Practice and Procedure | The Better Chancery Practice Blog

ADOPTION DECREE DO’S AND DON’TS

October 11, 2011 § 1 Comment

Before you draft your adoption final decree, be sure to read MCA §§ 93-17-13 and 29. There are some critical provisions in those statutes that you need to address.

Here are the highlights of 93-17-13:

DO include in your judgment a six-month interlocutory period unless the child to be adopted is the stepchild of a petitioner or is related to a petitioner by blood within the third degree, unless the chancellor has determined that the interlocutory period is not necessary for the benefit of the court; if the judge does waive the interlocutory period, DO include language in your final judgment that the interlocutory period is waived and the reason why.
If the chancellor shortens the interlocutory period by the length of time that the child has lived with the adoptive parent in their residence, DO include that explanation in your judgment.
DO include in your judgment that that the child shall (a) inherit from and through the adoptive parents and siblings as would a child of the full blood. The language of the statute is explicit, and you should track it verbatim.
DO specify in your judgment that the child, adoptive parent(s) and kin are all vested with all of the rights and responsibilities as if the child had been born to the adoptive parents as their natural child. Again, the language of the statute is explicit, and you would do well to copy it verbatim into your judgment.
DO adjudicate in the body of the decree that the name of the child is changed, if desired.

And here are the highlights of 93-17-29:

DON’T state the name of the natural parent or parents in the style of the case or where they can be spread on the minutes of the court.
DON’T state the name of the natural parent or parents in your final decree.
DON’T state the original name of the child or children in the style of the case. Use “the child named herein,” or “a minor child,” or words to that effect.
DON’T state the original name of the child or children in the decree unless the name of the child will be unchanged.

Section 29 addresses confidentiality issues. Use your common sense. Any confidential information that you add to the style of your case will find its way into the docket entry and even into a publication notice. “Confidential information” in the sense of adoption embraces any information that will identify the child by original name, or that identifies either or both of the natural parents. I have seen publication notices that are blatant violations of this code section. Once that kind of improper publication is made, confidentiality for all intents and purposes is eliminated. If you have any doubts about how to style your case to avoid these problems, sit down with your chancellor and hash it out before you file your pleadings.

Some lawyers ask how to accomplish an adjudication of termination of parental rights without naming the terminated parent(s) in the final decree. Two methods come to mind: (1) enter a separate judgment specifically terminating the parental rights and reference that judgment in your final decree with language like “The parental rights of the natural parents were terminated by separate judgment in this action rendered March 16, 2011, which is incorporated herein by reference for all purposes;” or (2) in the final decree, simply state that the rights of the natural parents identified in the Complaint for Adoption are hereby terminated, etc.

I heard a report from another district that the State Board of Health is requiring that the name of the parent or parents whose rights are terminated must be included in the decree. If so, that agency is requiring by its directives a violation of the statute. Based on my training, background and experience, I take the position that the statutory law of Mississippi trumps agency directives every time.

KICKING THE CAN DOWN THE ROAD

October 3, 2011 § 1 Comment

What you thought would be a simple irreconcilable differences divorce has proven to be anything but. You’re bone-weary of your client’s whining. The other party is an intransigent j*ck*$$ over every minor detail. Counsel opposite has been an uncommunicative pain and no help at all with his client. Getting all the issues nailed down has taken a monumental effort. And now, with the final draft of the property settlement agreement nearing the finish line, all that remains is to settle the personal property.

But, that is where the parties are stuck. Husband wants this and that. Wife wants this and that. Counsel opposite is no help at all. You could spend some more time insisting that the parties resolve the personal property issues, but you don’t want to make the effort, especially without any help from the other attorney.

So you say to yourself, “What the heck; let someone else deal with it,” and you draft some language to fill in that pothole in the agreement. Parties sign and judge signs the judgment.

Deal done. Case closed. For now.

Only problem is, the parties will likely be back in court sooner or later battling over that pothole.

I call that “kicking the can down the road (KCDTR).” You do enough to get by, but in the process you draft a ticket back to court for your clients. You kick the can down the road where the next person coming along will have to pick it up and deal with it.

Of course, case weariness is only one source of the KCDTR phenomenon. Some lawyers KCDTR out of sheer laziness, others out of lack of drafting skills, others from haste, and others from oversight or lack of care.

Consider a recent case I had in which the property division read, “Husband shall have ownership of the former marital residence, and wife shall have ownership of the furnishing [sic].”

Wife moved and took with her all of the furniture and her personal effects. She also took the light fixtures and window blinds, along with a barbecue grill, a fountain (she left the base), a yard sweeper implement and various other items in the yard. Husband punched his ticket back to court.

After three days of trial (there were other issues involved), it was left to me to determine whether all the stuff that wife took was “furnishing.”

No need to go into detail about my ruling. You can probably guess how it came out. My point here is that if the drafting lawyer had said, “No, I am not going to put this PSA in final form unless and until you can give me a list of all the items that you two agree that wife will remove,” we would have avoided having to try that issue later.

Incidentally, the COA case of Aegler v. Gambrell, decided April 26, 2011, offers an insight into what exactly are considered “furnishings,” “personal things,” and fixtures.

Some other KCDTR examples:

“The former marital residence shall be sold at a price to be agreed between the parties.” What if the parties can’t agree?
“Husband shall be responsible for one-half of the school expenses.” Husband thinks this means he will pay for daughter’s cheerleading expenses. Wife thinks it means that husband will pay one-half of the private school tuition and assessments.
“Husband and wife shall each pay one-half of the child’s extra-curricular activities.” What activities are included, and who decides?

I could go on and on, but I hope you get my point. A lawyer is paid to draft an agreement that will avoid future problems. If you are not accomplishing that in the instruments you draft, you are taking your clients’ money and not delivering what was paid for.

FYI … you can read some tips for PSA drafting here and here. A post on some hidden dangers in some commonly-used PSA language is here. A post on the hidden costs of divorce is here. An object lesson in the ramifications of drafting is here. A few tips from Ernest Hemingway that may help improve your legal writing are here.

Draftsmanship is one of the hallmarks of a good lawyer. The good ones draft PSA’s that are clear and unambiguous, address all that needs to be addressed without unnecessary prolixity and fluff, and are not only enforceable on their own terms, but also are stout enough to withstand attack.

Good lawyering = good draftsmanship. Not-so-good lawyering = KCDTR.

DISESTABLISHING PARENTAGE, STEP BY STEP

September 20, 2011 § 5 Comments

As I posted here before, the legislature has adopted a procedure to disestablish parentage (paternity) in light of Williams v. Williams, 843 So.2d 720 (Miss. 2003), and its progeny, which hold that a man who is determined by DNA testing not to be the father of a child should not continue to be responsible for the support of that child.

The new code section, MCA § 93-9-10, went into effect July 1, 2011. The very first sentence of the statute states that “This section establishes the circumstances under which a legal father may disestablish paternity and terminate child support when the father is not the biological father of the child.” In my opinion, this code section is now the exclusive remedy for a father in these circumstances. Any proceeding such as a petition to remove the father from the birth certificate, or a joint petition to disestablish paternity, or a modification pleading that does not meet the requirements of the statute will be ineffective.

You may well ask, “But if the father and mother agree, what is the harm? Why not simply approve their agreement?” First of all, there are the welfare and rights of the child to consider. See, Kelly v. Day, 965 So.2d 749 (Miss. App. 2007). And secondly, if the procedure is ineffective, the child will have a later cause of action for support, making the whole earlier procedure a waste of time.

Before I step through the statute with you, please let me urge you to read the statute. I swear, it won’t take more than five minutes. If you’re going to advise clients about this, you need to be familiar with what it says.

So here is the procedure, step by step (statutory requirements in bold, my comments in regular font):

The father must file a petition in the court having jurisdiction over the child support obligation. This means that if the county court, or chancery court in another county, has entered a child support order, the petition must be filed in that court.
Process and a copy of the petition must be served on the other parent or guardian; if DHS is or has been a party to the paternity action or collection of child support, the Attorney General of the State of Mississippi must be served with process. In my opinion, since this action is under the chapter dealing with parentage (bastardy), 30-day process would be required pursuant to MRCP 81 (d)(1).
The petition must include: (a) an affidavit executed by the petitioner that he or she (there is nothing in the statute that says that the mother is precluded from filing a petition) has newly-discovered evidence since the paternity determination relating to parentage of the child, and (b) the results of a genetic or other scientific parentage test administered within one year of the filing of the petition excluding the legal father as biological father of the child or an affidavit executed by the petitioner that he did not have access to the child for testing before the filing of the petition; in the latter case, the petitioner may request that the mother (if available), child and father submit to such testing.
The court shall grant the relief on a properly filed petition if the court finds all of the following: (a) There is newly-discovered evidence as averred; (b) the scientific testing was properly conducted; (c) the legal father has not adopted the child; (d) the child was not conceived by artificial insemination while the legal father and mother were married; (e) the legal father did not prevent the biological father from asserting his parental rights with respect to the child. I recommend that your petition include allegations (a) through (e). Your client is swearing that all of these statements are true, and you are vouching under MRCP 11 (a) that the pleading has “good ground to support it.” And make sure your client reads it before signing. He is swearing all of this is true, andd if he balks or hems and haws, you might want to think about going back to the drawing board.
The court shall not set aside the paternity determination or child support order if the court finds that the legal father did any of the following: (a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father; (b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact; (c) signed a stipulated agreement of paternity that has been approved by order of the court; (d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father; (e) been named as legal father or ordered to pay support after he declined to undergo genetic testing; or (f) failed to appear for a genetic testing draw pursuant to a valid court order. Same advice here about incorporating these as allegations in your petition. Make your client swear that he has not done any of the foregoing. The rationale above applies here.
If the petitioner does not make the required showing, the court shall deny the petition.
Relief is limited to prospective (future) child support, past-due child support payments, termination of parental rights, custody and visitation. The statute does not create a cause of action to recover child support paid before filing of the petition. The statutory procedure can not be used to litigate previously-paid child support. It can be used to address past-due child support, parental rights, custody and visitation.
The court may not suspend the child support obligation while the petition is pending, although the court may order that such payments may be held by the court or DHS pending a final determination. My suggestion is to plead for the court or DHS to hold the child support funds pending litigation, if that is what your client wants. If you don’t specifically ask in your petition for that relief, you likely will not get it.
The party requesting genetic testing shall pay its fees. There is no provision in the statute for the court to tax the fees other than to the party who requests it.
The usual authority of the court on motion or its own motion to order the parties to submit to genetic testing applies.
The unsuccessful petitioner shall be assessed with court costs, genetic testing fees and reasonable attorney’s fees. Here’s the reason why I suggested above that you specifically plead all of those qualifying and possibly disqualifying facts and make your client read carefully before signing. Clients sometimes will lead you to believe that they have a case, and will omit some important detail, like the execution of that acknowledgment of paternity. They think they can pull a fast one on the court, or that it somehow will slip by unnoticed. The result of failure for the petitioner is being assessed with some significant expenses. The result for you is egg on your face and slipping a notch in the court’s regard of your own credibility.

This statute should go a long way toward eliminating the welter of approaches that lawyers have taken to address the disestablishment of paternity. Now there is a single statutory provision. Read the statute, follow it, and you might accomplish something for your client.

EXPERT OPINION TESTIMONY: SOME BASICS

September 19, 2011 § 5 Comments

Experts often testify in chancery. They address child custody, business valuations, property appraisals, surveys, tax issues, handwriting, competency, medical and health matters, and many other subjects almost too varied to imagine. MRE 702 allows you to call a qualified witness who has “scientific, technical, or other specialized knowledge” that will assist the chancellor in understanding the evidence or to determine a fact in issue.

The catch is that the witness must be (a) qualified, and (b) have scientific, technical or specialized knowledge that will assist the court in adjudicating the case. It’s up to you to make a record that your witness meets the criteria of the rule.

You won’t get off the starting line, though, if you haven’t done your pre-trial work vis a vis your expert. Remember that if you are asked in discovery to identify your expert(s), you must do so not less than 60 days in advance of trial, per UCCR 1.10, or run the extremely likely risk that you will be denied the opportunity to call that witness as an expert. Merely including the name of an expert in a general witness list is not enough to meet the requirement of the rule. And if you are asked to provide the expert information required in MRCP 26(b)(4), you must timely provide it — all of it, in a responsive manner — or you may be left expert-less in that trial.

Calling an expert as a witness at trial is a two-phase process:

First, you must qualify the expert and tender the witness as an expert, at which point the other side will be given the opportunity to voir dire the witness as to qualifications to testify as an expert. The court will then hear any objections to the qualifications. If the court rules that the witness does have expert qualifications, you move to the next phase.

Second you take the expert testimony itself. Before you get into the substance of that testimony, though, you must establish that the expert’s opinions will be reliable, using the factors set out in Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993).

Here is the process, step by step:

Identify the witness.
Establish the witness’s knowledge, skill, experience, training and/or education that qualifies her as an expert.
Tender the witness as an expert.
Address any objections to qualifications.
Have the witness testify about the facts and data upon which the opinion will be based. MRE 702(1) requires that the opinion must be based on “sufficient facts or data.”
Have the witness establish by testimony the principles and methods she used in arriving at her opinion, and she must establish their reliability.
Have the witness testify how she applied those principles and methods in this particular case, and why the method she used does produce reliable results in her field.
Develop the expert opinion.

Some factors you might want to consider in developing whether the expert applied the principles and methods of his field reliably to the facts in your case:

Have the principles and methods used been tested, or can they?
Have the principles and methods been subject to professional critique, peer review, and publication?
What is the known error rate for the principles and methods, and what are the means to control or reduce the error rate? What measures were taken to control the error rate in this case?
What is the extent to which the principles and methods have been accepted in the field?
Is the opinion based on research or study that the expert did independent of the litigation?
Has the expert adequately addressed and accounted for alternative or contradictory explations? How did the expert rule them out?
Did the expert employ the same standards and techniques in reaching the opinion in this case that he does in the normal course of his professional work?
Is there a discrepancy between the data and the conclusions reached by the expert? How does the expert explain the discrepancy and rule out other conclusions?
How does the expert’s opinion tie in to the facts in this particular case?

Obviously the way you develop your expert’s testimony will depend both what is at issue in the case and the expert’s field of expertise. A child psychologist in a custody case will require a different approach than, for example, a handwriting expert in a will contest.

With respect to qualifications, it’s a good idea always to get the expert’s CV (curriculum vitae) and offer it into evidence. Once it gets into evidence, it may prompt counsel opposite into stipulating that it does, in fact, state the witness’s proposed qualifications, which may eliminate lengthy testimony. With no jury to impress, there’s no need to put on a show about the witness’s impressive credentials.

The court always has the discretion whether to allow an expert’s testimony at all. If the court finds that the subject matter of the opinion is not sufficiently scientific, technical or otherwise specialized, the court can rule that an expert need not be called. For example, if the judge or any other lay person can determine that the ground became wet after a rain, it is not necessary to have expert testimony on the point. Likewise, an expert on the law is unnecessary and superfluous because the trial judge is the expert on the law of the case (at least until the COA reviews it).

AN OBJECTIONABLE OBJECTION

September 14, 2011 § 4 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.

RECUSAL IS FOREVER

September 13, 2011 § Leave a comment

Here’s an important principle to bear in mind:

Once a chancellor has recused himself in a case, he is without further authority to act in that case, even in the most trivial procedural matters.

The case of Covington v. Montgomery, 43 So.3d 1193 (Miss. App. 2010) illustrates how and why that principle can be so important. Here’s what happened:

Covington, an attorney in Harrison County, filed a petition in chancery court seeking modification of custody from his ex-wife to himself. All four chancellors, including Judge Carter Bise, recused themselves because one of the parties was a practicing attorney in the district. Judge Frank McKenzie of Jones County was appointed to serve as special chancellor. He heard the case and denied the modification. Covington decided to appeal.

On the last day of the appeal deadline, Covington filed a motion to extend the appeal time, and got the signature of Judge Bise on the order. He subsequently filed his notice of appeal within the enlarged time.

The COA, on its own motion, raised the issue of its jurisdiction and held that Judge Bise’s order “had no effect” because Judge Bise had recused himself and had no further authority to act in the case. The opinion, written by Judge Roberts, pointed out that the duration of the special chancellor’s appointment is determined by the supreme court’s order appointing him, and there was nothing in it to indicate that his authority ended before the trial court’s jurisdiction terminated with the filing of the notice of appeal.

I have been approached by parties in cases where I have recused myself seeking procedural orders. Often the parties are there by agreement. In one case, I was asked to sign off on an agreed final judgment because the special chancellor was on vacation. I told them to wait. Once I got out I had no more authority. It’s a point to bear in mind.

IF YOU EXPECT TO REAP, YOU HAVE TO SOW (AND SOMETIMES YOU REAP WHAT YOU DIDN’T KNOW YOU SOWED)

September 12, 2011 § 2 Comments

Riff Raff: I ask for nothing, Master!

Frank: And you shall receive it, IN ABUNDANCE!

— From The Rocky Horror Picture Show

In chancery court, be careful what you ask for — or don’t ask for. What and how you plead can make a big difference in your outcome.

Take the case of Caudill v. Caudill, 811 So.2d 407, 408-9 (Miss. App. 2001), in which Douglas, acting pro se, filed a response to a contempt petition raising his inability to pay as a defense. When Douglas tried to argue at trial that his pleading was sufficient to support a reduction in separate maintenance, the chancellor rejected his claim on the basis that “there is no petition to relieve you of paying …” and that he “needed to have filed a counterclaim asking for affirmative relief.” Douglas appealed, pointing out that pro se litigants are held to a less stringent standard of pleading than are lawyers. McFadden v. State, 580 So.2d 1210, 1214 (Miss. 1991). Citing West v. Combs, 642 So.2d 917 (Miss. 1994), Douglas argued that the trial judge should have looked to the substance of his pleading rather than its form.

The COA rejected Douglas’s argument and upheld the chancellor:

“While it is true that a pro se litigant may not be held to the same standard in drafting his pleadings as an attorney, the chancellor is not held to the task of a mind reader. If the chancellor is not able to determine a request for relief from the pleadings, he may not grant such relief. Douglas did not make a specific request for a reduction in separate maintenance and did not amend his pleadings to include such a request. The chancellor did not abuse his discretion or commit manifest error in refusing to consider Douglas’s pro se answer as a counterclaim for a reduction in his obligation.”

MORALS:

If you don’t include a request for specific relief in your pleadings, don’t expect to get it.
Chancellors (thankfully) are not expected by the appellate courts to be mind readers — at least in the realm of pleadings.
This case involved a pro se litigant; you, as a lawyer, are held to a higher standard.
If you do overlook pleading for certain relief, try putting on proof on the point anyway, and, if you do put in the proof you need, ask the court for leave to amend the pleadings and conform the pleadings to the proof. If the other lawyer blocks your attempts, as for leave to amend per MRCP 15.
If you ask for nothing, you shall receive nothing — in abundance.

In the recent case of Knighten v. Hooper, decided September 6, 2011, the COA upheld the chancellor’s decision not to award the child dependency tax exemption on the basis that the issue was not raised in the pleadings. Both parties had, at the court’s behest, presented proposed findings of fact and conclusions of law, and Knighten had inserted the issue for the first time in his submission. There had been no proof on the point at trial. The COA held at ¶ 16:

“After reviewing the pleadings and trial transcript, we find that Knighten did not properly raise the issue through his pleadings or evidence presented at trial. See MRCP 8, 15. As a result, Hooper was not given notice and an opportunity to respond. The issue was not subjected to the adversarial process and, as such, was not properly before the chancellor for consideration. Therefore, the chancellor did not err when she refused to address the issue in her judgment.”

While we are on the subject, keep in mind that once a pre-trial order is entered, it controls and determines the issues and relief, no matter what was in the original pleadings. In Singley v. Singley, 846 So.2d 1004 (Miss. 2002), the trial judge allowed in proof supportng a claim for alimony over objection on the basis that, although alimony had been omitted from the pre-trial order, it had been pled for in the original pleadings. The COA reversed, and the MSSC, in upholding the COA, stated, at page 1013:

“”The pre-trial statement approved by order of the chancellor controls. It is clear and concise, easily understood and substantially complies with M.R.C.P. 16. We hold that the chancellor cannot modify the statement unless it is done by mutual agreement with the parties as was initially done, or the chancellor finds manifest injustice, neither of which occurred. The Court of Appeals is affirmed on this issue.”

As it is true that you may not receive something for which you have not pled, the converse is true: that you may receive something for which you pled, but did not exactly foresee.

Take, for instance, the case of Rose v. Upshaw, handed down by the COA on August 30, 2011. In that case, Rose registered a Louisiana judgment in Mississippi, and asked the chancery court to severly restrict Upshaw’s visitation under the Louisina judgment. Instead, the chancellor found that the visitation provisions of the Louisiana judgment were not working, and modified the visitation in Upshaw’s favor. Rose appealed, contending that it was improper for the chancellor to grant any modification relief other than the restricted visitation he had prayed for. The COA disagreed:

Rose essentially argues, since he was the one to plead modification, the chancellor could only modify the visitation order to meet Rose’s specific request that Upshaw’s visitation be restricted. But, procedurally, the chancellor was not limited to granting all-or-nothing relief — either enforcement of the unmodified Louisiana order or restriction of Upshaw’s visitation rights. “On visitation issues, as with other issues concerning children, the chancery court enjoys a large amount of discretion in making its determination of what is in the nest interest of the child.” Haddon v. Haddon, 806 So.2d 1017, 1020 (¶ 12) (Miss. 2000)(citing Harrell v. Harrell, 231 So.2d 793, 797 (Miss. 1970).

So there you have it. Two general principles of pleading that you need to bear in mind:

If your pleading does not include a clear request for relief that a chancellor can comprehend, you can’t expect to receive that relief; and
Be careful of the issues you introduce into the proceedings because that whipsaw effect can sting.

ESSENTIAL PROCEDURES IN A GUARDIANSHIP AND CONSERVATORSHIP

September 7, 2011 § 1 Comment

MCA 93-13-38 (1) states:

All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.

MCA 93-13-255 provides that a conservator appointed by the court shall have “the same duties, powers and responsibilities as a guardian of a minor, and all laws relative to the guardianship of a minor shall be applicable to a conservator.”

That means that in your guardianship or conservatorship you will need to file your affidavit of creditors in the proper time, publish to creditors, file an inventory, and do all the other acts and things required of fiduciaries in estates.

And keep in mind that the MSSC has made it abundantly clear that there are dire consequences for both the fiduciary and the attorney for failing to do so.

DECISIONS, DECISIONS, DECISIONS

August 25, 2011 § 1 Comment

It’s the end of a grueling three-day custody trial. The judge has recessed and will render a bench opinion at the end of the recess. You and opposing counsel are tired of the case, of fussing with each other, of the judge, of being out of the office, and of dealing with the clients. The judge gave the attorneys the option of a bench opinion or a written opinion later, and you and counsel opposite elected to end it right then and there.

Did you make the right choice? Maybe not.

The New York Times published a fascinating article on August 17, with the title, “Do You Suffer from Decision Fatigue?”

I encourage you to follow the link and print a copy. It is worth a read for every lawyer and judge to help understand how decison-making ability degrades with accumulation of decision-making, and how scheduling and trying matters may affect their outcome.

The study shows how the act of making decisions actually drains the brain of energy through the course of a day. Initially, the brain, full of energy and fresh, tackles decision-making with ease. The more decisions the brain is called on to make, however, the less energy it has available to devote to the task, and performance degrades. It’s like starting off on that jog through the park full of vigor and energy, and winding up panting and walking on jellyish legs to your car three miles later.

The study also says that blood glucose levels have an effect on decision making. The lower the blood sugar level of the decision maker, the more the decision maker suffers from decision fatigue. Decisions made after meals and snacks are, as a result, better reasoned and more true to the facts and law.

So what are the implications as you plod your way to the end of that stressful trial? Consider:

It’s the judge’s job to make tough decisions every day, and quite often many times through the course of a day. Decison-making is not confined to the final outcome of the case. Decisions must be made objection-by-objection, and often in rapid-fire fashion. To top it off, good lawyers making strong legal arguments intensify the process.
It’s true that judges are professionals, and that decision-making is part of the job, but judges are human, and are subject the to same fatigue factors as others.
Keep in mind that the judge is not only depleting energy with decision-making while on the bench. The judge is paying attention, evaluating evidence and testimony and making notes, all of which in combination takes its own, separate toll.
As an attorney, you can reduce wear and tear on your judge’s psyche by reducing the number of objections and preliminary matters you call on the judge to decide.
If you anticipate that a witness will generate contentious argument and require rulings on admissibility, it’s probably best to tackle those early in the day before the judge has begun to wear down.
You might want the judge to take the final decision under advisement, which allows the court to delay the decision to a time when the judge is more refreshed and capable of producing a better result.

I can tell you from experience that patience and insight both wane over the course of a taxing trial. I’ve remarked more than a few times to my wife after a trial that I was as worn out as if I had been one of the trial lawyers. You need to take that into consideration when you plan out your day in court.

WHAT DOES IT TAKE TO SATISFY THE DILIGENT INQUIRY REQUIREMENT OF MRCP 4?

August 16, 2011 § 2 Comments

We’ve talked here, here and here about MRCP 4 and its requirements for obtaining process by publication. The prerequisite to any process by publication is “diligent inquiry” to discover whether the party is to be found in Mississippi, and, if not, her post office address.

No process by publication can issue until there is an affidavit filed stating that diligent inquiry has been made. The one who claims to have made the inquiry is required to testify to the efforts involved. It is in the court’s discretion to determine whether the inquiry was indeed diligent.

So what exactly is diligent inquiry? To what extent is a party required to search out the whereabouts of the opposing party? I will confess to a certain degree of inconsistency on this issue on my part, due primarily to the fact that in Mississippi we do not have a template of authority or guidelines to go by. I do always question the witness about measures taken, and I am usually satisfied that he or she has done all that can be done.

Recently, it came to my attention that Florida has a form certificate of diligent inquiry that is required in all such cases. The affiant must check all of the categories of effort that apply. Here are the guts of the Florida certificate:

United States Post Office inquiry through Freedom of Information Act for current address or any relocations.
Last known employment of respondent, including name and address of employer. You should also ask for any addresses to which W-2 Forms were mailed, and, if a pension or profit-sharing plan exists, then for any addresses to which any pension or plan payment is and/or has been mailed.
Unions from which respondent may have worked or that governed particular trade or craft.
Regulatory agencies, including professional or occupational licensing.
Names and addresses of relatives and contacts with those relatives, and inquiry as to respondent’s last known address. You are to follow up any leads of any addresses where respondent may have moved. Relatives include, but are not limited to: parents, brothers, sisters, aunts, uncles, cousins, nieces, nephews, grandparents, great-grandparents, former in-laws, stepparents, stepchildren.
Information about the respondent’s possible death and, if dead, the date and location of the death.
Telephone listings in the last known locations of respondent’s residence.
Internet at http://www.switchboard.com or other internet people finder.
Law enforcement arrest and/or criminal records in the last known residential area of respondent.
Highway Patrol records in the state of respondent’s last known address.
Department of Motor Vehicle records in the state of respondent’s last known address.
Department of Corrections records in the state of respondent’s last known address.
Title IV-D (child support enforcement) agency records in the state of respondent’s last known address.
Hospitals in the last known area of respondent’s residence.
Utility companies, which include water, sewer, cable TV, and electric, in the last known area of respondent’s residence.
Letters to the Armed Forces of the U.S. and their response as to whether or not there is any information about respondent.

Some of these measures seem somewhat extravagant to me; a Freedom of Information Act request, for example, seems a bit much. Certain other listed measures would be futile due to privacy and HIPAA concerns, in my opinion.

The list, though, does have much to commend it in that it illustrates the extent of information available to find someone. In the era of internet, with Google and the like, the old “I asked his momma and she doesn’t know where he is” just doesn’t cut it anymore. The more extensive the search, the more different measures employed, the more likely it is that the court will find the effort to have been diligent.

I heard an uncontested divorce a while back in which the plaintiff had published process based on a claim that she did not know where the defendant was, and was not to be found in Mississippi. She testified about all the relatives she had talked to who claimed not to know where he was, either. In the course of her testimony, she let slip that the last she had known he was in prison in Texas. I interrupted and asked how long his prison term was, and she responded that he should still be there because he had been sentenced to something like 20 years. I pointed out to the attorney that of all people on the planet a prisoner should be among the easiest to locate, and I continued the hearing to a later date for that purpose. The attorney easily located the man on the internet, and she and her client returned to court a couple of months later and proceeded on personal process.

My suggestion is that you don’t file that diligent inquiry affidavit unless and until you are satisfied that your client has, indeed, made a bona fide effort to locate the other party. You may wind up doing some of the work yourself.

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