Evidence | The Better Chancery Practice Blog

Opinions: Everybody has One

April 10, 2014 § 1 Comment

I won’t repeat the old saying about opinions being like a particular part of the body, everybody has one. Or maybe I just did.

Lay opinion testimony seems to draw objections like flies to day-old watermelon, but the rule on lay witnesses offering their opinions is pretty straightforward. MRE 701 says:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of [testimony by experts].

That is all there is to it. Oh, and MRE 704 abolishes the old “ultimate issue” rule, which means that, if the lay person’s testimony meets the criteria of R701, it matters not at all whether it embraces an ultimate issue to be decided by the trier of fact.

So, if the witness is opining “rationally based” on his or her own perception, and it aids the fact-finder, and is not based on scientific or technical knowledge, it should come in.

Some examples:

The detective opined that a particular document was not on a hard drive that he had examined. The court found it to be valid lay opinion because almost everybody nowadays has some knowledge of computer hard drives. Boone v. State, 811 So.2d 401 (Miss. 2001).
Lay witnesses may offer their opinion whether someone had too much to drink or was intoxicated. Havard v. State, 800 So.2d 1193 (Miss. App. 2001).
A lay witness may offer an opinion as to how fast, in mph, a person was driving, based on what he observed. Moore v. State, 816 So.2d 1022 (Miss. App. 2002).
A licensed counselor could not offer lay opinion testimony about whether the wife was addicted to internet pornography because he did not have personal knowledge of the extent of her use of the internet. Bower v. Bower, 758 So.2d 405 (Miss. 2005).

Remember that if you try to offer lay opinion testimony and the judge sustains an objection to the offer, you must preserve the point by making an offer of proof. If you don’t, you can’t argue the point on appeal. See, Redhead v. Entergy Miss., Inc., 828 So.2d 801 (Miss. App. 2001).

Don’t assume that if your expert witness is excluded that you will be able to get that witness’s same testimony as lay opinion. As the Bower case above illustrates, the lay witness must have some perception of the event — some personal knowledge — and if he does not, his testimony would be inadmissible. Many experts have only theoretical knowledge upon which to base an opinion.

One mistake inexperienced lawyers make is to ask lay witnesses who actually saw or experienced an event their opinions about it. Most of the time it is far more powerful and effective to ask the witness to relate what she saw, felt, smelled, or heard. For example: “Can you tell me whether Johnny was dying?” is far less effective than to ask, “Tell us what you observed about his head when you arrived.” Answer: “His face was smashed up; his skull was cracked open so you could see his brains, he was covered with blood; blood was spattered on the wall behind his head, his eyes were rolled back, and he wasn’t breathing.”

Lay opinion testimony can be a useful tool in many trials, particularly in family law cases. Standing alone it may not carry the day for you, but it could be just the featherweight of advantage you need to tip the scales in a close case.

Past Recollection Recorded

March 4, 2014 § Leave a comment

We talked in a post here last week about how to cope with the forgetful witness. That post focused on refreshing the present recollection of a witness with a writing or other object per MRE 612. Once the witness’s ability to recall has been restored, the witness may then go forward with his testimony.

But how does one handle the case where the witness simply has no present recollection whatsoever, even after your best effort under MRE 612?

Well, if the witness has no recollection whatsoever, the witness should be excused, because he does not meet at least one of the most basic criteria of a competent witness, which are the ability to recall and relate truthfully. MRE 601, 602, 603; See, e.g., Goforth v. State, 70 Miss.3d 174 (Miss. 2011).

If, however, the witness once did have personal knowledge, but now has insufficient recollection, and there is a record made or adopted by the witness while the matter was fresh on his mind, MRE 803(5) gives you a way to get those matters before the court.

Here are the steps:

Establish that the witness once had personal knowledge of the matter, but now has insufficient recollection to testify independently, fully and accurately.
Establish that there is a written or recorded record of the matter that was made by or adopted by the witness while it was within his memory and was within his knowledge.
Have the witness confirm that it correctly reflects the witness’s knowledge at the time.
Ask that the statement be admitted. If the court deems it admissible, then MRE 803(5) provides that it “may be read into evidence,” but it is not itself received as an exhibit unless offered by an adverse party. This is a somewhat curious procedure, and I have never seen it done this way, but that is what the rule dictates.

An example of MRE 803(5) in action is where a physician is called as a witness to testify about a person’s physical and medical condition when the doctor examined him. She has no independent recollection on the day of trial of this particular patient’s condition as it existed at the time in question, but she has her patient record, either dictated by her at the time or recorded by a nurse or aid and adopted by the doctor as an accurate reflection of the facts while they were fresh in her memory. See, e.g., Harness v. State, 58 So.3d 612 (Miss. 2009).

MRE 803(5) and 612 are two excellent tools at your disposal to overcome the dilemma of the witness stranded alone on the witness stand devoid of memory.

When a document is admitted into evidence, or the court overrules an objection allowing a witness to testify as to a particular point, all that means is that the information gets to the judge either in the form of something that the judge can look at and study, or verbally. Either way, when it is in evidence, it is fair game for the court to weigh and take it into account in its ruling. It’s your job to get those key items into the judge’s hands to look at, or into the judge’s ear.

When you quit thinking about the MRE as a collection of obstacles to the admission of evidence, and begin seeing them in terms of how they offer you many portals to the court’s consideration, you will find your trials a whole lot easier and more successful.

Refreshing Recollection

February 27, 2014 § 3 Comments

The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.

To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.

It doesn’t have to be so complicated, however.

Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.

Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.

Here are the proper steps:

Establish that the witness is unable to recall a particular thing.
Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
Now the lawyer asks again if the witness now remembers after looking at the writing.
If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.

MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.

The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).

The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.

In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.

An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.

Proof of the Valuation Date

February 26, 2014 § 1 Comment

I’ve whined here more times than I can count about how the record is almost always bereft of any testimony from either party in a divorce about what valuation date should be used by the court in assessing values. The date that the chancellor uses can take away or add thousands of dollars to your client’s slice of the marital pie, so it’s a subject that you should approach with some interest.

The valuation date (or demarcation date) is entirely within the discretion of the court, and if you do not put evidence in the record as to which date should be used and why, then you are leaving it strictly up to the chancellor to go with any reasonable date. One of several previous posts where I spelled this out is here.

If I were trying a case with valuations, I would always ask my client what valuation date should be used and why. And remember, that different assets can have different valuation dates. Why? Well, for one thing, it gives you something in the record to argue, as opposed to raising the argument in a vacuum on appeal with nothing in the record to support it. For another, it just might be all the chancellor needs to select the very date that your client designates. And, for yet another, if you don’t put that evidence under the judge’s nose, how in the world do you expect the judge to guess correctly what your client wants?

So how do you pick the best valuation date for your client? Look at how values are fluctuating, if they are, and pick the most advantageous date, then have your client explain to the court why and how that date will produce the most equitable result. If you want inspiration on how to do this, I suggest you study the various appeals where the court has upheld the chancellor’s arbitrary decision on valuation dating. How the chancellor picked a date is one indicator you can use. You can also draw inspiration from the after-the-fact arguments of counsel who left it up to the trial judge. The COA decision in McDevitt v. Smith, handed down November 26, 2013, is a recent example.

Deference to the Chancellor’s Findings of Fact

January 23, 2014 § 1 Comment

Language along the following lines opens the great majority of appeals from chancery court rulings:

“We employ a limited standard of review on appeals from chancery court. Miller v. Pannell, 815 So. 2d 1117, 1119 (¶9) (Miss. 2002). We will not disturb the factual findings of a chancellor so long as the chancellor’s findings were supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Biglane v. Under The Hill Corp., 949 So. 2d 9, 13-14 (¶17) (Miss. 2007). ‘We use a de novo standard when analyzing questions of law.’ Id.”

Indeed, that is the very language of the COA’s decision in the case of Legacy Hall of Fame, Inc., et al. v. Transport Trailer Service, et al., decided January 21, 2014. In that case, Judge Fair’s opinion for the majority affirmed the chancellor’s ruling denying Legacy’s claim that its officer was non compos mentis when he executed a contract for the corporation. Judge Fair stated in response to the appellant’s argument that the chancellor had failed to give proper weight to the testimony of its witness, Dr. White, on the issue of competence:

¶21. This Court’s “standard of review is indeed deferential, as we recognize that a chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is in the best position to judge their credibility.” In re Estate of Carter, 912 So. 2d 138, 143 (¶18) (Miss. 2005) (citing Culbreath v. Johnson, 427 So. 2d 705, 708 (Miss. 1983)).

¶22. The chancellor made it clear in his bench opinion that he was considering Dr. White’s testimony. We find that the chancellor was not clearly erroneous in finding that Legacy Hall did not overcome the presumption of competency. Therefore, we affirm the chancellor’s decision.

That same day the COA handed down its decision in the case of Borden v. Borden, affirming a chancellor’s award of custody to Mr. Borden based on an Albright analysis. The appellant argued that the chancellor was in error in how he analyzed the Albright factors, and in how he reached his conclusions based on the proof. Judge Roberts, for the majority, explained:

¶16. The record clearly shows that the chancellor carefully weighed each Albright factor, and he acted within his discretion when he held that six of those factors favored Shannon, as opposed to only one that favored Mary Jane. Although reasonable minds could weigh the evidence and reach different conclusions, the chancellor did not abuse his discretion when he applied the Albright factors. The dissent would reverse the chancellor’s judgment and award Mary Jane custody of the children, thus rendering a judgment in Mary Jane’s favor. With utmost respect for the dissent, our standard of review does not include reweighing the evidence or substituting our opinion for the chancellor’s. It is the chancellor’s responsibility to “hear the evidence, assess the credibility of the witnesses, and determine ultimately what weight and worth to afford any particular aspect of the proof.” Tritle v. Tritle, 956 So. 2d 369, 373 (¶8) (Miss. Ct. App. 2007). “Even if we would have given greater weight to different testimony, so long as substantial credible evidence supports the chancellor’s decision, we will not substitute our opinion for the chancellor’s.” Id. The chancellor could have certainly found that Mary Jane was evasive during her testimony as an adverse witness. We find no merit to Mary Jane’s claim that the chancellor awarded Shannon primary custody of the children as a means to punish her for her inappropriate conduct with other men or her false allegations of child abuse. Thus, we affirm the chancellor’s award of primary custody to Shannon.

That is the way it is supposed to work: as long as the chancellor’s findings are based on substantial credible evidence in the record, they should be undisturbed on appeal if they are based on a correct application of the law.

The MSSC requires the COA to review the chancellor’s findings and to make a determination whether the chancellors’decision was supported by substantial credible evidence. That necessitates an examination of the record and scrutiny of the trial judge’s findings. But it does not mean that the appellate court becomes a second-line chancellor making its own conclusions on the facts. That is the chancellor’s job. You might keep that in mind the next time you’re confronted with the decision whether to take an appeal from a chancellor’s findings of fact.

Family Values in a Divorce

January 13, 2014 § Leave a comment

The case of Gardner v. Gardner, decided by the COA back on September 24, 2013, is not a landmark case, by any means, but it highlights the point that I have made here often that the values of assets that you put into the record just might be the ones your client gets saddles with, for better or worse. Here’s what Judge Lee’s opinion said about it:

¶19. “[F]indings on valuation do not require expert testimony and may be accomplished by adopting the values cited in the parties’ [Uniform Chancery Court Rule] 8.05 financial disclosures, in the testimony, or in other evidence.” Horn v. Horn, 909 So. 2d 1151, 1165 (¶49) (Miss. Ct. App. 2005) (citations omitted). The chancellor did the best he could with the evidence presented to him, and we decline to find error in his conclusions.

A couple of thoughts:

It often happens that both parties present the court with outlandish values. He values everything he wants her to have at phenomenally high values, and values the items he is to get at pitifully small values. She does likewise. That leaves the court with the alternatives: (a) to find that all the values have no credibility, and to order valuation by an expert; or (b) to average the values, or pick and choose among them to arrive at an adjudication of values; or (c) to order everything to be sold and the proceeds divided according to the formula for equitable division.
If your client contests some of the other party’s values, be sure to have him or her testify why. For instance, “I disagree that the dresser in the bedroom is worth $3,000 because we bought it at a yard sale for only $50 nearly 35 years ago, and it has a drawer missing, the mirror is broken, and my husband spilled a bottle of brandy on it, causing the varnish to be scarred and bubbly on the top.”
In Gardner, the wife was unhappy with the low value that the chancellor placed on husband’s tools and implements. Those kinds of items may actually merit valuation by someone with some pertinent experience, such as a credible mechanic, or the like. I once represented a man in the car painting business who had rescued some clogged painting nozzles from work that were discarded by his boss because it was cheaper to throw them away than to clean them. He took them home, painstakingly cleaned them, and used them for his hobby and side work. His wife valued the nozzles at $300-600 apiece. My client valued them at $25 each. The chancellor elected the wife’s value, and we had nothing in the record other than the parties’ testimony on which to base a contrary result. Ouch. Mrs. Gardner had a similarly unhappy outcome for the same reason.
Consider using discovery, and RFA’s in particular, to establish values.

As I have said here before, when you save or make your clients money, they love you. When you cost them money, they hate you. A little attention to values can go a long way on the positive side.

Not Under the Influence

November 14, 2013 § Leave a comment

Two recent cases, both decided by the COA on October 22, 2013, upheld chancellors’ rulings that decedents’ actions were not the product of undue influence.

In Wheeler v. Wheeler, the court upheld a chancellors’ decision that, although the decedent and his brother had a confidential relationship, the will and deeds in favor of the brother were not the product of undue influence so that they should be set aside.

And in Estate of Mace: Colbert v. Gardner, the court affirmed the chancellor’s refusal to set aside a will based on undue influence. The court also rejected the plaintiff’s claim that the decedent lacked testamentary capacity.

We’ve talked here before about the onerous burden that the plaintiff bears to convince the trial court that a will, deed, or other instrument should be set aside for undue influence. We also talked about the proof necessary to prove lack of testamentary capacity.

The law sets a high bar for those who are seeking to set aside instruments. If you are approached by a prospective client, even one with a fistful of dollars to finance litigation, you should make sure that the proof rises to the level that would justify the relief you are seeking.

You can read these recent cases and draw your own conclusions.

Parol Evidence and the Unambiguous Will

October 29, 2013 § 2 Comments

Every now and then, a lawyer will offer testimony about the testator’s intent, arguing that it is admissible as an exception to the hearsay rule under MRE 802(3), which states:

(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will. [Emphasis added]

Once that rule is invoked, like a magical incantation, opposing counsel often sits down and docilely allows the floodgates of testimony to open without further objection, freeing a torrent of testimony that the court must process in its final opinion.

Consider, however, that before the court can hear all those statements of memory or belief, you have to ask yourself whether this parol evidence is admissible in the first place — regardless whether it is or is not hearsay?

In Estate of Black v. Clark, decided by the COA on October 8, 2013, the COA said:

¶5. If the language of a will only allows one interpretation as to how the testator’s property is distributed, the will is unambiguous, and courts may not consider parol evidence to determine the intent of the testator. Stovall v. Stovall, 360 So. 2d 679, 681 (Miss. 1978) (citing Seal v. Seal, 312 So. 2d 19, 21 (Miss. 1975)). Parol evidence may only be considered if the language of the will itself can be construed to result in more than one interpretation as to the disposition of property. Seal, 312 So. 2d at 21.

So before MRE 803 is invoked and parol testimony is allowed, it must be established that the will is ambiguous.

The fact that the parties disagree as to a document’s meaning does not make it ambiguous as a matter of law. Ivison v. Ivison, 762 So.2d 329, 335 (Miss. 2000). In determining the meaning of a writing, the court must employ an objective standard rather than taking into consideration the subjective intent or a party’s belief. Palmere v. Curtis, 789 So.2d 126, 131 (Miss. App. 2001).

The process of contract interpretation adds some insight. In the case of Williams v. Williams, 37 So.3d 1196, 1200 (Miss. App. 2009), that process was set out as follows:

“We have delineated a three-tiered process for contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351 (Miss. 1990). First, we look to the “four corners” of the agreement and review the actual language the parties used in their agreement. Id. at 352. When the language of the contract is clear and unambiguous, we must effectuate the parties’ intent. Id. However, if the language of the contract is not so clear, we will, if possible, “harmonize the provisions in accord with the parties’ apparent intent.” Id. Next, if the parties’ intent remains uncertain, we may employ canons of contract construction. Id. at 352-353 (citing numerous cases delineating various canons of contract construction employed in Mississippi). Finally, we may consider parol or extrinsic evidence if necessary. Id. at 353″ [West v. West, 891 So.2d 203, 210 (Miss. 2004)]

A Rules Gap that Can be a Fool’s Trap

October 16, 2013 § 4 Comments

MRCP 32 (a)(3)(E) allows for the use of a deposition at trial of a medical doctor “for any purpose.” R32(a) says that the deposition may be used ” … so far as admissible under rules of evidence applied as though the witness were then present and testifying… ”

In practice, that language has been applied to excuse medical doctors from personal appearance at trial, allowing their testimony to be presented by video deposition, or by reading into the record in jury trials, or by introduction of the transcribed deposition in bench trials. The deposition of a medical doctor, then, per this rule, has been deemed admissible in evidence as though the doctor were present and testifying, simply because the witness is a medical doctor.

When this amendment to rule 32 was adopted. It was seen as a friendly gesture to the medical profession, a way to encourage testimony of doctors without unduly interfering with their schedules. All doctor testimony henceforth would be via deposition. It was a no-cost win-win.

But, as Lee Corso would say, not so fast my friend.

The deposition of the medical doctor is unquestionably a hearsay statement, so how does MRCP 32(a) mesh with MRE 804(a), which creates the hearsay exception for persons deemed unavailable to testify? If you will read MRE 804(a), it is clear that the mere status of medical-doctorhood does not automatically fit one into any of the six definitions of unavailability set out in subsection (a). Nor does that status automatically fit into any of the hearsay exceptions in subsection (b). It may be that the doctor’s statement could be qualified as an exception under subsection (b)(5), but that would require a finding by the court, after prior notice by the offering party to counsel opposite.

The answer is that the MRE controls. That’s what MRE 1003 states: “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.”

This gap between the two rules caught a party unprepared in the case of Parmenter v. J & B Enterprises, Inc., 99 So.3d 207, 219 (Miss. App. 2012), in which the trial judge disallowed the expert testimony via deposition per MRCP 32(a) where there was no proof of unavaiability as defined in MRE 804. The appellant unsuccessfully argued that MRCP 32(a) allowed the introduction. The COA held, to the contrary, that the MRE provision controlled.

Don’t assume that, just because you have gotten that doctor’s deposition, it will automatically be admissible in lieu of the doctor’s personal testimony. To do that, you will still have to prove the doctor’s unavailability as defined in MRE 804. That may be something you can achieve via requests for admission, or by stipulation, or by making a record.

Oh, and don’t overlook (1) that you have to plant somewhere in the record enough proof to satisfy the judge of the doctor’s qualifications to testify as an expert in the first place, and (2) that MRCP 32(a) applies only to medical doctors, not to PhD clinical psychologists. Those were two stumbling blocks for the plaintiff in Parmenter.

Tailoring Your Proof to Fit Your Case

August 22, 2013 § 2 Comments

Yesterday I visited the COA’s decision in Pelton v. Pelton, which the COA reversed because the chancellor did not make findings on the Ferguson and Armstrong factors.

All most of us know about Pelton is what we read in the opinion.

But before you dismiss this as the fault of the chancellor, consider the possibility that the record may not have included what the judge needed to adjudicate this case. I’m not saying that’s what happened here. I’m merely pointing out that sometimes the judge has to make do with what he or she has in the record. And sometimes what is in the record is not enough to cover all of the factors.

For example: in an equitable distribution case, the judge must first determine which assets are marital, and then go through the Ferguson factors to determine whether and how they should be divided. I have heard cases where there is next to no evidence as to when or how the assets were acquired. I have heard cases with scant evidence upon which to make Ferguson findings.

In a child custody case, the judge can not make Albright findings on evidence that is not in the record. So if you want the judge to consider your client as the parent with continuity of care, then you will have to put on proof to that effect. Another chancellor related his experience in a case a couple of years ago where the custodial parent defending a custody modification put on no proof as to Albright factors at all. What exactly is the chancellor to do in that situation?

MRE 614 does allow the judge to call witnesses and intrrogate them, which would seem to be a viable option where the best interest of a child is involved. But that should be a last resort in a contested case, and, in my experience, is rare in chancery court.

The bottom line is that you have to make your record. The chancellor can not rule on evidence not in the record. The appellate courts can not find that the trial judge’s ruling is supported by substantial evidence in the record when it is not there.

Where Am I?