MEDICAL PRIVILEGE IN CUSTODY-RELATED ACTIONS

October 26, 2010 § Leave a comment

Rule 503 of the Mississipi Rules of Evidence (MRE) sets out the familiar physician- and psychotherapist-patient privilege that has long been a part of our law.

Subsection (d) (4) was amended in 2004 to remove the privilege in certain proceedings related to child custody.  The rule states:

There is no privilege under this rule for communications, including past and current records of whatever nature, regarding a party’s physical, mental, or emotional health or drug or alcohol condition relevant to child custody, visitation, adoption, or termination of parental rights.  Upon a hearing in chambers, a judge, in the exercise of discretion, may order release of such records relevant to the custody, visitation, adoption, or termination action.  The court may order the records sealed.

The hearing in chambers is to determine whether the documents would be relevant to one of the listed proceedings.  The comment to the rule sets out “some factors the court should consider:

  1. Whether the treatment was recent enough to be relevant;
  2. Whether substantive independent evidence of serious impairment exists;
  3. Whether sufficient evidence is available elsewhere;
  4. Whether court-ordered evaluations are an inadequate substitute; and
  5. Whether, given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant.

To me, it is significant that the comment describes the foregoing as “some” of the factors that the trial court should consider.  In my opinion, the court should also consider what is the relief sought, the severity of the condition and what its impact on the child could be, and whether the information includes names of witnesses and others who should be interviewed by the guardian ad litem, if any.  The comment factors seem weighted in favor of the patient’s privacy, but I believe the repeal of the privilege in cases such as those listed is a clear indication that the policy is that the privilege should yield to the search for all information that will help inform the court as to what is in the best interest of the child.

In this judge’s opinion, the court should err on the side of making the information available for the reason that it may lead to the discovery of additional information that may bear on the best interest of the child.

POINTING THE WAY

October 21, 2010 § Leave a comment

Every litigant comes to court with problems to solve.  The ones who come away satisfied are not the ones who do the best job painting a picture of the atrocities they have suffered.  The ones who come away satisfied are usually the ones who do a good job painting a picture of the solution.

Imagine a situation at a temporary hearing where dad has left the family and has refused to send any support, but he is demanding custody because mom has a boyfriend who is spending a lot of time around the former marital residence.     

Dad’s side spends its time talking about how sorry mom is for her behavior, and how her bad behavior should not be rewarded with custody. 

Mom offers testimony about: her plan to get the children to school each day; her family in town who will help support her with caring for the children;  how mom’s work schedule will mesh with the children’s schedules; junior’s medication, and her role in administering it, and how aunt Donna will help get him to his doctor’s appointments; her plan to get little Amy to her gymnastics class every Tuesday; and what measures she will take to keep the boyfriend discreetly out of the picture on a temporary basis.  

Put yourself in the judge’s shoes.  He’s confronted with a problem, and one side has served up a platter of solutions, while the other has served up a platter of problems.  The whole reason you’re there is to get the judge to resolve the problems.  One side offers solutions, the other just talks about the problems.  Which side do you think has the better chance to prevail?

The same principle applies in most cases.  If you want the judge to fix visitation, offer a detailed plan (preferably in writing) that tells exactly what you want.  If you want 60% of the marital estate in equitable distribution, why not offer a spreadsheet that spells out precisely what your client would like to have.  If your client wants alimony, why not offer your version of a scoresheet sorting the proof among the Armstrong factors for the judge to consider?         

You will always be at an advantage if you will look at your case from the standpoint of what the judge is called upon to do.  If you will point a clear, logical, reasonable path for the judge that addresses and resolves the problems, you have an excellent chance of prevailing.

CONTESTING PROBATED CLAIMS IN AN ESTATE

October 19, 2010 § 4 Comments

Section 91-7-165, MCA, allows the executor, administrator, legatee, heir or any creditor to contest a claim presented against the estate.  The statute requires notice to the claimant and a hearing.

This court requires notice on the claimant via a Rule 81 summons, returnable to a specific date and time.  Any other interested party who may have an interest contrary to the contestant should also be summoned, in this judge’s opinion.

At hearing, the burden of establishing a claim is on the claimant by clear and convincing evidence, or as one case characterized it, “by clear and reasonably positive evidence,” even though the claim has been admitted to probate by the clerk (in other words, the admission to probate of a claim does not have the same effect as admission of a will to probate). 

The decree of the court is limited to allowing or disallowing the claim, and the court can not enter a money judgment or judgment for other relief.

Appeal time runs from the date of entry of the decree allowing or disallowing the claim, and not from the date the estate is closed.

MANAGING CLIENT EXPECTATIONS

October 18, 2010 § 4 Comments

One of the challenges of being a Chancery practitioner is keeping your clients’ expectations realistic.  And I’m not talking only about expections regarding outcome.  I’m talking expectations about you, your firm, the court and the legal process itself. 

The Pincus Family Law firm in Columbia, South Carolina has a page on its web site that may just be a home run in addressing client expectations.  You may find something useful here.  I’ve copied and pasted the text for you:

  

CLIENT EXPECTATIONS (REALISTIC OR UNREALISTIC)

ABOUT US: 

We do not work on the weekends and do not provide emergency numbers for the weekends.  There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.

Do not think we are perfect.  We make mistakes.  We are competent attorneys and paralegals, but we make mistakes.  We will correct a mistake if we find it or if you point it out.  Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.

We will return phone calls in the order they are received and based on the priority of the situation.  If you leave a message, your message will be passed on to the attorney.  Calling three or four or multiple times in a day will not get your call answered any faster.  Email is the quickest way to get a response from an attorney.

Attorneys work by appointments only.  Please do not show up at our offices to speak with an attorney without an appointment. 

Please utilize our paralegals to answer your questions and give you status reports.  Our paralegals are very experienced and can, most of the time, respond to your request.  We bill our paralegal time at less than 50% than what the attorneys charge so take advantage of their experience and knowledge.

ABOUT OTHERS:

You may not get any consideration from your spouse for anything you have done or will do because you are nice.  You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it.

Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you.  As your attorneys, we are the only reliable source of information regarding the process and status of your case.

The opposing attorney may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office.  It is unrealistic to expect that we can control how an opposing attorney handles his or her file or practices law.

The legal pleadings (Complaint, Answer, Counterclaim, etc.) are legal documents filled with allegations that must be pled (and some that are merely made to posture for a client).  Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf.  It is not worth it.

We cannot control the court’s schedule or docket.   The courts schedule cases as they are processed and in line with the thousands of other cases filed.   You will not be happy with the time it takes your case to get through the system.  There are thousands of family law cases filed in Lexington and Richland counties each year and most contested cases take several months, sometimes more than one year, to finish.

What you can expect during a Trial (Contested Case)

COURT APPEARANCES—Bonnie and Monet generally work files together although one attorney may be your “lead” attorney.  Therefore, at court appearances, it may be necessary for one to cover a court appearance for the other.  We will try to give you advance notice if your “lead” attorney will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.

SUBPOENAS—the other party can send a subpoena to any third party that MAY have information about you, your spouse, your business dealings, your employment, your education, your children and the like.  Banks, lenders, business partners, educational facilities, stock brokers, teachers, churches, etc. can all be issued subpoenas for any records they may have regarding you.  We can do the same.  There is very little we can do to stop this so be prepared to deal with the frustration you may experience.  If there is a legitimate reason to try and stop the subpoena, which there rarely is, we can file a motion to do so.  Unless the information is privileged in some fashion, the third party will have to disclose the information requested.

DEPOSITIONS—the other party can issue a notice of deposition to any third party witness.  This means that a third party can be required to give testimony under oath usually in one of our offices.  The purpose of depositions is to find out information and to find out ahead of time what a person may testify to in court.  You and your spouse could each be deposed for the same reason.  We can issue notices of depositions as well.  A fact witness is entitled to a fee of $25 to appear and professionals (doctors, psychiatrists, etc) are entitled to have their time paid for to appear (by the party that deposes them).  A court reporter must be present and is paid to attend as well.  The attorneys are paid to attend as well.  Depositions are costly.

NOTHING HAPPENS QUICKLY—generally, contested cases take several months to move through the court system.  A complicated custody or equitable division case can take one, sometimes two, years to complete.  The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, a guardian ad litem investigation, discovery, depositions, pre-trial hearings and motion hearings.  It takes a long time to move a contested case through the court system and this will likely be your number one frustration.  We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case.  Please prepare yourself ahead of time and please do not take this frustration out on us or my staff.  We are doing everything we can to move the case along.

DISCOVERY—this is the “formal” name for exchanging information through subpoenas, written questions (interrogatories) and request for documents.  Discovery has its own set of rules and deadlines which we will inform you about during the process.

CHILDREN—Marital problems are terribly difficult for children.  Do your children a favor and do not “poison” the minds of your children against their other parent.  Do not speak about their parent’s faults to children.  Do not complain to your children about how much child support you are paying or how little child support you are receiving.  Visitation with parents is NOT a bargaining chip or game.  Each parent is entitled to visitation privileges with their children.  Children are not your property.  They are not your pawns.  They are absolutely not your messenger.  They are innocent individual human beings that need both of their parents, not just the “best” parent.

ADULTERY—Do not become romantically involved with someone other than your spouse if you are still legally married (even if you are separated)! During marital litigation you should behave as though a detective and camera crew were following you and recording you and your conversations at all times.

CHILD CUSTODY CASES—You should behave as though a detective and camera crew were following you and recording you and your conversations at all times.  Do not do anything that you would not perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.

ATTORNEY’S FEES—in a child custody case, you could spend the price of a car in attorney’s fees.  Most contested custody cases run upwards of 10-20 thousand in fees paid out over the course of the case.  This usually includes attorney’s fees, guardian fees, psychological fees and expert witness fees.  In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets.  Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value.  A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in attorney’s fees over the life of the case.  The most expensive part of the case is going to be trial preparation and attendance costs.  That is why a trial retainer (an “up front” payment) is required in all contested cases.  You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.

Thanks to the LegalEthicsForum.com for this.

YET ANOTHER REASON TO TAKE EXTRA CARE WITH 8.05’S

October 14, 2010 § 4 Comments

In the case of Trim v. Trim, 33 So.3d 471 (Miss. 2010), the Mississippi Supreme Court held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court.

So what is the significance of the Trim case for everyday practitioners?

Let’s say that your client isn’t deliriously happy with the outcome of her equitable distribution case, but she accepts it without an appeal.  Ten months later she comes in to your office mad as a hornet with sheaves of paperwork that prove conclusively that her ex substantially understated on his 8.05 the value of financial assets that he controlled, and the gain to your client could be in the hundreds of thousands of dollars.  Aha!  You think, we have the sorry so-and-so right by the [indelicate word deleted]!

But wait.  How are you going to get this before the court?  MRCP Rule 59 relief expired 10 days after the judgment was entered, and the appeal time ran 30 days after entry.  MRCP Rule 60 actions to set aside a judgment for fraud have to be brought within six months of the date of the judgment.   

That’s where Trim comes in.  By finding substantial misrepresentation on the 8.05 to be a fraud on the court, as opposed to fraud on the opposing party, the Supreme Court essentially ruled that there is no time limit to bringing an action to aside an action based on 8.05 fraud.  That’s because MRCP Rule 60 expressly states:  “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Trim has ramifications for lawyers in Chancery.  If you are in the habit of accepting your client’s 8.05 at face value without going over it with him or her, and without questioning behind it, you may be leaving your client open to an action to set aside that divorce judgment you thought you had laid to rest long ago.  The client may well question why you never went over the statement with him and counseled him about what to include and what not to include.  “My lawyer never told me that I had to list those three securities accounts; in fact, he never talked with me at all about what to include on the form.” 

In case you think this is the kind of thing that happens to somebody else somewhere else, think again.  Only this year, I set aside a divorce that was nearly two years old for substantial misrepresentation of financial assets that amounted to a fraud on the court.  It can happen to you.

FIVE SIMPLE STEPS TO PROVE ATTORNEY’S FEES

October 13, 2010 § 7 Comments

You would think that the award of an attorney’s fee would get special attention from both the client and the attorney.  After all, the client is looking for some help with the financial burden, and the lawyer representing him is looking for some assurance that she will be paid.  And one of the best ways to impress your client favorably is to hang your fees on the opposing party.

In many cases, though, I find that the lawyer takes a sort of slap-dash approach.  Sometimes the lawyer confers with the other side and reaches a low-ball stipulation about a reasonable fee.  Or the lawyer takes the witness stand (one of the very few occasions when an advocate is allowed to testify per Rule 3.7 of the Rules of Professional Conduct) and offers some general testimony in vague terms about a ballpark figure.  Or the lawyer simply asks his client what she paid him and apparently thinks that will suffice.

Proving a reasonable attorney’s fee is actually a fairly simple process, but you need to cover all the points to make your client’s claim airtight.  Before we talk about what you need to prove at trial, though, be sure you’ve done what you need to do before trial to lay a foundation for your claim:

  • Record your time as you move toward trial, and have your time record printed neatly.  You will need it for your testimony in court.
  • Be sure there is a prayer for a reasonable attorney’s fee in your pleading.  You are asking the court to take your opponent’s money, and that requires due process.

Now that the preliminaries are in order, here are the five steps to prove attorney’s fees:

  1. Be sure to have your client testify about his or her ability to pay.  In divorce cases, ability to pay is the most critical consideration, and if you do not establish your client’s inability to pay, she will not be eligible for an award of an attorney’s fee.  Deen v. Deen, 856 So.2d 736, 739 (Miss. App. 2003); Bates v. Bates, 755 So.2d 478, 482 (Miss. App. 1998).  Even in a contempt case, where inability to pay is not required, you are wise to offer testimony about the financial effect of the contempt and the resulting attorney’s fees on your client, since an award of an attorney’s fee is not mandatory in contempt.  Suess v. Suess, 718 So.2d 1126, 1129 (Miss. App. 1998).  Remember that the ethical rules do not allow you as an advocate to testify about the contested merits of the case.  If you are going to prove your client’s inability to pay, you will need your client’s testimony. 
  2. Testify yourself about the prevailing rate charged by attorneys in the district.  The award must be reasonable, and one of the key touchstones for reasonability is the usual and customary rate charged by attorneys in the district.  But the prevailing rate is not binding on the court.  The judge may award a fee at a greater or lesser rate if the circumstances warrant it.  If you charged a rate different from the prevailing rate in the district, what rate did you charge and why?  And if your rate exceeded the prevailing rate, what is your justification for doing so?  Make your record.
  3. Put into evidence an itemization of the time you devoted to the case.  Here’s where that itemized statement comes in.  Identify it and ask that it be admitted into evidence.  Before you do, though ask yourself:  Is it credible?  Does it look like a genuine fee statement that one would tender to a client for payment, or does it look like something you scratched together 5 minutes before setting foot in the courtroom?  Are the times reported credible?  Does it reflect charges for “one competent lawyer,” or are there charges included for others?  Before you ever get to trial, pore over your statement and subject it to your own cross examination.
  4. Be sure to capture all the time in the case.  Ask the court to take judicial notice of the time spent to that point in the trial, and estimate for the record how much more time will be needed to complete the trial.  Estimate also the total number of hours that will be needed for any post-trial matters, such as drafting a judgment or preparing proposed findings of fact and conclusions of law.
  5. Address each and every one of the McKee factors.  You can read more about the McKee factors here.  The McKee factors govern the amount of the award, but as a practical matter, if you don’t prove them there is nothing in the record to determine what is reasonable, which means that a reward of zero is most likely.  No matter how badly you and your client want that attorney’s fee award, if you don’t include proof of the McKee factors, you likely won’t get it.

AVOIDING AN EXPENSIVE ERROR

October 12, 2010 § 1 Comment

Imagine having this nightmare: 

You represent the husband.  He has $376,000 in his securities account.  You negotiate a property settlement agreement by which the wife will receive $203,200 from the account, and he will own the remaining $172,800.  Couldn’t be plainer or more clear-cut.  A few months drag by before you finally get the QDRO drafted and approved by the court.  You ship it off to the plan manager, who calls you and tells you that the account is now only worth $204,000, and what exactly is it that you would like her to do.  At this point in the nightmare, you wake up in a cold sweat.

Unfortunately for the parties in In re Dissolution of  Marriage of Wood, 35 So.3d 507 (Miss. 2010), the nightmare was all too real.  The facts set out above are the facts in their case.  The former Mrs. Wood sued to collect her entire amount due under the agreement, and Mr. Wood took the position that sticking with the numbers in the property settlement agreement was an impossibility, and to grant Mrs. Wood her relief would produce an unfair and inequitable result.

Chancellor Dorothy Colomb ruled that the parties had actually negotiated an agreement whereby Mrs. Wood would receive 54% of the account balance at the time of the divorce, and Mr. Wood would receive 46%. 

In affirming the chancellor, the Supreme Court addressed valuation dates, impossibility of performance and canons of construction.  You can read the decision to get an appreciation for the complexity of legal issues that the draftsmanship created in this case.  

The cardinal point for practitioners, however, is best summed up in the court’s own language at page 515:

“As this case illustrates, incorporating an estimate of an asset’s value into a property settlement agreement can cause problems when the parties later try to divide the asset, and the estimate turns out to be incorrect or inaccurate.  Therefore, we make the following recommendations for the benefit of the bar.  Where the value of an asset must be estimated because of the inherently indefinite or fluctuating nature of the asset itself, we recommend the use of percentages when setting forth the asset’s intended distribution in a property settlement agreement. Where the value of an asset remains sufficiently concrete or static, however, we recommend the use of specific dollar amounts.”

Mrs Wood expected to get $203,000, and that’s what she negotiated for.  Instead, she got $110,160, or $93,000 less than what she expected.  The lesson is to think about what you’re doing and what could or might go wrong, and how you can guard against it.

TRIAL BY CHECKLIST: INCOME TAX DEPENDENCY EXEMPTION

October 11, 2010 § 9 Comments

A practice tip about trial factors is here.

The Mississippi Supreme Court ruled in Nichols v. Tedder, 547 So.2d 766, 775 (Miss. 1989), that the Chancellor may award the dependency exemption for income tax purposes to either parent as part of its determination of child support. 

If your client wants the court to award her the tax dependency exemption, it will take more than just asking her what she wants the court to do.  In Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000), the Mississippi Supreme Court laid out the factors that the Chancellor is required to consider before making the award.  They are:

  1. The value of the exemption at the marginal rate of each parent;
  2. The income of each parent;
  3. The age of the children and how long the exemption will be available;
  4. The percentage of the cost of supporting the children borne by each parent; and
  5. The financial burden assumed by each parent under the property settlement agreement in the case.

In Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001), the Court of Appeals added a sixth:  the value of the non-economic but valuable contributions made by the custodial parent.

Although I have often heard parties testify that they wanted the court to award them the exemption, I have never heard any testimony on factor 1. 

It seems to me that if you fail to put on the requisite proof, you run the risk that the judge will simply say that the proof did not support such an award, or, if the trial judge does award it, that the Court of Appeals will take it away or put your client to the considerable expense of having to retry the issue so that the trial judge will have the evidence necessary to adjudicate it.

BETTER CHANCERY PRACTICE FAQ

October 8, 2010 § 2 Comments

My 8.05 financial statements stink.  How can I improve them?

Here are Ten Tips for More Effective Rule 8.05 Financial Statements.

Is my estate ready to close?

Check out this Checklist for Closing an Estate.

I think I need to file a habeas action.  Any tips?

This Habeas Corpus Step by Step should help.

One more time: what are those child custody factors I need to prove at an upcoming trial?

The Albright factors are what you’re looking for.  

Help! We need to sell some real property in an estate, and I don’t know where to start?

How to Sell Real Property in an Estate may be just what you need. 

I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before.  What do I need to do?

This Outline for Handling a Minor’s Settlement will get you started.

My mail has an MRCP 41(d) notice in it this morning.  I remember you said something about it, but I don’t have time to look for it.  Can you remind me what I am supposed to do?

<Sigh>  Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door. 

I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify.  Any ideas on what I should do?

Try looking at Proving Tax Effects of Alimony.

My Chancery Judge is really nitpicky.  How can I draft my adoption Complaint to satisfy him?

Are you talking about me?  Whatever.  Here is a post on pleading Jurisdiction for Adoption.

Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire.  Any suggestions?  I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.

You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines.  Until you do, try reading “High Waters” and Burlap Suits.  It won’t change anything, but it may help you to feel better.

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