Professionalism | The Better Chancery Practice Blog

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #1

October 4, 2012 § 2 Comments

This is the tenth and last in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these are familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #1 …

Be Professional. Safeguard your reputation with the court.

Being professional is a combination of a lot of traits that include preparation, punctuality, competence, and a professional demeanor. Here is a bulleted list of some things to bear in mind:

Be on time. It is rude in the extreme to keep the court and everyone else waiting while you mosey your way to the court house. Some judges hate it so much that they treat it as contempt. UCCR 1.05 specifically says, “When any civil action has been set for, or adjourned to, a particular hour, all officers, parties , witnesses and solicitors [ed.’s note: solicitor is the old-fashioned term for a practitioner in chancery court] whose presence is necessary for the trial shall be present promptly at the time set. Any negligent or willful failure to obey this rule shall be punished by contempt.” Even if you aren’t found in contempt, why start off on the wrong foot with your judge?
Avoid histrionics. You are not in chancery to impress a jury with your dramatic skills or oratorical flourishes. Most judges I know find that sort of showboating to be off-putting.
Be respectful of the court. Even when the tide is flowing strongly against you, be courteous and respectful to the judge. When you show disrespect, you are acting contrary to your role as officer of the court. UCCR 1.01 states that “The dignity and respect of the court will be preserved at all times.”
Be prepared. Have your exhibits ready, your trial notes in order, and your witnesses on hand and briefed. have any statutes or case law in shape to present at the appropriate time.
Be courteous to opposing counsel. Sometimes this is easier said than done, I know, but make the effort.
Observe all of the requirements of UCCR 1.01.

Safeguard your reputation with the court as if it were a cache of precious gold. Your reputation with the court is in essence how the judge assesses your truthfulness, reliability, candor, competence and integrity. It is a treasure built up over time in your dealings with the court. Some lawyers squander their treasure by making false excuses or misleading statements to the court, by levelling false accusations against opposing counsel, by missing court appearances, by doing sloppy, unprepared work in pleadings, discovery and trial, and by being unprofessional as spelled out above. Don’t misspend your treasure that way.

Keep your promises. If your word is not your bond, you really should consider finding another line of work. When you tell the judge you are going to do something, do it. And if it becomes genuinely impossible, let the judge know right away. Don’t tell opposing counsel a case is settled unless it is, and don’t make promises you can’t keep or have no intention to keep.

Never even suggest anything improper to a judge. I can not think of any more instantaneous way to destroy — probably irreparably — your credibility with a judge than to make even a suggestion of impropriety. A hint of a quid pro quo, an ex parte suggestion for a favorable ruling or criticism of the other party or attorney, and the like are poison for your reputation with the court.

Your work product speaks volumes about your competence. If your pleadings are sloppily done and make no sense, your arguments are incoherent, and your witnesses make no sense, you have no one to blame but your own sloppy self when the judge turns her nose up at them. Take pride in your work. Make sure it’s right and well-presented. Make a favorable impression on the court. I can assure you that it is a true pleasure to take the bench and try a case that is well-presented by capable lawyers who know what they are doing and have given the court clear pleadings, authority and testimony on point. And I can equally assure you that it is agony to try a case where the lawyers fall considerably short of that mark.

APPROACHING ZERO TOLERANCE

October 2, 2012 § 7 Comments

If you have gotten the impression that many chancellors are tightening down on the handling of fiduciary matters, it’s not just your imagination or overactive paranoia glands. More and more chancellors across the state are approaching zero tolerance for sloppy handling of estates, guardianships and conservatorships.

There are several reasons for this. One, and perhaps paramount, is that it is the judge’s job. But here are several others:

There is the case of attorney Michael J. Brown, of Hinds County, who helped fritter away hundreds of thousands of dollars of a ward’s account.
There is the case of the lawyer in jail in Rankin County who has been unable to account for fiduciary funds, and who will begin serving federal and state sentences therefor as soon as Judge Grant releases him from his civil contempt sentence — which is contingent on his accounting.
There is the case of another lawyer in Rankin County who refuses to account for fiduciary funds, and who is likewise cooling his heels in the county bastille until he complies.
There is the case of the lawyer on the coast who committed suicide when the questions started floating about how fiduciary matters in his charge were handled, and the last I heard the missing funds are more than $1.2 million.

The genius of our fiduciary system in Mississippi is that it creates a three-tiered system of protection for the ward or beneficiaries. The fiduciary is bonded (in most cases) and is accountable to the court; the lawyer works with the fiduciary, providing advice, guidance and oversight to see that the law is followed; and the court authorizes actions, demands and approves accounts and inventories, and scrutinizes the actions of both the fiduciary and the ward. Whenever any one tier fails, it is up to the other two to catch and fix the failed part. When judges wink at incompetent legal work in fiduciary matters we are shirking our duty to innocent beneficiaries, creditors and people who are unable to protect their own interests.

It’s not the stuff of movies and detective novels that money is stolen from fiduciary accounts. I have seen it right here in our little backwater, and I am sure it is happening and has happened in yours (not meaning that you live in a backwater).

Fraud and mishandling of funds thrive in the sloppy handling of fiduciary matters. When you leave it up to the fiduciary to go about unaccounted for and unadvised and unsupervised, you are inviting trouble. And chancellors are becoming ever more vigilant and intolerant.

REASONABLENESS AND ATTORNEY’S FEES IN CONTEMPT

September 17, 2012 § 4 Comments

In the COA case of Bowen v. Bowen, decided September 11, 2012, the court reversed and remanded the chancellor’s award of $10,000 fees in a case where the judge found the defendant in contempt. It was not the award of fees that the COA questioned, but rather the amount and reasonableness.

As we have mentioned here before, inability to pay is not a threshhold issue to an award of attorney’s fees based on contempt. In a contempt case, attorney’s fees may be awarded where a party’s intentional conduct causes the opposing party to spend time and money needlessly.

Judge Ishee’s opinion in Bowen points out that the determination whether a fee is reasonable depends on consideration of Mississippi Rule of Professional Conduct 1.5(a) and the McKee factors. He said:

” … even in contempt actions, “[t]he reasonableness of attorney’s fees [is] controlled by the applicable [Rule] 1.5 factors and the McKee factors.” …

¶25. When awarding Patricia attorney’s fees, the chancery court stated:

‘Although [John] has attempted to purge himself of his contempt by bringing the child support and medical insurance payments current, . . . the [c]ourt is going to assess [John] with attorney’s fees incurred by [Patricia]. If not for [John’s] repeated, willful refusal to abide by the orders of this court, [Patricia] would not have incurred the attorney’s fees, which the court finds to be reasonable and [to] meet all of the McKee factors.

There is no indication the chancery court adequately considered the McKee factors when assessing the reasonableness of the attorney’s fees. There was no consideration regarding the parties financial abilities, the novelty and difficulty of the question at issue, or the assessment of the charges.

¶26. The case at hand appears to be a routine contempt action. While large awards for attorney’s fees may still be awarded in contempt actions, they are not typical for a routine contempt action. … Here, an award of $10,000 appears excessive for a routine contempt action in which only $135 in child support remains unpaid. Furthermore, upon a review of the fees incurred, some charges relate to matters outside of the contempt action, such as modification of child support. Because the attorney’s fees were awarded based on John’s ‘repeated, willful refusal to abide by the orders of [the chancery court],’ fees not related to the contempt action should not have been included in the award amount awarded.”

I’ve made the point here before that …

Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.

Most attorneys in my opinion do not devote much attention or care to making a record on attorney’s fees. That’s ironic, because you would think it would be a subject of sublime importance to the trial attorney.

Here’s a post about how to prove attorney’s fees in a divorce case. It’s more elaborate than the minimum required in a contempt, but it will give you an idea of what is involved in making a record that won’t spring a fatal leak.

DISCOVERY OBJECTIONS THAT WASTE EVERYONE’S TIME

September 12, 2012 § Leave a comment

Most lawyers propound an interrogatory or two that seek the substance of the other side’s case and what witnesses there are. The query looks something like this:

“State each and every fact, circumstance and event upon which you base the claim in Paragraph 4 of your Complaint for Divorce that the dfendant has been guilty of habitual cruel and inhuman treatment, stating for each the date, time and place of occurrence and each witness thereto.”

Some lawyers, I guess to buy more time, file a response that looks like this:

“Objection. Overbroad and unduly burdensome.”

“Objection: accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Or, worse:

“Objection.”

Too often these inadequate and lazy objections wind up on a busy judge’s desk, and the judge is called upon to order the lawyer to do what he or she should have done in the first place.

MRCP 33(b)(4) requires that each objection be stated with specificity. In Ford Motor Co. v. Tennin, 960 So.2d 379, 393 (Miss. 2007), the MSSC said that “General objections applicable to each and every interrogatory … are clearly outside the bounds of this rule.”

Not only that, but the rule specifically says that an objection does not necessarily relieve you of the duty to respond. It says that if the request is only partially objectionable, you must state the extent to which it is objectionable and the reason for the partial objection, and then you must proceed to respond to the unobjectionable part.

If you take the position in good faith that you should object to going back through thirty years’ worth of events, then state your objection and state that you are providing the requested information for, say, the past five years because it is the most relevant period, and it is unduly burdensome to go back any further. The specific language of Rule 33(b)(4) requires exectly that.

If you object that your client cannot remember every minute detail, but that you are providing as best you can the dates and identification of the events, say that. Don’t just make a blanket objection.

If you think it’s unreasonable to provide 360 bank statements (that’s 30 years’ worth) because it’s too burdensome, say so, and offer to provide what you think is a reasonable number. That is what the rule contemplates.

So what do you do if you’re confronted with those kinds of objections? Well, you don’t want to get to trial and face the argument that the other side should be able to proceed unfettered because you never asked the court to rule on the objections. I would file a motion to compel and ask the judge to rule on them and set reasonable parameters (I would also make more reasonable requests in the first place, but that’s another story).

I wonder whether all those boilerplate objections that have no conceivable application in chancery are sanctionable. It would be interesting to hear the argument on that.

FIGHTING THE TIDE THAT WOULD SWEEP AWAY DECORUM

August 23, 2012 § 4 Comments

UCCR 1.01 says that “All proceedings in the Chancery Court … shall be conducted with due formality and in an orderly and dignified manner … The dignity and respect of the Court shall be preserved at all times.” The rule also bans ” … drinks, food, gum or smoking …” and “Bickering or wrangling … Applause or demonstration … and the use of profane or indecent language.”

Courtroom decorum is one of those things that varies widely from district to district, depending on the personality of the chancellor and his or her tolerance level for various forms of behavior.

In my district, I try to make sure that the formality of the courtroom is preserved, that all proceedings are conducted with the attention and gravity that they deserve so that litigants can see that we take their business seriously.

Despite our best efforts, though, philistinism encroaches even into our courtrooms. A few examples:

The woman who dropped the “f-bomb” repeatedly in the course of a Clarke County hearing until I had her dragged off in handcuffs to do 30 days in jail. This was after she had assaulted another witness in the hall before court was convened, resulting in her having to sit through her trial in manacles between 2 burly deputies.
The man in the same trial who flipped off the judge. That cost him 5 days in jail.
The woman who appeared for a hearing in my courtroom in Meridian who wore a t-shirt that read “If you f-ing think I am f’ing going to do what you tell me, m’f”er, you are f’ing crazy.” I sent her home with instructions not to return to the courthouse property until she changed her attire. (By the way … all the f-words cited here were spelled out fully … you can fill in the spelling for yourself).
Judge Mason had a hearing recently in which a matronly grandmother appeared wearing a t-shirt with a similar message, although not as graphic as mine.
The man who enters the courtroom in the middle of a trial and calls out loudly to some witnesses, “Lawyer said y’all can come sit out in the hall; y’all come on out here with me.”
The select few (all women) who came to court for child support enforcement cases wearing pajamas, and in one case pajamas with fluffy slippers. I don’t know about where you live, but it’s not that uncommon to see folks traipsing about in pajamas in this outpost on the edge of civilization, but I think wearing them to court crosses some kind of line.

Of course, the foregoing are merely a few more blatant examples. We have all seen and heard cell phones blaring, courtroom observers blurting out answers to questions or other “helpful” information, and other disruptions by laypeople who I guess don’t know any better. But the problem is not limited to laypeople.

Lawyers can be insensitive to the demands of decorum, too. Shortly after I took the bench, before I banned beverages from my courtroom altogether, I had to ask a lawyer to stop repeatedly shaking a large (2-liter?) convenience-store mug of ice while counsel opposite argued a motion. On another occasion I asked a lawyer to set aside a Dr. Pepper she swigged out of through her cross-examination of a witness.

Those are fairly obvious assaults on decorum. A less obvious example is when several lawyers highjack the hearing with banter and joviality to the extent that the sense of the proceeding is lost completely. Everyone enjoys an injection of a soupçon of humor into a tense trial every now and then, but I reviewed a record once for a trial conducted by another chancellor where the banter and kidding went on for 22 pages. That’s too much, and it sends the message to the parties that their business is trivial.

When I practiced, I always advised my clients to come to court dressed appropriately. And I instructed them in how to behave: no displays of dismay or approval; never interrupt a question or the judge speaking; no gum; no hats; no beverages; show respect for opposing counsel and the judge; and so on and so forth. I think most attorneys do the same, but it’s obvious that the thought has still not occurred to some.

I think preserving decorum in our courts is important. For one thing, it keeps emotion-charged proceedings from getting out of hand. For another, it conveys the message that what is transpiring is serious and taken seriously by the bench and bar. And it sets the courtroom experience apart from the living room where everyone speaks at the same time over the cacophony of the tv.

8.05 FINANCIAL STATEMENTS: “THE GOLD STANDARD” OF PROOF

August 22, 2012 § 6 Comments

This just in: Rule 8.05 financial statements are the “gold standard” of financial proof in chancery court. That’s what Judge Fair said in the COA case of Collins v. Collins, decided August 21, 2012, beginning at ¶34:

This case highlights the role of the income and asset disclosures required by Rule 8.05 of the Uniform Chancery Court Rules. Rule 8.05 mandates prescribed forms for such disclosure and also requires:

(B) Copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of W-2s if the return has not yet been filed.

(C) A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable.

¶35. Compliance with the rule is mandatory, for obvious reasons. If both parties put down identical values for marital property and properly disclose their income and expenses, supported by the required federal and state tax returns and earnings history, a court can adjudicate property and money issues expeditiously and in accord with the law. Noting the importance of Rule 8.05 disclosures, in Trim v. Trim, 33 So. 3d 471 (Miss. 2010), the supreme court has ruled that filing a substantially false Rule 8.05 financial disclosure statement constitutes fraud on the court.

¶36. Though there may be contrary misinterpretation of some decisions, which properly [fn 1] apply only when conflicts between forms conflict,1 Rule 8.05 disclosures should not be evidence of last resort. Rather, they should be the gold standard, requiring other evidence only when there are legitimate disputes as to valuation. [Emphasis added]

[fn 1] “Chancellors may rely on these statements to value property when the parties fail to offer any other evidence as to value.” Kimbrough v. Kimbrough, 76 So. 3d 715, 721 (¶28) (Miss. App. 2011) (quoting Studdard v. Studdard, 894 So. 2d 615, 618-19 (Miss. Ct. App. 2004)). “To the extent that further evidence would have aided the chancellor in [his] decision, the fault lies with the parties and not the chancellor.” Messer v. Messer, 850 So. 2d 161, 170 (¶43) (Miss. Ct. App. 2003).

Yes, 8.05’s are the gold standard of proof to a chancellor trying to root enough information out of the record to make a decision about equitable distribution and alimony. But some lawyers treat them like fool’s gold. Their 8.05’s do not include tax returns, figures are contradictory and incomplete, valuations are lacking, and there is no employment history.

In Collins, Mr. Collins included no tax returns, and he contradicted himself in his testimony, admitting that his 8.05 was incorrect and inaccurate. As a result, the chancellor relied on her own best judgment and calculated what she believed to be his income, resulting in an impressive $1,300 a month child support obligation.

The chancellor also accepted Ms. Collins’ valuations of real property in the absence of proof offered by Mr. Collins. Ouch.

Some parties offer tables of personal property with some pretty incredibe valuations. In one case I had the husband wanted the riding lawn mower, which he valued at $800. The wife — I am not kidding — valued it at $15,000. Husband testified that he had bought it several years before for $1,600 at Sears. I found his valuation more credible. What was the wife thinking when she tagged the item with that value? Did she think I’d bite on that? Where was her attorney when that table was prepared before trial.

Many lawyers and their clients adopt the extremely unhelpful tactic of valuing everything at near zero that they expect to get, and assigning astronomical values to everything the other party expects to get. For example, wife has the green couch, and she wants to keep it, so she values it at $50; husband opines that it is worth $2,750, and he does not want it. Give me a break.

Most people can not afford to hire a personal property appraiser to value their near-worthless pile of stuff. So lawyers toss it into the chancellor’s lap to flip a coin and make a call as to what the values might be. That’s a cop-out. Lawyers should be more professional than that.

If you try many financial-issue cases in chancery, I encourage you to read Collins. It’s the latest illustration of how parties shoot themselves painfully in the foot when they do a less-than-adequate job in prepping their 8.05’s, and it just might give you some ideas how an on-the-ball attorney can help his or her client avoid that kind of disaster.

“YOUNG KIDS TAKE EVERYTHING PERSONALLY”

July 25, 2012 § 1 Comment

I found a link to this remarkable article by psychologist Marie Hartwell-Walker on Jake Adams’ blog, and I decided that it was so insightful and important that I should reproduce it here.

If you handle divorces involving children, or custody cases of any stripe, I wish you would make a copy of this and give it to your clients. I might even give it to warring litigants in my court. I see so much cruelty and inhumanity in custody battles where the children are treated like instruments of war. Anything to alleviate or put a stop to that is worthwhile. And attorneys are in a unique position to do some good on this point.

Here’s the article …

TOP 5 KID CONCERNS WHEN PARENTS DIVORCE

If you are divorced or in the process of a divorce, you’re probably wondering what the kids are thinking. Oh, some of them will tell you — loud and clear. But kids also have a way of protecting their parents. Their security depends on the big folks so they often pull their punches. They know that the situation is already upsetting. They don’t want to make things worse.

In a support group for kids or in the therapy room, kids can sometimes feel safe enough to tell us what they really think. Here are the five issues I’ve found concern young kids the most. (Teen issues are a bit different so I’ll leave that for another time.) For kids under 10, then, these concerns top the list:

1. “I just want the fighting to stop!” A little fighting actually helps kids make sense of why their parents can’t stay together. Some of the kids I’ve seen who’ve had the hardest adjustment are those who thought that everything was fine. But when parents continue to fight in almost every contact or when they regularly say bad things about each other, the kids feel torn in half. Kids usually love and want to continue to love both parents. Often they want to comfort their folks. They want them to be okay. They don’t want to take sides (see #2).

2. “I hate being in the middle.” Although it seems that every divorcing or divorced parent I’ve talked to in therapy seems to know it’s a bad idea to put kids in the middle, some can’t seem to help themselves. They make disparaging remarks about the other parent in the kids’ presence. They roll their eyes or sigh when they talk about their ex. They ask the kids to take messages to the other parent instead of dealing with them directly. (For example, “You tell you mother that when she sends you over here, she’d better send more than 1 set of clothes.” “You tell your father to be on time or we won’t be here waiting for him.”) It’s important to remember that kids are intensely loyal to both their parents. Each parent can go about the business of parenting without making negative comments about the other.

3. “I feel like it’s all my fault.” When parents break up, it’s unsettling enough. Harder still is when the kids feel they are somehow to blame. They take it to heart when one or the other parent says things like: “Everything was fine until we had kids!,” or “We had kids too young,” or “I never had a turn to be a teenager cuz I had a baby.” Each of those things may be true. But it’s only part of a much larger truth that made it impossible for the parents to stay together. The kids don’t understand that. When they overhear such things, they feel like they’re not loved and maybe were never wanted.

4. “Will my mother/father divorce me too?” Young kids take everything personally. Yes, it may be that the only job available to one or the other parent is 100 miles or more away. Yes, it might be for the best to move in with the grandparents who live in the next state. Or maybe visitations don’t work out because the boss offers an extra shift or the financial situation means needing two jobs to stay afloat. Whatever the reason, if the kids don’t get time with a parent, they often feel rejected. It’s understandable. Deep inside, every kid has a tiny (or not so tiny) voice that says, “If my parents can divorce each other, maybe they can divorce me too.” They need regular reassurance that it’s the situation causing the reduced contact, not the parent’s feelings about them.

5. “I wish everything could go back to the way it was before.” However difficult family life was before the decision to divorce, it’s still what the kids know. To them, the way they’ve lived is their “normal”. They’ve learned how each parent operates, who to go to for what, and how to get what they need. Parents lose sight of the fact that adults have a broader perspective. Adults have a basis for comparing the relationship they have to the one they want. Kids don’t. It’s understandable that the kids want things to get back to “normal”. Even if it was uncomfortable, even dangerous, they knew what to expect.

Parents need to be mindful that whatever they say in the kids’ earshot has a huge impact. Kids are not little adults. Kids don’t have adult perspective or experience. What may seem obvious and sensible to their parents doesn’t always occur to the kids. One serious talk to explain things doesn’t do it. Kids need ongoing reassurance, conversation, love, and attention as they settle in to a new normal.

Follow Marie Hartwell-Walker, Ed.D. on Twitter: http://www.twitter.com/MHartwellWalker

FIVE MORE MISTAKES THAT FIDUCIARIES MAKE

July 24, 2012 § 3 Comments

We talked here about some mistakes that fiduciaries make. Continuing the hit parade, here are five more:

Failure to account timely and properly. All expenses and receipts must be accounted for annualy or more frequently if ordered by the court. UCCR 6.03-6.06 detail the voucher requirement. There’s a right way and a wrong way to file an accounting. There is a checklist for doing an accounting here. You can read more about accounting and vouchers here.
Failure to seek and heed legal advice.The UCCR impose a heavy duty on attorneys to advise and supervise the client-fiduciary in probate matters. The burden can be so onerous that I call it the “yoke of probate.” You can not blithely turn your fiduciary loose to figure it out for himself or herself. You have a duty to the court and the beneficiaries. A case showing how severely the Supreme Court views the joint duty of the attorney and fiduciary-client, read this post on the case of Matthews v. Williams. And a case showing the disastrous consequences of an attorney’s complicity in the fiduciary’s malfeasance, check out this post on the ongoing Hinds county trainwreck involving (soon-to-be-former) attorney Michael J. Brown. Make sure your fiduciary knows what the do’s and don’ts are. Put together an instruction sheet and have your client sign a copy to keep in your file for your protection. There is a reason that UCCR 6.01 requires every fiduciary to have an attorney. It’s because the attorney is the arm of the court who is responsible to supervise the fiduciary and make sure everything is being done properly. As I have said many times before, if that is an unpalatable concept for you, simply refuse to handle probate matters.
Failure to get authority for investment of the ward’s estate.Your fiduciary is obligated to increase the ward’s estate, if possible. The courts apply the prudent investor standard, which can be second-guessed. There are a few ultra-safe investments that the fiduciary may make without prior approval, per MCA 91-13-3, including time CD’s, savings accounts, and most FDIC- and FSLIC-insured accounts (Note: to my knowledge, credit union accounts do not qualify). Only problem is that in this era, those accounts produce interest rates closer to zero than anything that would actually increase the ward’s estate. So the prudent investor has to look to more speculative investments, which are allowed under MCA 91-13-3 and -5. You should have your investment plan approved in advance by the court, with adequate supporting documentation so that anyone looking at it later will be able to see that the court had a valid basis for its order. Again, one of the transgressions in Matthews v. Williams was the fiduciary’s helter-skelter, unapproved investment scheme.
Failure to give proper notice to close.MCA 93-13-77 requires that the final account in a conservatorship or guardianship must be on file for 30 days, and the ward must have have 30-days notice and an opportunity to inspect it and file any objection. A ward who is a competent adult may waive the notice and accounting. A ward under 21, however, must be served with process and may waive nothing. In estates, every beneficiary or heir must either join in the accounting, or waive process, or be served with process and given an opportunity to be heard.
Failure to keep the attorney and court informed of contact information. Make sure your fiduciary knows and understands that you need to notified immediately of any change of address, telephone number and other contact information. It’s a good idea to get the names and telephone numbers of a couple of local relatives and/or long-standing friends who can help you locate a fiduciary who has wandered off.

There are some simple strategies to avoid these missteps. Here is a link to Five Tips to Improve Your Probate Practice that outlines some things you can do. The primary attribute you need, though, is vigilance. Set up procedures in your office to get the information you need, to instruct and advise your fiduciary, and to keep in touch. It could keep you out of some costly trouble.

FIVE MISTAKES THAT FIDUCIARIES MAKE

July 18, 2012 § 7 Comments

Failure to file an inventory. In every type of probate matter, it is required that an inventory be filed, usually within 90 days of appointment of the fiduciary. Often the will waives inventory, but the better attorneys I know always file an inventory, whether waived or not. Why? Because the inventory (a) sets a base line for later accountings, and (b) covers the lawyer’s rear from later claims by other heirs or beneficiaries that items are missing. Better to get those matters out up front where they can be dealt with than to let it hold up closing the estate. MCA 93-13-33 provides that an inventory must be filed within three months of appointment in a guardianship or conservatorship, and even requires an annual inventory. A guardian who fails to do so may be removed and be liable on his or her bond.
Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly states that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that “Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity.
Failure to get authority of the court for expenditures. Perhaps the most pervasive error of fiduciaries. MCA 93-13-38 requires the conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount” [emphasis added]. Every expenditure must be approved in advance. Emergency expenditures may be ratified, but only if properly proven to be for the ward’s benefit, and properly supported by vouchers. Caution: as set out below, self-dealing expenses may be neither approved or ratified.
Failure to keep the ward’s estate separate and to avoid self-dealing. It often happens that a son or daughter is appointed to serve as conservator of momma’s or daddy’s estate. The child simply adds his or her name to the parent’s account and proceeds from there. This complicates matters because that joint account belongs 100% to each person whose name is on the account, and becomes the property of the survivor on death. That is certainly not an appropriate or even legal arrangement for a guardian or conservator. The fiduciary in every kind of probate matter needs to open a separate estate, guardiandhip or conservatorship bank account, and make all financial transactions through it and through it alone. MCA 91-7-253 prohibits the fiduciary from paying herself any money from the ward’s estate without prior court approval, and loans to the fiduciary and family members are prohibited also. The statute says that the court can not ratify or approve such payments. If the fiduciary has some expense that needs to be reimbursed, make sure the fiduciary has proper documentation and petition the court for authority. Don’t expect a cash payment or check made out to cash to be approved without abundant supporting documentation.
Failure to get court permission to move the ward to another county. It’s prohibited to relocate the ward to a county other than the one in which the fiduciary was appointed, unless approved in advance by the court. MCA 93-13-61.

PUBLIC PERCEPTION AND PROFESSIONAL RESPONSIBILITY

July 9, 2012 § 2 Comments

Philip Thomas has an interesting post about a poll conducted by PR Newswire for Common Good, a nonpartisan group interested in government reform. The poll results are here.

You can read the poll result summary for yourself, but it should come as no surprise that it found that most people distrust the civil litigation system, find it cumbersome, and think it takes too long to resolve disputes. They also feel that too many frivolous lawsuits are filed. They fear the financial burden of litigation. Their perception is negative.

As members of the legal profession, we need to recognize that for most citizens perception is reality when it comes to the courts and the law. In part that’s because the knowledge that most people have of the legal system is shaped by tv and movies that distort reality for entertainment value, and by media with an agenda, and by gossip, because they have no first-hand experience of their own. For those laypeople who have had first-hand experience, I would guess that most of them have come away with an unpleasant taste. We can quibble with their conclusions, but that does not make the negative general perception go away.

Former Colorado Supreme Court Justice Rebecca Love Kourlis proposes five measures in an article in Atlantic online that would go a long way to fixing the civil justice system. She would give judges more tools to manage and triage cases, remove the majority of divorce cases from the adversary system, limit and streamline discovery, adequately fund courts and train judges, and speed up proceedings.

I have long advocated for swifter resolution of chancery matters, and I try to push cases along, both contested domestic cases and probate matters. I already place an expiration date on temporary judgments, enter a scheduling order in every contested case, and require a pre-trial conference and order. I think chancery judges have tools available to move cases along, but I would be open to more measures, such as mandatory disclosures in divorce cases and more flexibility to dismiss unmeritorious cases and probate matters that have been left for dead. If we can improve the efficiency of the system, it should improve the public perception.

Lawyers and judges have an important role in educating the public about the legal system and how it operates, especially since the subject of Civics in our schools has been de-emphasized by being lumped under the heading of Social Studies, along with geography, health and personal hygiene, etiquette, and how to balance a checkbook. Randall T. Shepherd, former Chief Justice of the Indiana Supreme Court, penned an article you should read about the necessity for civic education, the role of legal professionals, and how some are going about it in other states.

In his article, Judge Shepherd says that “Judges and lawyers have traditionally not viewed themselves as having a central role in public education about law and government.” That may be true over the past 40 or so years, but I remember a time when lawyers were looked to by the community as a source of knowledge and wisdom about the law. It’s a role that has been eroded over time by media’s talking heads, politician-critics, and our own passivity.

People do not understand how the courts work, why they rule the way they do, what the law requires in given situations, and what is behind a particular outcome, and they assume the worst or rely on commentators who make their living by dramatizing and exagerrating things.

As a legal professional, you are in a position to uphold the integrity of the syetem. You should speak up when you hear people repeating misstatements about our legal system. You can do a lot of good for your profession and for the court system where you work by setting the record straight. It’s a function of your professionalism, as well as your citizenship.

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