THE LATEST ON DISCOVERY GAMESMANSHIP
February 13, 2012 § Leave a comment
Discovery gamesmanship has been the subject of a prior post on this blog. It’s a troublesome phenomenon, not only for the lawyers who have to confront and deal with it, but also for chancellors who have to decide whether, when and how to impose sanctions.
The most recent pronouncement from our appellate courts came in the case of Williamson v. Williamson decided by the COA on January 10, 2012, at ¶¶ 29-31.
In Williamson, the appellant, Will, argued that the chancellor had improperly assessed him with attorney’s fees for failing to file complete and timely responses to the other side’s discovery requests. Judge Carlton’s opinion disposed of his claim:
¶29. Additionally, as to Will’s argument that the chancellor erred by awarding Mary attorney’s fees for her costs in filing the motion to compel, we, likewise, find no merit. We recognize the chancellor possesses sole discretion as to whether sanctions should be imposed for discovery violations, and we employ an abuse-of-discretion standard of review when considering a chancellor’s order of sanctions. Williams v. Williams, 43 So. 3d 517, 521-22 (¶19) (Miss. Ct. App. 2010) (citing Hayes v. Entergy Miss., Inc., 871 So. 2d 743, 747 (¶11) (Miss. 2004)). Mississippi Rule of Civil Procedure 37(a)(4) provides:
If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
¶30. The record shows that Will failed to provide complete and timely responses to Mary’s requests for discovery prior to Mary filing her motion to compel. The record also reflects Will provided no adequate reason for his failure to comply. Thus, in accordance with Rule 37, we find no error in the chancellor’s order requiring Will to pay Mary’s attorney’s fees for her cost incurred in bringing the motion to compel. See Russell v. Russell, 733 So. 2d 858, 862-63 (¶16) (Miss. Ct. App. 1999).
¶31. Accordingly, we find no merit to Will’s arguments as to chancellor’s … award of attorney’s fees to Mary.
In this district, attorneys have a long-established custom of trying to work with each other through discovery problems, but sometimes the payback for that civility is abuse of the system. The judges generally view the initial motion to compel as a warning shot resulting in an order to comply, with a second trip to court triggering sanctions if warranted by the proof. I often will impose a $25 per day fine for each day after the court-imposed deadline that a party fails to comply, and I do not limit my sanctions to that. I also use scheduling orders in almost all cases, particularly divorces, and a party who pushes the deadlines and fails to compy risks running afoul of the court on that count.
As Williamson clearly indicates, you play games with discovery at your and your client’s peril. Thankfully, most attorneys in this part of the world have grown past the gamesmanship in chancery court, and for the most part discovery proceeds in an orderly fashion with both sides able to accumulate the evidence they need to present their respective cases to the court in a complete fashion. For those who persist in non-compliance, however, read Williamson and be warned.
CHILDREN IN THE VORTEX
February 1, 2012 § Leave a comment
The maelstrom of conflict between parents in a divorce or custody battle often catches up the children and dashes them against the same rocks that brought the marriage to destruction. Even the mildest custody conflict can damage children and their relationships with one or both parents, but the injury can be severe when the conflict is intense and where one or both parties bring the children into the vortex.
As an attorney, you stand in a position to influence your clients to minimize the damage. Here are some thoughts to share with your custody clients:
- A custody dispute is not about winning or losing. Custody is decided on the basis of what is in the best interest of the children. No matter what the judge decides, his or her decision will be based on what is best for the children. Help your client understand the Albright factors, how they apply in her case, and how to maximize her strong points while minimizing her exposure on the weak points.
- Hate and revenge do not help. If your client’s motivation for custody is hate and/or revenge, he will be operating under a considerable disadvantage because (1) those are not positive factors under Albright for custody, and (2) they communicate to the children that they are spoils of war to be won instead of children who are to be loved no matter what the controversy is between the parents.
- Never allow the children to make the custody decision. Children do not know what is best for them. They are subject to all sorts of influences, the strongest of which appeal to what they believe they want. It is appropriate to ask a mature child’s opinion, but only as input, never as a final decision. The parent or lawyer who tells a child “You will get to decide when you reach x age” is doing the child a great disservice because the law never gives the child a right to finally decide; that decision is always up to the judge. Children who are made to decide often feel that they have betrayed one parent or the other. Making a child decide is putting the child squarely in the middle of the conflict.
- Children who are placed in the middle learn to manipulate. Parents who put their children in the middle usually find that the children become master manipulaters, playing both sides against each other to gain whatever it is that the child wants or thinks he wants.
- Putting the children in the middle complicates the case. When the parties put the children in the middle, the resulting conflict spawns contempts, modifications, more discovery about all kinds of perpheral matters, and adds expense, stress, conflict and injured relationships to everyone’s plates.
- Drop the drama. The only enjoyable thing about a divorce or custody battle for most people is the attention and sympathy they derive from others over the suffering and pain they are having to endure. So when they find their friends’ and family’s attention wandering, they will ramp up the drama to regain the spotlight. That’s self-defeating because it usually takes some kind of negative action to stimulate the other side into conflict. The best and most productive policy is to drop the drama and act like an adult and a caring parent.
- Act like an adult. The best behavior you can model for your children is to act like an adult. Treat the other party with the respect he or she deserves as parent of your child. Eschew juvenile name-calling. Turn your back on invitations to argue. Avoid sarcasm and profanity. No threats, veiled or otherwise. Your children are watching and learning from your every move.
Lawyers are in a superior position to advise clients about where to expect to find pitfalls and landmines as they navigate the no-man’s land of child custody litigation. Don’t be reticent when it comes to guiding your clients and even bringing them up short whan they get out of line. That’s part of what you’re there for.
LAWYERS AND VICARIOUS TRAUMATIZATION
January 24, 2012 § 1 Comment
Lawyers who represent people see almost every conceivable form of mankind’s capacity to be inhuman. We see violence and its physical and emotional scars, financial coercion, verbal cruelty, sexual abuse, use of children and other family members as weapons, defamation, and on and on in a breathtaking, seemingly inexhaustable panorama of brutality that seems almost limitless in the scope of its imaginative cunning.
Over time the exposure takes its toll. Some lawyers develop a defensive cynicism that effectively shields them from their clients’ pain, but also prevents them from empathizing. Other lawyers experience burnout that makes them ineffective. Still others experience sleeplessness, irritability, sadness, loss of concentration, difficulty in intimacy, depression, and a panoply of other symptoms. Your clients’ problems too often intrude into your own life and can come perilously close to becoming your own problems.
All attorneys who represent people experience stress. Even extreme stress. Some deal with it in a healthy way. Too many others self-medicate with alcohol, drugs or toxic behavior.
There is research that dubs this phenomenon “Vicarious Traumatization.” It is the process by which a lawyer who comes into contact with the client’s traumatization can become traumatized himself or herself.
Here is a link to a paper published by the American Bar Association entitled Secondary Trauma and Burnout in Attorneys: Effects of Work with Clients Who are Victims of Domestic Violence and Abuse, by Andrew P. Levin, MD.
A lawyer is quoted in the article:
“It actually feels good to hear that I am not the only one who feels depressed and helpless and that these issues are worth studying. Fortunately, the stress has decreased with experience and time for me, but I still have vivid memories of quite traumatic experiences representing victims of domestic violence who were so betrayed that it was difficult to continue to have faith in humankind.”
Read the paper and see whether you recognize yourself there.
LAWYER, KNOW THYSELF
January 4, 2012 § 9 Comments
Understanding what makes you tick is a key to understanding how you can be more effective as a lawyer, spouse or parent, and in every other role you undertake. A major element of what makes you tick is your personality. The way in which your personality operates defines you as a unique individual.
Carl Jung posited that personality consists of a combination of three components formed from three dichotomies: extraversion or introversion; sensing or intuition; and thinking or feeling. He saw extraversion or introversion as an attitude, and sensing, intuition, thinking and feeling as ways of functioning. According to Jung, every personality is a combination of one of each dichotomy. For example, an extraverted, sensing, feeling person has one type of personality and an introverted, intuitive, thinking person has an entirely different one. Katherine Cook Briggs and her daughter, Isabel Briggs-Meyers, added a fourth dichotomy based on lifestyle: judging and perceiving (judging = organized and on schedule; perceiving = disorganized and not punctual). Under their methodology, the personality consists of a combination of one each of the four dichotomies, resulting in 16 different personality types.
Briggs and Meyers came up with a personality inventory that sorts you into one of the 16 personality types. You can read more about the Meyers-Briggs Type Inventory (MBTI) here. For convenience, the dichotomies are assigned letters: E for extraversion; I for introversion; S for sensing; N for intuition; T for thinking; F for feeling; J for judging; and P for perceiving. The 16 personality types, then, are: INTP, INTJ, INFJ, INFP, ISTP, ISTJ, ISFJ, ISFP, ESTP, ESTJ, ESFJ, ESFP, ENTP, ENTJ, ENFJ, ENFP. Each has its own unique characteristics and ways of functioning.
Each of the 16 types represents the synthesis of preferences that the personality operates under, or the default settings if you will. Each of us can “turn off” those settings or reset them as the need arises. A strongly feeling person, for instance, can tune down the feeling function in order to operate more rationally in the court room. A more introverted person has to set aside that preference in order to get the full benefit of the Kiwanis Club membership. A judging person has to put away the schedules, personal planner apps, internet and cell phone while on vacation.
So which are you? You can take a brief questionnaire based on the Jungian/Meyers-Briggs typology here. The site will score it for you and give you a synopsis of the characteristics of your personality type, and you can read there more about your and other types. The questionnaire is similar to the MBTI and, in my experience, will produce similar results. For that matter, you can Google Meyers-Briggs and come up with plenty of other sites with much more info and other questionnaires. Some even offer in-depth analyses by “qualified” professionals — for a fee, of course.
A great book that explains personality typology in greater detail is Please Understand Me: Character and Temperament Types, by David Keirsey and Marilyn Bates. It includes the MBTI, which you can take and score yourself, as well as explanations of the various types and how they operate in various settings.
Is the MBTI accurate? Some professionals accept it, others question it, and some pan it. I like it because it’s a gateway to getting you to consider just how you function in this world. Realizing how you learn and process information, how you make decisions, how you work effectively and what is ineffective for you, can help you in almost every area of your life.
Most judges are strongly ST. All I’ll tell you about me is that I am not, so I process information and make decisions differently than some others. The rest you’ll have to puzzle out for yourself.
NEW YEAR’S RESOLUTION
January 3, 2012 § Leave a comment
WORKING BETTER …
1 DO ONE THING AT A TIME
2 KNOW THE PROBLEM
3 LEARN TO LISTEN
4 LEARN TO ASK QUESTIONS
5 DISTINGUISH SENSE FROM NONSENSE
6 ACCEPT CHANGE AS INEVITABLE
7 ADMIT MISTAKES
8 SAY IT SIMPLE
9 BE CALM
10 SMILE
______________________
From the bog, Mapping the Marvelous
ANOTHER OBJECT LESSON IN PSA DRAFTSMANSHIP
December 21, 2011 § 2 Comments
What does the following language in a divorce property settlement agreement (PSA) mean?
The parties both agree and understand that [Stephen] will retire from Martin Marietta Manned Space Systems effective April 24, 1992. . . . The parties have agreed to accept #D-Level Income as the monthly benefit option. This will provide [Stephen] a monthly income of approximately $3[,]189.26. [He] will remit to [Gloria] one-half of this income, being the approximate amount of $1,594.63, on the first day of each month . . . commencing on January 1, 1993. These monies will be considered alimony[,] and [Gloria will be responsible for the income taxes].
That was the question squarely presented to the chancellor in litigation between former spouses Stephen and Gloria Reffalt.
Stephen and Gloria were divorced in 1993. Stephen had retired from his job with Martin Marietta (MM). Approximately two years later Stephen’s retirement benefits paid by MM were reduced when his Social Security benefits kicked in, as the plan provided. As a result of the automatic reduction, the $1,594 payments to Gloria came to represent considerably more than 1/2 of the MM benefit. Nonetheless, Stephen continued paying the $1,594 until December 2008, when he apparently decided enough was enough, and he filed a petition to modify the payments proportionally to about $1,150 a month.
Stephen took the position that the above PSA language clearly intended that Gloria receive only 1/2 of his MM retirement benefits, whatever that amount might be.
Gloria argued that the language mandated that she be paid 1/2 of Stephen’s total retirement benefits from whatever source.
The chancellor found the language to be ambiguous and accepted parol evidence of the parties’ intentions in the drafting of the contract. Placing heavy emphasis on the parties’ course of conduct over fifteen years after the reduction in MM benefits, the trial court held that the language intended that Stephen pay the higher amount, and denied his request for a downward modification.
In Reffalt v. Reffalt, decided December 13, 2011, the COA affirmed. I recommend that you read the opinion, written by Judge Ishee, for its exposition on the principles of contract interpretation and what is and is not an ambiguous contract. The opinion also touches on the question of modification of property settlement.
This case is yet another example of draftsmanship that may appear at first blush to be clear, but on further inspection is susceptible to several different interpretations. Consider the language ” … This will provide …” and ” … one half of this income …” To what do the pronouns this refer? Are their objects the same thing or different? Better to have said “… one half of the #D-Level benefit each month …” Or “Stephen will pay to Gloria the sum of $1,594 each month.” Or “The amount payable by Stephen shall be adjusted automatically to be equal to 50% of his #D-Level benefit actually received, without any voluntary action on his part to reduce the amount received.”
A few suggestions:
- As I have said here before, it’s a good idea to draft and set aside that agreement for a day or two. Then pick it up and read it through different eyes. Cast yourself in the role of the judge looking at it years later, or the plan administrator considering how to apply it, or another lawyer to whom your former client has carried it.
- Go pronoun hunting. Eliminate as many as you possibly can, replacing them with the specific term that you intend to refer to.
- Does your language say exactly what you mean to say, or is it indirect and prolix? More words are not always better. The more verbosity you use, the more likelihood that confusion, unintended meanings and ambiguity will grow and fester in that thicket like a staph infection.
- Here are five suggestions for improving your PSA’s.
- And here are five more.
- Here is a post about a nightmare scenario in draftsmanship.
- Kicking the can down the road, and why it’s not a good idea in your PSA’s.
- And here is a post on some examples of the hidden costs of divorce that you need to take into account when drafting a PSA.
Give your PSA’s some thought. That’s what you’re being paid for. Strive for your PSA’s to be better than 99% of other attorneys’. Make it your goal that no judge will ever have to find one of your PSA provisions to be ambiguous.
WHO OWNS THE FILE?
December 8, 2011 § Leave a comment
In the past few months, on two separate occasions, I have heard a witness say that he or she did not have certain documents because “my previous lawyer has them, and won’t give them to me until I pay my bill.”
When I was in practice I heard the same thing from time to time in various forms.
Now, I have no way to know whether what those statements were true, or whether they were based on a misunderstanding.
But the fact is that it is a long-standing ethical rule in Mississippi that the client has a right of access to the file file in the attorney’s office, regardless whether the client has any unpaid balance of fees or expenses.
Ethics Opinion 144, issued March 11, 1988, includes the following language:
This committee concludes that M.R.P.C. 1.16 modified the prior ethical rules of the Mississippi Bar Association only to the extent that the prior opinions required the unconditional delivery of the file by the lawyer. The current Rule only requires that the lawyer surrender papers and property to which the client is entitled. The Rule recognizes the lawyer’s right to retain papers to the extent permitted by law. Thus, the issue is primarily a legal matter concerning the ownership of the items in the file and the legal enforceability of the attorney’s lien. However, the ethical issue which the lawyer must weigh in the balance with his legal rights is at what point will the enforcement of his legal right breach his ethical duty under 1.16(d) to “take steps to the extent reasonably practicable to protect a client’s interest.” Each case will turn on its own facts, and it is not possible to anticipate each situation. Generally, if retaining the client’s file prevents the client from obtaining another lawyer or from proceeding with his case in a timely manner, then the lawyer may have breached the ethical duty owed to the client.
The ownership of the specific items contained in a file is a matter of law. Informal Opinion ABA No. 790 (Oct. 26, 1964). The client’s file consists of the papers and property delivered by the client or which the client caused to be delivered to the lawyer. DR9-102(b) (4). In addition, the “end product”, or in other words, what the lawyer was hired to do, is usually also considered to belong to the client. Wisconsin Bar Bulletin, June 1970 Supplement (Memo Opinion 4-78). On the other hand, the notes and memorandums are usually considered to belong to the lawyer and be his work product. Missouri Bar Bulletin, May 1978, Informal Opinion (Jan. 6, 1978). Contrary opinions can be found which indicate the client has no absolute right to the files. Maryland Opinions Informal Opinion 76-50 (March 1, 1976). This committee concludes that the better-reasoned opinions generally recognize that to the extent the client has a right to his file, then his file consists of the papers and property delivered by him to the lawyer, the pleadings or other end product developed by the lawyer, the correspondence engaged in by the lawyer for the benefit of the client, and the investigative reports which have been paid for by the client. San Diego Bar Association, 25 Dicta, May 1978 (Opinion 1977-3). However, the lawyer’s work product is generally not considered the property of the client, and the lawyer has no ethical obligation to deliver his work product. [Emphasis added]
That language arises out of professional rules that preceded the current ones, and are no longer in effect. Nontheless, I think the rationale is sound, and the opinion is still on the state bar’s website among the many other ethics opinions.
The kicker in the language above is the phrase ” … which have been paid for by the client” at the end of the italicized language. The problem usually arises when the lawyer wants to keep all those items until they have been “paid for by the client.”
You should read the entire opinion and draw your own conclusions, but I think that a fair reading is that the client is entitled to all documents he or she delivered to you and all end products, and you are entitled to keep all of your own notes, research and paperwork you generated. The client’s entitlement to the file documents should not be based on payment or non-payment, but rather on the prejudice that might result to the former client in the aftermath. For many years before EO 144, the inflexibile rule in Mississippi was that the lawyer had no right to deprive the client of the file due to non-payment.
May you charge the client to copy the file before you let it go? Ethics Opinion 105, issued September 9, 1985, includes this language: “… in the absence of controlling language in any applicable employment agreement, a lawyer discharged by his client in a pending matter may ethically charge his client for the actual cost of duplicating the client’s file but that the lawyer may not ethically condition release of the duplicate file on the prior payment of the copying costs. Because there is no apparent potential for prejudice to the client where the subject of the representation is concluded, the Committee concludes that after the conclusion of a matter the lawyer may charge a client for the actual copying costs for duplicating a file and condition the release of the duplicate file on the prior payment of the copying costs.”
DOING SOMETHING
December 7, 2011 § Leave a comment
Joe Kieronski and Leonard Cobb, both of whom are Meridian lawyers, are in Haiti this week with a work group from First Baptist Church. Their job is to do what they can while they are there to make life even a wee bit better for the people of that island who have been shattered by earthquake, hurricanes, cholera, corrupt government, and crushing poverty.
I’m proud that members of the bar are in the number of those who would make this sacrifice. They are taking time away from busy and lucrative law practices to subject themselves to primitive living conditions (they are living in tents), as well as the risk of malaria and cholera, amidst unreliable police protection and almost non-existent government. That they would do so is in the most noble spirit of our profession.
The cynics among us might snicker at this paltry effort, and it can not be argued seriously that the work of this little band is more than a mere pittance that will do precious little to overcome the monumental problems of this dysfunctional island. But these volunteers are doing something, and for that they deserve our praise. As Edward Everett Hale said …
I am only one; but still I am one.
I cannot do everything; but still I can do something;
and because I cannot do everything,
I will not refuse to do the something that I can do.
“Well done, good and faithful servants.” Matthew 25:23
WHAT SETS YOU APART?
November 29, 2011 § 3 Comments
Many years ago, when I had been practicing law only a few years, my father-in-law posed this question to me: “What sets you apart from the other lawyers in your town?”
His question was actually “What is it about you that makes people want to hire you instead of any of the other lawyers in your town?”
Now I will confess that I had not really given that sort of thing much thought at the time. With all the demands of a law practice, a family and the myriad other things that make up the life of a young lawyer, I hadn’t taken time to sit down and ponder that sort of thing.
But I have in the many years since. And I learned to become aware of the things that I could do as a lawyer that would add value for my clients. I learned that not all lawyers take time to listen to their clients, to really hear what their concerns are — so I tried to listen better. I learned that most lawyers do not take the time to explain to their clients what is happening and will happen in their cases — so I tried to explain. I learned that many lawyers are impatient with their clients and try to cut them short — so I tried to be patient and give them some attention. I learned that there are lawyers who file sloppy pleadings and discovery — so I tried to make sure that everything I filed looked professional and like it was done with care. I learned that some lawyers do not prepare their clients and key witnesses for trial — so I did, and did a better job than many in litigation.
Sometimes I fell short. But I like to think that most times I succeeded. Simply because I took care to give some thought and attention to what I could do to do a little better job.
My father-in-law also told me that only 10% of people in any profession are superlative, and it takes only a little extra effort and attention to rise above the other 90%. It takes continued attention and effort to stay in that special 10%.
Clients like to think they are getting the best when they spend their hard-earned money to hire a lawyer.
What sets you apart? What is it about the way you practice law that makes people want to hire you instead of the other 90% of lawyers?
The Better Chancery Practice Blog 