A FEW POINTERS FOR MORE EFFECTIVE CHANCERY TRIALS
December 14, 2010 § 8 Comments
A few thoughts that might help:
Facts, not impressions. Okay, you’re the judge and you have to decide whether the defendant assaulted the plaintiff. Here are two different versions in response to the question “Please tell the court what you observed when you entered the room.”
Version One: “The defendant was going crazy. I mean he went mental. Kaflooey! And I couldn’t believe it. Never saw anything like it. Mmm, Mmm, Mmm; I mean to tell you. Crazy. And, Lordy, such language. I didn’t know which way to turn. Didn’t really scare me, though — I was in Viet Nam. But it might have scared the others.”
Version Two: “The defendant picked up a recliner chair and threw it through the window. Then he grabbed a beer bottle and rared back like he was going to hit the plaintiff in the head, but instead he slapped her in the face and screamed that he liked to kill her. She was all balled up on the floor crying and begging, yelling out “please don’t break my arm like you done the last time!” and then he turned and glared at me and I thought he was going to kill me.”
Version one doesn’t convey a single thought about what the defendant actually did to assault anyone. It is ineffective because it is full of impressions and adjectives. Where are the specifics?
Version two, on the other hand paints a vivid picture chock full of verbs that unmistakably conveys the violence and anger. All the details are there.
When you’re prepping your witnesses for trial (Uh — you do prep your witnesses, I hope), train them to paint a word picture of what happened instead of just babbling a bunch of labels.
Eliminate pronouns from your questions. Keep in mind that you are doing two important things while you are questioning the witness: You are telling the judge your client’s story as persuasively as you can; and you are making a record for the appellate court to use if necessary. So how does the following help your client?
Q. So when they entered the room, what did he say?
A. They was all talking loud, but he said he was going to kill her for messin’ around with him.
Q. Who else was in the room?
A. Just all them and me.
Q. What if anything did you see him do?
A. Well, he left the room and then he came with guns and then they both had guns.
Q. What did he do?
A. He started to shooting. That’s when he shot her by mistake, I guess.
Huh? Who’s on first? What’s on second? I dunno’s on third? How in the world can anybody follow that? Let’s go back and eliminate the pronouns:
Q. So when Robert, Travis and Bo entered the room, what did Bo say?
A. Robert, Travis and Bo was all talking loud, but Bo said he was going to kill Charlene for messin’ around with Billy Joe.
Q. Who else was in the room?
A. Just Rita and Charlene and me.
Q. What if anything did you see Bo do?
A. Well, Travis left the room and then Caleb came with guns and then Travis and Bo both had guns.
Q. What did Bo do?
A. Bo started to shooting. That’s when Bo shot Rita by mistake, I guess.
Clearer? It is to me.
Focus on the points you need to prove. If, for example, you are trying to modify child support, it makes no sense to take your client early in her testimony through a long, meandering history of the marriage and divorce, and then how the children are doing in school, and then get several pictures into evidence that one of the children finger-painted in kindergarten, and then a narration of the soccer tournament in Brandon, and then ad nauseam. Get into the Adams factors for child support modification, sit down and hush. Just hush. Sometimes I have the impression that an attorney has no clue about what he or she is supposed to prove because the witnesses and exhibits are all talking about something entirely different from what is at issue.
It’s your job to establish jurisdiction. Yes, it’s your job. Nevertheless, I have had to do it on more than one occasion for the attorney. Here’s the deal:
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, and of course 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 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.
No corroboration = no divorce. Unless the parties lived in near-total isolation and were incommunicado, which is almost unheard of in this internet-connected, smart-phone world, corroboration is a prerequisite to a divorce. What constitutes adequate corroboration is beyond the scope of this post, but you can find what you need to know in Professor Bell’s or Professor Hand’s treatise. In uncontested cases, I will sometimes “recess” the hearing to allow a lawyer time to recoup some of his or her dignity by scrounging up some corroboration, but in a contested case, I can not do that without prejudicing the opponent, and the result is an unfortunate denial of the divorce.
Spend some time on your 8.05. A post with ten tips for more effective financial statements is here. I have seen cases turn on the 8.05’s, and the one that is clear and better-presented prevails every time.
Oh, and here’s something to keep in mind: If you’re in a modification of child support case, the most crucial thing to prove is that there has been a CHANGE in circumstances. Use your brain here. If you are trying to prove a change, and it involves money, what is the best tool to use to show that change? Yes! It’s the 8.05! Of course! Add a column to your current 8.05 showing the expenses and income from back in 2003 when the divorce was granted. You can ask your client to dig around and find the 8.05 from back then to base your figures on, or ask her to reconstruct those figures for you. If she does have the 2003 8.05, you could offer that into evidence to prove the expenses and income back then.
Finally, do yourself, the witnesses, opposing counsel and above all the court a favor and simply number the pages and items of your financial statement. Imagine how mind-numbing this unfortunately typical exchange is for the judge (and everyone else within earshot):
Q: So you spend $200 a month on clothes?
A: Yes. No. I’m not sure I know what you’re talking about.
Q: It’s on page 3.
A: (Flipping pages of the 8.05) No. I think that’s the equity in my house. Or maybe that’s my life insurance. Or pet expense. I’m not sure.
Q: No, look at the third page, the third page. 1-2-3.
A. Do you mean the GMAC here? That must be my church donation — Greater Meridian Adventist Church? Hmm, I don’t even go to that church.
Q: You’re looking at your car payment. Turn to the page that looks like this (Showing the witness the document).
A: I don’t see where it says that I spend money on clothes.
Q: Well, you have the figure $200 down there where it says “clothing.” What is it for?
A: Oh, clothing. I see it on line 11, but that’s the fourth page.
Q: No, it isn’t, it’s the third.
A: You’re right, it’s the third. Now what was the question?
Wouldn’t it have been more effective to direct the witness to the numbered page and to a particular line number? It certainly would save wear and tear on the judge, if nothing else. And the less wear and tear you inflict on the judge, the better your case turns out. Every time.
COMPLYING WITH RULE 10(d), MRCP
November 30, 2010 § Leave a comment
Rule 10(d), MRCP, states “Whenever any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with the pleading unless justification for its omission is stated in the pleading.”
Originally, Rule 10(d) required a copy of any writing to be attached as an exhibit to the pleading. That requirement was removed in 2000 to conform to the Mississippi Supreme Court’s ruling in Gilchrist Machine Co. v. Ross, 493 So.2d 1288, 1292, n. 1 (Miss. 1986); see also, Edwards v. Beasley, 577 So.2d 384 (Miss. 1991); and Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986).
So what do you need to do to avoid an evidentiary problem under Rule 10(d)?
As the comment states, ” … it remains good practice normally to attach such documents as part of a clear statement of a claim or defense,” and the rule does specifically state that a copy should be attached unless justification for not attaching it is stated in the pleading. The comment points out that if a foundation document is not attached to an otherwise sufficient pleading, it may be obtained through discovery.
From the cases, it appears that the documents offered at trial that were not attached would likely be admitted, unless no justification was given in the pleading and efforts to discover them were unsuccessful.
A THOUSAND WORDS’ WORTH
November 29, 2010 § 1 Comment
Rule 1006 of the Mississippi Rules of Evidence allows you to offer charts, summaries or calculations where the evidence is so voluminous that it would be inconvenient to develop it in the course of testimony. The procedure is simple: The originals are produced at a reasonable time and place for inspection and copying, and the court may order that they be produced in court, although introduction of the originals is not required, according to the official comment to the rule.
The advantages of this rule can be pretty significant. It can improve your effectiveness in presenting complex proof, and give you an edge over an opponent who is too lazy to avail himself of it.
Here are a few examples:
- There is a claim of wasteful dissipation of assets based on abuse of a credit card over a three-year period. There are literally hundreds of transactions. Instead of dumping the statements into evidence, prepare a chart showing yearly and monthly totals. Another chart could highlight spending trends, such as dates and amounts of casino cash advances, jewelry purchases and so on. Witnesses can then be questioned about particular aspects of the matter without laborious testimony to establish the underlying transactions.
- Six years of tax returns are relevant. Chart the income and taxes paid, or the depreciation and deductions claimed, rather than tediously poring over them.
- The other party has fluctuating income. Use charts and graphs to illustrate.
A variation on this theme is to present your client’s position in a concise written form, as, for instance, where your client is requesting particular provisions for visitation. Have the proposed visitation arrangement reduced to writing and have your client testify about the key articles. Introduce the proposed arrangements through your client.
As always, put yourself in the judge’s shoes. If all you do is put 76 credit card statements in evidence with some testimony of a witness or two, are you sure that the judge will draw all the conclusions that you want her to? If all you do is put tax returns into evidence with some testimony, will the judge in his deliberations focus in on exactly what you need to win? Which evidence is more likely to get a detailed, thorough going over: raw documents with some notes taken by the judge; or a chart that focuses the judge’s attention like a laser on the details you need?
Rule 1006 is a super tool. It lets you reduce literally thousands of words (and, consequently judge’s notes) into a picture. And we all know how many words a picture is worth.
FAMILY VIOLENCE AND ITS IMPACT ON CUSTODY
November 22, 2010 § 3 Comments
MCA § 93-5-24(9)(a)(i) sets out some important language that you need to be aware of the next time you are involved in a child custody dispute. It reads in part:
“In every proceeding where the custody of the child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.”
A preponderance of the evidence is required to overcome the presumption. In making a determination whether the presumption is rebutted, the court is required to consider all of the following:
- Whether it would be in the child’s best interest to award the perpetrator custody because of the other parent’s absence, mental illness, substance abuse or other circumstances that affect the best interest of the child;
- Whether the perpetrator has successfully completed a “batterer’s treatment program;”
- Whether the perpetrator has successfully completed an alcohol or drug abuse counselling program if deemed appropriate by the court;
- Whether the perpetrator has successfully completed a parenting class if deemed appropriate by the court;
- Whether the perpetrator has been placed on probation or parole, and whether he or she is subject to a restraining order, and his or her compliance with its terms; and
- Whether the perpetrator has committed any further acts of domestic violence.
If both parents have committed family violence, the court may award custody to a third party or to the parent whom the court finds to be less likely to continue to perpetrate family violence, and the court may order the custodial parent to complete a “treatment program.”
The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of custody.
In J.P. v. S.V.B., 987 So.2d 975 (Miss. 2008), the court upheld a finding of family violence where a father slapped his daughter several times and made her nose bleed.
In Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006), the court of appeals remanded a child custody adjudication where the record established that the father had a history of violence. The court directed the chancellor to apply and comply with the statute.
In C.W.L. v. R.A., 919 So.2d 267 (Miss. App. 2005), the court upheld a chancellor’s finding that the statute was inapplicable where the proof showed a few incidents of yelling and screaming, slapping and one episode of choking, but no serious or even moderate injuries.
Interestingly, MCA § 93-5-24(4) provides that “There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.” Does this mean that the parents can cancel the family violence presumption by agreeing to a joint custody arrangement? I don’t find any case law on the point.
As a practice matter, you need to know up front whether your client will be vulnerable to the presumption. Has he had a conviction for domestic violence? Has he been put under a County Court TRO? Has he been convicted of assault on a family member? Has there been Youth Court or DHS involvement? Has he gotten carried away in his discipline of the children or in an argument with his wife?
If you detect problems early enough, you can take proactive measures to get your client counselling or anger management classes or some form of treatment that will give the chancellor a reasonable basis to make a finding that your client has rebutted the presumption.
JUDGE ROBERTS’ PRIMER ON ADVERSE POSSESSION
November 17, 2010 § 3 Comments
In the case of Dean vs. Slade, et al., rendered November 9, 2010, Judge Larry Roberts of the Court of Appeals laid out a template of authority you should keep on hand for your next adverse possession case. Although the decision does not touch on all of the adverse possession factors, it touches on some important authority that you can use to your advantage. I simply stripped the material below right out of Judge Roberts’ opinion, making a couple of minor editorial changes.
THE ADVERSE POSSESSION FACTORS
MCA § 15-1-13(1) (Rev. 2003) provides the following: Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title[.] Thus, the party claiming adverse possession must prove by clear and convincing evidence that his/her possession was “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Stringer v. Robinson, 760 So. 2d 6, 9 (Miss. Ct. App. 1999) (citing Rice v. Pritchard, 611 So. 2d 869, 871 (Miss. 1992)). “The ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient enough to place the record title holder on notice that the lands are under an adverse claim of ownership.” Id. (citing Johnson v. Black, 469 So. 2d 88, 90-91 (Miss. 1985)).
THE EVIDENTIARY STANDARD
Clear and convincing evidence has been defined as follows: that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. Moran v. Fairley, 919 So. 2d 969, 975 (Miss. Ct. App. 2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir. 1995)). “Clear and convincing evidence is such a high standard [of proof] that even the overwhelming weight of the evidence does not rise to the same level.” Id. (citing In re C.B., 574 So. 2d 1369, 1375 (Miss. 1990)).
CONFLICTING EVIDENCE
Absent a finding of an abuse of discretion or manifest error, a chancellor is the sole judge of the credibility of witnesses and the weight to give to the evidence. Webb v. Drewrey, 4 So. 3d 1078, 1081 (Miss. Ct. App. 2009).
ACTUAL OR HOSTILE
“Actual possession is ‘effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.’” Warehousing Mgmt., LLC v. Haywood Props., LP, 978 So. 2d 684, 688 (Miss. Ct. App. 2008) (quoting Wicker v. Harvey, 937 So. 2d 983, 993-94 (Miss. Ct. App. 2006)). The adverse possessor must hold the property without the permission of the true title owner since “permission defeats adverse possession.” Gillespie v. Kelly, 809 So. 2d 702, 706-07 (Miss. Ct. App. 2001) (citing Myers v. Blair, 611 So. 2d 969, 971 (Miss. 1992)). “Adverse use is defined as such a use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right.” Peagler v. Measells, 743 So. 2d 389, 391 (Miss. Ct. App. 1999) (quoting Cummins v. Dumas, 147 Miss. 215, 113 So. 332, 334 (1927)).
OPEN, NOTORIOUS AND VISIBLE
The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible. Wicker, 937 So. 2d at 994 (citing Craft v. Thompson, 405 So. 2d 128, 130 (Miss. 1981)). A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property. Scrivener v. Johnson, 861 So. 2d 1057, 1059 (Miss. Ct. App. 2003) (citing People’s Realty & Dev. Corp. v. Sullivan, 336 So. 2d 1304, 1305 (Miss. 1976)). “[A]n adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’” Wicker, 937 So. 2d at 994(citing Blankinship v. Payton, 605 So. 2d 817, 820 (Miss. 1992)).
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.
MEDICAL PRIVILEGE IN CUSTODY-RELATED ACTIONS
October 26, 2010 § Leave a comment
Rule 503 of the Mississipi Rules of Evidence (MRE) sets out the familiar physician- and psychotherapist-patient privilege that has long been a part of our law.
Subsection (d) (4) was amended in 2004 to remove the privilege in certain proceedings related to child custody. The rule states:
There is no privilege under this rule for communications, including past and current records of whatever nature, regarding a party’s physical, mental, or emotional health or drug or alcohol condition relevant to child custody, visitation, adoption, or termination of parental rights. Upon a hearing in chambers, a judge, in the exercise of discretion, may order release of such records relevant to the custody, visitation, adoption, or termination action. The court may order the records sealed.
The hearing in chambers is to determine whether the documents would be relevant to one of the listed proceedings. The comment to the rule sets out “some factors the court should consider:
- Whether the treatment was recent enough to be relevant;
- Whether substantive independent evidence of serious impairment exists;
- Whether sufficient evidence is available elsewhere;
- Whether court-ordered evaluations are an inadequate substitute; and
- Whether, given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant.
To me, it is significant that the comment describes the foregoing as “some” of the factors that the trial court should consider. In my opinion, the court should also consider what is the relief sought, the severity of the condition and what its impact on the child could be, and whether the information includes names of witnesses and others who should be interviewed by the guardian ad litem, if any. The comment factors seem weighted in favor of the patient’s privacy, but I believe the repeal of the privilege in cases such as those listed is a clear indication that the policy is that the privilege should yield to the search for all information that will help inform the court as to what is in the best interest of the child.
In this judge’s opinion, the court should err on the side of making the information available for the reason that it may lead to the discovery of additional information that may bear on the best interest of the child.
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.
YET ANOTHER REASON TO TAKE EXTRA CARE WITH 8.05’S
October 14, 2010 § 4 Comments
In the case of Trim v. Trim, 33 So.3d 471 (Miss. 2010), the Mississippi Supreme Court held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court.
So what is the significance of the Trim case for everyday practitioners?
Let’s say that your client isn’t deliriously happy with the outcome of her equitable distribution case, but she accepts it without an appeal. Ten months later she comes in to your office mad as a hornet with sheaves of paperwork that prove conclusively that her ex substantially understated on his 8.05 the value of financial assets that he controlled, and the gain to your client could be in the hundreds of thousands of dollars. Aha! You think, we have the sorry so-and-so right by the [indelicate word deleted]!
But wait. How are you going to get this before the court? MRCP Rule 59 relief expired 10 days after the judgment was entered, and the appeal time ran 30 days after entry. MRCP Rule 60 actions to set aside a judgment for fraud have to be brought within six months of the date of the judgment.
That’s where Trim comes in. By finding substantial misrepresentation on the 8.05 to be a fraud on the court, as opposed to fraud on the opposing party, the Supreme Court essentially ruled that there is no time limit to bringing an action to aside an action based on 8.05 fraud. That’s because MRCP Rule 60 expressly states: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”
Trim has ramifications for lawyers in Chancery. If you are in the habit of accepting your client’s 8.05 at face value without going over it with him or her, and without questioning behind it, you may be leaving your client open to an action to set aside that divorce judgment you thought you had laid to rest long ago. The client may well question why you never went over the statement with him and counseled him about what to include and what not to include. “My lawyer never told me that I had to list those three securities accounts; in fact, he never talked with me at all about what to include on the form.”
In case you think this is the kind of thing that happens to somebody else somewhere else, think again. Only this year, I set aside a divorce that was nearly two years old for substantial misrepresentation of financial assets that amounted to a fraud on the court. It can happen to you.
FIVE SIMPLE STEPS TO PROVE ATTORNEY’S FEES
October 13, 2010 § 7 Comments
You would think that the award of an attorney’s fee would get special attention from both the client and the attorney. After all, the client is looking for some help with the financial burden, and the lawyer representing him is looking for some assurance that she will be paid. And one of the best ways to impress your client favorably is to hang your fees on the opposing party.
In many cases, though, I find that the lawyer takes a sort of slap-dash approach. Sometimes the lawyer confers with the other side and reaches a low-ball stipulation about a reasonable fee. Or the lawyer takes the witness stand (one of the very few occasions when an advocate is allowed to testify per Rule 3.7 of the Rules of Professional Conduct) and offers some general testimony in vague terms about a ballpark figure. Or the lawyer simply asks his client what she paid him and apparently thinks that will suffice.
Proving a reasonable attorney’s fee is actually a fairly simple process, but you need to cover all the points to make your client’s claim airtight. Before we talk about what you need to prove at trial, though, be sure you’ve done what you need to do before trial to lay a foundation for your claim:
- Record your time as you move toward trial, and have your time record printed neatly. You will need it for your testimony in court.
- Be sure there is a prayer for a reasonable attorney’s fee in your pleading. You are asking the court to take your opponent’s money, and that requires due process.
Now that the preliminaries are in order, here are the five steps to prove attorney’s fees:
- Be sure to have your client testify about his or her ability to pay. In divorce cases, ability to pay is the most critical consideration, and if you do not establish your client’s inability to pay, she will not be eligible for an award of an attorney’s fee. Deen v. Deen, 856 So.2d 736, 739 (Miss. App. 2003); Bates v. Bates, 755 So.2d 478, 482 (Miss. App. 1998). Even in a contempt case, where inability to pay is not required, you are wise to offer testimony about the financial effect of the contempt and the resulting attorney’s fees on your client, since an award of an attorney’s fee is not mandatory in contempt. Suess v. Suess, 718 So.2d 1126, 1129 (Miss. App. 1998). Remember that the ethical rules do not allow you as an advocate to testify about the contested merits of the case. If you are going to prove your client’s inability to pay, you will need your client’s testimony.
- Testify yourself about the prevailing rate charged by attorneys in the district. The award must be reasonable, and one of the key touchstones for reasonability is the usual and customary rate charged by attorneys in the district. But the prevailing rate is not binding on the court. The judge may award a fee at a greater or lesser rate if the circumstances warrant it. If you charged a rate different from the prevailing rate in the district, what rate did you charge and why? And if your rate exceeded the prevailing rate, what is your justification for doing so? Make your record.
- Put into evidence an itemization of the time you devoted to the case. Here’s where that itemized statement comes in. Identify it and ask that it be admitted into evidence. Before you do, though ask yourself: Is it credible? Does it look like a genuine fee statement that one would tender to a client for payment, or does it look like something you scratched together 5 minutes before setting foot in the courtroom? Are the times reported credible? Does it reflect charges for “one competent lawyer,” or are there charges included for others? Before you ever get to trial, pore over your statement and subject it to your own cross examination.
- Be sure to capture all the time in the case. Ask the court to take judicial notice of the time spent to that point in the trial, and estimate for the record how much more time will be needed to complete the trial. Estimate also the total number of hours that will be needed for any post-trial matters, such as drafting a judgment or preparing proposed findings of fact and conclusions of law.
- Address each and every one of the McKee factors. You can read more about the McKee factors here. The McKee factors govern the amount of the award, but as a practical matter, if you don’t prove them there is nothing in the record to determine what is reasonable, which means that a reward of zero is most likely. No matter how badly you and your client want that attorney’s fee award, if you don’t include proof of the McKee factors, you likely won’t get it.
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