Ineffective Assistance of Counsel in Chancery

August 7, 2018 § 2 Comments

Can a lawyer be held to have provided “ineffective assistance of counsel” in a chancery court proceeding?

That’s what Elle Adams argued in her pro se appeal from a chancellor’s determination to hold her in contempt for denying her child’s father visitation.

In Adams v. Rice, decided June 12, 2018, the COA through Judge Barnes answered in the negative:

¶34. Finally, Elle argues that her counsel was ineffective. In January 2016, the attorney at issue [Fn omitted] entered an appearance. She later represented Elle at the hearing on March 31, 2016, where Elle failed to appear. Elle complains that her counsel “belittled” and “mocked” her at the beginning of the hearing by explaining to the chancellor that Elle had contacted her several times about being unable to travel to the hearing due to a sick child. Elle also criticized her counsel for advising her that she would “lose the case” if she was absent from the hearing.

¶35. Elle’s argument is procedurally and substantively without merit. The Sixth Amendment right to effective assistance of counsel is triggered in criminal proceedings, not family-law matters. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (discussing the standard of ineffective-assistance-of-counsel claims in the context of criminal proceedings). Notwithstanding the impropriety of the claim, this Court has reviewed the transcript and found, as the chancellor noted at the hearing, that Elle’s attorney “did a good job” representing Elle’s interests in her absence. Counsel apparently tried to impress upon Elle the importance of her appearance and the impact her absence could have on the outcome of the case. Elle’s accusations about her counsel are unfounded, and her argument is without merit.

The opinion points out that Elle hired and fired several lawyers and represented herself through the course of the case.

I point this case out only to underscore what you already know if you have practiced any family law at all: there are some clients who will criticize you and even file bar complaints against you no matter how hard you work for them, and even when you produce a good outcome. It comes with the territory of being a lawyer. Judges get it, too. The chancellor in this case was accused of bias and prejudice, and even sued in federal court, over her handling of the case. Once Elle learned a little about how to wield the law as a weapon, she scattershot every target in sight.

As for ineffective assistance, sadly there are lawyers who should never set foot in a courtroom as an advocate. But the overwhelming majority of lawyers are effective, conscientious, zealous, and competent in pursuing their clients’ interests. None of those attributes, however, alone or in combination, will shield you from the wrath of an irrational client.

Self-Appendectomy

July 17, 2018 § 1 Comment

Comments on this blog are limited to lawyers, judges, and other legal professionals. Yet I still get comments frequently from lay-people.

A recent proposed and unapproved comment by a frustrated pro se litigant highlights the tension between reasonable access to justice and the judge’s role as impartial tribunal:

I had a Judge finally rule that all evidence from previous case could be submitted to this new case. Of course, Defendants lawyers objected. Defendants lawyer then said that not of it was evidence, some were marked for I.D. only. The Judge said he wouldn’t even look at the I.D. ones. Being Pro Se, after spending about 8,000.00 on attorneys fees and not using my evidence, almost every bank statement, cancelled check sheet from the bank. I was asked by Judge, “What is it? I said a bank statement. Other attorney objected, said it was hearsay, and I had to put it in as I.D. After a couple times I just handed it to the other attorney but the Judge stated I had to say what it was. Therefore, it was objected to as hearsay. Printouts from a bank. Please..Check written out the casinos, lawsuits Plaintiff was hit with and depleted our funds, are not admissible. I.D. only which the next Judge will not use. I always thought that was depleting marital assets. Writing a brief for Supreme Court and this is way out of my league.

Some thoughts:

  • In a contested case, the judge absolutely can not assist one side or the other over evidentiary hurdles, objections, or lack of basic litigation skills. A judge who does so has crossed, or is dangerously close to crossing, the line into advocacy.
  • I have often said that I have never seen anyone who acted pro se in a contested case leave the courtroom in better shape than when they entered.
  • ” … this is way out of my league.” Yes, it is. It takes lawyers around 3 years to absorb the basic knowledge base and elementary analytical skill to know how to get into the courtroom, and several years of experience on top of that to do a creditable job in litigation. Appellate cases require even more. There is a learning curve for every courtroom advocate. It’s painful to watch a pro se litigant try to master the same curve in a few hours that took a college-and-law-school-trained lawyer several years to master herself.
  • The lawyer in this case was zealously representing his client, which is precisely his ethical duty. It may have seemed unfair to the pro se litigant, but she was not being treated unfairly; she was simply overmatched, and, again, the judge could not help her without becoming her advocate.
  • No judge is going to let a lawyer overreach and take advantage of a pro se litigant, but that is solely in the interest of maintaining a neutral, fair playing field. A judge can not help one side to its benefit or to the other’s detriment.

Limited Scope Representation and Disclosure of Services

July 3, 2018 § Leave a comment

Before limited-scope representation, I think it was pretty clear that a lawyer who prepared papers for a person to use in court had to show on the paperwork that he had prepared it.

Since limited-scope representation, the answer has been unclear. Until now.

The Mississippi Board of Bar Commissioners has addressed the question with an Ethics Opinion. The text of it is here:

ETHICS OPINION NO. 261
OF THE MISSISSIPPI BAR
RENDERED JUNE 21, 2018

The Ethics Committee has asked to respond to two questions:

Is it ethical for a lawyer to prepare documents for pro se litigants?

If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

APPLICABLE RULES

Rules 1.2 and 8.4(c) of Professional Conduct are applicable to this opinion. The relevant portion of these Rules provide:

Rule 1.2 Scope of Representation

(c) A lawyer may limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Comment

Services Limited in Objectives or Means. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage.

A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

Limited scope representation is an important means of providing access to justice for all persons regardless of financial resources. Lawyers are encouraged to offer limited services when appropriate, particularly when a client’s financial resources are insufficient to secure full scope of services. For example, lawyers may provide counsel and advice and may draft letters or pleadings. Lawyers may assist clients in preparation for litigation with or without appearing as counsel of record. Within litigation, lawyers may limit representation to attend a hearing on a discrete matter, such as a deposition or hearing, or to a specific issue in litigation.

Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1

And,

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

ANALYSIS

(1) Is it ethical for lawyers to limit the scope of their representation to discrete aspects of a matter?

Yes. The 2011 amendments to the comments to Rule 1.2, set out above, expressly provide that a lawyer may provide limited scope representation on behalf of a client. Such limits can involve merely drafting a document or advising a client on how to proceed in a matter without undertaking a full representation. This is commonly referred to as unbundled legal services. It is important for lawyers to remember two important aspects of this type of limited scope representation. First, is that the lawyer does represent the client to the extent of the limited scope representation, and the full panoply of ethical obligations (including the obligation of confidentiality under Rule 1.6) apply to the representation. Second, a lawyer’s ethical obligations under Rule 1.4 require that the lawyer ensure that the client fully understands what it means to limit the scope of representation to discrete aspects of the representation and the consequences of the limited representation. For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.

(2) If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

No. The issue is whether a lawyer who has prepared a document to be filed with the court, but who does not enter a general appearance, must indicate on the document either the lawyer’s name or that the document was prepared by a lawyer. Some federal courts and some ethics opinions have found the lawyer’s failure to disclose his/her involvement to be misleading or dishonest to the court in violation of Rule 8.4(c).[1] The deception here is that the tribunal or opposing counsel could believe that the party has received no professional help at all, when in reality a lawyer has provided some assistance. As a result of this failure to disclose the client may receive more lenient treatment by a court who believes the party is proceeding pro se – unware of the limited representation provided.

While sensitive to these concerns, the Committee does not believe that a lawyer’s undisclosed limited representation is a deception as contemplated by Rule 8.4(c). A court presented with a lawyer-drafted document and a pro se litigant appearing to defend or argue that document, would be aware of the nature of a lawyer’s involvement. If not, the court can always inquire from the litigant whether a lawyer assisted in preparing the document. The unlikely event that a court will be misled into providing leniency to a pro se litigant under these circumstances does not outweigh the strong public policy set out in the Comment to Rule 1.2, encouraging lawyers to provide limited scope representation without having to enter an appearance. The Committee is concerned that lawyers will be dissuaded from providing limited representation if required to disclose their involvement.

There are two additional points to make about this opinion. The first is that a lawyer cannot utilize the limited scope representation to actively and substantially participate in a matter without disclosure. This opinion contemplates that the lawyer is performing discrete aspects of representation. On-going representation of a client without disclosure would be misleading and a violation of Rule 8.4(c). Second, this opinion is based solely on the Rules of Professional Conduct and a lawyer’s ethical obligation and does not address any questions of law.

Writing Tools that Every Lawyer Needs to Have

July 2, 2018 § 7 Comments

Judge Griffis had this post on his blog last month, and I think it’s a list that both lawyers and judges can benefit from.

16 books judges should own if they want to write well

Here is a link to an article from the National Judicial College. Yes, 16 books you need to own.

By Julie Oseid and Randall Tietjen

Three conventional dictionaries:

1.  Merriam Webster’s Collegiate Dictionary (10th edition) [Now in its Eleventh Edition]
2.  The Oxford English Dictionary (5th edition)
3.  The American Heritage Dictionary (6th edition) [Could not find a link to the 6th, even on Amazon; this link is to the 5th]

One legal dictionary:

4.  Black’s Law Dictionary (10th edition)

Two English usage books:

5.  Modern English Usage by H.W. Fowler
6.  Garner’s Modern English Usage

One legal usage book:

7.  Garner’s Dictionary of Legal Usage

Three style guides:

8.  The Chicago Manual of Style. Good advice on punctuation and style, plus handy information about copyright and fair use.
9.  The Redbook: A Manual on Legal Style by Bryan Garner
10.  Plain English for Lawyers by Richard Wydick

Beyond the reference books:

11.  Elements of Style by Strunk & White. This book has likely been on your bookshelf since college, but it is well worth revisiting with some regularity.
12.  On Writing Well by William Zinsser. This book will make you want to be a better writer.
13.  On Writing by Stephen King. Yes, that Stephen King.
14.  The Sense of Style by Steven Pinker
15.  30 Days to Better English by Norman Lewis. Good for improving your vocabulary.
16.  Typography for Lawyers by Matthew Butterick. It explains how effective communication depends on document design, including how words look on a page.

My only pushback is three dictionaries. For most of us, one good one is all you need. And I think the OED is overkill; unless you’re serious about etymology and harbor a secret ambition to be an English scholar, or unless you just want to appear scholarly and impress academics, you’d do just fine with either of the more popular dictionaries.

Speaking of dictionaries, I read Word by Word: The Secret Life of Dictionaries, by Kory Stamper, a lexicographer with Webster who describes how words are selected to be included or excluded in a dictionary, as well as many other arcane facts about them (I know, I am a nerd). As she points out, Webster’s philosophy is to include words and usages as they come into the mainstream of the language (e.g., “waiting on” has become predominant in everyday language as a synonym for “awaiting” as well as “serving,” and either is proper usage) rather than the philosophy of American Heritage, which is to defend proper usage against all incursions (e.g., “waiting on” means serving, not awaiting, and it is improper to use the term in the latter sense).

I have to sympathize with Judge Griffis on at least one salient point: he sees a lot more of lawyers’ writing than I do. What comparatively little I see is sometimes unclear, rife with grammatical and usage errors, and downright unenjoyable to read, so that I just skip to the citations and read the cases.

To Die For

June 15, 2018 § 10 Comments

The suicides of Kate Spade and Anthony Bourdain last week are a reminder that the pain and agony that torment some to death often lie hidden beneath layers of camouflage that give the appearance of happiness, health, and well-being. We see celebrity and fame, and we imagine joy. We see success and wealth, and we infer inner peace. We see physical beauty and we assume health and healthy lifestyle. Appearances, as they say, do deceive.

It’s no secret that the law is a corrosive profession. The pressures and stress imposed by duty to client and court are enormous. Deadlines carry grievous consequences. Add to that the heavy responsibilities of family, overhead, and finances, and you have a toxic stew that can eat away at and destroy happiness.

Members of the legal profession (lawyers and judges) have a suicide rate 1.36 times greater than the general population.

When the stresses of the profession become overwhelming, it’s easy to feel isolated, to be haunted by the thoughts of failure, and to want an easy out before your weakness is exposed.

But here are three thoughts:

  1. Everyone is struggling; we just don’t see all that is beneath the surface. You are not the only one.
  2. Just because you are struggling does not make you a failure. And even if you do fail, that does not make you worthless.
  3. Silence, secrecy, and shame are seductive, but are destructive over time. Talk about what you are feeling with someone who cares and who will listen. Empathy is a powerful, healing balm. A kind word may enable you to take a first step toward the light.

Depression is a widespread phenomenon. No one is immune. There is effective treatment available for it.

And, finally, let me state the obvious: Suicide is never a tidy exit; it leaves in its wake a tidal wave of hurt, pain, sorrow, regret, and questions that can never be answered. I speak from experience.

Yes, the law is a corrosive profession. But it is not one to die for. If you’re feeling overwhelmed, seek help. Get help. Step back from the brink.

The State of Law Practice in the State

March 13, 2018 § 4 Comments

Fifteen years ago it was not uncommon to see trials going on before both chancellors in our district as many as four or five days a week. By ten years ago that had slowed somewhat, but the number of court hearings was robust. Now, hearings and filings are down, except perhaps in probate matters. What’s the deal?

An article by a “Legal Marketing Expert” in The Above the Law Blog had this to say about the phenomenon in other parts of the republic:

It was easier to be a lawyer a decade ago – the demand for legal services always seemed to be growing, along with the revenue and profit that came with it. With the Great Recession, everything changed. The flow of clients slowed while competition increased, leaving profit margin and productivity to suffer.

If the latest Report on the State of the Legal Market from Georgetown University Law Center and Thomson Reuters Legal Executive Institute is any indication, the trend continues. Consider their findings from 2017:

  • Only intellectual property, tax and corporate work saw modest gains in business, but demand has waned in all other practices – including general litigation, which makes up for 30% of all practice activity.
  • The number of attorneys at U.S. law firms increased by 1.3% in 2017, but there’s less work. On average, lawyers are working 156 fewer hours than in 2007.
  • Profits remain stagnant, except for a few of the AmLaw 100, but even most of them experienced modest financial returns.

Even so, the competition is poised to further disrupt the marketplace. You may have heard that AVVO, the first company to take the legal marketplace online, has just been purchased by Internet Brands. A news release noted that AVVO attracts more than 100 million visitors annually, and that Internet Brands has seen “strong growth over the past decade.”

So it appears there is, indeed, a strong demand for legal services – just not from traditional law firms. This points to one of the reasons that many law firms may be stagnating: They still operate like it’s 2007. They cling to the traditional law firm model, do things the way they’ve always done before and, of course, get the same results. This is more than just a hypothesis when you consider the findings of the Thomson Reuters 2017 State of U.S. Small Law Firms Report which reveals that while:

  • 75% are finding it challenging to acquire new business, 71% aren’t doing anything about it.
  • 70% say they spend too much time on administrative tasks, 81% aren’t doing anything about it.
  • 61% want more control over costs and expenses, 74% aren’t doing anything about it.
  • 59% say clients are demanding more for less, and 80% aren’t doing anything about it.

Only the firms that break from tradition and adapt to a new way of thinking will survive the tenuous landscape. And, as noted above, that’s currently just a small fraction. The strategies often used in past to overcome market declines such as expense cuts and rate increases, are less likely to be as effective going forward.

Embracing change will allow firms to more effectively compete and be better positioned to take hold of the marketplace that typically seeks alternative legal services. This is underscored by the Thomson Reuters Legal Executive Institute, which says the future could be brighter for firms that proactively provide clients the value they’re looking for.

Okay, can’t disagree much with the premise, but that’s like saying “plague is caused by germs.” What we want is the vaccine; the cure. If the “traditional law firm model” doesn’t work, then what does?

To me, the most revealing dynamic in that article is that “clients are demanding more for less.” Clients access all kinds of free general legal advice, data, and information on Google and don’t understand why you have to charge them for the particularized advice and counsel you provide. Clients can buy generalized form pleadings and agreements online for a fraction of what you must charge to tailor documents to their needs. Although many of those DIY, one-size-fits-all rigs wind up back in court to fix their built-in flaws, I guess people think it’s worth the chance that they won’t.

“[T]he future could be brighter for firms that proactively provide clients the value they’re looking for.” How does a small-town practitioner do that? The expert doesn’t reveal the secret in her article. Or maybe there’s no real secret to reveal. Maybe one must just be aware and keep trying new techniques until something clicks. The only credentials I have to offer for that advice are my 33 years of private practice in which I had to do that very thing through all kinds of ups and downs of the legal profession. Since I’m not a “Legal Marketing Expert,” there’s no charge.

False Pleadings

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.

The Lawyer’s Duty

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.

I May Not Always be Right, but I’m Never Wrong

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.

An End to Game-Playing

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.

Some takeaways:

  • 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.

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