“A DEPOSITION IS NOT A TAKE HOME EXAMINATION”

February 22, 2011 § Leave a comment

Has this ever happened to you?  You suffer through a stupefying day of depositions of the opposing party and his witnesses, and you receive the signed, sworn copies, only to discover that the witnesses have used the errata sheets to rewrite their testimony.  The points you thought you had conclusively nailed down are now unnailed. 

In the recent case of Hyundai Motor America v. Applewhite, the supreme court ruled that defendants were entitled to a new trial because plaintiffs’ expert had used the errata sheet to revise the formulas he had relied on to make the calculations upon which his opinion was based in the deposition.  Defendants argued that they had never received the errata sheet, and that they were surprised by the changed testimony at trial.  The supreme court opinion stated at ¶ 34:

 “The trial judge did not make a factual finding as to when Hyundai became aware of the contents of Webb’s errata sheet, but such a finding is unnecessary and irrelevant to our analysis. Even if Hyundai did receive the errata sheet, simply giving the defendant this document did not relieve the plaintiffs of their duties under Mississippi Rule of Civil Procedure 26(f). The purpose of an errata sheet is to correct scrivener’s errors or provide minor clarification; it is not a means of making material, substantive changes to a witness’s testimony. See e.g., Garcia v. Pueblo Country Club, 399 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“A deposition is not a take home examination.”) If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to amend or supplement the response. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 916 (Miss. 2002). This is the responsibility of the party or parties sponsoring the witness, not the responsibility of the witness.”

This decision is a welcome clarification.  It’s frustrating when you think you have covered all the bases in your depositions only to find that you are back at the beginning.  This decision removes an element of gamesmanship from discovery. 

     

THE LATEST ON ROBINSON V. BROWN

February 16, 2011 § 4 Comments

The COA case of Robinson v. Brown, handed down January 25, was the subject of a previous post in which I alerted chancery lawyers that the case appeared to change the law that post-trial motions were not required in chancery court to preserve error for appeal.  I also pointed out that MRCP 52(b) specifically excepts non-jury trials from the post-trial motion requirement. 

In the COA’s handdowns on February 15, this entry appeared: 

EN BANC

2009-CA-01599-COA

Mary Elizabeth Brown Robinson v. Paul Arthur Brown

Lee Chancery Court; LC Case #: 02-0518(41)H; Ruling Date: 08/06/2009; Ruling Judge: John Hatcher; Disposition: The Court on its own motion stays the mandate and grants rehearing. Order entered.

Is the COA going to circle back to where we were pre-January 25?  Stay tuned.

PAY ATTENTION TO JURISDICTION AND VENUE FOR DIVORCE

February 15, 2011 § Leave a comment

Before a Mississippi Chancery Court can consider whether to grant a divorce, it must make four fundamental findings:

  1. That the parties were married to each other (subject matter jurisdiction);
  2. That the parties are properly before the court by process and notice (personal jurisdiction);
  3. That the action is filed in the appropriate county (venue, also called “venue jurisdiction”); and
  4. That at least one of the parties meets the statutory residency requirement, and that residence in Mississippi was not obtained in order to get a divorce. 

These are commonly referred to as the “jurisdictional facts,” and you can not even get to address whether there are grounds, or equitable distribution, or any other divorce issues unless the jurisdictional facts are established in the record.

If you are in doubt about the proper venue of your action, consulting MCA § 93-5-11 will give you the answer. 

All of the above may appear elementary to you, but it is astonishing to me how many contested divorce cases I see presented where neither attorney establishes even one or more of the jurisdictional facts, and there are many where none of them are mentioned.  In some cases, I have invoked MRE 614(b) to get the information myself into the record; after all, if I lack subject matter jurisdiction or venue is improper any action I take is void, and if I lack personal jurisdiction any action is voidable.

Remember that your pleadings are not evidence.  Just because you pled it does not put it into the record.  If you don’t establish jurisdiction on the record so that the judge’s finding of jurisdiction is supported by evidence, you are leaving your client’s judgment vulnerable to attack by the disgruntled other party.

WHAT IS YOUR DUTY TO THE COURT WHEN YOU HAVE CONTACT FROM THE OTHER SIDE?

February 14, 2011 § 1 Comment

You have filed a Complaint for Divorce for your client, and thirty days have elapsed with no answer being filed by defendant. Your client wants you to get this over with, and has been calling and asking when you plan to present his case to the court. Only problem is you received a letter from another attorney the day after the defendant was served with process. The letter says that she wants to settle, and if no settlement can be reached, she intends to defend. Since that letter, though, you haven’t heard anything further.

What do you do? Can you present the case as an uncontested divorce? Do you have a duty to tell the court about the letter?

The facts above are close to those in Holmes v. Holmes, 628 So.2d 1361, (Miss. 1993), in which the Mississippi Supreme Court reversed a chancellor’s refusal to set aside an uncontested judgment of divorce in those circumstances. The supreme court stated:

“In the case at bar, Mrs. Holmes promptly contacted an attorney. Her attorney wrote her husband’s attorney and informed him that Mrs. Holmes was represented by counsel and that she wished to settle the case if possible; however, he made clear Mrs. Holmes’ intent to defend the suit should no settlement be reached. With knowledge of this letter, Mr. Holmes’ attorney nevertheless proceeded to secure a divorce by default against Mrs. Holmes. In this regard, his conduct suggests gamesmanship. In the Comment to M.R.C.P. 1, it is stated that “properly utilized, the rules will tend to discourage battles over mere form and to sweep away needless procedural controversies that either delay a trial on the merits or deny a party his day in court because of technical deficiencies.” Conversely, improper utilization of the rules invariably results in the type of gamesmanship and ambush techniques, employed in the case at bar, that the rules were designed to abolish. We refuse to condone such behavior and therefore reverse the judgment of the chancellor and remand for proceedings consistent with the opinion rendered in this cause.”

So what is your duty to the court? At your first opportunity, tell the judge with all candor what contact you have had from another attorney. The judge will decide whether the contact is sufficient to constitute an appearance. You should offer the court any correspondence for the judge to examine. If your only contact was in the form of a conversation, relate accurately what the conversation was. Sometimes that contact was with the other party. Tell the court and let the judge decide whether it was enough to be treated as a contest. The judge may rule that the other side is entitled to a notice of hearing before you may proceed.

If you fail to disclose contact from another attorney or the other party, you run the risk that the other side may file a motion to set aside that judgment, and the judge may just file away a mental note about you that you are one of those lawyers who doesn’t tell the court all it needs to know to make a fair decision.

Read the entire Holmes decision and keep in mind the supreme court’s use of the distasteful terms “gamesmanship and ambush techniques.” Judges don’t appreciate those kinds of tactics that bring both the courts and the legal profession into disrepute.

A MATTER OF INTEREST FOR CHILD SUPPORT CASES

February 7, 2011 § Leave a comment

MCA § 75-17-7 provides:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered.  All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by the judge to be fair but in no event prior to the filing of the complaint.

It is error for the trial court to fail to award interest on the amount adjudicated to be owed for arrearage in child support.  Ladner v. Logan, 857 So.2d 764 (Miss. 2003). 

Although the statute expressly states that pre-judgment interest may not extend back prior to the filing of the complaint, the rule does not apply to due and unpaid child support.  That is because each payment in arrears is vested when due and becomes an automatic judgment against the obligor.  Pope v. Pope, 803 So.2d 499, 501 (Miss. App. 2002).  Each unpaid monthly installment begins to accrue interest at the legal rate, not from the time it may subsequently be reduced to judgment by a court, and it is error for a chancellor to reduce or eliminate the interest.  Dorr v. Dorr, 797 So.2d 1008, 1015 (Miss. App. 2001).  Amounts paid by an obligor in arrears are applied first to the interest obligations, and then to extinguish the principal amount of the oldest outstanding child support payment, and then the next oldest, and so on.  Brand v. Brand, 482 So.2d 236, 238 (Miss. 1986). 

The appellate courts have allowed the trial judges deference in setting the rate of interest.  Rates from three pecrent (Brawdy v. Howell, 841 So.2d 1175, 1180 (Miss. App. 2003)) to eight percent (e.g., Houck v. Ousterhout, 861 So.2d 1000, 1003 (Miss. 2003)) have been upheld.

There is no prohibition that I know of for a property settlement agreement to provide a contract rate for interest on unpaid child support or other obligations such as alimony, but I have never seen a property settlement agreement with such a provision.  The rarity is due, I am sure, to the difficulty of getting an agreement.  An advantage would be that the court would be bound to the contract rate.  See, e.g., Tower Loans, Inc. of Mississippi v. Jones, 749 So.2d 189, 190 (Miss. App. 1999), where the court of appeals reversed a circuit judge’s imposition of eight percent interest where the contract called for a 34.71% rate, and the contract rate was not usurious.  Another advantage would apply to alimony and other non-child-support obligations in that it would allow pre-judgment interest back to the filing of the complaint for enforecement; a nice perk if you can get it.  Finally, setting an interest rate at least for non-child-support obligations might be prudent in view of the authority that, if the court does not impose interest on a judgment it renders for non-child-support obligations, it is presumed that the judgment does not earn interest.  Aldridge, August 28, 1998, A.G. Opinion #98-0507.

LIMITED SCOPE REPRESENTATION NOW A FACT IN MISSISSIPPI

February 2, 2011 § 1 Comment

I’ve talked here before about “unbundling” of legal services, also called “limited scope representation,” as a way of opening legal services to people who otherwise can not afford a lawyer for matters that they consider routine or uncomplicated.   

On January 27, 2011, the Mississippi Supreme Court adopted amendments to the professional rules that allow limited scope representation.  You can read the press release, which includes a link to the amended rules, here.

On the whole, I think this is a positive development in that it will help open up access to lawyers and courts.  I do have a couple of practical concerns: 

  1. What does the lawyer do when the client insists that you limit the scope of your representation, but you know it is definitely not in the client’s best interest, and may even be to the client’s detriment, not to address other matters? 
  2. How do you draft a limited scope representation agreement that protects the lawyer from action by the client claiming inadequate representation?  

Other states have trod this path before us, so there are possibly bar opinions and case law that can provide some guidance to practitioners. 

From the court’s perspective, I can tell you that there is a serious need for low-level involvement of attorneys in those so-called simple and uncomplicated matters.  I could go on and on about experiences with pro se litigants going forth boldly where no lawyer has set foot before, using pleadings and guidance material from the internet or from so-called legal software, or from kits purchased at office supply stores.  These cases are a judge’s nightmare because the judge should never be put in the position of assisting any party with correcting and putting pleadings and other papers right, and the judge certainly can not do so when there is an opposing party.  It can be painful and demoralizing to watch a pro se party inflict serious legal damage on herself, usually without a clue as to the extent of the injury.  Even minimal involvement of an attorney in those cases would be a major benefit.

Another aspect of pro se proceedings often overlooked is that the pro se litigant has no professional or ethical duty to the court or to the opposing party.  The possibility for fraud and misrepresentation is significant.  There is no attorney, with his or her license and professional responsibility on the line to reassure the court.  Likewise, these companies that sell the kits, software and advice owe their customers no duty at all.  The insurance that a client obtains by hiring a lawyer is non-existent. 

Finally, lawyers need to be aware that the DIY legal industry stands to keep chipping away at the edges of the practice of law until there will be real competition for clients.  Your license and substantial investment in legal education, as well as your dedication to legal ethics and duty to the courts are all going to be in competition with nameless and faceless paper mills and internet sites that have no professional standing, no investment in education, and no ethical responsibilities.     

I hope limited scope representation helps reduce the trend toward more DIY litigation.  I encourage lawyers to look into limited scope representation and discover how it can enhance their practice as well as aid laypersons who feel that they can not afford legal services.

MAKING SURE YOUR CLIENT GETS THE PROPER TAX TREATMENT OF ALIMONY

January 31, 2011 § Leave a comment

An important factor in determining whether to award alimony is the tax consequences of the court order.  We all know that periodic alimony is income to the payee and deductible by the payer if it meets the IRS’s requirements.

So what does the IRS consider to be the essential ingredients of an alimony award, either by agreement or by adjudication?  Section 71(b) of the Internal Revenue Code (IRC) provides that the following must apply:

  1. There must be cash payments to the recipient or third-party payments;
  2. Payments must be required by a written instrument;
  3. Instrument must not designate the payment as “not alimony” or as some other form of payment;
  4. The payer and payee must not be members of the same household;
  5. Payments may not be treated as child support;
  6. Payments must cease on death of the recipient;
  7. The parties may not file a joint tax return.

Payments that will not be treated as alimony by the IRS include:  child support; noncash transfers; payments that are part of a spouse’s community property income; payments for use of property; and payments for maintainenance or upkeep of the payer’s property.  Lump sum alimony, which is really an equalizing payment in equitable distribution, is not considered alimony by the IRS.

If you’re planning to use the form to prove the tax effects of alimony that I posted previously, you need to update it to conform to the latest version of IRC § 71(b).

It’s important to give some thought to these provisions regardless of which side you are on in an alimony dispute.  If you represent the client trying to get some cash, you might consider proposing to the court or negotiating for it to be in the form of a property division; as such, it would not be considered income.  Likewise, you can propose to the judge or negotiate for the payment to omit one of the ingredients above.  If you represent the party who will have to pay, make sure you get all of the essential ingredients included so that your client’s payments will be deductible.

YOU’D BETTER FILE THOSE POST-TRIAL MOTIONS AFTER ALL

January 27, 2011 § 9 Comments

Back on November 16, 2010, I posted here that you don’t have to file a motion for a new trial in chancery non-jury trials to preserve error for an appeal.  As I pointed out, it has never been the law in chancery court that such a motion was necessary, and MRCP 52(b) would appear to dispose of the issue.  I do believe that was an accurate statement of the law in chancery court.

Until Tuesday, January 25, 2011.

On that date, the court of appeals handed down its decision in Robinson v. Brown, in which the appellant attempted to argue that it was error for the chancellor to assess her with child support because she claimed that he had failed to make the appropriate findings of fact.  Justice Carlton’s opinion, to which there was no dissent, holds at ¶ 18 that the appellant:

” … failed to assert this alleged error post trial to the chancellor, and such failure waived her right to now complain as to this issue on appeal.  Mississippi Rule of Civil Procedure 52 allows the court to amend its findings, or make additional findings, upon motion of a party filed not later than ten days after the entry of a judgment or entry of findings and conclusions of law.  Watts v. State, 492 So.2d 1281, 1291 (Miss. 1986) (appellant was procedurally barred from raising an issue on appeal where he failed to raise it in his post-trial motion).”

The only case cited to support the point is a criminal case from circuit court, presumably from a jury trial.        

The opinion does not mention MRCP 52(b), which specifically states:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.

Would that exact language not apply in this case since the appellant was complaining that the trial court’s ruling was not supported by sufficient evidence?  And, as with nearly all chancery court cases, this was a case “tried by the court without a jury.”

The lone justice with chancery experience on the court of appeals, Justice Myers, is listed as “not participating.” 

Practice Tip: For chancery practitioners, I believe that this decision means that from now on you had better file a post-trial motion in every case if you have any thought of an appeal, and you’d better list every error you think might be in the record. 

For chancellors, this will mean an abundance more work, on top of the lengthy opinions we are required to write to pass scrutiny of the appellate courts.

There’s a lot I could say about this, but I guess I’d better not.  If you want my views, drop by my office and we’ll talk.

ADMITTING A PHOTOGRAPH INTO EVIDENCE

January 24, 2011 § 2 Comments

One of the simplest tasks of a trial lawyer is to get a photograph admitted into evidence, but I have seen some painful exercises as lawyers strive mightily against repeated objections in their task.

Only two things are required to be shown:

  1. That the witness knows relevant facts about the scene or objects represented in the photo; and
  2. That he or she can say that it correctly and accurately portrays those facts (or, as many of us say, “It is a true and accurate depiction …”).

It is not necessary for the witness to establish the date when the photograph was taken because it does not matter what date it was taken if the condition is unchanged.  It is not required that the witness describe how the camera mechanism was properly calibrated, or to establish a chain of custody or any other such thing, although I did have a chancellor years ago sustain objection after objection until I guessed that he was requiring me to ask the witness to identify who took the photos.  But that judge was in error; who took the photos is not relevant to admissibility.  All that is necessary is for the witness to establish knowledge of the matters depicted and to affirm that the photo does truly and accuractely depict the conditions he observed.

For example:

Q.     Where is the field located where the body you described was found?

A.     Adjacent to my farm house. 

Q.     Are you familiar with that field?

A.     Yes, I am in and around that field every day.

Q.     Did you observe the field on the day that the body was found, and in particular the area where it was found?

A.     Yes, it was I who found the body while I was working in that field.

Q.     Let me show you a photograph and ask you if you can tell me what it shows.

A.     This is a picture of the field.

Q.     Is this picture a true and accurate depiction of the condition of the field that you observed on that day?

A.     Yes.

Then offer it into evidence.

I hope this helps.

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