not expressly assigned as error, Judge Griffis took the opportunity to make this pronouncement:

¶12. Further, the supreme court has held that appellate courts must “apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 157 (¶32) (Miss. 2011).

Hear, hear!

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