Practice and Procedure | The Better Chancery Practice Blog

When You Are An Imminent Peril to Your Client

January 25, 2017 § 1 Comment

Earlier this week I saw a piece on a news show about the increasingly rampant practice of thieves stealing tax refunds by filing false tax returns.

In one case, a woman learned that the outlaws had filed a tax return in her name claiming thousands of dollars in fake deductions that resulted in a refund — to them and not her — of $26,000. The refund was directed to a blank (prepaid) credit card where it can not be traced. Of course, the victim had to go through much travail to undo all the damage.

In another case, a man’s tax return with all of his dependency exemptions was hijacked for $5,000.

A tax expert came on screen and said that all a thief requires is the taxpayer’s Social Security Number (SSN), and the number of each co-filer and dependent.

Okay. Let that sink in. All that is required is the SSN’s.

Think about how many documents you have in your possession that are full of your clients’ SSN’s. Every tax return has the taxpayer’s SSN on every single page — sometimes in multiple places. Loan applications have them. Social Security earnings reports and other communications have them.

When you file an 8.05 financial statement and do not redact those SSN’s, you are sending your client’s personal information unprotected out into the world. When you produce unredacted records in discovery, you are violating your clients’ confidences. When you introduce information into evidence that includes SSN’s, you are exposing your clients to fraud.

This is something I have discussed here before. It’s serious, and it has serious implications for you. It won’t be long before PI lawyers discover a fertile new field for liability: lawyers who violate their clients’ financial confidentiality and integrity by not observing either the MEC confidentiality rules or the simple, common-sense precaution of redaction.

It seems like every week I have to caution a lawyer to redact confidential information from documents being introduced into evidence. In one case, we had to take an hour-long recess to allow 10 years of tax returns to be redacted. That should have been done long before the trial date.

The MEC rules make it clear that, if confidential information is filed, it is considered that the client has waived confidentiality. So when you file unredacted information, you have waived confidentiality for your client. Did you have authority to do that? Haven’t you committed an ethical violation when you did it without your client’s express permission?

When Less is Not Better

January 24, 2017 § 1 Comment

You know those annoying R81 linking continuance orders? The ones that you have to have entered on the return day and every successive continuance day to preserve your process? (R81(d)(5)).

This is what many of them look like to me:

The hearing on this matter is continued to the 8th day of February, 2017, at 9:00, a.m.

I think it should say in addition that the defendant (respondent) was called three times at the designated time, and he did not appear. Why? Because he could come up later and claim he was there all along and no one called out to let him know his case was up to be heard. The only record of what happened is the court’s order (unless you are in one of those rare districts where the docket call is on the record).

What about determination of heirship judgments? If you need to continue, and you simply recite that the matter is continued, a person claiming heirship can later pop up and claim that he or she was there and no one called him into the courtroom. Oops. No record to contradict it.

Often in chancery the only record you will have of what transpired is the order or judgment you present to the court. You should want it to be airtight, so you should include all the fact-finding and procedural recitations that the proceedings support. For instance:

In an uncontested divorce with a custody claim. Put on proof of Albright factors and address them in your judgment.
In an uncontested divorce with some property and alimony claims, put on proof of Ferguson and Armstrong factors, and add findings to your judgment.
The proof you present of those factors does not have to be elaborate. It just needs to be enough to justify the court’s signing off on the judgment you present.
In a case where the defendant appeared on a previous date or two and agreed to continuance(s), recite that history in your order or judgment.
If you published process, recite when, where, and how often published, and that no responsive pleading or other response was made.

The more detail you add, the more successful you will be later when the other party wakes up, realizes he has missed the train, and gets a lawyer to try to rescue him by filing a R59 or 60 motion. Just remember that whatever you recite in your order or judgment has to reflect what really transpired. You won’t get a chancellor to sign off on Albright findings when you never asked your witness the first question about them.

Appealing from a Special Master’s Ruling

January 23, 2017 § Leave a comment

The COA’s decision in In the Matter of J.W., decided January 3, 2017, is not likely to go down as a leading case in Mississippi jurisprudence, but for chancery practitioners in particular, it’s one you need to bear in mind.

To make a short story even shorter (the opinion is only three pages long), J.W. appealed from a finding made by a special master that he should be involuntarily committed to the custody of the Mississippi Department of Mental Health. The special master followed his findings with an “Order of Admittance after Hearing.” J.W. filed a R59 motion, but the COA does not tell us what the outcome of that was.

No matter. The COA dismissed the appeal for lack of jurisdiction because no chancellor ever adopted the special master’s findings in a court order. As the COA’s opinion by Judge Fair concludes:

¶5. “The court may appoint one or more persons in each county to be masters of the court, and the court in which any action is pending may appoint a special master therein.” M.R.C.P. 53. “[A] master’s report has no effect until it is either accepted or rejected by the chancellor.” Davison v. Miss. Dep’t of Human Servs., 938 So. 2d 912, 915 (¶5) (Miss. Ct. App. 2006) (citing Evans v. Davis, 401 So. 2d 1096, 1099 (Miss. 1981)). Here, there is no order by the chancellor accepting the special master’s report, and there has been no ruling on J.W.’s motion to reconsider. Because there is no final, appealable judgment, we lack jurisdiction and must dismiss. See Newson [v. Newson], 138 So. 3d [275], at 278 (¶11) [(Miss. Ct. App. 2014)].

The big deal here is that many districts around the state employ special masters routinely to handle child support and contempt cases per MCA 9-5-255. It’s an effective tool to free up courtroom time for more complex litigation, and to reduce waiting time for all kinds of hearings. When you get your findings and even a so-called “order” from your special master, however, it’s my opinion that you do not have either an enforceable judgment or a final, appealable judgment unless and until the chancellor has accepted the master’s report. That’s because of the language of MCA 9-5-255(8), which essentially tracks R53.

Another thing you need to keep in mind is that R53(g)(2) specifically directs that:

“The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto on the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may adopt the report in whole or in part or may receive further evidence or may recommit it with instructions.”

In Sims, et al. v. Mathis, handed down May 24, 2016, the COA held that it is the duty of the objecting party under R53 not only to file timely, specific objections, but also to set them for hearing and bring them before the court. In those special-master child-support cases, then, any objection needs to be filed within ten days of notice of the master’s findings, and the lawyer or party filing the objections needs to set the objections for hearing and bring the matter on for hearing. If that is not done, the court “shall accept the master’s findings of fact unless manifestly wrong.”

All of the foregoing applies not only to mental commitments and child-support proceedings, but also in every case in which a special master is appointed by the court. Mathis was a partition suit. Special masters are appointed in a wide range of chancery matters.

Communicating: Improving a Basic Skill

December 7, 2016 § 1 Comment

At its heart the legal profession is all about communicating, which consists of at least several elements:

First, one must understand that which must be communicated. This entails analysis of the situation to break it down into its legal elements, and then application of the law to those elements.
Second, the analysis has to be translated into understandable words.
Third, the understandable words have to be presented in an organized, understandable, persuasive manner.

You can probably improve on that, but it suits my purposes for now.

At the trial level, effective communication involves well-written pleadings and briefs or memoranda of law, and oral argument, as well as the way you examine witnesses. At the appellate level, brief-writing and oral argument depend heavily on how well the lawyer can communicate.

Some things that get in the way of effective communication are poor grammar and spelling, improper word choice and usage, and disorganized thinking. And, it should go without saying that your communication is for naught if your legal analysis is flawed.

Here are a few tools to help you craft your communications effectively:

The Elements of Style, by William Strunk and E.B. White. This little gem at fewer than 100 pages (at least in the worn edition I have), is crammed with useful insights into effective writing. Here you will find such usage solutions as how to create the possessive plural of names ending in s, proper use of semi-colons with clauses, whether to use a singular or plural verb forms with words such as “or” or with linking verbs, and the proper case of pronouns, all presented in clear language with easy-to-grasp examples. There are other sections on principles of composition, matters of form, misused words and expressions, and suggestions for improving your style of writing.
Fowler’s Dictionary of Modern English Usage, by H.W. Fowler, Jeremy Butterfield, editor. When should one use italics? What is the difference between reciprocal and mutual, or apprehend and comprehend, or unless and until? Why the word “literally” conveys the opposite sense of what you intend? Do we still observe rules such as avoiding split infinitives and ending sentences with a preposition (hint: it’s usually okay to)? You will find answers to these and many, many other questions that routinely pop up as you write in this useful book that is arranged by subject alphabetically.
Any good thesaurus. When you say the same thing over and over using the same words, your words have no impact.
A good dictionary. Before you use that word, you might want to look it up (takes three seconds) to make sure it means what you think it does.
The Law Prose blog. A gold mine of information on proper and potent use of legal terminology. This is one you should bookmark.
Adams on Contract Drafting offers guidance on how to draft contracts in ways that avoid ambiguity and clearly state the intent of the parties. Even if all of your drafting practice consists of property settlement agreements, you can learn something here about how precision in the use of language can make a big difference between success and failure of your instruments.
Here’s a link to an article in the ABA Journal Online on How to Bring a More Conversational Tone to Your Writing, which is meritorious in its own right, but illustrates also that there are resources all over the internet that you can bring to bear in your quest to be a more productive communicator.

You may be surprised how, when you concentrate on making your language more concise, correct, and powerful, you will simultaneously discover weaknesses in your legal analysis and thought process that you can shore up and strengthen before you ever dispatch that communication to counsel opposite and the court. That’s the kind of strength that distinguishes a really good lawyer from a mediocre one.

When Alimony is Like an Elephant

November 28, 2016 § Leave a comment

Most of you, I am sure, are familiar with the fable of the blind men and the elephant. Six different blind men, for some reason, are asked to feel an elephant and to describe what the creature is like based on their experience. Of course, each one can offer a description based only on his limited groping. One surmises a rope-like creature based on feeling the trunk, another guesses a tree-like creature after feeling the leg, and yet another posits an umbrella-like critter from feeling the ear. And so on. The point being that perception based on limited evidence can be misleading and incomplete.

That takes us to the COA’s decision in Kittrell v. Kittrell, decided October 4, 2016, in which the court was called upon to determine whether the special chancellor erred in concluding that an alimony provision in a PSA was periodic. To set the stage, Judge Lee recited the legal standard and went on to describe the court’s chore:

¶9. “Although a court order imposing alimony must, in general, clearly identify what type of alimony is being awarded and adhere to its traditional characteristics, our ‘Supreme Court has not required consensual support agreements to follow the same terms as for court imposed alimony.’” Id. at 918 (¶30) (quoting Elliott v. Rogers, 775 So. 2d 1285, 1289 (¶15) (Miss. Ct. App. 2000)). “Rather, the Supreme Court has emphasized divorcing parties’ freedom and ‘broad latitude’ to settle the financial aspects of their separation by contract as they see fit[.]” Id.

¶10. It is because of this broad latitude that this Court is faced with the hopeless task of determining whether the alimony provision in Stan and Stephanie’s property-settlement agreement provided for lump-sum or periodic alimony. [Emphasis added]

Hopeless task? Hyperbole, you think? Well, judge for yourself; here’s the PSA provision in question:

Both parties do hereby agree that Stan Kittrell each month shall deposit his monthly retirement check from the Public Employees Retirement System (PERS) into Stephanie Kittrell’s bank account via direct deposit with the monthly amount of $250.00 considered child support and the remainder as alimony. The child support will continue to be deposited monthly until the child’s [twenty-first] birthday or until the child no longer lives with the mother. The remainder of the check shall be considered alimony and shall continue to be paid until the child reaches the age of [twenty-one] or until Stephanie Kittrell remarries. Stan Kittrell shall receive sixty percent (60%) of the [thirteenth] PERS check and Stephanie Kittrell shall receive forty-percent (40%) of the same until such time as the child reaches the age of [twenty-one] or until the child no longer lives with the mother. Stephanie Kittrell by signing this document agrees to pay the house note on the marital home out of the PERS money she receives from Stan Kittrell.

Stan Kittrell hereby relinquishes all rights and benefits to Stephanie Kittrell’s 401k retirement funds. Both parties relinquish any right to bonuses, rewards, or financial settlements of any kind.

Hyperbole? I think not. Here’s how the COA addressed it:

¶18. We also reverse the chancery court’s finding that the alimony provision in Stan and Stephanie’s property-settlement agreement provided for periodic alimony. The alimony provision does not strictly adhere to the traditional characteristics of either periodic or lump sum alimony. See Lowrey [v. Simmons], 186 So. 3d [907] at 919 (¶33) [(Miss. App. 2000)]. Accordingly, we will enforce the provision as it is written. See id. Because Stephanie did not remarry, Stan was obligated to pay alimony until Dylan reached the age of twenty-one on September 17, 2014. And Stan’s thirteenth PERS check would have terminated when Stan was granted custody of Dylan. We remand this case to the chancery court for a calculation of the specific amount of alimony owed as well as costs and attorney’s fees.

I am guessing that this was not the outcome Stan expected when he signed that PSA back in 2005.

When you draft an agreement such as a PSA, keep in mind that it not only has to reflect the parties’ agreement and make sense to them and counsel involved, it most importantly must be clear enough to make sense to others not involved, and particularly to any judge who will later be called upon to construe it. Again : Draft it, and set it aside for a day or so. Then pick it up and read it over again carefully. Does it say what needs to be said? Then re-read it pretending that you know nothing about the negotiations (like a judge has to do). Is it clear from its plain language just what is intended and what is to occur? If it is intended to be periodic alimony, then say so in plain, unmistakable terms. When you leave it to a judge to figure it out later, your client might not get what she thought she bargained for.

This case also involved a claim for termination of alimony for cohabitation. That’s for another day.

An Acknowledgment is not an Oath, and Vice Versa

November 7, 2016 § 2 Comments

This is an acknowledgment:

Personally appeared before me, the undersigned authority in and for the said county and state, on this the 4th day of October, 2016, within my jurisdiction, the within-named Joe Doe, who acknowledged that he executed the above and foregoing instrument. (MCA 89-3-7)

This is an oath:

Personally appeared before me, the undersigned authority in and for the said county and state, Jane Doe, who, after by me being first duly sworn, stated on oath that the matters and things set forth in the foregoing Petition are true and correct as therein stated.

Each serves an important function, but their functions are entirely different, and they are not interchangeable.

If you have to file an affidavit, such as an affidavit of known creditors, or an affidavit of diligent inquiry for publication process, or if you must file a sworn pleading in an estate, an acknowledgment simply will not do the job. All of those call for swearing on the part of the maker, and there is no swearing in an acknowledgment.

But, you may say, “It’s notarized; that should do it, right?” Wrong. All the notary is doing is witnessing. In one instance, she is witnessing a signature (acknowledgment). In the other she is administering and recording an oath. It’s two distinctly different things.

I am bringing this to your attention because I have had to send lawyers scurrying back to the staring line when I look at the document that is styled “Affidavit,” which requires an oath, but on closer examination includes only an acknowledgment. Without a swearing, it’s not an affidavit.

Make sure your office staff understands the difference and selects the correct one to meet the function. It can save you time, money, and embarrassment.

How You do it Back Home

August 30, 2016 § 1 Comment

Back in the early 70’s (that’s 1970’s, BTW), when I lived and worked in the Atlanta Metro area, I traded at a service station (that was before self-service) that had its own service and repair garage. It was off I-75, a favorite route for the millions of snowbirds on their way to Florida from Michigan, Indiana, Ohio, and points north. Over the service area was a prominent sign that read, “WE DON’T CARE HOW YOU DO IT UP NORTH.”

That comes to mind from time to time when a lawyer, usually from a larger metropolitan area to our west, encounters our way of doing business here and whines, “But that’s not how we do it in ____________ (fill in the blank for your favorite whining locale).”

The insinuation is either:

“We do it right back home, and you don’t do it the same, so you are wrong,” or

“I hate to have to adapt to your stupidity.”

Well, as much as you are loathe to have to adapt to our ~~stupidity~~ way of doing things, the deal is that we simply follow the rules and statutes as best we understand them. If you do that, too, you will find that your business will glide smoothly through our courts with nary a snag or delay. Don’t follow the rules and statutes and you will be hung up until you do.

And as for how you claim that you do it back home, I’m sorry, but some of the things that lawyers tell me about how they do business back in the Promised Land seems to have a soupçon of, shall we say, bovine effluvium. In my many years’ experience as a lawyer in various chancery districts around the state, I never encountered a chancellor who didn’t expect everything to be just right. So I refuse to believe we sitting chancellors have lowered our standards as far as some would have me believe.

I got so exasperated a couple of years ago with a lawyer who insisted that I include two pages of language vesting title in various individuals and removing clouds from title in a muniment of title judgment because “that’s what my chancellors do,” that I suggested he file his pleadings in one of those mythical districts where the chancellors don’t follow the law. This of course, he could not legally do because the property was in my district. My thinking was that if the chancellors there are so lax, jurisdiction should not matter. (Footnote: I won the argument)

We’re not unique in this district with our ways. When I practiced in chancery districts across the state, I found a wide range of customs and practices, but the common thread was that the chancellor in each district was doing his or her dead-level best to ensure that it was done right.

As you gad about the state in your legal perambulations, keep in mind that every chancellor has his or her own take on what the law requires, but each and every one of us is zealous to see that business in our courts is handled correctly and according to the rules and the law. Believe it or not.

Some Random Thoughts and Tips on Probate Practice

August 12, 2016 § 1 Comment

Probate practice is entirely statutory. That means that everything you need to know is spelled out in the code, right?

Well, yes and no. The black letter of the law is there, true. But case law, the Uniform Chancery Court Rules (UCCR), and common sense fill in the gaps.

Here are some thoughts about probate, along with a few tips:

MCA 93-7-145 (b) requires that the “executor or administrator” shall file an affidavit with the clerk that he/she has made reasonably diligent efforts to identify persons having claims against the estate. The affidavit can only be made by the executor or administrator. Thus, if you have it signed and notarized before the person is appointed by court order and before the person qualifies (by taking the oath and posting any bond), it is ineffective, and, in this district, you will have to start over. That’s because the person has not yet assumed the office of executor or administrator. The attorney may not sign the affidavit on behalf of the fiduciary. I posted about this here before.
UCCR 6.13 requires that every pleading, account, report, etc. filed by a fiduciary be sworn. In the recent case of Miss. Comm. on Judicial Performance v. Shoemake, handed down April 14, 2016, the MSSC as much as said that every pleading and other document calling for court attention filed in an estate must be sworn to by the fiduciary. In this district we no longer accept any pleadings, accountings, motions, etc. signed solely by the attorney, with the sole exception of the situation where the attorney has completely lost contact with the fiduciary, and the attorney must file a report with the court per UCCR 6.01 and 6.02.
For publication process on unknown heirs and unknown wrongful death beneficiaries: remember that there must be some sworn statement, either in pleading or via affidavit, that there are no other known heirs, and the names of any other heirs, if any, are unknown, or words to that effect, per MRCP 4(c)(4)(D). AND, since you will be publishing process, you must include in the sworn statement that diligent search has been made for them, as required in MRCP 4(c)(4)(A).

TIP: Why not include the necessary language in your petition to determine heirs, or even in your complaint to open the estate? Since UCCR 6.13 requires the fiduciary to swear to all pleadings, you can kill 2 birds with one proverbial stone.

TIP: When opening an administration, why not include sworn language in your complaint that no other heirs are known after diligent inquiry, and petitioning the court to determine and adjudicate heirship. This will eliminate the need to file a separate petition.

If you are asking for approval of attorney’s fees in any probate matter, including a guardianship or conservatorship, I require that you include a statement of the amount of fees for which you are seeking approval within the pleading asking for it. That way, when the fiduciary signs it, he or she is put on notice of the amount. If there is a disagreement over the amount, include: (1) a statement of the amount claimed, (2) that there is a dispute, and (3) a request that the court resolve the dispute. Set the matter for hearing and be prepared for both sides to present their positions. Whether your chancellor requires it or not, you might want to consider following this practice.
There are factors that the court must consider in determining whether and how much to award for attorney’s fees in an estate. In addition to those, I especially take into account: how diligent was the attorney in doing all that was necessary to close the estate in a reasonable time; how timely were the inventory and accountings; how responsible was the fiduciary; how timely were publications and how correct were they; and how much did the attorney’s diligence or lack thereof save or cost the estate, guardianship, or conservatorship.
Most attorneys know by now, but let me emphasize: If you do not file an Affidavit of Known Creditors BEFORE you publish notice to creditors, your publication is ineffective because MCA 91-7-145 states that “Upon filing such affidavit …” it is the duty of the fiduciary to publish notice to creditors. In other words, only after the filing of the affidavit may you publish. In this district, if you publish without having first filed the affidavit, you will be required to re-publish your notice, delaying closing of the estate. See, Estate of Petrick: Vann v. Mississippi Neurosurgery, PA, 635 So.2d 1389 (Miss. 1994).
Speaking of inventories, I know it will come as a surprise to many of you – judging from the estate files I look at – that MCA 91-7-93 requires the executor or administrator to file an inventory within 90 days of the date when letters are issued, unless the court has either waived inventory or extends the time. MCA 91-7-105 states that the court can revoke letters of a delinquent fiduciary.

When Excusable Neglect Isn’t

August 8, 2016 § Leave a comment

We discussed here before the concept of excusable neglect and how it can be a trap for the unwary. You can read about it at this link.

In that case, Nunnery v. Nunnery, the COA upheld a chancellor’s decision that the concept of excusable neglect did not excuse an untimely appeal and other actions that could have kept the case viable, even in the face of some extreme, and emotional, facts.

Later, in early 2016, we noted here that the MSSC had granted cert.

Now the MSSC has spoken, and its decision in Nunnery v. Nunnery, handed down July 21, 2016, affirms the COA and the trial court in a 4-3-2 decision. The gist of the majority decision, written by Justice Coleman, is this:

¶15. An excusable-neglect determination “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993). The Pioneer Court then adopted the following four-part, excusable-neglect test: (1) “the danger of prejudice to the [non movant],” (2) “the length of the delay and its potential impact on judicial proceedings,” (3) “the reason for the delay, including whether it was within the reasonable control of the movant, and” (4) “whether the movant acted in good faith.” Pioneer Inv. Serv. Co., 507 U.S. at 395.

The decision goes on to note the many cases in which the 4-prong Pioneer test has been applied in the federal courts, and concludes, ” … and we hold that it is an appropriate guide for our courts.”

The court went on to analyze the chancellor’s ruling and concluded that she had considered the four Pioneer factors, that her findings were supported by the evidence in the record, and that there was no abuse of discretion. Thus, affirmance.

The dissent did its own analysis of the record and reached a contrary result, essentially substituting its judgment for the trial judge’s.

One aspect of the case at the trial level was that there was a 15-month delay between the filing of a R59 motion and its disposal by the court. The delay was due to the fact that the defendants-movants never called it for hearing. The dissent blamed the plaintiffs, charging that they should have called it up themselves to mitigate the delay. The majority addressed that this way:

¶20. We pause before closing to address the dissent’s striking assertion that the fifteen month delay caused by the defendants’ failure to seek a ruling on their motion for a new trial should actually be weighed against the plaintiffs. (Dis. Op. at ¶ 37). The dissent would hold that the delay shows the plaintiffs were not prejudiced because, if they were being prejudiced, surely they would have sought a ruling on the motion themselves. Mississippi law and practice clearly put the onus on the movant to obtain a ruling on a pending motion. Billiot v. State, 454 So. 2d 445, 456 (Miss. 1984). We cannot effectively agree to penalize parties who had no reason to know they were responsible for calling up the opposing party’s motion and, that because they did not do so, will face the Court using against them a failure that belongs squarely at the feet of their opponents.

The cautionary tale here is that “Excusable neglect” can be a velvet trap: attractive yet fraught with peril. You mustn’t view it as the one-size-fits-all escape hatch whereby your local chancellor will save you from your oversights. On the contrary, when applied properly, it is an equitable analysis in which the court must weigh the prejudice to and interest of the opposing party, judicial economy and delay, the reasons for the delay, and the operation of good faith.

You can read Philip Thomas’s take on the case at this link.

Questioning the Child Witness

July 14, 2016 § 1 Comment

Children are often called as witnesses in chancery court. It should go without saying that some children, due to various factors, have to be handled gingerly in how they are questioned. Age, emotional maturity, emotional content of the testimony, education and cognitive development, and the courtroom environment all affect a child’s effectiveness as a witness. Other factors may as well.

The Children’s Advocacy Centers of Mississippi have published a booklet entitled A Guidebook for Accommodating Children in Court that includes some helpful information on the subject. Here are some key points:

Use simple grammar and concrete words; the child can better understand the questions.
Children have a right to be asked questions they understand and should be informed that they should let the court know if they do not understand. Even so, some children may be reluctant to admit they do not understand if they think it is a question that they should understand, and some children may think they understand the question when they really do not. Every now and then a check question like “What do you think I just asked you?” may help make sure there is no misunderstanding.
Children use the vocabulary they have. For instance, a child may describe having been “stabbed” in an episode when there was no knife used or even present; what the child is describing is what the experience felt like, because there are no other words in his or her vocabulary for it.
Young children may not organize their thoughts logically, and often have limited understanding of space and time.
To promote more accurate answers, use common, everyday words and phrases, and avoid legal words and jargon such as attorney, deny, subsequent to, take the witness stand, court (in reference to the judge), allegation, defendant, statement, oath, testify.
Use names and places instead of pronouns and adverbs. Instead of “Was he there then?” ask “Was John at the apartment when you arrived?” Instead of “Were they all there?” ask “Were your mom, aunt Sue, and your brother Bill at the park with you?”
Negative questions are most often misinterpreted. Avoid no, not, and never in your questions. “Did you go into the house?” is better than “Did you not go into the house?” And avoid double negatives.
Start questions off with the main idea. “Did you hear the bell go off when you were eating with your family?” is more effective than “When you were eating with your family, did you hear the bell go off?”
Avoid multi-part and multi-idea questions.
Pausing is productive. Pausing between phrases, sentences, and after questions allows children to process their thoughts, which aids comprehension for more accurate communication.
Cultural and ethnic differences can lead to differences in demeanor on the witness stand. Native Americans, for instance, may have long pauses in communication that can be incorrectly interpreted negatively.

If you can get a copy of this booklet, I think you will find it helpful. CAC’s address is P. O. Box 5348, Jackson, MS, 39296. Phone 601-940-6183. Their website is at this link.

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