Practice and Procedure | The Better Chancery Practice Blog

PROCESS FAI*L

August 15, 2011 § Leave a comment

What difference does it make whether the other party has the right form of process if he had actual notice?

Consider the case of Clark v. Clark, 43 So.3d 496 (Miss. App. 2010). The facts are pretty straightforward:

Aileen filed for divorce from her husband Willie. She filed and had issued a Rule 81 summons for a temporary hearing and another Rule 81 summons on her complaint for divorce. Willie did not appear for the temporary hearing, and the chancellor entered a temporary order favorable to Aileen. On the date set in the summons on the complaint, Willie was again called and did not appear. The chancellor entered a judgment of divorce on July 25, 2008, awarding Aileen a divorce, custody, child support, alimony, a vehicle and a name change.

On September 23, 2008, Willie filed a motion under MRCP 60(b) to set aside the judgment, which the chancellor refused. Willie appealed.

On appeal, Willie’s sole assignment of error was that since he was not served with a Rule 4 summons on the divorce, the court lacked jurisdiction.

The COA reversed, and here are the important points:

MRCP 4 “provides for the means of service of the original complaint and the form of the accompanying summons.” Sanghi v. Sanghi, 759 So.2d 1250, 1253(¶ 11) (Miss. App. 2000); see also Carlisle v. Carlisle, 11 So.3d 142, 144(¶ 9) (Miss. App. 2009). “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So.2d 874, 878(¶ 16) (Miss. App. 2002).
Because Rule 81(d) embodies “special rules of procedure” that only apply to the matters listed in Rules 81(d)(1)-(2), and divorce is not one of these enumerated matters, service of the complaint for divorce fall outside the scope of Rule 81. See M.R.C.P. 81(d). Thus, the general rules govern, see Sanghi, 759 So.2d at 1256(¶ 27), and Rule 4 contains the proper procedure for serving the complaint.
In Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. See, e.g., Powell v. Powell, 644 So.2d 269, 274 (Miss. 1994); Saddler v. Saddler, 556 So.2d 344, 346 (Miss. 1990); Serton v. Serton, 819 So.2d 15, 21(¶ 24) (Miss. App. 2002).
Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759.
Rule 4 lists the requirements for a valid summons issued under Rule 4, and provides in pertinent part: “The summons shall be dated and signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint…. Summons served by process server shall substantially conform to Form 1A.” M.R.C.P. 4(b) (emphasis added). The summons in Form 1A informs the defendant that he or she is “required to mail or hand deliver a copy of a written response to the Complaint” to the plaintiff’s attorney within thirty days or a default judgment will be entered against the defendant. M.R.C.P.App. A. Form 1A. The form further provides that the defendant “must also file the original of [his/her] response with the [appropriate trial court clerk] within a reasonable time[.]” Id. As we have noted before, use of the sample forms is not required, but their use is good practice because it “removes any question of sufficiency [of process] under the Rules.” Sanghi, 759 So.2d at 1256(¶ 28) (citing M.R.C.P. 84).

In his opinion overruling Willie’s Rule 60(b) motion, the chancellor acknowledged that Rule 4 is the proper form of summons in a divorce case, but found that the Rule 81 summons used by Aileen for the complaint substantially conformed to Form 1A. The summons did inform Willie that a judgment would be entered against him if he failed to appear and defend, as is required by Rule 4(b). However, the summons at issue contained substantial deviations from Rule 4. First, the Rule 81 summons stated: “You are not required to file an answer or other pleading but you may do so if you desire.” Second, the Rule 81 summons did not specify any deadline-specifically, that Willie was required to answer with a response to his wife’s attorney within thirty days. Third, the Rule 81 summons did not inform Willie that he was required to also file his answer with the chancery clerk within a reasonable time.

The COA, citing Sanghi, disagreed, finding substantial differences between Rule 4 and 81 summons, and held that failure to use the proper form of Rule 4 summons deprived the trial court of jurisdiction in the case, requiring reversal.

The COA also considered whether the resulting reversal of the trial judge’s denial of Rule 60(b) relief required setting aside the divorce, and found that it did. The court said: although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, … [i]f the judgment is void, the trial court has no discretion. The court must set the void judgment aside.” Soriano v. Gillespie, 857 So.2d 64, 69-70(¶ 22) (Miss. App. 2003). A judgment is deemed void if the court rendering it lacked jurisdiction. Morrison v. DHS, 863 So.2d 948, 952(¶ 13) (Miss. 2004). A judgment is void “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” Id. (citation omitted).

The court also cited Kolikas at 879 for the proposition that the defendant is under no duty to notice what is filed in court against him unless he is properly served according to the rules, and the rules are to be strictly construed and applied as to process. It does not matter that the defendant knew that there was a lawsuit pending against him if he was not effectively served with process and notice.

Oddly — at least I find it odd — the court left standing the judge’s temporary judgment on the basis that Aileen had properly gotten process under Rule 81, and that the trial court did have personal jurisdiction over Willie. I say this is an oddity because in this district we have followed the principle that temporary relief is proper only in the context of a fault-based divorce action. I have never heard of a temporary action proceeding on its own, unattached, so to speak, to an underlying divorce action in which the trial court has personal jurisdiction over the defendant. But that is what resulted here. The COA opinion stated:

Finally, Willie claims that Aileen’s motion for temporary support was “nothing more than a derivative action” of the divorce complaint, and, therefore, the court’s lack of jurisdiction over the divorce complaint extends to the motion for temporary relief.

Although Mississippi appellate courts are generally without jurisdiction to hear direct appeals from temporary orders, Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) (citing Miss.Code Ann. § 11-51-3 (Supp.1993)), the denial of a Rule 60(b) motion is a final judgment that is reviewable. Sanghi, 759 So.2d at 1255(¶ 22).

As Rule 81 makes clear, an action for temporary relief in divorce and an action for divorce are two separate matters. Each requires the issuance of a different form of summons-the former requiring a Rule 81 summons and the latter requiring a Rule 4 summons. We simply do not see how improper service in the divorce action affects the chancery court’s jurisdiction to hear temporary matters. We, therefore, reject the notion that failure to achieve proper service in the divorce action renders the action for temporary relief void. Furthermore, we note that a separate Rule 81 summons was properly issued in Aileen’s action for temporary support, thus giving the chancellor jurisdiction to award temporary relief. This issue is without merit.

Another interesting wrinkle in this case is Judge Griffis’s specially concurring opinion where he says that ” … Rule 81 is a treacherous and often misunderstood rule.” He points out that parties on appeal have ” … fallen prey to the hidden tentacles …” of the rule and urges the Supreme Court to revise it.

I have heard other chancellors at judges’ meetings complain about Rule 81, but we really have not had any problems in this district understanding and following it (knock on wood) to this point. I would not be against eliminating Rule 81 if we could modify Rule 4 to create a short-notice procedure in certain actions unique to chancery such as temporary matters, contempts and certain probate proceedings where notice is required.

The moral of the Clark story is to comply strictly with the rules governing process or be prepared to clean up the mess that will follow.

WHAT DOES IT DO TO YOUR APPEAL WHEN THE TRIAL JUDGE DOES A DOUBLE-TAKE?

August 11, 2011 § 4 Comments

Here’s a little nightmare scenario for you …

Chancellor renders a judgment of divorce. Among other provisions, the judge ordered that the homestead and certain personalty be sold by the Chancery Clerk, the administrative costs be paid, and then the remaining proceeds be divided between the parties. Your client is unhappy enough to pay you to file an appeal from the judge’s adjudication of equitable distribution. It takes him a couple of weeks to scrape together your fee, but the appeal clock still has plenty of ticks. Client comes in at last and pays the freight. You start work on the notice of appeal, and while you’re at it …

Twenty days after the judgment is entered, here comes a sua sponte order from the court clarifying the instructions to the clerk as to the specific items of personalty that were to be sold, and how the homestead proceeds were to be divided. You have other pressing matters on your plate, so you are relieved that the judge reset the appeal clock for you. Finally, 29 days after the clarifying order, your file your notice of appeal.

Is there a problem?

The above facts happened in Penton v. Penton, decided by the COA on April 13, 2010. Judge Barnes’ opinion points out that the appellate rules and our case law are silent as to the effect of a sua sponte order of the trial court such as that in this case. This second order was not a reconsideration with a substantive change of the original judgment. Reconsideration was limited to within ten days of the original judgment under MRCP 59. Nor did it involve correction of a clerical error under MRCP 60. The second order did not substantively change the award in the original judgment; it merely made the instructions clearer for the clerk.

Looking to federal case law, Judge Barnes concluded that ” … only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken … begin to run anew.” She found that the provisions of the second order were not substantive, so it did not have the effect of extending the appeal time from the original judgment.

The opinion noted that entry of the second order still left time for appeal from the original judgment, and that counsel could have filed a motion with the trial court to extend the time for appeal, if that were needed to evaluate the sua sponte order, but no such motion was filed.

The result was that the appeal was dismissed as untimely filed.

As a matter of practice, this case illustrates that it’s better under the current state of the appellate rules to file a premature notice of appeal than to file too late. Once the deadline passes without a motion to extend having been filed, the appeal is dead.

I’ve held off commenting on this case because it’s an unpublished opinion and obviously addresses a matter of first impression of Mississippi. I have surmised that publication is being held pending evaluation by the Supreme Court, since that court has jurisdiction to adjudicate first impression cases.

UCCR 8.05 TWEAKED AGAIN

August 10, 2011 § Leave a comment

The Supreme Court’s Rules Committee is soliciting your comments on proposed changes to UCCR 8.05. The change would add this language:

The disclosures shall include any and all assets and liabilities, whether marital or non-marital. A party is under a duty to supplement prior disclosures if that party knows that the disclosure, though correct when made, no longer accurately reflects any and all actual income and expenses and assets and liabilities, as required by this Rule.

The change addresses both the Trim case non-disclosure of assets problem and the duty to supplement.

As I’ve said before, many cases are plagued by incomplete and woefully inadequate 8.05 statements. Often, the statement offered is months old. Maybe this rule change will be a cure. But then again, I am an eternal optimist, even when reality does not justify it.

If you’re looking for ideas about how to improve your own 8.05’s and financial testimony, you can find some here, here and here.

You can find the proposed new rule here. Deadline for comments is September 6.

BULLETPROOFING YOUR WITNESSES

August 9, 2011 § 5 Comments

If you have never had a witness implode on the stand, this post is not for you.

If, on the other hand, you have struggled inwardly to maintain your composure as your witness apparently has forgotten everything he ever knew about the case, or he has abandoned all common sense, or she blurts out all manner of facts she never revealed to you before and is laying waste to her own case as effectively as if she were her own opposing counsel, then this post may help.

An important part of trial preparation — you do prepare for trial, I hope — is preparing your witnesses. Uh — you do prepare your witnesses, I hope.

It’s pretty clear when a witness is prepared. The witness and the lawyer work almost in tandem. The witness seems to understand where the lawyer is going with the questions and goes along easily, without a lot of leading and prodding. The witness’s testimony is clear. The witness knows how to say what needs to be said, and handles himself well on cross examination.

In other words, the witness is coated in teflon and swathed in kevlar. Non-stick and bullet-proof.

It doesn’t take a lot of time and effort to prep your witness if you focus in on what needs to be addressed. Here are a few helpful tips. Take them as a starting point and fill in with as many others as you can come up with.

Take a few mintues to explain to your client what it is you have to prove to have a successful day in court. For instance, if modification of child custody is in issue, explain material change, adverse effect and best interest.
Go over some questions and elicit your client’s answers. Suggest more effective ways to say what the witness is going to testify to. It is entirely ethical to suggest more effective ways to state the facts; of course it is unethical to change the facts or tell the witness to testify to something the witness did not perceive. You can tell the witness how to say it, but you can not tell the witness what to say.
Remind the witness to testify about facts, and not impressions. Tell what you saw with your own two eyes without using labels. “The windows were all broken out of the car, the side mirrors were broken off and hanging down, the headlights were smashed, and the tires were all flat” is a lot more powerful than “The car was busted up.”
Tell the witness about courtroom etiquette. Don’t chew gum or chewing tobacco, speak up loud and clear, be respectful of the court and other attorney, wait until the question is finished before answering, don’t interrupt any other speaker, dress conservatively, and avoid confrontation with the other party. If you want to bring something to your lawyer’s attention, write it down and pass a note; the lawyer has enough on her plate without having to deal with interruptions.
If an 8.05 statement will be used, go over it with the witness. Test memory about figures and identify any trouble spots. Tips for more effective financial statements and financial testimony are here and here.
Prepare the witness for cross examination. Explain how it works and confront the witness with the most obvious weak points. Suggest ways for the witness to deal with it. Caution the witness about the other lawyer’s typical bag of tricks on cross and offer some strategies to deal with them.
Explain to the witness that he will be nervous when he takes the stand, but so is everyone else who has to get up there.
Explain how hearsay works, and that just about every answer that begins, “He said …,” or “I heard her say …” or “The teacher told me that …”, etc. will elicit a reflexive objection. Recommend ways around hearsay.

A few pointers for more effective chancery trials are here.

There are two kinds of witnesses: the kinds who help your case; and the kinds who hurt it. You want every witness called by you to be in the former category. Witness prep will go a long way toward that end.

TAKING THE FIFTH IN A CIVIL CASE

August 8, 2011 § Leave a comment

It is possible for parties and witnesses to invoke their Fifth Amendment privilege against self-incrimination in a civil suit.

You may have experienced some scenarios, or you can imagine them: A party is asked questions about a possibly fraudulent tax return; there are questions that some of the property accumulated in the course of a business subject to equitable distribution may have been criminally acquired; questions about adulterous misconduct could, conceivably, subject the interrogatee to criminal prosecution.

In the case of Morgan v. U.S.F.& G., 222 So.2d 820 (Miss. 1969), the MSSC set out the ground rules at page 828:

The witness must take the witness stand;
The witness must invoke the privilege on a question-by-question basis;
The claim of privilege is determined by the court, and not by the witness;
An inference may be drawn against the witness.

“The yardstick to be used by the courts in ruling upon privilege in a civil case is whether there is a real and substantial hazard of incrimination resulting from a witness’s answer to a [pleading] or from his testimony in open court … [citations omitted] … The central standard for the privilege’s application has been whether the claimant is confronted by substantial and “real,” and not merely trifling or imaginary, hazards of incrimination … ” (at 830).

The privilege is waivable (at 829). See also, Moore v. Moore, 558 So.2d 834 (Miss. 1990); and Wallace v. Jones, 572 So.2d 371 (Miss. 1990).

Although the attorney may assist and advise the witness, it is the duty of the witness himself to make an affirmative indication to the court that he himself is invoking the privilege. Harrell v. Duncan, 593 So.2d 1, 6 (Miss. 1991).

It is up to the witness to provide the court with enough information for the court to make a determination whether the answer would, in fact, incriminate the witness. Hinds County Board of Supervisors v. Common Cause, 551 So.2d 107, 112 (Miss. 1989). If the court decides that the answer could not be incriminatory, then the witness must answer the question. In re Knapp, 536 So.2d 1330, 1334-5 (Miss. 1988).

There is an anomalous case in Gibson v. Wright, 870 So.2d 1250 (Miss. App. 2004), in which the COA essentially held that a non-party witness could invoke a blanket Fifth Amendment privilege against testifying in a civil trial. You will have to read the decision yourself and draw your own conclusions as to what effect that decision has on the status of Fifth Amendment protections in civil proceedings.

THE “INABILITY TO PAY” DEFENSE

August 4, 2011 § Leave a comment

We talked about the US Supreme Court’s decision in Turner v. Rogers here. In essence, the case mandates in a contempt proceeding that the defendant or respondent be advised that ability to pay is a critical issue in the case, that he or she may use a form (e.g., 8.05 financial statement) to submit the proof, that he or she be afforded the opportunity to offer testimony and responses about ability to pay, and a finding by the court of ability to pay as a prerequisite to finding contempt.

So what exactly is it that a defendant has to show to establish inability to pay?

In Seghini v. Seghini, 42 So.3d 635, 643 (Miss. App. 2010), the court state the outline of the rule:

The court’s power to imprison a person until he complies with the terms of a decree depends on that person’s present ability to comply with the decree. Wilborn v. Wilborn, 258 So.2d 804, 805 (Miss.1972). “Where the contemnor is unable to pay, even if that present inability is due to his misconduct, imprisonment cannot accomplish the purpose of a civil contempt decree, which is to compel obedience.” Jones v. Hargrove, 516 So.2d 1354, 1358 (Miss.1987) (citing Miss. Const. art. 3, § 30). But the defendant has the burden of proving his inability to pay and must make such showing with particularity and not in general terms. Clements v. Young, 481 So.2d 263, 271 (Miss.1985).

In Seghini, the court rejected the claim of inability to pay on the basis that there was no independent corroboration. The defendant had prepared both the business ledger and the tax return upon which he based his defense (Note: I have posted here previously about the ineffectiveness of self-corroboration). Moreover, the proof showed that the defendant was often paid in cash, and that he had successfully paid a significant sum under the temporary judgment, his alleged inability having arisen only after the divorce judgment.

In Clements v. Young, cited above, the defendant offered no proof at all of inability to pay. In fact, his lawyer conceded on the record that his client had an ability to pay.

In Woodfin v. Woodfin, 26 So.3d 389, 393 (Miss. App. 2010), the court upheld a chancellor’s rejection of the defense on the basis that the defendant had failed to provide “particular evidence” of inability to pay. The decision states that it was his burden to prove inability to pay by clear and convincing evidence. The court went on to find affirmatively that he did have the ability to pay, based on his Rule 8.05 financial statement.

Inability to pay must be shown in particular terms. McIntosh v. DHS, 886 So.2d 721, 725 (Miss. 2004), Howard v. Howard, 913 So.2d 1030, 1036 (Miss. App. 2005)

In Howard, the court pointed out that when the defendant discovers his inability to comply with the court order, he must file a petition to modify immediately, and it is not appropriate to find him in contempt after he does so. See also, Setser v. Piazza, 644 So.2d 1211, 1216 (Miss. 1994). The prompt filing of a modification action, however, only precludes a finding of contempt, and does not excuse any arrearage. Thurman v. Thurman, 559 So.2d 1014, 1016-71 (Miss. 1990); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990).

What constitutes particular proof of inability to pay will obviously depend on the facts of the case at hand. Assets available for liquidation should be taken in consideration. See, Doyle v. Doyle, 55 So.3d 1097, 1111-1112 (Miss. App. 2010). The fact that another resident of the household, such as a new spouse, is helping pay household expenses, would be a factor. And evidence that the defendant enjoys a standard of living inconsistent with inability to pay is persuasive.

THE POT OF GOLD AT THE END OF THE RAINBOW

August 3, 2011 § 8 Comments

You have tried a simply sterling case, and now you are ready to cash in on the pot at the end of the rainbow: an award of attorney’s fees against the opposing party. But the judge says, “no attorney’s fees for you.” Where did you go wrong?

I’ve talked about the best ways to approach attorney’s fees here and here. And fees in an estate matter are covered here and here.

In the case of Evans v. Evans, handed down by the COA on April 26, 2011, you can find a pretty concise statement of the law that you need to know when pursuing a claim for attorney’s fees. The decision is unpublished, and can not be cited itself for authority, but Judge Maxwell did such a good job writing an exposition on the subject that I wanted to bring it to your attention. Here are some excerpts from the opinion, paraphrased and supplemented with a couple of notes of mine:

The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982). The appellate courts are reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award. Smith v. Smith, 614 So.2d 394, 398 (Miss. 1993). Except in contempt actions, attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees. Voda v. Voda, 731 So.2d 1152, 1157 (Miss. 1999); Pacheco v. Pacheco, 770 So.2d 1007, 1012 (Miss. App. 2000).

When awarding attorney’s fees, chancellors must make specific findings regarding the recipient’s ability to pay. Hankins v. Hankins, 729 So.2d 1283, 1286 (Miss. 1999). And chancellors should apply the McKee factors in determining the proper amount of the award:

(1) A sum sufficient to secure a competent attorney; (2) the skill and standing of the attorney employed; (3) the nature of the case and novelty and difficulty of the questions at issue; (4) the degree of responsibility involved in the management of the cause; (5) the time and labor required; (6) the usual and customary charge in the community; (7) and the preclusion of other employment by the attorney due to the acceptance of the case. McKee, 418 So.2d at 767 (internal citation omitted).

Our supreme court has held that “[a] trial court abuses its discretion by awarding attorney’s fees without first finding that the party is unable to pay the fees.” Hankins, 729 So.2d at 1286.

The chancellor must also consider the paying party’s financial situation. Where neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate. Sarver v. Sarver, 687 So.2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.2d 157 (Miss. 2000); see also Bell, at § 12.01[6] [b] (explaining that the chancellor should consider the parties’ financial disparity).

In addition, an award of attorney’s fees must be supported by sufficient evidence for an accurate assessment of fees. See McKee, 418 So.2d at 767 (reversing and remanding award based on insufficient evidence); Powell v. Powell, 644 So.2d 269, 276 (Miss.1994) (same). An itemized bill is not always required. Estimates may support an award in some circumstances if the estimates clearly explain “the method used in approximating the hours consumed on a case.” McKee, 418 So.2d at 767; see also Watkins v. Watkins, 748 So.2d 808, 813 (Miss. App. 1999). A chancellor’s failure to apply the McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So.3d 84, 87 (Miss. App. 2009), the proof must at least support an accurate assessment of fees under the McKee criteria. Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss. 1985).

Attorney’s fees are properly assessed against a party found to be in contempt. Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993). A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action. Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006).

As for parentage cases, MCA § 93-9-45 provides that the “cost of the legal services of the attorney representing the petitioner … shall be taxed against the defendant.”

If you expect to be successful on a claim for attorney’s fees, you have to prove:

That your client is entitled to an award. In contempt and parentage cases, the adjuducation of contempt or parentage will do the trick. In all other cases, you will have to show inability of your client to pay;
Each of the McKee factors;
Quantification of the fees by showing the time and effort expended;
That the party you want to pay has the ability to pay.

Too many times I see attorneys put on a mere modicum of proof on the issue of getting paid. That’s a shame. Your client would appreciate it to no end if you found your pot of gold at the end of the other party’s rainbow.

THE INTERNET AND THE UNAUTHORIZED PRACTICE OF LAW

August 1, 2011 § 3 Comments

It’s no secret that I am at least dubious about the efficacy and advisibility of lay persons representing themselves in court. My distaste for the practice rests primarily on the fact that most often it results in self-inflicted harm. Secondarily, I am concerned that lay litigants are unencumbered by any ethical or professional obligation of candor to the court and fair dealing with the other party.

Many lay-lawyers download forms from online vendors. The purveyors of these forms claim that they enable lay people to handle their own routine legal matters for less money than it would cost them to pay a lawyer.

My problem with that approach is two-fold:

First, how does a layperson decide that a legal matter is routine without some advice? How does a layperson know what the hidden pitfalls are if she has no one but a form to ask? Sure, she can check box A on the computer-downloaded form, but would box B be far more advantageous?

Second, is not the providing of legal forms in itself providing legal representation? The Mississippi Supreme Court answered the question in the case of Mississippi Commission on Judicial Performance v. Jenkins, 725 So.2d 162, 167 (Miss. 1998), in which the court stated:

” This Court defined the practice of law to include ‘… the drafting or selection of documents, the giving of advice in regard to them, and the using of an informed or trained discretion in the drafting of documents to meet the needs of the person being served. So any exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession. Oregon State Bar v. Security Escrows, Inc., 233 Or. 80, 377 P.2d 334 (1962).’ Darby v. Mississippi State Bd. of Bar Admissions, 185 So.2d 684, 687 (Miss.1966).”

There is a class action lawsuit pending in Missouri raising the issue of unauthorized and inadequate practice of law by Legal Zoom, an online seller of legal advice via forms. The thrust of that lawsuit is that the company’s activities are inherently harmful to consumers because they violate the state’s public policy against unauthorized practice of law, which protects consumers. The trial judge has already overruled the company’s motion for summary judgment, and the company is mounting an ad campaign in the state to scare people into believing that their right of self-representation is under threat, and that lawyers are out to get their money.

We have seen our share of Legal Zoom-type documents and other internet lawyers in this district, but that’s not by any means all. We have shadowy individuals in the area who sell “secretarial services” in the form of complaints for irreconcilable differences divorces, PSA’s and judgments. Those clerk-typists are beyond a reasonable doubt unqualified to give legal advice. So what possibly qualifies them to prescribe the forms appropriate for a person’s legal problems, and to determine the appropriate content?

Caveat emptor, you might say. I answer: bull. Neither the legal profession nor the courts should countenance unqualified persons preying on unsuspecting laypeople. I wonder what the state bar and the district attorneys are doing to rein this in? After all, there is a state law making it a crime to practice law without a license.

As I have said before, I am all for self-representation. But I hate to see self-destruction. And I hate even more to see someone on the path to self destruction believing that they are protected by a piece of paper they bought off the internet or from a “secretarial service” with no legal advice to back it up.

This is not all about protecting lawyers or making it easier on the judges. This is all about making sure that the legal process produces as fair a result as possible, and that all who are involved in it deal with each other and the court with integrity and are fully informed of their rights and the ramifications of their actions.

WHEN IT COMES TIME TO BAIL OUT

July 28, 2011 § 5 Comments

Sometimes it happens that you find it necessary to withdraw from representing a client. Maybe an ethical dilemma has reared its head. Or perhaps you and your client have developed irreconcilable differences. Or it could be that your client has not met the terms of the employment contract as to cooperation or payment or in some other way.

Once you have entered an appearance in a case, you are in it until the court lets you out. You may not avoid responsibility simply by not participating further. So when the need arises, how can you make an effective exit?

Uniform Chancery Court Rule (UCCR) 1.08 provides: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”

In other words, it’s not good enough to get an agreed order signed by counsel opposite and present it to the judge. Nor is it adequate to get your client to sign off on an order.

Here is what you have to do, step by step:

File a motion to withdraw. Set out a general statement of your reason without compromising the interest of your client in the litigation.
File the motion and send a copy of it with certificate of service to opposing counsel and the client.
Notice the motion for hearing.
If your client and opposing counsel will sign an agreed order allowing you to withdraw, present it to the court for entry.
If either your client or opposing counsel, or both, object, hold a hearing and ask the court to rule on your motion.

Several caveats:

If the case is set for trial, most chancellors will allow you to withdraw only in the most urgent and exigent circumstances.
No chancellor will allow you to withdraw if to do so will seriously prejudice your client.
You may not withdraw in any probate matter unless there is an attorney who will substitute for you. UCCR 6.01 requires that the fiduciary retain an attorney, unless the fiduciary is a licensed attorney.
Be general in stating a reason. Okay: “The undersigned attorney and the plaintiff have differences of opinion about handling this case that can not be resolved.” Not okay: “My client has filed three bar complaints against me and has retained counsel to sue me for malpractice, and I have reason to believe he is concealing assets from the court.”
Don’t include any language in your order that absolves you of any responsibility for anything you did in the case, or approves everything you did; that’s overreaching. You may state that you are relieved of all further responsibility from and after the date of the order allowing withdrawal.
Many chancellors will not permit you to withdraw if the only basis is non-payment of fees. Their rationale is that you took on a professional duty to represent the client when you entered an appearance, and that duty is higher than your desire to be paid.

PLEADING THAT WHICH MUST BE PLED

July 26, 2011 § 2 Comments

If you will read the statutes that apply in your case, you will find exactly the language you need to plead a proper claim and lay out jurisdiction and venue. It’s right there in the code. The closer you adhere to the statutory language, the more likely it is that your complaint will withstand an MRCP 12(b)(6) motion.

For example, in a divorce case, you must plead all of the following: either one or more grounds set out in MCA §93-5-1, and/or irreconcilable differences as in MCA § 93-5-2; and proper venue as in MCA § 93-5-11; and that one of the parties meets the residence requirement of MCA § 93-5-5. All of the language you need to do that is right there in the statutes for your penalty-free plagiarization.

As a side note, many older chancellors through the years required the complaint to quote the language of the residency statute for divorce that, ” … [plaintiff] has been an actual bona fide resident within this state for six (6) months next preceding the commencement of this suit.” If you varied by a single word, you had pled yourself out of court. There may still be chancellors adhering to that practice. Whether your chancellor does or not, you can’t go wrong tracking the language of the statute.

Some lawyers copy other lawyers’ pleadings. That’s fine as long as the copied pleadings are adequate. Several years ago a few new lawyers used pleadings filed by a weathered, older lawyer as their template. You could tell because they slavishly replicated the older lawyer’s misstatement that “Plaintiff is entitled to a divorce from the defendant on the ground of habitual cruel and inhuman treatment as codiciled in Section 93-5-1, MCA.” If you’re going to copy, at least put some thought into what you’re doing.

The MRCP offer another source of pleading material. For instance, if you will read Rule 57, you will find every word you need to plead to obtain a declaratory judgment. Same with Rule 56 summary judgment. Same with Rule 65 for temporary restraining orders, temporary injunctions, and preliminary and permanent injunctions.

In modification of custody cases, you will be out of court on your ear unless you plead specifically in your petition that (1) there has been a material change in circumstances that (2) is having or has had an adverse effect on the minor child(ren), and (3) that it is in the best interest of the child(ren) to change custody to your client. McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002). Note that in McMurry, the petitioner had pled only a material change justifying modification. The respondent moved to dismiss for failure to state a claim at the outset of trial, and the judge even prompted counsel that the word “adverse” was absent. The judge dismissed the pleading with leave to amend, and counsel for petitioner moved ore tenus to amend to add the language that an adverse effect would occur if modification were not granted. At that point, the chancellor found the pleadings insufficient as a matter of law and dismissed with prejudice. The COA affirmed.

As McMurry illustrates, faulty pleading will cause nothing but trouble. And it can be fatal. Look what happened there: the judge granted leave to amend as is prescribed in MRCP 12(b), but when counsel failed to fix the problem by amendment, the judge took the case off of the respirator and it died.

What if counsel for the respondent had said nothing about the adequacy of the pleadings before trial, but then had objected to every question about any adverse effect on the basis that it had not been pled? I saw that on more than one occasion when I was in practice, and the judge always sustained the objections, effectively gutting the petitioner’s case, or, more accurately, letting it gut itself. If you’re in that situation and you’re not too discombulated to think clearly, you might try making a Rule 15 motion for leave to amend. Maybe the judge will let you off the hook. At least you will have it in the record.

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