UPDATED CHECKLIST OF CHECKLISTS
May 27, 2011 § 5 Comments
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is an updated list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
WHERE IS THE BEST PLACE TO HIDE SOMETHING FROM A LAWYER? [HINT: IT’S IN THE RULES]
May 11, 2011 § 4 Comments
When you file an objection to a subpoena duces tecum, do you still need to produce the things sought under seal? Do you need to track down a judge for an emergency hearing on the objection? What do you need to do to protect your client after you file the objection?
Nothing. MRCP 45(b) allows the objection to stop the process until the party issuing the subpoena takes further action. It’s right there in the rule, in black and white.
This particular operation of MRCP 45(b) is the subject of an informative post by Anderson, who was apparently faced with the task of educating three other lawyers on the point. Philip Thomas follows up on his blog with notes about a couple of other nuances of the same rule that you should know about. I would repeat them here for you, but that would only make you less likely to look at the rule yourself, which would only punctuate Thomas’s point that most lawyers do not bother to read the rules.
Lawyers do not bother to read the rules. One of my pet peeves. Just the other day I had a lawyer in my office who proudly produced proof of certified mail service of process on a state department. No one appeared for the defendant agency. That may be, I pointed out, because MRCP 4(d)(5) requires process “Upon the State of Mississippi or any one of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.” Really? Didn’t know that.
In my elementary school days, I had as a teacher a vicious nun who would rap you in the back of the head with a ruler if you didn’t tow the line. One thing she made us do was to keep an open dictionary on the desk before us as we read a book. Every time we encountered an unfamiliar word, we were required to look up the word or have inch-marks imbedded in our scalps. At first I complied to avoid the pain. Over time, however, I found myself doing it voluntarily, and by the time I reached high school age, I had amassed quite a vocabulary.
Maybe as a lawyer you should keep your rule book on your desk — open — and every time you have to issue process, or file a motion to compel, or file a counterclaim, or a 12(b)(6) motion, you can glance at the rule and refresh your recollection. And if you really want to make an impression, you could rap yourself in the back of the head with a ruler every time you fail to do it. Okay, I’m kidding about that last part.
Of course, my point applies to the statutes and cases, too. How often do you glance back at the applicable statute before you file that petition to sell property in an estate, or close a guardianship? How often do you go back and re-read exactly what it was the supreme court said in Riley v. Doerner before you try that custody modification, or Ferguson before you try that equitable distribution case?
I am convinced that the most significant difference between the good lawyers and the mediocre-to-poor ones is that the good lawyers take time to try to do it right, making sure they know the rules, statutes or cases behind what they are doing. Which category will you place yourself in?
THAT CERTAIN “JE NE SAIS QUOI”
May 10, 2011 § 2 Comments
If you’ve ever tried a case with a LEP, you know just how excruciatingly difficult it can be without the right help. Excuse me? You don’t know what a LEP is? Well, a LEP is neither contagious nor a Biblical outcast. LEP is jargon for a person who has Limited English Proficiency. That is, they have trouble speaking and understanding English, which, naturally, is quite an impediment in a Mississippi court.
In my experience practicing law, I tried a number of cases in Choctaw Tribal Court where every case involved one LEP, and sometimes a full cast of LEP’s. You would ask a question and the designated interpreter would repeat the question in Choctaw to the witness. The interpreter would listen studiously as the witness droned on in reply for several minutes, whereupon the interpreter would say earnestly, “He said no.” I have always suspected that something had been lost in the translation.
I tried a memorably hilarious case once against a local attorney who later gave up the law to become rich as a stockbroker, probably in no small part due to this case. My client was a more or less LEP European-trained, ethnic Chinese physician from Indonesia, and the opposing party was a completely LEP Chinese PhD student from Beijing who was studying at the University of X___g__n__c__ao (I never got that one straight, which I guess makes me a LCP). She had come to this country to attempt a reconciliation with her husband, my client, but the attempted reconciliation unhappily failed, propelling them to court that day for a temporary hearing. Our “translator” spoke and understood one particular strain of Chinese, and neither party spoke or understood the same strain. To compound the comedy, it was the court reporter’s first, nervous day on the job — straight out of the Ole Miss court reporting school. She almost broke down in tears when my client was asked where he graduated from medical school, and in his proudest Chinese-flavored German, he responded “Heinrich Heine Universität, Universitätsklinikum, Düsseldorf, Chermany.” Who wouldn’t be proud of that? We stumbled along until the trial’s dramatic crescendo, which occurred when the opposing party futiley tried repeatedly to describe how her piece-of-junk car would not work. She finally blurted out in LEP exasperation, “Cah no vroom,” while twisting her right hand in a key-in-ignition fashion. We all pretty much understood that, LEP or no LEP. In fact, it was the most understandable thing any witness or interpreter said that day.
All of which brings me at last to my point. The Administrative Office of Courts (AOC) is seeking comments on proposed rules for use of interpreters in the courts. The goal is state-wide credentialing of certified interpreters, with a roster available for all chancery, circuit, county, youth, municipal and justice courts, as well as grand juries. You can access the announcement and links here. As for the philosophy behind it, AOC said:
“It is essential that any communication barrier be removed, as far as possible, so that these limited English proficiency (LEP) individuals are placed on equal footing with similarly situated persons for whom there is no such barrier. Interpreters are highly skilled professionals who fulfill an essential role in the administration of justice. As officers of the court, interpreters help assure that LEP individuals enjoy equal access to justice and that court proceedings and court support services function efficiently and effectively.”
Translation: “We need qualified interpreters when we have persons in court who do not speak or understand English well.”
Based on my years in chancery court, I am wondering whether we need also to have interpreters for our own fellow citizens who do not speak any recognized foreign tongue, but are LEP’ed in their ability to speak or understand plain English. But I guess that’s a project further down the road, to be tackled after we have dealt with the aliens in our midst.
TENDER YEARS DOCTRINE CONTINUES TO WANE
May 9, 2011 § 4 Comments
It is an ancient principle embedded in Mississippi family law that if the mother of a child of tender years – especially a female – is fit, then she should have custody. Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Johns v. Johns, 57 Miss. 530 (1879). The principle came to be known as the “tender years doctrine,” and over time it grew into a rule, eventually extended into to the generally-accepted wisdom that the mother was favored in child custody disputes.
As late as the 1980’s, the tender years doctrine exerted its hegemony. One example is the remarkable case of Buntyn v. Smallwood, 412 So.2d 236 (Miss. 1982), in which the supreme court reversed a chancellor’s denial of a mother’s modification of custody where the mother had remarried and stabilized her situation and the father, who had custody from the divorce, worked offshore. From the opinion, it appears that the father’s work situation had not changed at the time of the modification, but the mother’s situation had improved. A Kramer vs Kramer-type situation, for sure. The case illustrates just how strong a magnetic force the tender years doctrine exerted on our jurisprudence.
An early chink in the doctrine’s armor appeared not long after Smallwood in the case of Cheek v. Ricker, 431 So.2d 1139, 1145 (Miss. 1983), where the court stated that ” … it hardly seems rational that the age of a child should per se lead to any particular result.”
Then came Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), which enunciated the rule that the polestar consideration is the best interest of the child, and that a factor such as the age of the child was to be weighed along with other specified factors against what would be in the child’s best interest. Even Albright, however, expressly rejected the idea that the tender years doctrine should be discarded.
In the years since, the doctrine has weakened further. In Mercier v. Mercier, 717 So.2d 304, 307 (Miss. 1998), the court held that a child is no longer considered to be of tender years when it can be cared for by others. In Copeland v. Copeland, 904 So.2d 1066, 1075 (Miss. 2004), the supreme court upheld the decision to award custody of a two-year-old boy to his father. In Lee v. Lee, 798 So.2d 1284, 1289 (Miss. 2001), the court stated that a child four years of age was no longer of tender years. In Torrence v. Moore, 455 So.2d 778, 780 (Miss. 1984), the court found that a seven-year-old child was “long past” tender years.
In 2000, MCA § 93-5-24 was amended to add this language as subsection (7): “There shall be no presumption that it is in the best interest of a child for the mother to be awarded either legal or physical custody.”
Most recently, on May 3, 2011, the doctrine continued its fade in Kimbrough v. Kimbrough, at ¶ 37-38, where the COA upheld the chancellor’s finding that the Albright factor of the “Age, health and sex of the child” favored neither party. The judge found that the parties’ five-year-old daughter was not of tender years and awarded custody of the child to the father. The mother argued that the child was of tender years, and that she should have been favored. The COA rejected her argument and upheld the chancellor’s award.
If the tender years doctrine is not dead, it is at least moribund. If you are still advising your clients that the mother is favored in custody actions, you need to do a little reading and re-examine your position. Custody will be awarded to the fit parent who prevails on the Albright factors.
MC LAW HITS A HOME RUN
May 6, 2011 § 1 Comment
Kudos to the MC Law School for a project that is a significant contribution to the bench and bar in Mississippi.
Click on this link to access the Mississippi College Judicial Data Project, an impressive site where you can access information about Mississippi appellate cases, including:
- Videos of oral arguments. Currently on the supreme court web site, only recent arguments can be accessed, and they are taken down to make room for more current sessions. The MC web site will archive all those arguments, so that you may view them. Imagine being able to learn the kinds of questions and interaction with the court that you can expect in a similar case, or to observe the kinds of inquiries that your same panel has made in other cases.
- Briefs. You can get copies of briefs in .pdf format to download, print and use. This is the kind of information that has been only accessible through costly online legal research programs that many lawyers can not afford. Briefs can help you with your own appeals and even serve as a resource for your trial work.
- Statistics. Through a sophisticated search engine offering more than 30 search options, you can research questions such as: how many times has Justice Kitchens concurred with Chief Justice Waller?; or how many trials presided over by Chancery Judge David Clark in Scott County have been affirmed by the court of appeals?; or even how many summary judgment rulings by Chancellor Jerry Mason have been affirmed by the court of appeals but reversed and remanded by the supreme court? The results are returned in the form of a table listing the decisions reflecting the response, and the cases listed can be accessed by clicking on the case name. It’s an incredibly agile and sophisticated program that yields detailed, accurate results.
The project is in the process of being updated. The video archive is current from 2004 to 2011. The brief archive is current from 2007 to 2011. The statistics are current from 2007 to 2011. The goal is to take all of the accessible information back through 2000.
There are several other pages of information that you might find useful.
Mississippi College School of Law deserves a round of applause for this powerful and useful addition to the array of Mississippi trial and appellate resources.
DISCOVERY AND THE UCCR
May 2, 2011 § Leave a comment
The MRCP sets out the rules that establish discovery in our courts.
Just as important as the MRCP are the Uniform Chancery Court Rules (UCCR), where some critical discovery provisions reside. UCCR 1.10 provides:
A. All discovery must be completed within ninety days from service of an answer by the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension. Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.
B. When responding to discovery requests, interrogatories, requests for production, and requests for admission, the responding party shall, as part of the responses, set forth immediately preceding the response the question or request to which such response is given. Responses shall not be deemed to have been served without compliance to this subdivision.
C. No motion to compel shall be heard unless the moving party shall incorporate in the motion a certificate that movant has conferred in good faith with the opposing attorney in an effort to resolve the dispute and has been unable to do so. Motions to compel shall quote verbatim each contested request, the specific objection to the request, the grounds for the objection and the reasons supporting the motion.
I have enforced that 90-day deadline whenever asked to do it. It’s there, and it’s enforceable. It’s also there to expedite litigation, which is almost always a good thing for the litigants.
As for the 60-day requirement for disclosure of experts, I posted about it here.
I’ve noticed some younger lawyers in our district not complying with 1.10(B). To save yourself some trouble, get counsel opposite to email the discovery requests to you so that you don’t have to retype them.
Week before last I had a motion to compel presented that did not repeat the discovery request or response. Let me assure you that it is always counterproductive to put the judge to unnecessary inconvenience and trouble, particularly when you have not complied with the clear requirement of the rules.
SURREBUTTAL SURVIVES
April 28, 2011 § Leave a comment
Not long ago an attorney asked to be allowed surrebuttal. I refused the request and quipped that surrebuttal had been deep-sixed by the MRCP.
I was wrong. About the MRCP, anyway.
Actually, the MRCP does not even mention surrebuttal. I do remember a discussion about surrebuttal in the various seminars we had around 1982-3 in preparation for the effective date of the “new” rules. The common wisdom in those sessions was that the old practice in chancery for liberal surrebuttal was going away. In the ancient, pre-rules days it was common practice to get trampled by an older lawyer who was invariably afforded one or even more “surrebuttals” that he used skillfully to repair whatever damage you had done or points you had scored in your examination of a witness.
After the new rules went into effect, that practice thankfully died out in our district, and every other one where I set foot, and since then one rarely hears requests for surrebuttal — as on that day in my court not long ago.
The matter is covered by UCCR 3.02, which provides in part:
The examination of witnesses shall be limited to the direct examination, the cross-examination, and the redirect examination concerning matters brought out on cross-examination. Counsel for either party may be permitted, on request, to inquire about new matters pertinent to the issues which may have been inadvertently omitted. Opposing counsel may also inquire concerning the same matter.
There you have it. It’s what we used to call surrebuttal.
Nowadays it arises mainly in situations where the court allows evidence in over the objection that the question is “outside the scope of rebuttal.” In McGaughy v. State, 742 So2d 1091, 1094 (Miss. 1999), the court said, “Where there is doubt as to whether the evidence is properly case-in-chief or rebuttal evidence, the trial court should resolve the doubt in favor of reception in rebuttal if: (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.”
It is error to permit the introduction of case-in-chief evidence in rebuttal where the evidence clearly should have been offered in the case in chief. Hosford v. State, 525 So.2d 789, 791-92 (Miss. 1988). But where it is not clear, introduction is within the discretion of the trial judge and will be reversed only if the decision is found to be arbitrary and capricious. Smith at 1095.
After the court has allowed in the testimony, you may request further questioning under UCCR 3.02.
To preserve the point for appeal, you need to object timely when your opponent offers evidence in rebuttal that should have been offered in the case in chief. If the court overrules the objection, ask immediately for surrebuttal or explain to the court why you will be unable to meet the evidence and how it will prejudice your client.
In the case in my court, I did not see that surrebuttal was necessary or desirable to meet anything offered in rebuttal, but it’s an interesting point that arises rarely in chancery court.
DEALING WITH DISCOVERY GAMESMANSHIP
April 26, 2011 § 8 Comments
One of the most frustrating aspects of litigation is the gamesmanship that many lawyers employ in discovery. If you’ve practiced even a short time, you are acquainted with the repertoire: Late or no answers; failure to supplement; supplementation on the eve of trial; all-encompassing objections; evasive answers; and on and on.
Philip Thomas blogged about the COA’s decision last week upholding a circuit court decision dismissing the City of Jackson’s pleadings for a discovery violation, and followed up with a post highlighting how inconsistent the appellate courts have been in discovery violation cases.
What is the best strategy to cope?
In my experience, most attorneys are too accommodating when it comes to discovery. You don’t want to press too hard because “what goes around, comes around.” You call the other attorney who promises the answers “in a few days,” and that stretches into a few weeks and months. You hate to file a motion because you don’t want to be disagreeable. The common thread is that these approaches are absolutely ineffective.
If you’re going to get the information you need, you’re going to have to be proactive and make a record. Here’s what I suggest:
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Set a hearing to address all those objections. Make the judge rule on each and every one of them. Rulings by the judge on the timing and sequence of discovery are discretionary, but her rulings on those objections will be matters of law second-guessable by the appellate courts. If the judge overrules the objections, you may reap a bonanza of information, and you have disabled your opponent from using them against you at trial. Remember: if you don’t make a record, you can’t complain about it on appeal.
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If you’re going to agree to extend discovery deadlines, get a court order. Insist on an agreed order documenting the new deadline and any other terms you and counsel opposite agree on. You can’t enforce an order you haven’t got, and the record does not reflect a handshake deal. Make your record.
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Send a good faith letter. UCCR 1.10(c) requires a certificate that you have made a good faith effort to resolve any discovery conflict with opposing counsel before you can be heard on a motion to compel. Mention in your letter that if you are unable to reach an agreement you will have no choice but to file a motion.
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File that motion. Go ahead and do it. File your motion to compel. You are making your record. You can reach an agreement to give more time, or whatever, but don’t wimp out of a hearing unless you get what you need. Some lawyers consider this approach “ungentlemanly.” But your duty to your client comes ahead of being properly gentlemanly. I always considered it more ungentlemanly to play discovery games than to fight them. This does not mean, by the way, that you should be an aggressive a**h**e. It does mean that you need to be assertive and firm, standing your ground for the best interest of your client.
In my years of practicing, I often ran across chancellors who found discovery disputes distasteful. They made you feel as if you were wasting their time. My strategy in dealing with them was to treat it like business and make a record. You’re there to represent your client, not to impress the judge.
Don’t be afraid to be proactive in discovery. It can make or break your case.
A POTPOURRI OF POINTS
April 21, 2011 § 2 Comments
Every now and then a case comes tumbling down from the appellate stratosphere that is remarkable not so much for the law of that particular case, but rather for the cascade of legal nuggets it unearths that one can mine and tuck away for future profitable use. Such is Jernigan v. Young, handed down by the COA on April 19, 2011.
Samuel Jernigan and his wife Mae Bell were married in 1997. Two years later, Samuel conveyed a .38-acre tract of land to Mae Bell by quitclaim deed. He had filed for disability and was under the mistaken belief that if the land were no longer in his name his chances of a favorable ruling would improve. Samuel claims that he and Mae Bell had an oral agreement that she would convey the property back to him. There was no writing evidencing the alleged agreement.
In 1998, Mae Bell conveyed the property to her daughter Amy. It is not disclosed in the record whether Samuel was aware of the transaction.
In 1999, Samuel and Mae Bell decided to get a divorce on the sole ground of irreconcilable differences. They proceeded pro se using fill-in-the-blank forms. In one of the blanks designated to identify what property would belong to each party appeared the handwritten notation “none.”
Four days after the divorce judgment was entered, Samuel filed a document styled “Withdrawal of Consent” and asked that the divorce be set aside. He also filed a Complaint for Divorce and a pleading asking that the deed to Amy be set aisde, all of which were consolidated. The case sat idle for seven years until Amy filed for summary judgment. The chancellor granted summary judgment, which the COA affirmed.
Here are the nuggets from Judge Griffis’ opinion:
- “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce … What is important is that the agreement be validly expressed on the day that the chancellor is considering the issue.” Sanford v. Sanford, 749 So.2d 353, 356 (Miss. App. 1999); Harvey v. Harvey, 918 So.2d 837, 839 (Miss. App. 2005).
- Relief under MRCP 60(b) requires a showing of “exceptional circumstances.” In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 416 (Miss. App. 2008).
- No hearing or testimony is required to validate a divorce on the ground of irreconcilable differences. MCA § 93-5-24(4). In an irreconcilable differences divorce the parties “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.” Perkins v. Perkins, 737 So.2d 1256, 1263 (Miss. App. 2001).
- Although MCA § 93-5-2(2) requires the chancellor to determine whether the parties’ agreement in an irreconcilable differences divorce is “adequate and sufficient,” that is not a “magic phrase,” and its absence in the divorce judgment approving the agreement is not a ground for reversal. Cobb v. Cobb, 29 So.3d 145, 149 (Miss. App. 2010).
- It is not in and of itself reversible error for the chancellor not to require financial disclosure via UCCR 8.05 financial statements in an irreconcilable differences divorce. St. Germain at 417-418. Where the lack of disclosure allowed a spouse to conceal major assets, however, it could amount to reversible error. Kalman v. Kalman, 905 So.2d 760, 764 (Miss. App. 2004).
- An inter vivos deed of gift need not be supported by separate consideration. Holmes v. O’Bryant, 741 So.2d 366, 370 (Miss. App. 1999). “A man of sound mind may execute a will or deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even whim or caprice.” Herrington v. Herrington, 232 Miss. 244. 250-251, 98 So. 2d 646, 649 (1957).
- MCA § 91-9-1 requires that any trust in land must be in writing signed by the person declaring or creating the trust, or it is void. The court may impose a constructive or resulting trust on land in the absence of a written agreement, provided that certain criteria are present. Simmons v. Simmons, 724 So.2d 1054, 1057 (Miss. App. 1998).
And the most important point of all: You get exactly what you pay for when you get a do-it-yourself divorce without benefit of legal counsel.
SEASONAL VARIATIONS IN INCOME
April 18, 2011 § 1 Comment
One of the vexing questions in child support cases is how to treat seasonal variations in income.
Let’s say your client is a salesman who brings home only $2,000 per month eleven months out of the year. Every December, however, he receives a bonus that has averaged $10,000 a year over the past ten years. What can you tell him to expect about child support for his two children?
What you have here is a seasonal variation in income. For ten months guideline child support would be $400 per month, and for one month it would be $2,000.
How should you ask the court to address it?
I have heard attorneys argue that the bonus should not be counted because the client is never automatically entitled to a bonus, and he might not get it. That argument usually does not fly because of the all-encompasing language of MCA § 43-19-101 (3)(a), which defines income for child support purposes. Consider the following case:
In Alderson v. Morgan ex rel. Champion, 739 So.2d 465, 466 (Miss. App. 1999), the chancellor had based his adjudication of modified child support on total yearly income, including the bonus, divided by twelve. Using the figures above, the total yearly income, then, would be $34,000, which produces adjusted gross income of $2,833. The resulting child support would be $566. In effect, the chancellor’s decision spread the bonus over the entire year. On appeal, the court of appeals rejected the father’s argument that it was improper for the trial court to base child support on anticipated income. The court noted that it was proper in that case for the chancellor to assume the bonus based on a one-year history of a bonus.
In the alternative, you could ask the court to find that the seasonal variation in income rebuts the presumption that the guidelines are applicable, and that the court should not apply the guidelines to all twelve months equally. Your authority is MCA § 43-19-103(d), which specifies “seasonal variations in one or both parents’ income or expenses” as authority for the ccourt to find that it would be unjust or inappropriate to apply the guidelines. Applying that statute to our scenario, you could propose that the court order $400 for eleven months and $2,000 in December.
What if the bonus that you are asking to except from the guidelines varies? Say your client receives $10,000 in most years, but has gotten as little as $5,000, and has averaged $8,000. Logic would dictate that you could suggest a 20% figure of whatever the amount of the bonus might be, but the appellate courts have frowned on percentage child support. Why not propose a hybrid amount for the bonus month that would be 20% of the actual bonus, but not less than 20% of the average. In other words, you would be asking the court to rule that child support would be “Twenty percent of the actual adjusted gross income received from the bonus, or $1,600, whichever is greater.” That gives the court an actual, minimum figure to enforce, and allows the parties some leeway to bring the matter to the court if there is a dispute as to the amount.
The Better Chancery Practice Blog 