ADMINISTRATION OF AN INTESTATE ESTATE

August 18, 2010 § 9 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Statutory order of preference for appointment of Administrator.  § 91-7-63, MCA.

  • Surviving spouse.
  • Next of kin, if not otherwise disqualified.
  • Other third party, bank or trust company.
  • If no application is made within 30 days of the decedent’s death, administration may be granted to a creditor or other suitable person.
  • If no application is made and the decedent left property in Mississippi, county administrator or sheriff may be appointed.  § 91-7-79 and -83, MCA.

Oath and Bond.

  • At the time that Letters of Administration are granted, the Administrator must take and subscribe the oath set out in § 91-7-41, MCA.
  • At the same time the Administrator must also post a bond in the full value of the personal estate unless al heirs are competent and consent to waive or reduce bond, or unless the Administrator is the sole heir.  § 91-7-67, MCA.

Notice to Creditors.

Administrator has the responsibility to provide notice to creditors in the order and form prescribed in § 91-7-145, MCA:

  • Adminisrator must make a reasonably diligent effort to identify creditors having a claim against the estate, and to mail them actual notice of the 90-day time period within which to file a claim.  
  • Administrator must file affidavit of known creditors and attest to having served actual notice on them. 
  • After the affidavit of known creditors has been filed, Administrator publishes notice to creditors in a local newspaper notifying them that they have 90 days within which to file a claim against the estate.  The notice must run three times, once per week for three consecutive weeks, and must include the name of the estate and the court file number.
  • Administrator must file proof of the newspaper publication with the court.
  • Publication may be waived by the court in small estates with a value not more than $500.

Inventory and Appraisal.

  • Unless excused by the court, the Administrator must complete and file inventory and appraisal within 90 days from the grant of Letters of Administration.  § 91-7-145, MCA.

Determination of Heirs.

  • An action to determine heirs must be brought before the estate may be closed.
  • Publication process to the unknown heirs of the decedent must be made.
  • Determination of heirship requires 30 days’ process and should be to a day certain so tha the unknown heirs may be called.

Interim Hearings.

  • Held as necessary to meet needs of the estate or to resolve interlocutory conflicts among the parties.
  • A hearing to determine heirs may be necessary if any previously-unknown heir appears and claims heirship and the claim is disputed by the other heirs.
  • A hearing to adjudicate whether to pay probated claims may be necessary if there is any dispute as to the validity or timeliness of the claims.

Petition to Close Estate and Discharge Administrator.

  • The attorney must file a cerificate that there are no probated claims, or that the probated claims have been satisfied.
  • Final account is filed with petition, unless excused by the court.
  • All parties in interest are summoned to a hearing on the final account and petition to close.  § 91-7-295, MCA.
  • If approved, the court enters judgment for final distribution of any property in the Administrator’s care.  § 91-7-297, MCA.
  • Upon court’s approval, the Administrator is allowed a reasonable fee for services and reimbursement of attorney’s fees.  § 91-7-299, MCA.  

TEN TIPS FOR MORE EFFECTIVE RULE 8.05 FINANCIAL STATEMENTS

August 16, 2010 § 16 Comments

If your case involves economic issues or property division, Rule 8.05 of the Uniform Chancery Court Rules requires that you provide a financial statement complying with the form published in the rules. 

An effective financial statement can make or break your case.  It is the template for your client’s testimony, and a poorly-prepared statement will make your client cannon fodder for cross examination, while a well-prepared one will inoculate him or her from serious damage.  Most importantly, the financial statement is what the judge will spend the most time mulling over when fashioning an opinion.  The more effective your statement, the better off your case will be. 

Here are ten ways you can make your Rule 8.05 statements more effective:

  1. Never present a financial statement that you have not gone over in detail with your client.  As part of your trial preparation, question the client’s figures, test his or her mastery of the information on it.  If your experience tells you that a figure is unreasonably high or low, question it and make the client defend it.  If the client can not defend the number, suggest that the client reconsider it.  And while you’re at it, make sure that your client knows what he or she included in every category.  Are there duplications?  For instance, if your client charges clothing for the children on her MasterCard, did she duplicate the amount paid on the card in the line for clothing?  Don’t just take your client’s figures at face value; inquire about them.  I once asked a woman on the witness stand how she came up with $480 a month for entertainment, and she explained that was the amount she had spent the month before for flowers for her aunt’s funeral, and that her sisters were going to reimburse her.  When I asked what she usually spent on entertainment, she said $50.  In one fell swoop, I lopped $430 a month off of her expenses, diminishing her alimony claim against my client.  Her attorney had simply taken her word for the $480 expenditure without questioning behind it.      
  2. Always have the statement typed so that it clearly presents your client’s position.  A handwritten statement with scratched-out figures and marks, notations and arithmetic that doesn’t add up will just add confusion and make the judge’s job disagreeably more difficult.  Take the time to type the figures in their proper places and make sure they add up properly.  Remember the old adage:  “The easier you make the judge’s job, the more likely it is you will prevail.”  Okay, that’s probably not really an old adage, but it should be.  
  3. Make sure the tax returns are attached.  Copies of the preceding year’s state and federal income tax returns “in full form as filed” are required.  This means that all schedules and w-2’s must be attached.  If a document was sent with the original return to the IRS, a copy of it must be included.
  4. Have an adequate number of copies.  “When offered in a trial or a conference, the party offering the disclosure statement shall provide a copy of the disclosure statement to the Court, the witness and opposing counsel.”  This means that, in addition to the original in evidence, you should have three additional copies, plus one for yourself.  It does your client absolutely no good for the court not to have a copy to look at while your client is being examined about it.  It would even be a good idea to provide an extra copy for the judge to mark up with his or her own notes during testimony.
  5. Include a complete employment history.  Some lawyers have deleted this from the form in their computers, for some reason, but it is specifically required in the rule:  “A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of the divorce, whichever is applicable.”  This information is vitally important in connection with property division, alimony, child support and even child custody, and yet it is often omitted by lawyers.
  6. Be sure to explain any discrepancies.  If your client has a perfectly logical explanation why the cell phone bill is $375 a month, be sure to cover it.  If expenses exceed income, how is the client managing to pay the difference?  If your client’s year-to-date income includes a one-time bonus that will never be repeated, notate that and have your client testify about it; if you don’t explain it, you can expect that the judge will include the bonus in your client’s income.
  7. Use an up-to-date statement.  A financial statement prepared six months ago in discovery and not updated since is simply not a statement of “actual income and expenses and assets and liabilities,” as required in the rule.  It defeats the purpose of the rule for a witness to spend a couple of hours explaining how the statement should be updated when that should have been done in trial preparation.  If you come to court without an updated statement, the court may continue your trial to require you to prepare one.
  8. Have your client sign and date the statement.  The Court of Appeals has been critical of unsigned financial statements. 
  9. Make sure the entries really are what they say.  A voluntary 401(k) contribution is not “mandatory retirement,” and should not be listed on that line.  Nor is a private health insurance premium “mandatory insurance.”  The term “mandatory” as used on the form refers to items required by law, such as PERS retirement. 
  10. Remember that a month has more than four weeks.  A month is 52 weeks divided by 12, or 4.3.  A client who says “I get paid $400 every Friday, so I make $1,600 a month” is wrong; the correct amount would be $1,720.

TRIAL BY CHECKLIST: MODIFICATION OF CHILD SUPPORT

August 12, 2010 § 9 Comments

A practice tip about trial factors is here.

The trial court is required to consider the factors set out in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), in determining whether child support should be modified.

  1. Increased needs caused by advanced age and maturity of the children;
  2. Increase in expenses;
  3. Inflation factor;
  4. The relative financial condition and earning capacity of the parties;
  5. The physical and psychological health and special medical needs of the child;
  6. The health and special medical needs of the parents, both physical and psychological;
  7. The necessary living expenses of the paying party;
  8. The estimated amount of income taxes that the respective parties must pay on their incomes;
  9. The free use of residence, furnishings, and automobiles; and
  10. Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).

Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).

Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

Remember that the keystone consideration for modification is a change in expenses of the child.  You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial.  Most importantly:  It is not adequate to prove only that the income of the paying parent has increased.

WAIVER OF INVENTORY AND APPRAISEMENT

August 10, 2010 § 3 Comments

[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year.  Used with  his permission.]

Intestate Estates:

  • The goods and personal estate shall be inventoried unless the court or clerk “for good cause,” not require that it be filed.  § 91-7-109, MCA.
  • If appraisement is not required, an inventory pursuant to § 91-7-93, MCA, shall be made within 90 days of the issuance of Letters of Administration.
  • If personal property not included in the original inventory comes into possession of the Administrator, a supplemental inventory describing those items shall be returned within 30 days.  § 91-7-95, MCA.
  • An Administrator who fails to file a timely inventory may be removed.  §91-7-105, MCA.  

Testate Estates:

  • Inventory may be waived “for good cause” under § 91-7-109, MCA, or if the Executor is a residuary legatee under § 91-7-43, MCA. 
  • Although the statutes do not expressly provide that inventory can be waived by the Will of the testator, it is common practice for the court to recognize the request.  Perhaps the “good cause” exception is broad enough to allow waiver of the requirement by the Will.  § 91-7-109, MCA.

DUTIES OF THE ATTORNEY IN PROBATE MATTERS

August 9, 2010 § 2 Comments

Not too long ago, during a proceeding involving a minor’s settlement, the following exchange took place between a veteran lawyer (who practices primarily in Circuit Court) and me:

Judge:  Your claim for attorney’s fees has to be supported as set out in Rule 6.11.

Lawyer:  I am sorry, your honor, I was not aware of your local rules.

Judge:  That is not a local rule; it is the Uniform Chancery Court Rule.

Lawyer:  When were uniform chancery rules adopted?

If ignorance is bliss, that is one happy lawyer.

Sometimes I feel that even lawyers who are fully aware of the Uniform Chancery Court Rules (UCCR) have no idea what they include because they do not bother to read them.  Take the requirements for lawyers in probate matters.  From time to time, I have to remind lawyers of their duties, and when I do it often happens that they are surprised to learn of it.  Could it be that lawyers nowadays are just too busy to familiarize themselves with the law?  Now that’s a scary thought.

My best advice is to get out your rule book and read UCCR 6.01 – 6.17 right now.

Okay, I know you’re too busy to do it right now, so here is an overview:

  • Rule 6.01 requires that every fiduciary must have an attorney unless the fiduciary is licensed to practice law.  The attorney’s compensation will be fixed by the Chancellor, and the attorney may not withdraw unless permitted to do so by the Chancellor.  As a practical matter, you will not be allowed to withdraw unless and until an attorney takes your place, so you need to think twice before entering an appearance in a probate matter. 
  • Rule 6.02 expressly states that “Every fiduciary and his attorney must be diligent in the performance of his duties.  They must see to it that …” publication to creditors is promptly made, inventories and accounts are timely filed and presented, all other statutory requirements are timely and properly met, and that ” … estates of decedents are completed and assets distributed as speedily as may be reasonably possible.”  In plain English, that means that the lawyer is every bit as responsible to the court as is the fiduciary.  Your professional standing, reputation with the court, and even your license in some cases, are on the line.  It also means that estates are not to be kept open for years while the attorney deals with other matters.
  • Rule 6.02 also provides as to guardianships and conservatorships that the attorney shall report promptly to the court a guardian’s or conservator’s failure to perform his or her duties, and if the lawyer fails to do so, the lawyer may be held in contempt.
  • Rule 6.03 requires that every accounting must include a statement of all assets of the estate.  For money, bonds or securities, a computer printout is not adequate; the accounting must include a sworn certificate by an officer of the bank that the funds are actually on deposit in the amount claimed. 
  • Rule 6.04 is perhaps the most overlooked of all, but it is perhaps also the most crucial.  It requires that every disbursement be accompanied by a voucher in the form required by §91-7-279 and 93-13-71, MCA.  It is not enough to recite in the accounting, for example, that “The guardian spent $50 on clothes for the ward as authorized by the court in the last accounting.”  The accounting must include vouchers documenting the expenditure.  In reporting the expenditures, Rule 6.05 mandates that where the expenditures are spelled out in the accounting, the voucher number, date of the disbursement, name of the payee, purpose of the expenditure, and date of any court order authorizing the payment must be stated.
  • Rule 6.06 spells out how to deal with lost vouchers.
  • Rule 6.07 states that claims arising after death of the decedent such as for funeral bills, monuments and attorney’s fees, must be approved by the court before payment.
  • Any request for funds for support of a ward must include the present amount of the estate, the amount of the ward’s income, and the amount of any previous allowance, according to Rule 6.08.  Any request to expend funds for necessities that are the responsibility of the parent will not be approved unless the guardian justifies the request under oath.
  • Rule 6.10 deals with settlement of wrongful death or injury claims.  An outline for handling minor’s settlements is here.
  • Rule 6.11 sets out the required information to support a claim of the fiduciary for a commission or extraordinary compensation, which includes the total amount of the estate handled, the total amount disbursed, the balance on hand, the nature and extent of services rendered, the expenses incurred by the fiduciary, and the total amount of any amount previously allowed.  The rule also states that neither fees for fiduciaries nor for attorneys shall be based on the value of any real property.
  • Rule 6.12 governs petitions for attorney’s fees.  The attorney must support the request with the same information required of a fiduciary as in Rule 6.11, and an itemized statement of services rendered.  There are separate requirements for recovering damages for wrognful death or personal injury, and where a contingent fee contract has been approved.
  • Rule 6.13 requires that the fiduciary swear to and sign every pleading, accounting and report.  It is not adequate, as sometimes happens, that the attorney sign the documents.
  • Rule 6.14 provides that a copy of the will must be attached to the petition to open the estate.  Recently a lawyer (from out of town) argued with the clerk that the rule means that only a copy needs to be submitted, and that he should retain the original.  That is not the meaning of the rule, and it is not the law.  § 91-7-31, MCA, requires that the original will, when admitted to probate, shall be recorded and retained by the clerk.  The rule merely requires that a copy of it be attached to the petition for ready reference by the court and other interested parties, and so that the original can be secured.
  • Finally rule 6.17 bears stating verbatim:  “If, without cause, an attorney fails to file accountings or other matters in probate cases (estates, guardianships and conservatorships) after being so directed in writing by the Court, the Court may consider such misconduct contempt.”  Misconduct; such a meaningful, menacing word fraught with professional peril.

Practice Tip:  Quit relying on forms to do everything and start reading the rules.  I repeat:  Start Reading The Rules.  You stake your career on your performance; start staking your performance on knowledge of what you are doing.  You have a professional duty to your client to know the law, to inform, advise and guide your client, and to keep your client as well as yourself in compliance.  As the attorney in a probate matter the rules make it clear that you will be held every bit as responsible as the fiduciary when things go wrong.  The fiduciary, however, seldom has a law license and career on the line like you do.

THE OUTER LIMITS OF DECORUM

August 6, 2010 § Leave a comment

This from the Chicago Tribune online edition of July 19, 2010:

Elmhurst eye-rolling incident raises questions

By Annemarie Mannion, Triblocal.com reporter 

Elmhurst officials are considering creating a “disturbance and disorderly conduct” violation after a resident accused of rolling her eyes and sighing was ejected from a public meeting.

City Attorney Don Storino has been directed by the city’s finance and council affairs committee to look at various sources including “Robert’s Rules of Order,” Illinois state statutes and policies adopted by other municipalities for a legal definition of disorderly conduct and disruptive behavior.

He is expected to report his findings to the committee on July 26.

Ald. Stephen Hipskind said Darlene Heslop rolled her eyes and sighed while attending a June 14 committee meeting. Heslop, who was asked to leave the meeting, said she favors adding a definition of disorderly conduct to the municipal code.

“I’d like for them (city officials) to have a better understanding of the open meetings act and its meaning and to understand what disorderly conduct is,” she said.

Under state law, disorderly conduct is “an act in such unreasonable manner as to alarm or disturb another, or to provoke a breach of the peace.”

Heslop, who was asked to leave the meeting during discussion of a proposal for the city to hire a state lobbyist, which she opposes, said she hopes adding the definition will help city officials better understand “what the public is entitled to” when attending a city meeting or conducting city business.

Storino said the issues of conduct or behavior during a city meeting are not usually criminal matters.

“It’s not in any way a punishable offense by a fine,” he said. “It’s a matter of decorum.”

TRIAL BY CHECKLIST: EQUITABLE DISTRIBUTION

August 5, 2010 § 23 Comments

A practice tip about trial factors is here.

The decision in Ferguson vs. Ferguson, 639 So.2d 921, 928-9 (Miss. 1994), sets out the factors that the trial court must address in making a determination of equitable distribution.  Those factors are:

  1. Substantial contribution to the accumulation of the property, based on direct or indirect economic contribution to the acquisition of the property, contribution to the stability and harmony of the marital and family relationships as measured by the quality, quantity of time spent on family duties and the duration of the marriage, and contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
  2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
  3. The market value and the emotional value of the assets subject to distribution.
  4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to distribution, such as property brought to the marriage by the parties, and property acquired by inheritance or inter vivos gift by or to an individual spouse.
  5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution.
  6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic alimony and other potential sources of future friction between the parties.
  7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity.
  8. Any other factor that in equity should be considered.

Some principles of equitable distribution to bear in mind:

  • Equitable distribution applies to marital assets, which are assets acquired through the work efforts of one or both parties during the marriage.  Included in the definition of marital assets is added value, as where an asset was the pre-marriage property of one party, but its value was increased during the marriage by contribution.  An example is a 401(k) plan with a value of $10,000 at the time of the marriage that increases through contributions during the marriage to $100,000.  The increased value attributed to contributions is a marital asset. 
  • Equitable distribution does not mean equal distribution.  The division must be equitable, considering all of the Ferguson factors.  Each asset need not be divided; the overall division must be fair. 
  • Equitable division of the marital estate involves four steps:  (1) The trial court classifies each asset as marital or non-marital; (2) The court determines the value of each asset based on the proof, which may require appraisals; (3) The marital assets are divided equitably based on the Ferguson factors; and (4) move on to the Armstrong factors to determine whether, after equitable distribution, alimony is appropriate.
  •  The parties’ separate, or non-marital, assets are not subject to equitable division, although they are to be taken into consideration in the distribution as well as in ajudicating the need for alimony.  The values of non-marital assets must be in the record as well as that of the marital assets. 
  • Equitable distribution may be used to eliminate the need for an alimony award.  As the court stated in Ferguson at 639 So.2d 921, 929 (Miss. 1994), “Alimony and equitable distribution are distinct concepts, but together they command the entire filed of financial settlement of divorce.  Therefore, where one expands, the other must recede.”   
  • The contribution of a homemaker to the marital estate is presumed equal to that of a wage-earner, but the presumption can be overcome with proof that the homemaker’s contribution was actually minimal.
  • A spouse may be granted a greater share based on greater need.
  • In making its allocation of assets, the court considers the asset value net of debt, and may also factor in the amount of debt assigned to a party in determining how to award assets.
  • The valuation date is in the judge’s discretion, but the judge can be influenced by your proof and argument.  Give careful consideration to the date you wish for the assets to be valued.  For example, due to fluctuations in the stock market, it may be in your client’s interest for the valuation date to be closer to the date of the divorce than to the date of separation.  Make your position and its rationale clear to the court.  Caveat: The appellate courts have made it clear that entry of a temporary judgment stops accumulation of marital assets, so that any increased value or newly acquired assets after the temporary are the separate property of the party to whom they are attributable.

Equitable distribution is a complex subject with many nuances that are far beyond the scope of this post.  I recommend that you obtain a copy of Professor Deborah Bell’s Family Law in Mississippi, which includes an exhaustive analysis of the subject at Chapter VI.

“PRIMARY PHYSICAL”: A CUSTODY CONUNDRUM

August 3, 2010 § 7 Comments

Many lawyers use the term “primary physical custody” in their property settlement agreements.  For example:  “The parties shall share joint legal custody, and wife shall have primary physical custody of the minor children.” 

If the intent was for wife to have exclusive physical custody, use of the word “primary” in that sentence is probably harmless, if meaningless.

Consider, however, language in a property settlement agreement that provides, “The parties shall share joint legal and physical custody, with wife to have primary physical custody and husband to have secondary physical custody.”  For lawyers looking for a way to mollify a father demanding custody or at least joint custody, and a mother insisting on sole custody, such language sounds like a nice, painless way to make the father feel included in the physical custody loop while leaving the mother in first place, right?  Think again.

In Porter v. Porter, 23 So.3d 438 (Miss. 2009), the parties’ agreement used the “primary” and “secondary” language above.  The Mississippi Supreme Court pointed out that the joint custody statute includes no definition of the terms “primary physical custody” or “secondary physical custody.”  The court held that the term “primary physical custody” could not be used to transform what was expressly a joint physical custody arrangement into a de facto sole physical custody arrangement.  In other words, the use of the language “primary physical custody” has no legal meaning in our law, and its use may import dangerous ambiguity into your otherwise carefully-crafted agreement, leaving it open to an interpretation neither you nor your client ever intended.

Imagine having to explain to your client who thought she would be “primary” in the custody arrangement that she and her ex-husband are on an equal custodial footing.  Do you think she might be a bit peeved at her attorney? 

In my opinion, the same result as in Porter would be reached in the situation where the parties agreed to this language:  “The parties shall share joint legal and physical custody, and wife shall have primary physical custody.” 

And the same result with this language:  “The parties shall have joint custody, and wife shall have primary physical custody.”  The reason that this language would produce the same result is found in § 93-5-24 (5) (a), MCA, which states that ” … ‘joint custody’ means joint physical and legal custody.”

I believe that attorneys often operate under the mistaken belief that “primary physical custody” designates the person who has final decision-making authority in a joint custody arrangement.  The Porter case tells us that is not so.  If you want the wife to have final decision-making authority, use language to this effect:  “The parties shall share joint custody of the minor children, and wife shall have final decision-making authority in matters of the children’s health, education and welfare.”      

Practice Tip:  Avoid using the term “primary physical custody” or any other term not defined in the statute when crafting your custody provisions.

JUDGING IN THE BLIND

August 2, 2010 § 5 Comments

Is this you?  Your client, Otis, is on the witness stand.  Otis is testifying about his finances from Exhibit 2 in evidence, which is his Rule 8.05 financial statement — $350 a month for groceries, $100 for entertainment, $360.48 car note, and so on — and the only ones in the court room who are looking a copy of at his Rule 8.05 financial statement while he testifies are Otis, you and the lawyer on the other side.  You glance at the judge, who is sitting there staring off into some faraway void, eyes glazed, his mind drifting off into starry space where Otis’ crucial testimony will never penetrate.  The judge is missing the most important evidence in your case!

Where did you go wrong?

If you answered that the Chancellor doesn’t have a copy of the exhibit about which Otis is testifying and so is deprived of the most potent tool you have for the judge to follow and later recall Otis’s testimony, you are absolutely correct.  Give yourself a gold star and a pat on the back for a correct answer to this quiz.  Give yourself a big, fat F for your trial technique. 

Uniform Chancery Court Rule 3.05 states that, “Unless excused by the Court, it shall be the duty of an attorney to distribute copies of any exhibits to the Court and opposing counsel when offered.”  That includes the Rule 8.05 financial statements.

Some attorneys not only offer the exhibit; they also offer the court a separate, extra copy for the judge to mark up.  That’s a pretty shrewd practice. 

If you aren’t making sure that the court has the original exhibit or a copy when you ask a witness about it, you are asking the court to judge your case in the blind.  Put yourself in the judge’s shoes:  Without the exhibit, you are asking the judge to listen to, comprehend, copy down and digest literally dozens of figures, often delivered in rapid-fire, machine-gun fashion, when the figures are right there on the exhibit, and the judge could be following along, thoughtfully assimilating the testimony and jotting down a few helpful notes.   

The principle is not limited to financial statements.  I once had an attorney take a stack of photos in evidence from the bench, present them to the witness one by one, and ask the witness to describe and make observations about each.  To this day, I have no idea what the witness was talking about.  Had I had a separate copy, I could have looked at each photo simultaneously with the description, and perhaps that would have influenced the outcome of the case.

A week does not go by that I am put in the position of judging in the blind, and it is always to the detriment of the client.  How do you expect the judge to get the benefit of your client’s testimony about her financial statement or other exhibit if you take the document away from the judge before she testifies about it?

A variation on this theme occurs when the lawyer actually begins questioning the client about the financial statement and the witness, for crying out loud, does not even have a copy to look at.  That’s like sending the poor client into a knife fight without a knife.      

I have actually begun stopping trials and ordering attorneys to comply with Rule 3.05.  The lawyer who complies with Rule 3.05 not only appears to be prepared, professional and effective; she is prepared, professional and effective.  Surely you don’t want to be embarassed by appearing unprepared and clueless.   

Practice Tip:  Always have the original and FOUR copies of all exhibits.  That’s the original for introduction into evidence, copy one for yourself, copy two for your client, copy three for opposing counsel, and copy four either for the opposing party or for the court to mark up.  Copies are cheap, compared to cost to your client of not having them.

TRIAL BY CHECKLIST: GRANDPARENT VISITATION

July 28, 2010 § 16 Comments

A practice tip about trial factors is here.

Martin v. Coop, 693 So.2d 912, 913 (Miss. 1997), factors for grandparent visitation:

  1. Potential disruption in the child’s life;
  2. Suitability of the grandparents’ home;
  3. The child’s age;
  4. The age and physical and mental health of the grandparents;
  5. The emotional ties between grandparents and the child;
  6. The grandparents’ moral fitness;
  7. Physical distance from the parents’ home;
  8. Any undermining of the parents’ discipline;
  9. The grandparents’ employment responsibilities;
  10. The grandparents’ willingness not to interfere with the parents’ rearing of the child.

Except in unusual circumstances, grandparent visitation should not be the equivalent of parental visitation. Martin v. Coop at 913.

If the court awards grandparent visitation equivalent to parental visitation, the court must make specific findings to support the award.  Settle v. Galloway, 682 So.2d 1032, 1034-35 (Miss. 1996).

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