January 23, 2018 § 2 Comments
In case you hadn’t noticed, MRCP 11(a) requires every pleading to be signed by one of the attorneys of record. But it doesn’t stop there. It goes on to say that …
“The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”
R11(b) provides sanctions for non-compliance.
The Advisory Committee Note says that, “Good faith and professional responsibility are the bases of Rule 11.” And it points to R8 pertaining to general denials, which is expressly subject to R11, “meaning only when counsel can in good faith fairly deny all the averments in the adverse pleading should he do so.”
So how do the following comport with R11?
- Attorney prepares and files an affidavit of diligent inquiry stating that the affiant is the sole heir of the decedent. The attorney is relying solely on the word of the affiant-client. Turns out that the affiant has two sisters in another state.
- Attorney files an affidavit on behalf of the client taking the client’s word that she looked everywhere for her daughter to take custody of her child, and the daughter is not to be found in Mississippi. A simple Facebook search would have located the daughter in Gulfport.
- Attorney files a verified application for injunction swearing that efforts have been made to give notice, but that notice should not be required. On inquiry by the judge it is disclosed that counsel has been in discussions about the matter with an attorney representing the opposing party, and that attorney’s office is directly across the street from the courthouse.
- Attorney signs off on a divorce complaint alleging HCIT and adultery knowing from interviews with the client that there is not enough evidence to support either ground.
If good faith and professional responsibility are the fundamental considerations behind R11, then I think it requires more than taking your client’s word for it and filing pleadings that prove to be wrong. Notice that I said wrong, and not fraudulent. But that’s a thin line.
January 16, 2018 § 2 Comments
In the spirit of the new year, which is always a good time to reassess and reevaluate, I offer you MCA § 73-3-37, with which I am sure you are familiar, but perhaps would like to read anew:
It is the duty of attorneys:
(1) To support the constitution and laws of this state and of the United States;
(2) To maintain the respect due to courts of justice and judicial officers;
(3) To employ for the purpose of maintaining the causes confided to them, such means only as are consistent with truth, and never to seek to mislead by any artifice or false statement of the law;
(4) To maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients;
(5) To abstain from all offensive personalities, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which they are charged;
(6) To encourage neither the commencement nor continuance of an action or proceeding from any motives of passion or personal interest;
(7) Never to reject, for any consideration personal to themselves, the cause of the defenseless or oppressed.
July 31, 2017 § 3 Comments
That title up there is a quote from Samuel Goldwyn, he of Hollywood studio fame.
A lawyer recently introduced himself to me and, after telling me that he read this blog every day, said to the effect that he thought I was not always right, but he enjoyed reading it.
Well, I totally agree with him. You see, what you have here is my unvarnished opinion on whatever I choose to write about. My opinions may not always be right, but they might send you off on your own quest for something more solid.
As for what I do in court, the appellate courts may not agree with my opinion (if they care), other chancellors may not agree, and even lawyers may not agree. But in my court I’m never wrong until the COA or MSSC says I’m wrong, or until I change my mind. And I think my opinions, as do yours, and those of other lawyers and judges, have some value in themselves.
Seriously, you should regard this blog as a starting point. As one reader said, he searches here first on chancery issues and then uses what he finds to search on Westlaw. That’s in keeping with what I have said here many times: this is a starting point. Where you go from here with further research and analysis may take you in a different direction.
I am never offended when someone challenges my conclusions and judgments. That is what the law is all about. That is how the law grows and develops. That is what lawyers and judges do. Out of the controversy we hope that truth will emerge, and I think in most cases that is what happens.
July 24, 2017 § 2 Comments
In 2007, Annie and Frederick Griffin got into a dispute with the mortgage carrier, ABN, over modified terms, and stopped paying. They then sued in federal court alleging fraud and violation of other federal laws on debt collection. ABN filed a motion to compel arbitration, but the matter returned to federal court in 2010 after the arbitrator no longer handled consumer cases. The Griffins filed a motion to declare the arbitration agreement unenforceable, and in response ABN withdrew the arbitration request, no doubt to move the case along. The court granted ABN’s motion.
The Griffins then filed an objection to the ruling, even though they had a pending motion to rule the arbitration agreement unenforceable. They filed the motion pro se, because their attorney withdrew, citing the Griffins’ proclivity for not following his advice. Finally, in February, 2012, the district court entered a sua sponte order dismissing the case for failure to prosecute, concluding that “[i]t appears to this court that the plaintiffs view this lawsuit not as something to be actually litigated, but, rather, as something to be kept alive indefinitely, even at the cost of taking a position that is fundamentally inconsistent with the one they have taken for years in this case.”
In January, 2014, the Griffins filed another complaint in chancery court raising the same legal claims and issues as in the federal suit, and based on the same set of facts. There ensued a removal to and remand from federal court, a recusal, and finally a dismissal in chancery on the ground of res judicata. The Griffins appealed pro se.
In the case of Griffin v. ABN, et al., handed down May 16, 2017, the COA affirmed. Judge Greenlee wrote for the court:
¶7. “The appropriateness of application of the doctrine of res judicata is a question of law” and will therefore be reviewed de novo. Swaney v. Swaney, 962 So. 2d 105, 108 (¶11) (Miss. Ct. App. 2007).
¶8. We agree with the chancellor that Griffin II [the chancery matter filed after the federal court dismissal] is properly barred under the doctrine of res judicata. The doctrine of res judicata has four identities: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶24) (Miss. 2005).
¶9. All four identities are met in the case at hand. The factual allegations in the complaint of Griffin II were copied almost verbatim from the complaint of Griffin I, and with the exception of dropping a couple of claims (the FDCPA and TILA claims), the complaint reasserts the same claims of fraud. All parties present in Griffin I were also present in Griffin II.
¶10. In addition to those four identities, to qualify as res judicata the prior judgment must have been a final judgment on the merits. Anderson v. LaVere, 895 So. 2d 828, 833 (¶10) (Miss. 2004). Under both Mississippi and Federal Rule of Civil Procedure 41(b), dismissal for failure to prosecute operates as a final judgment and dismissal is with prejudice. An exception is found in Mississippi Rule of Civil Procedure 41(d), which provides that where dismissal is made by the clerk following twelve months of docket inactivity, that dismissal is without prejudice. See Strickland v. Estate of Broome, 179 So. 3d 1088, 1094 (¶18) (Miss. 2015). But the case at hand does not fall under Rule 41(d), but rather falls under Rule 41(b). Prior to dismissal, the Griffins were put on notice by the district judge that the case would be dismissed for failure to prosecute if the litigation did not move forward in a meaningful way. The Griffins responded by shifting their legal position in order to avoid trying the merits of the case. The district court’s dismissal of the action was not only appropriate for failure to prosecute, but was also consistent with the Griffins’ new argument that the case should not be tried in court at all but rather arbitrated.
The court went on to address and reject some other issues raised by the Griffins.
- Res judicata is all about identity of issues, facts, and parties. It matters not that the original, dismissed proceeding was in another state or federal court.
- Res judicata requires a final judgment on the merits in the dismissed action, and the COA found here that the federal court’s dismissal order was a final judgment on the merits per R41(b), and not a dismissal per R41(d).
- Shifting your legal position is a pretty effective way to frustrate your judge. My term for it is game-playing. Courts are for serious business, not for toying with others, delaying, pettifogging, and caviling. That’s the kind of conduct that will get your case thrown out of court. The Griffins’ lawyer was wise to withdraw before he became identified with their tactics and his own credibility with the court took a hit.
January 3, 2017 § 1 Comment
The new year. A time when one chapter is closed and another is opened, with 365 glorious blank pages on which you can write the next installment of your life. It’s a time when you can change the plot, add and subtract characters, and even make your hero (you) even more phenomenal.
Most people think in terms of New Year’s resolutions. Those are the seldom-kept self-promises that most people think will somehow turn their lives around.
Why not think instead in terms of a New Year’s Revolution. Declare your independence from some of the old ways of doing things and adopt a new constitution that spells out better, more effective ways.
Here is a handful, just to get you started:
- Be more efficient. Stop putting everything off until you have an insurmountable mountain of work deadlines all coming due at the same time, usually when you can least afford to deflect attention from even more important tasks. Delegate non-essential and repetitive tasks to your staff. Implement a file diary system and follow it diligently. Remember that the only way to eat an elephant is one spoonful at a time. Likewise, you will find your life easier if you break complex tasks down to their component parts, address the parts in order of importance, and let your staff help you. That does not mean that you sacrifice attention to detail. A juggler who pays attention can keep may objects flying at once; a juggler who does not pay attention breaks a lot of plates and loses a lot of paying customers.
- Keep up with your probate practice. Make it your goal in 2017 to be one of those attorneys who file inventories and accountings on time and correctly, who keep up with fiduciaries and wards, and who never let things spin out of control. It takes some attention and the will to create workable systems to manage a probate practice, but it can be done with some effort. It’s not rocket science. Look around you; some of the most ineffective lawyers in other areas somehow manage to stay on top of their probate matters, while even brilliant lawyers get summoned to show cause for not keeping theirs in line. All it takes is the determination to come up with a systematic approach, and then to stick to it.
- Make time for your life. The law is not your life; it’s only a part of your life. If you are being smothered by the demands of your caseload, you probably (1) are not being efficient (see above); or (2) are not doing a good job deciding which cases to accept and which to turn away, so you are overloaded. You need to have leisure time to share with family and friends, to hunt and fish, or take a walk, or work out, or read a good book, or listen to music, or go to a movie.
- Be more professional. The new year is a perfect opportunity to evaluate your professionalism. Ask yourself whether your pleadings and other filings look like they were prepared by a top-notch lawyer, or were slopped together by a hobo. Ask yourself whether the way you greet and interact with your clients reflects sincerity, knowledge, and concern for the client’s best interest, or impatience, sloppiness, and overriding concern for fees. Ask yourself whether your interaction with judges, clerks and courtroom staff is courteous and empathetic, or whether you come across as an arrogant, demanding jackass. Ask yourself whether you treat opposing counsel and party with respect and professional courtesy, or whether you treat them like an enemy to be destroyed. The positives can be polished and improved on. The negatives need to be eliminated.
- Be on time. If lack of punctuality is your vice, take the opportunity of the new year to change your ways. When a lawyer is late in my court, I take it that the lawyer is telling me and everyone else there that whatever she was doing when docket call or hearing started was far more important to her. Being late is being unprofessional. Clients recognize it as such, and so do the other lawyers. Judges certainly do, and unprofessional lawyers find it much more difficult and time-consuming to have their matters concluded by the judge because the judge feels that she has to check to be sure that every i is dotted and every t is crossed. If you are chronically late, you need to come up with some strategies for being timely. Whenever you are late, whether for the first time or twentieth, you need to apologize to the judge and others who were inconvenienced by your tardiness, and give a brief explanation of what held you up.
That’s a meager few, but if you can’t come up with some on your own, they are at least a starting point.
Oh, and every day is another start to the rest of the year. So if you fall short one day you can recover the next.
Every day is an opportunity to be a better person, spouse, parent, lawyer, friend.
December 9, 2016 § 5 Comments
I know things can get tense out there, friends, but I hope it doesn’t come to this here in Mississippi:
A San Diego lawyer disbarred in a default judgment after walking out of his disciplinary trial says he plans to sue state officials involved in the proceedings.
The former lawyer, Douglas James Crawford, was accused of bringing pepper spray and a stun gun to a deposition, threatening to use them on opposing counsel if things got out of hand, and discharging the stun gun while pointing it toward opposing counsel, according to a summary of his case in the California Bar Journal. He was disbarred in September.
Crawford tells the San Diego Union-Tribune that he plans to sue for civil rights violations. He says he walked out of the disciplinary trial because he believed lawyers for the State Bar of California misrepresented facts and improperly kept him from presenting witnesses and evidence.
“As far as the disbarment, I could care less,” Crawford told the Union-Tribune. “It’s not really a group of people I want to associate myself with.”
A state bar court had found Crawford culpable in four of eight misconduct charges against him, according to the California Bar Journal summary and a July 2015 decision by the bar court hearing department. The bar court found he engaged in moral turpitude in the pepper spray and stun gun incident.
Crawford told the Union-Tribune that he brought the stun gun and pepper spray to the deposition because someone had brought a gun to another deposition and he felt unsafe. He said he displayed the stun gun and pepper spray to disclose that he was armed, but he never threatened anyone with them.
People bringing guns to depositions? People feeling unsafe at depositions? My Lord. And the disbarred lawyer is planning to sue for “civil rights violations.” Really.
I didn’t make this up. You can read the article at this link.
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.
November 1, 2016 § 8 Comments
Has this ever happened to you? You have arrived at the head of the line at Wendy’s (or your customary fast-food joint):
You: I would like a small number one combo to go; hold the cheese and onions.
Wendy: Number one combo. Here or to go?
You: To go. And did you get the no cheese and onions?
Wendy: Number one combo. Large or small?
You: Uh, small. And no cheese and onions, right?
Wendy: You want no cheese and onions?
You: Right. No cheese and onions.
Wendy: Number one combo. No cheese and onions. Small. Here or to go?
[If you weren’t paying close attention, you might want to read through that again slowly]
When you get to your vehicle, odds are 3-1 that there is either cheese or onions, or both, on your burger. Happens all the time.
Not trying to pick on Wendy’s. Or fast-food joints in general. Or the people who work there. It’s just a cultural thing nowadays that people are used to getting their information in small, rapid snippets. They are accustomed to doing three or four things all at once, not doing any of them particularly accurately. They simply are not used at all to pausing to gather enough information and apply a cognitive process to it. That takes too much time and effort.
And our modern apparatuses facilitate this. I have sat at a table in a nice restaurant and observed all four people at a neighboring table studying their smart phones as if they were sacred idols. No conversation. No interaction. When the waiter asks if they are ready to order the scramble is on to pick something off the menu so they can get back to their devices. At home, how many of us spend our evenings staring at the tv screen, or dabbling on a laptop or tablet while the tv is going, or doing all of that and talking on the phone — all while someone else sits across the room doing the same? None of this is paying attention, by the way; it’s scattering attention to render it completely ineffective.
This lack of attention thing seeps into your practice via your clients. You get something like this from your clients all the time: “You said the judge would definitely find my ex in contempt for not allowing me visitation” when you know good and well you never said any such thing. People don’t take time to hear and process.
Oh, and you and your office staff are not immune. You proofread discovery while answering email while returning phone calls and giving directions to office staff. You can’t pay attention to one thing when your attention is divided four ways.
It seems to work so well in everyday life, though. People seem to survive and even thrive while juggling three different devices and information sources.
But what works in pop culture and even in day-to-day business does not necessarily work well at all in the law.
Not paying attention is a luxury in which no one in the law or the judiciary can afford to indulge. Too much is at stake. The law requires precision in language, in thought, and in writing. Poorly worded questioning will allow a slick witness to slither away from the truth, or, worse, will deprive you of a crucial point in the record for appeal. Your unthoughtful arguments will be picked apart by counsel opposite and the court. A sloppily drafted contract or PSA will wind your client back in court nine times out of ten.
Lawyers who have been here in the Far East of Mississippi can confirm that I don’t do telephone conferences except in the most extreme situations. That’s because if you are sitting in my court room or in my office I can observe whether you are paying attention and whether I am making contact with gray matter. Over the phone, I don’t know that; I don’t know that you aren’t practicing your putting, or texting, or working crossword puzzles, or playing Minecraft while I am instructing how I want the order drawn.
Paying attention may be our most essential survival skill. A wildebeest that does not pay attention, for example, gets to enjoy being a lion’s dinner. It certainly applies in the law. Pay attention: the life you save may be your own.
September 30, 2016 § 1 Comment
Ethical rules are clear in an academic context. Anyone who has practiced law, however, will tell you that applying them in the day-to-day scrum can be devilishly difficult.
For instance: You have discovered that, in a will you had prepared some time before your client’s death, you omitted one of his children whom he intended to be a beneficiary, and neither you nor he caught the omission. Now you are being called upon to probate the will, and you realize your oversight. What do you do?
A reader sent me this:
Attorney Parker Clifton was retained by Frank Henry to prepare estate planning documents. Clifton inadvertently omitted one of Henry’s daughters as a child on the first page of a pour-over will. The omission did not have any effect on the dispositive provisions of the document. At Henry’s death, Clifton was retained to probate the will. Before filing the document with the probate court, Clifton altered the first page to correct the error. After questioning by the daughter about the alteration, Clifton withdrew as counsel and self-reported his conduct.
The Ohio Board of Professional Conduct concluded that Clifton had violated Ohio R. Prof. Conduct 3.3(a)(1) (knowingly making a false statement of law or fact to a tribunal) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Based on these violations, and considering mitigating factors such as a lack of prior discipline and Clifton’s self-reporting, the Ohio Supreme Court adopted the Board’s recommendation and issued a public reprimand.
Warren Cty. Bar Assn. v. Clifton, 2016 WL 4553838 (Ohio Sept. 1, 2016).
I invite your comments on how you would have addressed this situation.
Did Mr. Clifton really have to do anything, in light of the fact that, ” … The omission did not have any effect on the dispositive provisions of the document” ? The omission was “on the first page” of the will; we don’t know whether the missing name appeared elsewhere in the document.
If she were completely omitted and the testator had intended for her to be included, that would be a major problem. Otherwise, mere failure to name her in one paragraph would probably be inconsequential if she were identified elsewhere in the document.
Here, Mr. Clifton’s sin was in the alteration of the document and the initial dishonesty. Had he acknowledged the error and then had withdrawn and offered himself as a witness to the true facts, we would not be reading about him here.
This is the kind of thing that haunts lawyers sitting alone in their offices, confronted with a simple mistake that could have far-reaching implications that could reach into the lawyer’s wallet.
Thanks to Attorney Hale Freeland