8.05 FINANCIAL STATEMENTS: “THE GOLD STANDARD” OF PROOF
August 22, 2012 § 6 Comments
This just in: Rule 8.05 financial statements are the “gold standard” of financial proof in chancery court. That’s what Judge Fair said in the COA case of Collins v. Collins, decided August 21, 2012, beginning at ¶34:
This case highlights the role of the income and asset disclosures required by Rule 8.05 of the Uniform Chancery Court Rules. Rule 8.05 mandates prescribed forms for such disclosure and also requires:
(B) Copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of W-2s if the return has not yet been filed.
(C) A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable.
¶35. Compliance with the rule is mandatory, for obvious reasons. If both parties put down identical values for marital property and properly disclose their income and expenses, supported by the required federal and state tax returns and earnings history, a court can adjudicate property and money issues expeditiously and in accord with the law. Noting the importance of Rule 8.05 disclosures, in Trim v. Trim, 33 So. 3d 471 (Miss. 2010), the supreme court has ruled that filing a substantially false Rule 8.05 financial disclosure statement constitutes fraud on the court.
¶36. Though there may be contrary misinterpretation of some decisions, which properly [fn 1] apply only when conflicts between forms conflict,1 Rule 8.05 disclosures should not be evidence of last resort. Rather, they should be the gold standard, requiring other evidence only when there are legitimate disputes as to valuation. [Emphasis added]
[fn 1] “Chancellors may rely on these statements to value property when the parties fail to offer any other evidence as to value.” Kimbrough v. Kimbrough, 76 So. 3d 715, 721 (¶28) (Miss. App. 2011) (quoting Studdard v. Studdard, 894 So. 2d 615, 618-19 (Miss. Ct. App. 2004)). “To the extent that further evidence would have aided the chancellor in [his] decision, the fault lies with the parties and not the chancellor.” Messer v. Messer, 850 So. 2d 161, 170 (¶43) (Miss. Ct. App. 2003).
Yes, 8.05’s are the gold standard of proof to a chancellor trying to root enough information out of the record to make a decision about equitable distribution and alimony. But some lawyers treat them like fool’s gold. Their 8.05’s do not include tax returns, figures are contradictory and incomplete, valuations are lacking, and there is no employment history.
In Collins, Mr. Collins included no tax returns, and he contradicted himself in his testimony, admitting that his 8.05 was incorrect and inaccurate. As a result, the chancellor relied on her own best judgment and calculated what she believed to be his income, resulting in an impressive $1,300 a month child support obligation.
The chancellor also accepted Ms. Collins’ valuations of real property in the absence of proof offered by Mr. Collins. Ouch.
Some parties offer tables of personal property with some pretty incredibe valuations. In one case I had the husband wanted the riding lawn mower, which he valued at $800. The wife — I am not kidding — valued it at $15,000. Husband testified that he had bought it several years before for $1,600 at Sears. I found his valuation more credible. What was the wife thinking when she tagged the item with that value? Did she think I’d bite on that? Where was her attorney when that table was prepared before trial.
Many lawyers and their clients adopt the extremely unhelpful tactic of valuing everything at near zero that they expect to get, and assigning astronomical values to everything the other party expects to get. For example, wife has the green couch, and she wants to keep it, so she values it at $50; husband opines that it is worth $2,750, and he does not want it. Give me a break.
Most people can not afford to hire a personal property appraiser to value their near-worthless pile of stuff. So lawyers toss it into the chancellor’s lap to flip a coin and make a call as to what the values might be. That’s a cop-out. Lawyers should be more professional than that.
If you try many financial-issue cases in chancery, I encourage you to read Collins. It’s the latest illustration of how parties shoot themselves painfully in the foot when they do a less-than-adequate job in prepping their 8.05’s, and it just might give you some ideas how an on-the-ball attorney can help his or her client avoid that kind of disaster.
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #3
August 9, 2012 § Leave a comment
This is the eighth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #3 …
Use the trial checklists as your template for proof.
Nearly every substantive issue in chancery has a set of “factors” that the judge is required to apply in analyzing the proof and deciding the issues. If you are not putting on proof of each factor that applies in your case, you are wasting your and the court’s time, your client’s money, and your malpractice premiums.
The best way I know of to make sure you address all the applicable factors is to reduce them to a “checklist” that you can tick down as you put on your case, until you have covered them all. It’s a subject I’ve talked about here many times. I call it “trial by checklist.”
If you go to the “search by category” window up there to the right and click on “checklists,” you will find ths posts I’ve made on the subject. Or, you can click this link and get a menu of checklist posts.
How seriously do I take checklists? Well, I have printed them all out and have them in notebooks handy to counsel’s table in my courtroom in Meridian. I have my own notebooks in the bench in every courtroom where I sit.
A few years ago I heard a chancellor tell of a custody modification case he heard where the defendant-mom’s attorney put on not a shred of evidence as to the Albright custody factors. Now, put yourself in that judge’s shoes. The chancellor is charged with being the superior guardian of the child, and with doing whatever is in the child’s best interest. Yet in that case the lawyer failed to put on any evidence of the factors that the judge is required by law to consider and analyze in adjudicating custody. The judge’s decision must be supported by substantial evidence. If you don’t put that evidence in the record, you are putting the judge in a near-impossible position.
Make your own checklist notebook. Let’s say you have a contested divorce involving custody and all of the “big” issues. Just make copies of the Albright factors for custody, Louck factors for claiming the dependency exemption, Ferguson factors for equitable distribution, Armstrong factors for alimony, and McKee factors for attorney’s fees, and have them handy in your file or trial notebook. Then tailor your evidence to flesh them all out, and Voila! you will have proven your case.
As you will see, there are checklists for various issues. Use them and win.
When you prove all the elements of your case, you are not only doing what you were paid to do as a lawyer for your client. You are also making the judge’s job easier, which will always go a long way to improving your track record — with your clients and with the chancellor.
STUNG BY ATTORNEY’S FEES
August 7, 2012 § 2 Comments
The usual standard in chancery court is that a party will not be entitled to an award of attorney’s fees unless the party proves an inability to pay. It’s a subject we’ve touched on before.
The exception to the rule is when the court finds a party in contempt. In that case, no inability to pay need be shown. And, when you represent the contemnor, you are wise to advise your client in advance to be prepared to get stung by those fees if the case is tried and he or she is on the losing side.
The latest manifestation of these principles is in the COA case of Rogers v. Rogers, decided July 25, 2012. In Rogers, the chancellor had found Mr. Rogers to have perpetrated a fraud on the court and assessed him with $1,605 in his ex-wife’s attorney’s fees. The COA reversed the finding of fraud (subject of another post), and Mr. Rogers complained that (a) there was no basis to assess fees absent the fraud finding, and (b) that there was insufficient evidence to support the award. Here’s the pertinent part of Judge Carlton’s decision:
¶29. Our jurisprudence generally provides that “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999) (citations omitted). Additionally, a chancellor may also award attorney’s fees based on a party’s wrongful conduct, as stated in Chesney v. Chesney, 849 So. 2d 860, 863 (¶12) (Miss. 2002), as follows:
There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So. 2d 832, 844-45 [(¶60)] (Miss. 1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So. 2d 68, [72 (¶14)] ((Miss. Ct. App. 2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).
See also McCarrell v. McCarrell, 19 So. 3d 168, 172-73 (¶¶18-19) (Miss. Ct. App. 2009). Further, the issue of whether to award attorneys’ fees in a divorce case constitutes a discretionary matter left to the chancellor, and this Court is “reluctant to disturb” such a finding. Young v. Young, 796 So. 2d 264, 268 (¶11) (Miss. Ct. App. 2001).
¶30. Chancellors are instructed to apply the McKee factors in granting or denying attorney’s fees. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). However, the chancellor’s September 28, 2010 final judgment, where the chancellor awarded Julianne $1,605 in attorney’s fees, shows no mention of, nor specific findings on, the McKee factors. The chancellor stated only that “evidence reflected that [Julianne’s] attorney’s fees and court costs totaled $1,605.”
¶31. Our supreme court has held where there is substantial evidence in the record supporting the chancellor’s award of attorney’s fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995) (no McKee findings); Prescott v. Prescott, 736 So. 2d 409, 416 (¶31) (Miss. Ct. App. 1999) (no finding of inability of recipient to pay). We further note that a specific, on-the-record finding of inability to pay is not necessary where attorney’s fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So. 2d 858, 863 (¶16) (Miss. Ct. App. 1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount v. Mount, 624 So. 2d 1001, 1005 (Miss. 1993).
¶32. In the case before us, the chancellor recognized Charles’s continued failure and refusal to comply with the divorce decree, including his failure to make alimony payments, failure to provide medical-insurance coverage, and failure to pay Julianne’s uncovered medical expenses. The chancellor also found Charles in contempt of court for his failure to provide adequate medical-insurance coverage for Julianne. For these reasons, we affirm the chancellor’s award of attorney’s fees to Julianne. This assignment of error is without merit.
The significance of Rogers with respect to attorney’s fees awards is two-fold: (1) it reiterates the rule that the inability-to-pay test is inapplicable when the assessment of fees is due to contempt or misconduct; and (2) it clarifies that the amount of proof and documentation necessary to support the award for contempt or misconduct is not as great as in an inability-to-pay case.
Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.
DEFINING THE SCOPE OF TRIM
August 1, 2012 § 2 Comments
You’ve read here before about the case of Trim v. Trim and its ramifications for family law practitioners. Trim is the MSSC case holding that intentional filing of a substantially false UCCR 8.05 financial statement constitutes a fraud on the court, so that any judgment based on it is vulnerable to being set aside any time.
In the case of Rogers v. Rogers, decided July 24, 2012, the COA confronted the question of intentionality and exactly how substantial the falsehood needs to be to warrant setting aside the prior judgment.
At trial in 2009, Charles Rogers submitted a financial statement that showed his monthly adjusted gross income as $4,651.71. The court awarded child support and alimony based on that figure.
Later, in a 2010 contempt proceeding brought by his ex-wife Julianne, Charles disclosed in discovery that his gross income was in excess of $88,000 a year, which would produce considerably greater adjusted gross income.
The chancellor found that the discrepancy was “proof of a gross misrepresentation and fraud” upon the court, and revised the final judgment of divorce to increase both the child support and alimony.
On appeal, the COA noted that in his 2009 trial testimony Charles had expressly testified that his yearly gross income was $88,000, that the $4,400 figure represented two weeks’ pay, and he had been asked about it in detail both on direct and under cross examination. At the contempt trial, Charles steadfastly stood by his position that he had not intentionally failed to disclose or falsified the financial information.
Judge Carlton recited the well-known Mississippi rule on establishing the elements of fraud:
¶18. The general rule is well settled that fraud will not be presumed but must be affirmatively proven. Taft v. Taft, 252 Miss. 204, 213, 172 So. 2d 403, 407 (Miss. 1965). The Mississippi Supreme Court has held that in order to establish fraud, the burden is on the proponent to prove the following elements:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.
Koury v. Ready, 911 So. 2d 441, 445 (¶13) (Miss. 2005) (citing Mabus v. St. James Episcopal Church, 884 So. 2d 747, 762 (¶32) (Miss. 2004)). Additionally, “fraud . . . must be proved with clear and convincing evidence.” Hamilton v. McGill, 352 So. 2d 825, 831 (Miss. 1977). We have recognized that “[c]lear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.” Moran v. Fairley, 919 So. 2d 969, 975 (¶24) (Miss. Ct. App. 2005) (citation omitted).
¶19. To vacate a decree due to fraud, the supreme court, in Manning v. Tanner, 594 So. 2d 1164, 1167 (Miss. 1992), listed the four necessary requirements that must be met:
(1) that the facts constituting the fraud, accident, mistake[,] or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree, and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.
Applying the law of fraud to the case at hand, Judge Carlton concluded that the elements of fraud had not been proven, and that the chancellor’s judgment essentially setting aside the original judgment was, therefore, in error. Her opinion distinguished Trim in this way:
¶24. Julianne cites Trim v. Trim, 33 So. 3d 471 (Miss. 2010), in support of her argument that Charles’s inaccurate Rule 8.05 statement perpetrated a fraud upon the court. In Trim, George Trim submitted his Rule 8.05 statement listing the value of his company’s stock at $100,000. Id. at 473 (¶4). George and his ex-wife, Lisa, entered into a property-settlement agreement, which the chancellor later ratified, based on their assets and liabilities disclosed in their Rule 8.05 statements. Id. Lisa later discovered that George had misrepresented his stock value in his Rule 8.05 statement, and filed suit against him for fraudulent misrepresentation. Lisa’s expert valued George’s stock at $694,000 at the time of George and Lisa’s divorce. Id. at 474 (¶4). On appeal, the Trim court held that George’s intentional filing of a substantially false Rule 8.05 statement constitutes a fraud on the court, noting the chancellor’s finding that George’s Rule 8.05 statement drastically undervalued a major marital asset. Id. at 478 (¶17).
¶25. The case before us differs from Trim in that the record shows that Charles testified during trial and explained that his Rule 8.05 submission reflected a two-week pay period. In applying the standard for proving fraud to the facts and record before us, we cannot agree that Julianne met her burden of proving fraud by clear and convincing evidence. See Hamilton, 352 So. 2d at 831. Although Charles’s Rule 8.05 statement incorrectly reflected his monthly salary, the record shows that he explained the discrepancy several times in his trial testimony. As a result, we find that the chancellor erred in considering Charles’s Rule 8.05 statement only, and not also his trial testimony, in determining that Charles’s misrepresentation of his income rose to the level of fraud. In her July 6, 2010 judgment, the chancellor erroneously found that Julianne proved by clear and convincing evidence that Charles perpetrated a fraud upon the court. Therefore, the chancellor erred in vacating the prior decree and revising the final divorce decree by increasing the alimony award. Accordingly, we reverse and set aside the revised final judgment and reinstate the original divorce decree. We also reverse and render the increased award of $1,000 in rehabilitative alimony for thirty-six months, which was based upon the erroneous finding of fraud on the court. Since the record does not support a finding of fraud by clear and convincing evidence, we reinstate the chancellor’s original divorce decree. See Manning, 594 So. 2d at 1167; Shaeffer v. Shaeffer, 370 So. 2d 240, 242 (Miss. 1979).
So, unless and until the MSSC chooses to clarify the matter further, you will have to prove all of the elements of fraud by clear and convincing evidence in order to invoke Trim relief. Proof of discrepancies and oversights in 8.05 statements will not be enough to do the job.
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #4
July 19, 2012 § Leave a comment
This is the seventh in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #4 …
Make sure you have enough copies of exhibits to comply with UCCR 3.05.
Read and follow UCCR 3.05. It requires that you have a copy of each exhibit for the court and opposing counsel. And remember that if you take the original exhibit away from the judge to have the witness use it, the judge has no clue what you are asking the witness about. So have an extra copy of the exhibit for the witness.
Some lawyers go an extra step and provide the court with a “mark-up” copy of the financial statements so that the judge can make notes directly on a copy of the exhibit during examination of the witness. That’s a useful idea.
Rule 3.05 is merely a manifestation of the golden rule of chancery court, which is “The easier you make the judge’s job, the more likely it is you will prevail.”
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #5
June 27, 2012 § Leave a comment
This is the sixth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #5 …
Use summaries and compilations.
MRE 1006 allows you to present summaries and compilations of voluminous and complicated evidence. If you simply dump 300 pages of credit card statements on the judge, you likely will not get the same result you would if you instead presented her with a table summarizing those statements and highlighting what you want the judge to consider.
The entire rule reads this way:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
Rule 1006 is a great tool to help you accomplish the Golden Rule of Chancery Court, which is “The easier you make it on the chancellor, the better your chance that the judge will rule in your favor.”
Think of it this way: If you dump those 300 pages of accounts in the judge’s lap with little or no guidance, how thorough do you expect the judge to be in his examination and analysis, when he has other hearings and trials to deal with day after day after day? Judges are like everyone else. Faced with unrelenting time pressure they will take shortcuts to get some relief, and that includes even the very best, most thorough judges. I am sure that in the back of the judge’s mind is the thought that if the lawyer could not take the time and effort to elucidate this mass of evidence, why should I?
You can alleviate that judge’s drudgery by admitting into evidence a chart or summary of the data, showing calculations you used to produce your compilation. Some forms could include month-by-month summaries with yearly totals, time lines with highlighted benchmarks, account calculations, graphs, comparative charts, illustrations, diagrams, and just about any other form of graphic depiction of the evidence that will aid the judge.
The only requirements are: (1) the summary or compilation must be of evidentiary matter that is too voluminous to be examined conveniently in court; (2) the summary or compilation must be based on that evidence; and (3) the originals must have been made reasonably available for inspection and copying, and you should have the originals available in case the judge orders that they be produced in court.
Earlier this year I tried a case in which the attorneys had cooperated to reduce hundreds of bills and accounts to tables and charts with totals and recaps that were easy to decipher and follow. It made a complicated case much simpler to decide, and I was able to get out an opinion in short order with the aid of the Rule 1006 summaries.
Use MRE 1006 to your advantage. It might just be the leg up you need to prevail.
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #6
June 14, 2012 § 4 Comments
This is the fifth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #6 …
Spend some time in trial prep making sure your 8.05’s will do their job.
Your UCCR 8.05 financial statement is often the most important document in evidence. If you have left it to the client to complete without any help, or it is slapped together, it won’t be as effective as one that has some thought and preparation behind it.
UCCR 8.05 states: “Unless excused by Order of the Court for good cause shown, each party in a domestic case involving economic issues and/or property division shall provide the opposite party or counsel, if known, the following disclosures …” And it goes on to spell out what the form needs to include.
Here are some ways to make your 8.05’s more effective:
1. Never present a financial statement that you have not gone over in detail with your client. You have seen hundreds, if not thousands, of 8.05’s, but this is probably the first one your client has ever seen. Why would you think that the client will somehow innately know how to complete it, and how to complete it effectively to aid his or her case?
As part of your trial preparation, question the client’s figures, test his or her mastery of the information on it. If your experience tells you that a figure is unreasonably high or low, question it and make the client defend it. If the client can not defend the number, suggest that the client reconsider it.
And while you’re at it, make sure that your client knows what he or she included in every category. Are there duplications? For instance, if your client charges clothing for the children on her MasterCard, did she duplicate the amount paid on the card in the line for clothing? Don’t just take your client’s figures at face value; inquire about them. I once asked a woman on the witness stand how she came up with $480 a month for entertainment, and she explained that was the amount she had spent the month before for flowers for her aunt’s funeral, and that her sisters were going to reimburse her. When I asked what she usually spent on entertainment, she said $50. In one fell swoop, I lopped $430 a month off of her expenses, diminishing her alimony claim against my client. Her attorney had simply taken her word for the $480 expenditure without questioning behind it.
If you really want to do an above-average job, require your client to have one or more bills in hand that support the figures claimed. For instance, two or three MasterCard bills showing expenditures for clothing and what has been spent on the card, and the tithe or donation report from the church, and the Comcast bills for the past 6 months, and the cancelled checks for utilities. That way when counsel opposite tries to attack a line item at trial, your client can confidently say, “Oh, yes, I can back that up.”
2. Always have the statement typed so that it clearly presents your client’s position. A handwritten statement with scratched-out figures and marks, notations and arithmetic that doesn’t add up will just add confusion and make the judge’s job unpleasantly more difficult. Take the time to type the figures in their proper places and make sure they add up properly. Remember: the easier you make the judge’s job, the more likely it is that you will have a happy outcome.
3. Make sure the tax returns are attached. Copies of the preceding year’s state and federal income tax returns ”in full form as filed” are required. This means that all schedules and w-2’s must be attached. If a document was sent with the original return to the IRS, a copy of it must be included.
4. Have an adequate number of copies. “When offered in a trial or a conference, the party offering the disclosure statement shall provide a copy of the disclosure statement to the Court, the witness and opposing counsel.” This means that, in addition to the original in evidence, you should have three additional copies, plus one for yourself. It does your client absolutely no good for the court not to have a copy to look at while your client is being examined about it. It would even be a good idea to provide an extra copy for the judge to mark up with his or her own notes during testimony.
5. Include a complete employment history. Some lawyers have deleted this from the form in their computers, for some reason, but it is specifically required in the rule: “A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of the divorce, whichever is applicable.” This information is vitally important in connection with property division, alimony, child support and even child custody, and yet it is often omitted by lawyers.
6. Be sure to address any discrepancies in your examination of the witness. If your client has a perfectly logical explanation why the cell phone bill is $375 a month, be sure to cover it. If expenses exceed income, how is the client managing to pay the difference? If your client’s year-to-date income includes a one-time bonus that will never be repeated, notate that and have your client testify about it; if you don’t explain it, you can expect that the judge will include the bonus in your client’s income.
7. Use an up-to-date statement. A financial statement prepared six months ago in discovery and not updated since is simply not a statement of ”actual income and expenses and assets and liabilities,” as required in the rule. It defeats the purpose of the rule for a witness to spend a couple of hours explaining how the statement should be updated when that should have been done in trial preparation. If you come to court without an updated statement, the court may continue your trial to require you to prepare one.
8. Have your client sign and date the statement. The Court of Appeals has been critical of unsigned financial statements.
9. It’s better to hit the highlights than to needlessly repeat every item. The best way to lose your judge’s attention completely is to go over every line with your client. Better to touch on the items that are most important to your client or most susceptible to attack on cross.
10. Remember that a month has more than four weeks. A month is 52 weeks divided by 12, or 4.3. A client who says “I get paid $400 every Friday, so I make $1,600 a month” is wrong; the correct amount would be $1,720.
11. Number the pages. It saves the fumbling around as the witness and the court are trying to orient themselves to your questioning. And use the page numbers in questioning the witness: “Ms. Smith, look with me at page 3, line 6.” That’s a lot clearer and easier for a witness to follow than asking “Now you say you spend $200 a month on clothes for yourself; how did you come up with that?”
12. Add or delete categories to meet your needs. Your client spends $65 a month buying yarn and other materials to feed her knitting habit. Why not replace an unused category like “Transportation (other than automobile)” with “Hobby Expenses.” It would be a whole lot clearer than lumping it in with household expenses or something else, and will make it easier for your nervous client to understand while testifying.
13. Don’t list a deduction as “mandatory” when it is not. Deductions required by law, such as taxes and social security are excluded from adjusted gross income for calculation of child support. Voluntary contributions, such as 401(k) deductions, health insurance premiums, and the like are not excluded from income. When you list voluntary deductions as “mandatory,” you are at worst planting false information in the record, and at best confusing the record. Your client does not know the distinction. This is part of practicing law: advising your client how to properly fill out his or her 8.05.
14. Attach a current pay stub. Pay stubs are a marvelous source of information. Quite often clients (and attorneys, I am sad to report) miscalculate income. A current pay stub, preferably with year-to-date (YTD) info is a great tool to check the income figures. Pay stubs also show the true amounts of overtime, bonuses, deductions for insurance and other items, and retirement contributions.
15. Tailor your 8.05 to the case you are trying. In a divorce case, you can have one column of figures showing your client’s current expenses, one showing the household expenses before the separation (to show standard of living), and a third column showing her anticipated expenses following the divorce. In a modification case, add a column on both the income and expense side showing what your client’s income and expenses were at the time of the judgment you are seeking to modify.
You should redact all Social Security numbers. The proper procedure to accomplish this is in UCCR 8.05(B).
Keep in mind the cardinal rule of practice in chancery court: “The easier you make the chancellor’s job, the more likely you will have a favorable result.” When you present an 8.05 that is hastily scribbled out by a client with no guidance, with uncalculated or undecipherable figures, without the proper documentation attached, in sloppy form, you are making the chancellor’s job disagreeably more difficult, and you may not enjoy the outcome.
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #7
June 7, 2012 § Leave a comment
This is the fourth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #7 …
Put on proof of jurisdiction.
Your pleadings are not proof. It’s your job to establish jurisdiction. Yes, it’s your job, not the judge’s. Yet, I have had to do it on more than one occasion for the attorney. Why would I do that? because it beats the heck out of having to retry the case on remand for lack of jurisdiction the first go-round.
Jurisdiction is vital. Without it the court can not proceed. So …
- If you are trying a divorce, you have to ask your witness about residence in the state of Mississippi for the requisite time, and you have to establish venue (which is jurisdictional in a divorce), and, of course, that there was a marriage in the first place a marriage.
- If you are trying a modification, you have to establish that the court has continuing jurisdiction by virtue of a prior judgment; and ditto for a contempt action.
- If you are trying a contempt, you have to introduce the judgment of which you claim the defendant is in contempt.
- If you are trying a statutorily-created action, such as grandparent visitation or partition, what are the facts that confer jurisdiction on this particular court?
- If you are trying a property dispute, where on this green earth is the property located?
The pleadings are not evidence in chancery court. Don’t think just because it’s in the pleadings that it is proven. The pleadings are your template for what must be proven through competent evidence at trial. If you want the trial judge and possibly the appellate court to consider it, you must put it into the record at trial.
I suggest you always put on proof of venue because some statutes, like the divorce statutes, confer jurisdiction through venue. In other words, if a statute designates venue, and you file in the wrong venue, the court has no jurisdiction and you will be wasting time, effort and the judge’s patience.
A FEW LINKS FOR LITIGATORS
May 31, 2012 § 2 Comments
Here are a few helpful links I found listed in the MSB’s Family Law Section March, 2012, newsletter …
- ourfamilywizard.com offers a range of tools to assist parents, lawyers and courts with joint custody arrangements and custodial conflict. Calendars, message boards, documentation of parental time, private email, visitation schedules and tools for swapping dates, and even documentation of payments are services offered through this site. There are even apps for mobile devices. There are services for parents, lawyers and even judges. Lawyers and judges can create professional accounts for free. Parents are charged $99 each per year, and lawyers can monitor the parental accounts they create. Children can even have an account for free, and there are services tailored for them. I recommend you take a look at this and see whether it is something you can use to benefit your clients. If you are the only lawyer in town making use of this, it might just be an edge you can use to market your firm.
- SEARCH is the “online resource for justice and public safety decision makers.” What you will find here is a compilation of links to various isp’s and links that include information services and contacts for service of subpoenas and court orders. For example, if you need to subpoena E-Bay or AOL records, there is a link here you can click with information on how to contact their legal department to get that done.
- Reverse Phone Lookup will tell you who is on the other end of that phone number that your client found on the telephone bill, as well as the carrier and address of the caller, so you can issue a subpoena. It will even provide the info on previous owners of the number, which is helpful in the event that the owner hastily cancelled the account after being “busted.” There is a subscription fee, but it is relatively modest.
- VisaLady.com is a service that will get you birth certificates (I wonder why the birthers didn’t use this to get the info they were looking for), court records, passport and visa records, and other international records. There is a service fee that depends on what you ask them to do.
- How long will that cell phone provider maintain data? Retention periods for the six largest carriers are provided at this helpful link. It tells you how long they maintain text message details and content, email, subscriber info, call details, cell towers accessed, ip sessions, pictures, billing and payments, store surveillance videos, and service calls. Thanks to Springer Law Office for this link.
With so much information available at a keystroke via the internet, I wish someone would compile a list of links helpful to everyday practitioners and post it somewhere for all to use.
If you have some useful links you’d like to share, post a comment and let us know about it.
ADMISSION OF ELECTRONICALLY STORED INFORMATION INTO EVIDENCE
May 29, 2012 § 3 Comments
Emails, cell phone text messages, FaceBook LinkedIn and MySpace posts and the like, electronic bulletin board comments, metadata, internal organization communications, computerized business and public records and documents, websites, chat room content, computer animations and simulations, digital photographs, market reports and commercial publications …
… all are finding their way into our court proceedings on a more frequent basis. That’s because people are increasingly using these forms of electronically stored data to communicate, do business, save information, and promote their businesses and personal interests.
Chancellor Ed Patten made an informative presentation to the chancellors at the Spring judges’ meeting that introduced us to the evidentiary concerns that are raised by all of these electronically stored data.
Just about everything you need to know about introducing these items into evidence is analyzed in the case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (USDC Md. 2007), a 58-page opinion that exhaustively considers all aspects of admissibility, including authentication, hearsay, best evidence rule and more. It’s a federal case, but the rules that underpin it are, for the most part identical to, or nearly identical to, the MRCP and MRE.
The decision also elucidates various rules that allow authentication by admission, which should give you some ideas about using requests for admission and depositions to do that job for you in discovery while you’re fishing for other info.
If you have a case involving introduction of these kinds of evidentiary matter, I encourage you to read the Lorraine decision and find the analogous Mississippi rules. If you use the latest MISSISSIPPI RULES ANNOTATED or do a little digging, you can come up with a few cases to toss onto the bench once the other side objects. The judge will be impressed and gratified (and maybe surprised) that a lawyer has done that homework before trial, so much so that you will likely get those documents into evidence.
The Better Chancery Practice Blog 
