A Remand Without a New Trial
December 15, 2014 § Leave a comment
I posted here a few months ago that on remand the parties are restored to the position that they occupied before entry of the reversed judgment. A new trial is the norm, and even amended pleadings that change the scope of the proceedings from the original action are allowed.
That post also pointed out that, by agreement of the parties, the court may render a judgment on remand using the original record. The latest example of that is the case of Wilson v. Davis, a COA decision, handed down November 18, 2014.
In this case, the mother of a minor child had died, and the maternal grandmother refused to surrender the child to the father. The father brought an action for custody, which the chancellor treated as a modification, and not as an original action. The chancellor found for the grandmother, and the father appealed. The COA reversed and remanded, concluding that it was error for the trial court to try the case by the standards of a modification rather than as an original action.
The second time around, the chancellor used the record from the original trial to render a decision applying the proper standard for adjudication of custody. That’s what Judge Roberts tells us in his dissent:
¶30. Upon remand, the chancery court did not hold a new hearing or take new evidence in the matter. It modified its original opinion and found that the natural-parent presumption had been overcome because [the father] had abandoned [the child] and he had engaged in immoral conduct; it then applied an Albright analysis; and it found that [the maternal grandmother] should retain custody of [the child] because it was in [the child’s] best interest.
Nobody raised the issue whether this procedure was proper in arriving at the trial court’s adjudication. Neither the majority nor the dissent raised the question on its own. It does not appear from the opinion that either party asserted the issue in a R59 motion for a new trial, which would have been the most efficacious way to assert it, in my opinion.
How to proceed on remand is something to which you should devote some thought before you have to deal with it. The outcome for the father in this case might have been dramatically different if he had used his knowledge of what the chancellor viewed as the weak points in his case, and reshaped his witness list and evidence to present a case that overcame them. Instead, he allowed the chancellor to adjudicate the case on the record that she had already used to find against him.
Affirmative Defenses in Divorces
December 9, 2014 § Leave a comment
MRCP 8(c) requires that you plead in your responsive pleadings any matters that constitute “an avoidance or affirmative defense.” Specifically listed in the body of the rule are matters such as statute of limitations, accord and satisfaction, res judicata, etc.
Some of those listed defenses may be available in chancery matters such as contract disputes, land matters, and business dissolution, but they have no application in divorce, as I posted here before; nonetheless, some lawyers plead them in mechanical fashion, raising some humorous implications.
In a divorce case, there are some well-established affirmative defenses to grounds for divorcethat are not listed in R8, but that need to be pled in order to invoke them. They include:
- Prior knowledge. This applies where the spouse knew, for instance, that the wife was pregnant by another man when he married her, and yet married her anyway. Or that the wife knew before the marriage that the husband was a drug addict, and went ahead with the marriage despite the knowledge.
- Ratification and condonation. Two closely related concepts. A party gives up a ground by continuing to live with the other after knowledge of fault. These defenses have somewhat limited application in HCIT.
- Recrimination. An archaic defense no longer favored in our law, by which the proponent may be denied a divorce if he is guilty of a ground for divorce.
- Reformation. Applicable primarily in habitual drunkenness and drug use cases, where the accused party has quit abusing the substance.
- Connivance and collusion. Where the parties have conspired either for one to allow the other’s wrongful conduct so as to create a ground, or where the parties have agreed to perjure themselves to do so.
- Res judicata. Same parties and same issues in a previous matter that was reduced to a final judgment.
A comprehensive look at these and several lesser-known defenses is found in Professor Bell’s Mississippi Family Law, 2d Ed., § 4.03, pp. 99-104. If you practice any family law, and you don’t have a copy of her definitive treatise, you need to get one asap.
The clear and obvious thread running through the affirmative divorce defenses listed above is that they each are “an avoidance or affirmative defense” to a ground for divorce.
If you fail to plead affirmative defenses to grounds for divorce on behalf of your client, the only way you may present them at trial is if they are tried by consent. If, on the other hand, the other side objects, the judge will have to sustain the objection and exclude the testimony.
In the case of Lee v. Lee, decided by the COA on November 25, 2014, Nikki Lee charged her husband, Chris, with habitual drunkenness. He did not plead any affirmative defenses, but at trial he attempted to put on proof that Nikki knew when she married him of his drinking habits. Nikki objected, and the chancellor excluded the evidence, ruling that Chris had waived the defense by not pleading it affirmatively. Chris appealed.
Judge Griffis, for the unanimous court:
¶15. Condonation or antenuptial knowledge, as affirmative defenses, must be specifically pleaded or else the defenses are waived. Carambat v. Carambat, 72 So. 3d 505, 511 (¶27) (Miss. 2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss. Ct. App. 2007)). “Affirmative defenses that are neither pled nor tried by consent are deemed waived.” Ashburn, 970 So. 2d at 212 (¶23) (quoting Goode v. Village of Woodgreen Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)).
¶16. Chris did not raise condonation or antenuptial knowledge as an affirmative defense in his pleadings. However, parties may try an affirmative defense through implied consent. Mississippi Rules of Civil Procedure 15(b) provides:
When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon the motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
See also Lahmann v. Hallmon, 722 So. 2d 614, 691 (¶15) (Miss. 1998).
¶17. In his order, the chancellor found that Chris had waived the affirmative defense of condonation, because he did not plead it as an affirmative defense. The chancellor ruled:
“Chris did not plead condonation as a defense in his pleadings. Therefore, to the extent that Chris may have been attempting to raise a defense of condonation, the Court finds that this defense has been waived.” The chancellor did not address a defense of antenuptial knowledge or if the parties tried condonation by express or implied consent.
¶18. From the record, there is no indication the parties agreed to try condonation or antenuptial knowledge by express consent. Therefore, the question remains whether the parties tried the issue through implied consent. While issues not raised in the pleadings may be tried by implied consent, the party relying on implied consent for an issue must demonstrate certain requirements.
¶19. First, in order to find the parties tried the issue by implied consent, this Court must determine if the parties knew “‘that a new issue was being litigated at trial.’” Mabus v. Mabus, 890 So. 2d 806, 814 (¶32) (Miss. 2003) (quoting Setser v. Piazza, 644 So. 2d 1211, 1217 (Miss. 1994)). Further, this Court will not find implied consent “where the ‘questions asked or the evidence presented at trial are relevant to the issues actually raised in the pleadings.’” Id. (citation omitted).
The court went on to analyze the record, and concluded that the issues had not been tried by implied consent, and the chancellor’s ruling was affirmed.
Next time you represent a Chris in a case similar to this, be sure to assert in your responsive pleading every matter you feel may raise a legitimate affirmative defense. I say legitimate because it seriously detracts from your credibility to plead things like accord and satisfaction, or assumption of risk, or injury by fellow servant in your answer to a divorce complaint. But it makes perfect sense to spell out with whatever label you apply that the other party had pre-marriage knowledge, or that he condoned the conduct, or any other matter that legitimately constitutes “an avoidance or affirmative defense.” You are not limited to the classic defenses, but the matter must be an actual, arguable defense.
If you represent a Nikki, object vociferously to any attempt to put on proof of unpled defenses. Protect your record. In this case, Nikki’s attorney protected her record, and the outcome was favorable to Nikki.
The Judge as Grand Inquisitor
December 8, 2014 § 1 Comment
Some judges sit through a trial impassively, leaving counsel to wonder whether hizzoner is paying any attention at all. Other judges take an active part, hurling questions like shrapnel through the courtroom. Still other judges fit somewhere in between the two extremes.
It’s a phenomenon I’ve posted about before here and here.
In the COA case SKL Investments v. Hardin and Torrence, decided November 18, 2014, the appellant charged that the chancellor erred when he “continually mischaracterized testimony [and] interrupted and veraciously ‘crossed’ [SKL’s] witnesses while protecting other witnesses in a manner that hindered [SKL’s] development of its case[.]” [My emphasis] I will leave it up to the reader to look up the definition of ‘veraciously.’
So, did the learned chancellor cross a line in his interrogation in this case? No, said the court, in an opinion penned by Judge Irving:
¶16. … While the record reveals that the chancery court interrogated witnesses and even sometimes interrupted witnesses as they testified, a contextual reading of the record also reveals that the chancery court did not “overstep[ ] its judicial authority” as SKL now claims.
¶17. The chancery court was within its right to “interrogate witnesses, whether called by itself or by a party.” Powell v. Ayars, 792 So. 2d 240, 248 (¶29) (Miss. 2001); see also M.R.E. 614(b). Certainly, it would have been “‘grounds for reversal if the [chancery court had] abuse[d] the authority to call or question a witness[,] abandoning [its] impartial position as a judge and assuming an adversarial role.’” Copeland v. Copeland, 904 So. 2d 1066, 1074 (¶27) (Miss. 2004) (citing Powell, 792 So. 2d at 248 (¶29)). However, “there [was] no requirement for the [chancery court] solely to be a silent observer.” Copeland, 904 So. 2d at 1074 (¶28) (citation omitted). After reviewing the record, we find that the chancery court did not abuse its discretion in its examination of the witnesses. This issue is without merit. Accordingly, we affirm.
There is the oft-cited apocryphal tale of the chancellor who interrupted and took over questioning of a witness, only to be interrupted in turn by counsel, who pleaded, “Judge, I don’t mind you questioning the witness, but please don’t lose the case for me.”
Another point: if you’re going to accuse the judge of going overboard, at least use an adverb that fits the conduct.
A Case for Sanctions
November 10, 2014 § 3 Comments
Louis Pannagl had made a will in 2001. In April, 2011, he contacted Kellems, a lawyer, about changes he wanted to be made in his will. He sent Kellems handwritten notes with the changes, including a document that included the language, “The Will of April 23rd 2011 … has been destroyed and March 23, 1993 [sic].” It is undisputed that the notes were in Louis’s handwriting.
Louis died on June 8, 2011, and Louis’s widow, Donis, contacted one of Louis’s lawyers, who sent her the notes described above. Donis gave the notes to her son, David Lambert, Louis’s step-son, who read them and passed them on to Holmes, an attorney he had hired to open Louis’s estate. On August 19, 2011, a sworn petition was filed, with Louis’s will attached, alleging that the original had been lost and that the will had not been destroyed by Louis with intent to revoke it. The handwritten notes were not attached to the petition.
Both of Louis’s biological son, Curt, and daughter, Sammi, filed contests to probate of the will. It was not until around a year after the petition had been filed that they found out, in the course of discovery, about the handwritten notes revoking the prior will(s). Sammi filed for summary judgment and sanctions under MRCP 11 and the Litigation Accountability Act. The chancellor granted summary judgment, but declined to impose sanctions.
Sammi and Curt appealed the denial of sanctions.
In the case of Estate of Pannagl: Pannagl and Spence v. Lambert and Holmes, the COA on November 4, 2014, reversed. Since this case makes some important points about sanctionable behavior and the applicable law, I am quoting at length:
¶7. In this appeal, Curt contends that Lambert’s failure to include the document in this petition constituted fraud; thus, the chancellor erred in failing to award sanctions. Curt argues that Lambert, having read the handwritten document prior to filing his petition, knew the will had been destroyed with an intent to revoke it and, therefore, had no hope of success. According to Curt, the action was frivolous and constituted a fraud on the court because Lambert withheld the document and filed a sworn petition alleging that the original will was lost and not destroyed by Louis with the intent to revoke it.
¶8. Mississippi Rule of Civil Procedure 11(b) states, in pertinent part:
If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.
M.R.C.P. 11(b). The Litigation Accountability Act states, in pertinent part:
Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification . . . .
Miss. Code Ann. § 11-55-5(1) (Rev. 2012). The phrase “without substantial justification” is defined by the Act as a filing that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss. Code Ann. § 11-55-3(a) (Rev. 2012). “The term ‘frivolous’ as used in this section takes the same definition as it does under Rule 11: a claim or defense made ‘without hope of success.’” In re Spencer, 985 So. 2d at 338 (¶26) (quotations omitted). “A plaintiff’s belief alone will not garner a ‘hope of success’ where a claim has no basis in fact.” Foster v. Ross, 804 So. 2d 1018, 1024 (¶21) (Miss. 2002) (quotations omitted). Whether a party has any “hope of success” is an objective standard to be analyzed from the vantage point of a reasonable plaintiff at the time the complaint was filed. Tricon Metals & Servs. Inc. v. Topp, 537 So. 2d 1331, 1335 (Miss. 1989).
¶9. The chancellor found the following: (1) it was unclear whether the will had been revoked or if Louis merely contemplated doing so; (2) more information was required to determine Louis’s intent; (3) the handwritten document was insufficient to put a proponent of a will having minor children as beneficiaries on notice that it had been revoked; (4) the handwritten document was not subscribed, but merely signed at the top, and the various copies of the document contained different-color ink; and (5) tendering a copy of Louis’s will was not so egregious as to warrant the imposition of sanctions against Lambert and Holmes.
¶10. The Mississippi Supreme Court has found that a misrepresentation of pertinent facts to a chancellor, who entered an order based on the misrepresentations, was a violation of the Litigation Accountability Act and Rule 11 of the Mississippi Rules of Civil Procedure and warranted sanctions. In re Estate of Ladner, 909 So. 2d 1051, 1056 (¶17) (Miss. 2004). In that case, an executor and his attorney failed to inform the court of the testator’s brother’s claim to ownership of cattle located on the brother’s land prior to obtaining a court order to seize the cattle. Id. at 1055-56 (¶¶15-16). In addition, this Court has found that a verified creditor’s notice of claim, filed by the counsel of a creditor of potential heirs of a decedent’s estate and containing a misrepresentation of pertinent facts, was frivolous. In re Necaise, 126 So. 3d 49, 57 (¶30) (Miss. App. Ct. 2013). This Court found that the misrepresentation caused the estate to incur unnecessary attorney’s fees in having to respond to those filings and thus warranted sanctions under Rule 11 and the Litigation Accountability Act. Id.
¶11. In this case, Lambert failed to disclose the existence of the handwritten document when he filed his petition. A reasonable person in Lambert’s position, with Lambert’s knowledge, would have no hope of success in rebutting the presumption that Louis’s will had been lost and not destroyed. Lambert admitted that, when he filed his petition, he had received and read the documents attached to Carrigee’s letter, which included the handwritten document. This letter, with attachments, was later given to Holmes prior to filing this action. In that document, Louis listed a myriad of changes he wanted to make to his will. At the bottom of the first column of the two-column document, he wrote: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed.” The words “and March 23, 1993,” were written in a different-color ink on Kellems’s copy. The document was signed by Louis, and Donis testified that the document was in his handwriting. Lambert searched for a will, but could not find one. The file folder in Louis’s office entitled “will” was empty.
¶12. From this document, it is clear that Louis wanted to make changes to his will and that he intended to revoke all prior wills. Even though Louis signed this document at the top of the page, Donis testified that it was his handwriting. When taken in context, the statement that: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed,” effectively put Lambert and his attorney on notice that Louis destroyed his will with the intent to revoke it. This is evidenced by Lambert’s attempt to convert the proceedings to that of intestate succession. On the same day that the court ruled on a motion to compel Kellems to give his deposition, and prior to any other depositions being taken, Lambert filed a motion to amend his petition. He sought a declaration that Louis had died intestate and asked the court to appoint Donis the administrator. The handwritten document had not yet come to light, and judging from the timing of the motion’s filing, Holmes knew that once it did, there would be no hope of success in overcoming the presumption. In the hearing on the motion for summary judgment, Holmes admitted that he filed that motion because he did not think he could overcome the presumption that Louis’s will had been lost and not destroyed.
¶13. The chancellor did not consider the fact of nondisclosure to be important when making her decision about whether to award sanctions. But the fact remains that the nondisclosure was a misrepresentation, making the petition to probate the will frivolous in light of the evidence. The chancellor abused her discretion in not considering Lambert’s nondisclosure in determining the frivolity of the action. Curt incurred unnecessary expense in contesting the probate of this will, only to uncover a document that Lambert withheld for almost a year and a half and that would later serve as the basis for summary judgment.
¶14. Finding that the chancellor abused her discretion in deciding not to award sanctions pursuant to Rule 11 and the Litigation Accountability Act, we reverse and remand for a determination of attorney’s fees and costs.
So the shortcoming here was the failure to disclose the handwritten notes. Hindsight, which is always high-def, tells us that the better practice would have been to disclose the notes and leave it up to the chancellor, as finder of fact, to interpret them. By not disclosing the notes, Lambert and counsel gave the reasonable impression that they were trying to hide something to change a possible adverse outcome. That’s always a recipe for sanctions and even discipline.
Ten Tips for a Clearer Record
October 30, 2014 § 1 Comment
As I have said here before, your primary job as a trial lawyer is to make a comprehensible record.
There are two obvious reasons for this: (1) if you fail to make the trial judge understand what your favorable facts are and what your theory of the case is, you lose, plain and simple; and (2) if you lose, you have got to have everything in the record — clearly stated — that you need to win on appeal.
It does you no good to try a case for three days and have the record transcribed only to find to your dismay that it is full of [Unintelligible], and interrupted, incomplete sentences, and references by the witnesses to documents that were never identified or offered into evidence.
Here are ten tips to get you thinking about making an adequate record:
1. The court reporter can not get two (or more) people speaking at the same time. Lawyers who have come before me know this is a pet peeve of mine. The record is required to be verbatim, meaning that everything said audibly in court must appear in the record, and must identify who said what. Even the best court reporter can not make a verbatim record of more than one person speaking at the same time. After several warnings, I have told my court reporter to stop trying and just record it as [Unintelligible] if she can not accurately record what is being said and identifying the speaker. That does not produce a record that might prevail on appeal, you can rest assured.
2. No nods or shakes or shrugs. The court reporter is not an interpreter. If your witness nods, the reporter will report it as [witness nods], not as a “yes.” It will be up to the trial judge and appellate court to do the interpreting, which may not yield the intended result. When your witness offers a physical gesture instead off a verbal response, follow up with something like, “Does that mean yes?” or “Please answer verbally.” It’s not the judge’s job to ask that, although some judges will just to resolve their own doubt.
3. What in the world are you talking about? You hand the witness a photograph and ask what it depicts, and never offer it into evidence (counsel opposite is not going to help you). Or you hand the witness a sheaf of documents already in evidence and ask questions about them, never identifying them by exhibit number. Either is a good way to keep the trial judge and the appellate court from knowing what it is you’re trying to prove.
4. Read at your peril. Some people talk fast, but everybody reads much faster than they speak normally. When you read, consciously slow down. And then slow down some more. You read faster than you talk because you’re not having to think about what you are going to say. If your goal is an intelligible record, you will have to read a lot slower than it seems like you should, but the product will be a record that is accurate.
5. Speak up! Projecting one’s voice seems to be a lost art, but it’s essential if you want the judge and court reporter to catch what you’re saying. That’s true even if you and your witness have a microphone. Speak up. When you have a soft-speaking witness, encourage him to speak louder. Don’t stand too close to the witness because that usually degrades into a conversational, coffee-table exchange.
6. Distractions distort the record. Anything that distracts the court reporter will detract from the accuracy of your record. Shuffling papers, drumming a miked table, loud whispering, jangling cell phones, are a few of the most attention-grabbing. If you or your client have a hacking cough, have some lozenges at the ready or ask the judge to allow a cup of water. If all else fails, suggest that your client to go out into the lobby until the paroxysms subside, making sure you either ask the judge for a recess or announce that your client is okay with proceeding in her absence.
7. Let the court reporter mark the exhibits. You’ve just handed the court reporter that crucial exhibit, and before she can do anything else, you launch into your next question. As a rule, most judges or court reporters will stop you, but I saw a court reporter some years ago simply take the document and lay it on the table, resuming taking her record without ever marking the exhibit. That’s on the lawyer.
8. Nothing is stricken. Something said in court can not be unsaid, so do not even ask. It’s the court reporter’s job to make a verbatim record of everything that happens. If you don’t like what was said, cover the offending answer in redirect or cross.
9. S-p-e-l-l. You know the witness’s name and spelling, but neither the court reporter nor the judge do. It’s a good practice to ask the witness to spell names other than the most common. And that goes for persons and places identified in testimony, as well as case citations.
10. Clarify pronouns. As handy as they can be, pronouns introduce vagueness into your witness’s testimony. “All four arrived together, but I saw him leave later with her, and I was with him until she and he came back.” If you don’t define all of those pronouns using names, you have left the court with an indecipherable lump of information.
The Attorney as an Expert Witness
October 28, 2014 § Leave a comment
Lecia Spriggs and her husband, Kurt Buehler, were involved in a divorce trial. Lecia had consulted with Dennis Horn, an attorney, about disability policies and their requirements, and she tried to call him as an expert witness. Kurt objected on the basis that the law does not recognize expertise in the practice of law. Lecia countered that his testimony would be focused on insurance industry practices, and not on the practice of law. The judge rejected the testimony as speculative.
Thus thwarted, Lecia tried to call Horn as a fact witness, which drew an objection based on failure to identify him as a fact witness in discovery.
In its decision in Spriggs v. Buehler, handed down April 8, 2014, the COA addressed the situation this way:
¶38. Lecia argues that Horn’s expert testimony regarding “the normal and customary actions of disability carriers” should have been admitted. Horn was to give his opinion that a van Lecia had observed near her home “was likely someone conducting surveillance of her on behalf of Northwestern.” Lecia also claims that Horn “should have been allowed to testify as to what he advised Lecia to do in order to minimize the possibility of termination of her payments[.]”
¶39. Mississippi Rule of Evidence 702 governs the admissibility of expert testimony, providing:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
“Relevancy and admissibility of evidence are largely within the discretion of the trial court[,]” and the trial court’s decision will only be reversed “where that discretion has been abused.” Terrain Enters. Inc. v. Mockbee, 654 So. 2d 1122, 1128 (Miss. 1995) (quoting Hentz v. State, 542 So. 2d 914, 917 (Miss. 1989)). We agree with the chancery court’s conclusion that the “expert” information offered by Horn (i.e., how litigation concerning disability claims could last up to two years, and how insurance companies often conduct surveillance on claimants) was speculative and not based on any sufficient facts or data or reliable principles or methods. Counsel for Lecia acknowledged at trial: “The purpose of Mr. Horn’s testimony is to discuss his experience in these types of actions and what could happen and what may happen in the event [Lecia] does certain things. And if this does happen, what are her consequences after that?” (Emphasis added). Accordingly, we find no abuse of discretion in the chancellor’s decision to exclude Horn as an expert witness.
¶40. Horn was also excluded as a fact witness due to Lecia’s failure to include him as such in the scheduling order. As we have already stated, a trial court has “considerable discretion” in managing pretrial discovery. See Bowie, 861 So. 2d at 1042 (¶14). Lecia does not dispute that Horn was not listed as a fact witness in discovery according to the scheduling order. Therefore, we find no abuse of discretion in the chancellor’s decision to exclude Horn as a witness.
In the case of Robertson v. Robertson, 812 So.2d 998, 1004 (Miss. App. 2001), which involved a strikingly similar situation at trial, the COA went further. In that case, counsel for respondent in a child-support modification case sought to call Covington, his former attorney, to testify about the parties’ intent in including certain language on a property settlement agreement. Judge Payne, for the court:
¶ 18. The chancellor excluded Covington’s testimony stating that as chancellor she has expert knowledge of appropriate child support and interpretation of language contained in property settlement agreements. Therefore, the chancellor found that Covington’s testimony would not be necessary to assist the court in determination of any of those issues. The chancellor further found that Debbie would be at a substantial disadvantage because the identification of Covington as an expert did not give Debbie adequate information that Covington would be called as a fact witness, and Debbie’s only source of evidence to defend against Covington’s testimony would be Debbie’s own attorney. Since Mississippi Rules of Professional Conduct 3.7 prohibits an attorney from being both a witness and counsel in the same case, the prejudice would be that Debbie would have to hire a new attorney before the trial could continue or forego her defense which could be proven only by her attorney of record as a witness.
Reprise: The Futility of Objecting to the Form of the Question
October 17, 2014 § 1 Comment
Reprise replays posts from the past that you might find useful today.
AN OBJECTIONABLE OBJECTION
September 14, 2011 § 2 Comments
One of the most baffling objections is “Object to the form of the question.” It’s baffling because it doesn’t tell the judge what the real problem is.
It’s actually a lazy objection because it is several objections in one. Problems with the form of the question arise from nine distinct sources, each of which is a separate objection in its own right.
These are the real objections to the form of the question:
- Leading. MRE 611(c) says that “Leading questions should not be used on the direct examination of a witness except as may be used to develop his testimony.” Which means that the judge may grant some leeway in order to ensure that testimony is developed. Leading is, of course, permitted on cross examination, for hostile or adverse witnesses, and for preliminary matters.
- Compound question. You can ask only one question at a time. Often the witness answers only one of multiple questions, not always making it clear which one she is answering.
- Argumentative and Harrassing. This is really two different things. A question is argumentative when it is merely a comment on the evidence, or a legal argument, or an attempt to get the witness to adjudge his own credibility. A question is harassing when the probative weight of the information sought is outweighed by the embarassment to the witness or its outrageous nature. UCCR 1.01 states that “The counsel, parties, and witnesses must be respectful to the court and to each other,” and “Bickering or wrangling between counsel or between counsel and witness will not be tolerated.”
- Asked and answered. You enjoyed the answer so much the first time that you just can’t resist doing it again.
- Assumes facts not in evidence. You have broad scope within the bounds of relevance to develop new facts, but not by framing your questions in such a way that they take as true facts that have not been established. In chancery, with no jury, this is a touch-and-feel objection that the judge may overrule and then disregard the answer.
- Ambiguous and confusing. A question is ambiguous when it is susceptible to more than one interpretation. A question is confusing when it is phrased in such a way that it can be misunderstood.
- Misleading. Misstatement of the witness’s or another witness’s prior testimony.
- Narrative. The question calls for a recitation of the whole story, which may or may not include objectionable material.
- Repetitious. You already made that point. Move on to something else.
Unless you’re objecting just to hear yourself talk, you want your objections to accomplish something for the benefit of your client. General objections like “Object to the form of the question” are an objectionable waste of time. Your chances of getting your objection sustained go up when you make a specific objection.
The Valuation Bugaboo — Again
October 13, 2014 § 2 Comments
It’s a never-ceasing source of wonderment to me how some lawyers devote so little attention at trial to valuation of assets when that proof is crucial to the outcome of the equitable distribution.
The latest object lesson on point is in the COA’s decision in Ilsley v. Ilsley, decided October 7, 2014. In that case, Susan and Timothy were in the throes of a divorce. Mediation had failed, and the two unhappy spouses appeared at trial as the only two witnesses.
The main equitable distribution battle ground was over an ING account with 21,225 vested (and some additional unvested) shares that Timothy had as part of his employment compensation with the Isle of Capri Casino. The COA opinion says that the “primary testimony and evidence presented at trial regarding the value per share” was Timothy’s testimony that it was worth $7.06 per share. A few months later, in his proposed findings of fact and conclusions of law, Timothy stated the share value as $5.30.
Before we go any further, take a minute to absorb what I just laid out: the evidence that the court had to rely on came from one of the parties. No expert, no agreed statement from a stock brokerage or the plan administrator, nothing other than the testimony of one of the parties.
Now, I am not taking the lawyers in the trial to task. It may be that the figures thrown out were what was developed in discovery and no further effort was needed. The end result though, is that the two figures injected into the record were the ones upon which the judge relied.
The chancellor concluded from the proof that the value of the vested shares in the ING account was $143,089, and awarded Susan $75,000, to be paid by Timothy as lump-sum alimony. The judge did not explain the value of the shares he applied to arrive at those figures, or the total number of shares he found. Susan appealed.
Judge Roberts, for the majority of the COA, said this:
¶10. Susan first argues that the chancery court erred in valuing and classifying stocks Timothy received as part of his compensation package from Isle of Capri. As part of his compensation package, Timothy was granted shares of stock each year that vest randomly over a three-year period and, once vested, are invested in an ING account. At trial, the parties stipulated that the number of vested shares in the ING account was 21,225 shares. In addition, there were 9,511 shares that granted after the date of the temporary order, but these shares had not yet vested. The chancery court found that these shares were marital, but awarded them to Timothy, as the shares had not yet vested. Timothy testified at trial that the value per share was approximately $7.06. This was the primary testimony and evidence presented at trial regarding the value per share. In his proposed findings of fact and conclusions of law, Timothy offered the value per share of $5.30. In its corrected final judgment of divorce, the chancery court found the total value of the ING account to be $193,497, and the value of the vested shares to be $143,089. The chancery court did not include in its judgment what the total number of shares or the price per share was in determing [sic] the total values.
¶11. As explained above, the two pieces of evidence presented to the chancery court as to the price per share were $7.06 as testified to at trial, and $5.30 as contained in Timothy’s proposed findings of fact and conclusions of law submitted several months after trial. “Where parties provide inadequate proof of an asset’s value, a chancellor’s valuation with ‘some evidentiary support’ will be upheld.” Dunn v. Dunn, 911 So. 2d 591, 597 (¶17) (Miss. Ct. App. 2005) (quoting Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999)). In Dunaway, we held:
To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor. The chancellor appears to have fully explored the available proof and arrived at the best conclusions that he could, and we can discover no abuse of discretion in those efforts that would require us to reverse his valuation determinations.
Dunaway, 749 So. 2d at 1121 (¶28). Without having additional evidence provided by the parties, the chancery court was in the position to select a value for the shares and determined the total values for distribution. Additionally, the chancery court found that each party “will be entitled each to one-half of those [vested] shares.” Thus, the actual value per share fluctuates based upon the market, so the total value of the shares would vary based upon the market price.
¶12. We find that the chancery court did not abuse its discretion.
In other words, if you want a shot at overcoming a bad trial result, you’d better make it your business to make an adequate record at trial. Susan in this case in essence left the judge no choice but to rely on the figures offered by Timothy, and she ineffectively argued that it cost her, because she offered no proof to the contrary.
The Basis for a New Trial
October 8, 2014 § Leave a comment
MRCP 59(a) provides that the trial court may grant a new trial ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” In non-jury cases ” … the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings of fact and conclusions, and direct entry of a new judgment.”
On its own initiative, the court may, within ten days of entry of a judgment, order a new trial (rehearing) for any of the above reasons. And the court may, after giving the parties’ notice, grant a new trial for reasons not stated in a motion. The court must spell out the grounds for its ruling.
In the case of Bariffe v. Estate of Lawson, et al., about which we posted yesterday, Justice Coleman’s dissent adds some important insight into how R59 is supposed to be applied by the trial court [beginning in ¶50]:
… Rule 59 must be read and interpreted in light of [MRCP] Rule 61, which provides:
No error in either the admission or the exclusion of evidence and no error in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Miss. R. Civ. P. 61. Thus, a harmless error in the proceedings that “does not affect the substantial rights of the parties” is not a sufficient reason for granting a new trial. Id. Applying Rule 59, the Court has held that trial courts have discretion in granting a new trial if the judge is convinced that (1) “a mistake of law or fact has been made” or (2) “injustice would attend allowing the judgment to stand.” Mayoza v. Mayoza, 526 So. 2d 547, 549-50 (Miss. 1988). …
As we discussed in the previous post, the chancellor granted a new trial in Bariffe because he felt that he had improperly limited the parties’ presentation of their cases in the first trial by imposition of time limits on the examination of witnesses. The majority found no error in his granting of a new trial. Judge Coleman would have held it to be error based on his analysis above.
If you are going to make a R59 motion and argument, make sure you define what substantial rights were affected by the judge’s ruling, and stress that point. If you are on the receiving end of the motion, argue that the movant has failed to raise an issue cognizable under R61.
Can the Judge Time-Limit Your Case?
October 7, 2014 § 4 Comments
In this district, we impose a one-hour-per-side time limit on temporary hearings. It has proven to be an effective way to deal with the numbers of temporary hearings that, if they were not time-limited, could swamp our court system.
Rulings in temporary hearings, however, are not appealable, so the time-limitation issue does not affect record-making that might have an impact on appeal.
What about hearings leading to final judgments? Can the judge impose a time limit on the presentation of your case?
In the MSSC case of Barriffe v. Estate of Lawson, et al., handed down October 2, 2014, the chancellor imposed time limits on the presentation of the parties’ cases because he felt the attorneys were unprepared and had consumed an entire day questioning the first witness. After he entered judgment, he granted a new trial on a R59 motion because he felt that, perhaps, he had been unfair in imposing the time limits.
On appeal, the majority of the court said, “We see little evidence in the record that the chancellor was unfair to either side with respect to time limitations, and we note that his threats [to cut off overtime questioning] were mostly unenforced.” The majority (5-3, with King not participating) held that the chancellor properly granted a new trial.
Justice Coleman, however, dissented, disagreeing that the chancellor was correct in granting a new trial based on the time limits. His opinion sets out the applicable law:
¶47. On the second day of the first trial, the chancellor accused the attorneys of not being prepared for trial and, after the attorneys took more than a day to question the first witness, the chancellor limited the time for questioning the remaining witnesses. Mississippi Rule of Evidence 611 provides:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Miss. R. Evid. 611(a). Rule 611 “is designed to give trial judges some measure of control over the operation of trials and the smooth flow of the litigation process.” Moore v. Moore, 757 So. 2d 1043, 1046 (¶ 14) (Miss. Ct. App. 2000).
¶48. In Moore v. Moore, the defendant claimed that his due process rights were violated because the trial judge limited the trial to one day. Id. at 1046 (¶ 11). The Court of Appeals found no merit to the claim because the defendant knew the time limit from the beginning of trial, he did not object, the defense called seven witnesses, the defendant testified, and there was “no indication in the record . . . that the time limits placed on the trial by the chancellor were problematic.” Id. at 1046 (¶¶ 12-14). The Court of Appeals said if the defendant’s “trial strategy was adversely affected, then a record outlining the adverse effect should have been preserved” for the appellate court to review. Id. at 1047 (¶ 14). The Court of Appeals recognized that defendants have “a right to introduce evidence at a hearing[,]” however, “if there is no evidence to present or no proffer as to what would have been presented, then there is no legitimate basis for complaining on appeal about the chancellor’s control of evidentiary presentations.” Id. at 1046 (¶ 13) (quoting Morreale v. Morreale, 646 So. 2d 1264, 1270 (Miss. 1994)). See also Gray v. Pearson, 797 So. 2d 387, 394 (¶ 29) (Miss. Ct. App. 2001) (court did not overturn chancellor’s ruling limiting each side to two hours of trial testimony because appellant did not make a timely objection or make a record of evidence she would have presented without the time limit).
¶49. In the instant case, although the chancellor gave time limits for three witnesses, he did not adhere strictly to the time limits he set. The attorneys were allowed to exceed the allotted time when they questioned Eugene, and although the chancellor noted the time, he did not instruct them to stop. The chancellor limited the time to ten minutes for each side when the Barriffes called David and Dwight. The Nelsons waived their time to cross-examine both David and Dwight. When the Nelsons called David, they were given forty-five minutes for direct examination; they used only twenty of the allotted forty-five minutes. No time limit was placed on Dwight for the Nelsons’ direct examination. The Nelsons did not use all of the time allotted, they did not object to the time limits, and they did not identify any evidence or testimony that they were not able to present. In my opinion, under these specific facts, the chancellor’s imposition of a time limit on three witnesses, which he did not enforce, did not amount to a violation of due process, and the chancellor acted within his discretion when he limited the time for questioning witnesses.
If your chancellor imposes a time limit in your case, and you feel that your ability to make your case is adversely impacted, you need to be sure to make a timely objection, and make an offer of proof of the evidence you would have been able to present without the time limit. Without those essential elements, you will not be able to argue the point on appeal.
But from both the majority and the dissent in this case, it seems like it would take a pretty unfair scenario for the appellate court to overturn the imposition of time limits.
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