“A DEPOSITION IS NOT A TAKE HOME EXAMINATION”

February 22, 2011 § Leave a comment

Has this ever happened to you?  You suffer through a stupefying day of depositions of the opposing party and his witnesses, and you receive the signed, sworn copies, only to discover that the witnesses have used the errata sheets to rewrite their testimony.  The points you thought you had conclusively nailed down are now unnailed. 

In the recent case of Hyundai Motor America v. Applewhite, the supreme court ruled that defendants were entitled to a new trial because plaintiffs’ expert had used the errata sheet to revise the formulas he had relied on to make the calculations upon which his opinion was based in the deposition.  Defendants argued that they had never received the errata sheet, and that they were surprised by the changed testimony at trial.  The supreme court opinion stated at ¶ 34:

 “The trial judge did not make a factual finding as to when Hyundai became aware of the contents of Webb’s errata sheet, but such a finding is unnecessary and irrelevant to our analysis. Even if Hyundai did receive the errata sheet, simply giving the defendant this document did not relieve the plaintiffs of their duties under Mississippi Rule of Civil Procedure 26(f). The purpose of an errata sheet is to correct scrivener’s errors or provide minor clarification; it is not a means of making material, substantive changes to a witness’s testimony. See e.g., Garcia v. Pueblo Country Club, 399 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“A deposition is not a take home examination.”) If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to amend or supplement the response. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 916 (Miss. 2002). This is the responsibility of the party or parties sponsoring the witness, not the responsibility of the witness.”

This decision is a welcome clarification.  It’s frustrating when you think you have covered all the bases in your depositions only to find that you are back at the beginning.  This decision removes an element of gamesmanship from discovery. 

     

THE LATEST ON ROBINSON V. BROWN

February 16, 2011 § 4 Comments

The COA case of Robinson v. Brown, handed down January 25, was the subject of a previous post in which I alerted chancery lawyers that the case appeared to change the law that post-trial motions were not required in chancery court to preserve error for appeal.  I also pointed out that MRCP 52(b) specifically excepts non-jury trials from the post-trial motion requirement. 

In the COA’s handdowns on February 15, this entry appeared: 

EN BANC

2009-CA-01599-COA

Mary Elizabeth Brown Robinson v. Paul Arthur Brown

Lee Chancery Court; LC Case #: 02-0518(41)H; Ruling Date: 08/06/2009; Ruling Judge: John Hatcher; Disposition: The Court on its own motion stays the mandate and grants rehearing. Order entered.

Is the COA going to circle back to where we were pre-January 25?  Stay tuned.

LIMITED SCOPE REPRESENTATION NOW A FACT IN MISSISSIPPI

February 2, 2011 § 1 Comment

I’ve talked here before about “unbundling” of legal services, also called “limited scope representation,” as a way of opening legal services to people who otherwise can not afford a lawyer for matters that they consider routine or uncomplicated.   

On January 27, 2011, the Mississippi Supreme Court adopted amendments to the professional rules that allow limited scope representation.  You can read the press release, which includes a link to the amended rules, here.

On the whole, I think this is a positive development in that it will help open up access to lawyers and courts.  I do have a couple of practical concerns: 

  1. What does the lawyer do when the client insists that you limit the scope of your representation, but you know it is definitely not in the client’s best interest, and may even be to the client’s detriment, not to address other matters? 
  2. How do you draft a limited scope representation agreement that protects the lawyer from action by the client claiming inadequate representation?  

Other states have trod this path before us, so there are possibly bar opinions and case law that can provide some guidance to practitioners. 

From the court’s perspective, I can tell you that there is a serious need for low-level involvement of attorneys in those so-called simple and uncomplicated matters.  I could go on and on about experiences with pro se litigants going forth boldly where no lawyer has set foot before, using pleadings and guidance material from the internet or from so-called legal software, or from kits purchased at office supply stores.  These cases are a judge’s nightmare because the judge should never be put in the position of assisting any party with correcting and putting pleadings and other papers right, and the judge certainly can not do so when there is an opposing party.  It can be painful and demoralizing to watch a pro se party inflict serious legal damage on herself, usually without a clue as to the extent of the injury.  Even minimal involvement of an attorney in those cases would be a major benefit.

Another aspect of pro se proceedings often overlooked is that the pro se litigant has no professional or ethical duty to the court or to the opposing party.  The possibility for fraud and misrepresentation is significant.  There is no attorney, with his or her license and professional responsibility on the line to reassure the court.  Likewise, these companies that sell the kits, software and advice owe their customers no duty at all.  The insurance that a client obtains by hiring a lawyer is non-existent. 

Finally, lawyers need to be aware that the DIY legal industry stands to keep chipping away at the edges of the practice of law until there will be real competition for clients.  Your license and substantial investment in legal education, as well as your dedication to legal ethics and duty to the courts are all going to be in competition with nameless and faceless paper mills and internet sites that have no professional standing, no investment in education, and no ethical responsibilities.     

I hope limited scope representation helps reduce the trend toward more DIY litigation.  I encourage lawyers to look into limited scope representation and discover how it can enhance their practice as well as aid laypersons who feel that they can not afford legal services.

YOU’D BETTER FILE THOSE POST-TRIAL MOTIONS AFTER ALL

January 27, 2011 § 9 Comments

Back on November 16, 2010, I posted here that you don’t have to file a motion for a new trial in chancery non-jury trials to preserve error for an appeal.  As I pointed out, it has never been the law in chancery court that such a motion was necessary, and MRCP 52(b) would appear to dispose of the issue.  I do believe that was an accurate statement of the law in chancery court.

Until Tuesday, January 25, 2011.

On that date, the court of appeals handed down its decision in Robinson v. Brown, in which the appellant attempted to argue that it was error for the chancellor to assess her with child support because she claimed that he had failed to make the appropriate findings of fact.  Justice Carlton’s opinion, to which there was no dissent, holds at ¶ 18 that the appellant:

” … failed to assert this alleged error post trial to the chancellor, and such failure waived her right to now complain as to this issue on appeal.  Mississippi Rule of Civil Procedure 52 allows the court to amend its findings, or make additional findings, upon motion of a party filed not later than ten days after the entry of a judgment or entry of findings and conclusions of law.  Watts v. State, 492 So.2d 1281, 1291 (Miss. 1986) (appellant was procedurally barred from raising an issue on appeal where he failed to raise it in his post-trial motion).”

The only case cited to support the point is a criminal case from circuit court, presumably from a jury trial.        

The opinion does not mention MRCP 52(b), which specifically states:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.

Would that exact language not apply in this case since the appellant was complaining that the trial court’s ruling was not supported by sufficient evidence?  And, as with nearly all chancery court cases, this was a case “tried by the court without a jury.”

The lone justice with chancery experience on the court of appeals, Justice Myers, is listed as “not participating.” 

Practice Tip: For chancery practitioners, I believe that this decision means that from now on you had better file a post-trial motion in every case if you have any thought of an appeal, and you’d better list every error you think might be in the record. 

For chancellors, this will mean an abundance more work, on top of the lengthy opinions we are required to write to pass scrutiny of the appellate courts.

There’s a lot I could say about this, but I guess I’d better not.  If you want my views, drop by my office and we’ll talk.

UNDERSTANDING THE BEST EVIDENCE RULE

January 12, 2011 § 8 Comments

I would nominate MRE 1002 for second-most misunderstood rule of evidence (the all-time front-runner, without peer, would be the hearsay rule).

It’s fairly common to hear an exchange like this in court:

Atty 1:     How much did you pay for the house?

Atty 2:     Objection. The best evidence of what was paid would be the closing statement.

That objection and every one like it should be overruled.

MRE 1002 states:

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required except as otherwise provided in these rules or by law.  [Emphasis added]

The rule only applies and requires the original when a party is seeking to prove the content of the original.  Farris v. State, 906 So.2d 113, 115 (Miss. App. 2004).  It does not apply simply because there exists a writing, recording or photograph that may be considered the “best” evidence of the matter. 

The rule comes into play only when (a) the content of the writing, recording or photograph is itself the thing a party is trying to prove, or (b) a party is trying to prove a matter by using a writing, recording or photograph as evidence of it.  The rule applies only when one seeks to prove the contents of the writing, photograph or recording so that they may be construed, and does not apply when one is seeking only to prove the existence of a writing, recording or photograph.  Kinard v. Morgan, 679 So.2d 623, 625 (Miss. 1996).

An example of (a) would be where the party is trying to testify to the terms of a written contract.  The contract itself would be the best evidence, and the original would need to be produced.

An example of (b) would be where the witness is testifying about the a claim based on an invoice that shows the items purchased, dates of purchase and prices.  The original invoice would itself establish the claim and would be the best evidence of the transaction.

The rule would not apply to the following situations:

A witness with personal knowledge can testify about how much he earned in a pay period without producing the original pay records.  Simply because written documents pertaining to a matter exist does not mean that a witness may not testify on personal knowledge about the matter.  On the contrary, though, if the witness does not have personal knowledge and relies on documents for her information, she would be required to produce the original documents.

A witness may testify that a document exists without producing the original, but any testimony about the document’s content will require production of the original.

A person who heard another make a statement that was recorded may testify about what she heard without having to produce the recording.

The rule does not apply to physical evidence that is not writings, photographs or recordings.  Riley v. State, 1 So.3d 877, 882 (Miss. App. 2008).  In Riley, the appellant argued unsuccessfully that the State had violated the best evidence rule by not offering the original firearm involved in the crime into evidence.

The evidence qualifies as a “duplicate,” as defined in MRE 1001(4).

So here is the bottom line:  A witness may testify on personal knowledge about a matter even if there is a writing, recording or photograph that documents the same thing, and the writing, recording or photograph need not be produced in such an event; but you must produce the original if you are trying to prove its content.

An important caveat:  Just because you have satisfied MRE 1002 by producing the original does not in and of itself make that original admissible.  The document or recording must still meet authentication and hearsay objections, and a foundation must be laid for admission of the photograph.

MRE 1004 provides some exceptions to the requirement for the original, such as loss or destruction of the original, original not obtainable, or original in possession of an opponent.  Production of the original may also be dispensed with if the document, recording or photograph pertains only to collateral matters.

COMPLYING WITH RULE 10(d), MRCP

November 30, 2010 § Leave a comment

Rule 10(d), MRCP, states “Whenever any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with the pleading unless justification for its omission is stated in the pleading.”

Originally, Rule 10(d) required a copy of any writing to be attached as an exhibit to the pleading.  That requirement was removed in 2000 to conform to the Mississippi Supreme Court’s ruling in Gilchrist Machine Co. v. Ross, 493 So.2d 1288, 1292, n. 1 (Miss. 1986); see also, Edwards v. Beasley, 577 So.2d 384 (Miss. 1991); and Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986).

So what do you need to do to avoid an evidentiary problem under Rule 10(d)?

As the comment states, ” … it remains good practice normally to attach such documents as part of a clear statement of a claim or defense,”  and the rule does specifically state that a copy should be attached unless justification for not attaching it is stated in the pleading.  The comment points out that if a foundation document is not attached to an otherwise sufficient pleading, it may be obtained through discovery.

From the cases, it appears that the documents offered at trial that were not attached would likely be admitted, unless no justification was given in the pleading and efforts to discover them were unsuccessful.

SOME THINGS YOU MAY NOT KNOW ABOUT GUARDIANSHIPS

November 10, 2010 § 2 Comments

Here are some things you may not already know about guardianships.  Some of them have teeth that can draw blood if they catch you unawares …

  • MCA § 93-13-38, provides 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, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.”
  • MCA § 93-13-33, requires that the guardian return an inventory within three months of the appointment, and states:  “Any guardian who shall fail to return inventories may be removed and his bond be put in suit, unless he can show cause for the default.”
  • When closing out a guardianship, the requirements of MCA § 93-13-77, must be satisfied.  That section requires that a final accounting filed, and that the ward be summoned and given notice to be and appear before the court on a day not less than one month after the date that the summons is served or after completion of publication, to show cause why the accounting should not be approved.  The accounting can not be approved earlier than one month after completion of process.  All the requirements to close a guardianship are here.
  • When a guardian has more than one ward, each ward’s business must be accounted for separately.  MCA § 93-13-69.
  • A child 14 or older has a statutory right to choose his or her guardian.  If the ward is over 14, you should have the child join in the petition.
  • Guardianship of a minor ceases by operation of law at age 21, and, in the discretion of the Chancellor, at age 18.  The guardianship may also be terminated by order of the court at any time that the estate has a value less than $2,000 and no further funds or property are anticipated to come into the guardian’s hands.  MCA § 93-13-75.
  • Any claim for a guardian’s fee must include the information required in Uniform Chancery Court Rule 6.11.
  • A “solicitor’s fee” (MCA § 93-13-79) may be allowed for the attorney, and the claim for it must be supported by an itemized statement of services rendered in the same form as that required for the guardian’s fee, plus the information required in Rule 6.12 of the Uniform Chancery Court Rules.    

PUBLISH RIGHT OR PERISH

November 9, 2010 § 4 Comments

We’ve talked before about what you need to do when publishing process for a defendant whose post office address is known.  You can read that post here.

When you have no information about the defendant’s whereabouts, there are a couple of things you have to do before you can publish.

MRCP 4(c)(4)(A) states in part:

… if it be stated in … sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk … shall promptly prepare and publish a summons to the defendant to appear and defend the suit. 

Your first step is to send your client out into the world to make an effort to find the defendant.  Have her call his relatives and ask about where he is.  If they say the last they heard he was in Milwaukee, have your client call information in Milwaukee or look him up on the internet.  If he remarried, try to contact his later spouse or children.  Suggest she call his former employers or co-workers.  Most of these efforts will be futile, but the efforts themselves, not the success, constitute the “diligent” part of “diligent search.” 

After your client has diligently, but unsuccessfully, tried to find the defendant, prepare your pleadings including a sworn allegation in your pleading or an affidavit that the defendant’s address is unknown to your client “after diligent inquiry.”   You must include that language, or your publication will  be a nullity.

The rule says that the “clerk shall promptly prepare and publish a summons,” but it is the universal practice that the lawyer prepares the summons and gives it to the clerk to issue, and the lawyer carries it to the paper for publication.  The publication must be substantially in the form of MRCP Form 1-C.

Publication is once a week for three successive weeks in a newspaper published in the county.  The publication notice certified by the newspaper is filed in the court file by the lawyer.

The defendant has thirty days from the date of first publication within which to file a responsive pleading.

Once you get before the court, your client or the affiant will have to testify to the efforts they made to locate the defendant.  There is no case law defining the proof necessary to satisfy the diligent inquiry requirement.  In Page v. Crawford, 883 So.2d 609, 611-12 (Miss. App. 2004), the court said this:

There is no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry.  There is also the question of balancing the quality of those inquiries with their quantity. Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality and the interests of the parties.

In this case, Page did make several attempts to locate and serve Crawford within the 120-day period, searching through both telephone and utility directories and repeatedly engaging process servers. When Page finally found Crawford’s husband, he refused to accept certified letters regarding the matter. Although land records do seem like an obvious place to conduct an inquiry, Page was looking under a former name that was given at the time of the accident.

In Caldwell v. Caldwell, 533 So.2d 413 (Miss. 1988), the Mississippi Supreme Court found Mr. Caldwell’s half-hearted efforts to discover his wife’s post office address in Alaska to be insufficient, especially in view of the fact that she had family he could have contacted, but did not, to further his search.

I have refused to allow parties to go forward where it was obvious that more could have been done to locate the defendant.  In one case, the plaintiff testified that the last she heard her husband was in prison in Texas.  I pointed out to the attorney that prisoners, of all people, should be among the easiest to locate.  Sure enough, they went back to the drawing board and found him on an internet prisoner locator site.  They then got personal process on him and were able to proceed with an uncontested divorce.    

The purpose of MRCP 4 is to ensure that a defendant receives notice of legal proceedings against him, if at all possible, so that he has the opportunity to defend.  If the court finds that your client’s efforts fulfill that purpose, your publication process will be adequate.  Don’t take your client’s word for it that she has tried to find him and failed.  Make her go through the process of trying.

THE PROPER NAMES OF PLEADINGS

November 8, 2010 § 3 Comments

Rule 7, MRCP, states:

“There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim; a third-party complaint, if a person who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served.  No other pleading shall be allowed, except that the court may order a reply to an answer or third-party answer.”

and

“An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.”

Early on, the appellate courts held that the trial courts are to look beyond the name given to the pleading by the drafting attorney to the substance of the document.  In other words, calling a counterclaim a “countercomplaint” or calling a petition a “motion” does not deprive the court of authority to act.

Still, styling a pleading incorrectly can cause confusion and may even lead the trial court into error, as it did in the case of Sanghi v. Sanghi, 759 So.2d 1250 (Miss. App. 2000).

The better practice is to use the proper nomenclature when drafting pleadings, so that your intent is clear and you can at least look like you know what you are doing.

I have looked at the rules and studied the few cases on the subject and have come to the conclusion that the following table sets out the proper names to be used for various pleadings, at least until the appellate courts give some more definitive guidance on the subject.      

Function Title of Pleading        

 Party Filing and Opposing Party        
Initiate a new lawsuit not based on a prior judgment        

  Complaint       

  Plaintiff and Defendant       
 Answer a Complaint       

  Answer       

  Defendant and Plaintiff       
 File a claim by defendant against the plaintiff       

  Counterclaim       

  Counterclaimant and Counterdefendant       
File a claim by defendant against co-defendant        

 Cross-claim        

 Cross-claimant andCross-defendant       
Initiate a lawsuit seeking modification or enforcement of existing judgment        

  Petition       

  Petitioner and Respondent       
Answer a Petition        

 Answer        

 Respondent and Petitioner        
File a claim by respondent against the petitioner        

  Counterclaim       

  Counterclaimant and Counterrespondent       
File a claim by respondent against a co-respondent        

  Cross-claim       

  Cross-claimant and cross-respondent       
 Ask the court in an already-filed action for some relief (e.g., temporary relief, compel discovery, summary judgment, etc.)       

  　　Motion　    

 　　　Movant and Respondent     

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