April 1, 2020 § 1 Comment
Reprise is replaying an April Fool post from several years ago:
What Kind of Fool do You Think I am?
April 1, 2015 § 4 Comments
Let us today depart from our customary annual April Fool’s Day practical jokes, and instead focus our attention on that Everyman of the present era – the Fool. This is, after all, his (or her) day.
The information age is a paradisiacal era for Fools, what with social media, faux journalism, opinion outlets, and, yes, I daresay – blogs – that are fabulously fertile ground for Fools to grow and disseminate their fecund Foolishness.
Fools are in the news headlines daily. It’s the heyday of Foolishness and folly.
The birthmark of a Fool is lack of good sense and judgment. It’s a topic we’ve discussed here before.
On this their own special day, then, let’s ponder what wiser men have said of them:
“The trouble ain’t that there is too many Fools, but that the lightning ain’t distributed right” — Mark Twain
“A Fool always finds a greater Fool to admire him” — Nicolas Boileau-Despréaux
“I have great faith in Fools — self-confidence my friends will call it” — Edgar Allen Poe
“A man may be a Fool and not know it, but not if he is married” — H.L. Mencken
“A Fool must now and then be right by chance” — William Cowper
“A Fool sees not the same tree that a wise man sees” — William Blake
“For, as blushing will sometimes make a whore pass for a virtuous woman, so modesty may make a Fool seem a man of sense” — Alexander Pope
“A prosperous Fool is a grievous burden” — Aeschylus
“Even a Fool, when he holdeth his peace, is counted wise” — Proverbs, 17:28.
“The greatest men may ask a Foolish question, now and then” — John Wolcot
There is actually a patron saint of Fools. Saint Simeon, the Holy Fool, a sixth-century monk, is revered as the patron saint of “holy fools and puppeteers.” Holy Fools, as I understand it, are those who are “Fools for Christ’s sake” (1 Cor. 4:10), rejecting riches and other worldly things for spiritual pursuits. I am not here to judge, but Simeon’s activities seem to be of the more outré variety: dragging a dead dog through the gate of a city, inciting schoolchildren to call him crazy; pretending to have a limp, and other times jumping around; dragging himself along on his buttocks; tripping people walking by; baying and staring at the new moon; thrashing about; extinguishing lights in church and throwing nuts at women; overturning the tables of pastry chefs; and doing other similar capers that got him insulted, beaten, and abused, all of which he endured with good patience. By today’s foolish standards, those kind of stunts seem more mildly eccentric than foolish, but, hey, I guess that’s what made him a holy Fool as opposed to a wholly Fool.
Oh, and I still don’t understand what puppeteers did to be dragged into this discussion.
While we’re on the subject of saints, I should mention that April 1 is the feast day of St. Hugh of Grenoble, per the Catholic calendar. Although he lived in the eleventh century, he sounds like the kind of guy who faced down some of the same kinds of foolishness that nettle us today. This from a Catholic web site:
Hugh, who served as a bishop in France for 52 years, had his work cut out for him from the start. Corruption seemed to loom in every direction: the buying and selling of Church offices, violations of clerical celibacy, lay control of Church property, religious indifference and/or ignorance. After serving as bishop for two years, he’d had his fill. He tried disappearing to a monastery, but the pope called him back to continue the work of reform.
That just goes to show that, when it comes to Fools and foolishness, the passage of centuries does not appear to have any significantly remedial effect. Jonathan Swift spoke in 1726 of a Fool’s Folly in Gulliver’s Travels:
“He had been eight years upon a project for extracting sunbeams out of cucumbers, which were to be put in phials hermetically sealed, and let out to warm the air in raw, inclement summers.”
Come to think of it, that sounds suspiciously like the prospectus for a 2015 Silicon Valley IPO offering that would likely attract billions from investors.
Which brings to mind the old adage, “A Fool and his money are soon parted.”
Have a happy and prosperous April Fool’s Day.
March 30, 2020 § Leave a comment
Reprise replays posts from the past that you may find useful today.
The Price of Admission
August 17, 2016 § 1 Comment
Chancery court can be a strange land for strangers who spend most of their time in law courts. There, things tend to be pretty black and white; here, well, not so much. One of the things that circuit lawyers find particularly frustrating is that chancellors sometimes seem to look past the black letter of the rules in some of their rulings.
It can cut both ways, though.
In the recent case of Randallson v. Green, a COA case decided June 21, 2016, Arthur Randallson and his wife, April, argued that the chancellor erred in relying on their deemed answers to requests for admission in determining custody.
The case came before the chancery court on a complaint filed by Randall and Laura Green seeking legal and physical custody of Aeva, the daughter of Arthur and April. The Greens filed requests for discovery which were not answered by the Randallsons until 51 days after they were served on them. The chancellor awarded custody to the Greens, and the Randallsons appealed.
Their first assignment of error was that the chancellor erred in relying on their deemed MRCP 36 admissions (RFA’s) to determine custody. Judge Lee wrote for a unanimous court:
¶19. This Court has strictly enforced the application of Mississippi Rule of Civil Procedure 36 according to its terms. Boyd v. Boyd, 83 So. 3d 409, 416 (¶19) (Miss. Ct. App. 2011). “The rule states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant.” Id. (citing M.R.C.P. 36(a)). “Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer.” Id.
However, the trial court, on motion, has the discretion to “permit withdrawal or amendment [of a matter admitted] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”
Id. (quoting M.R.C.P. 36(b)).
¶20. The record is clear that Arthur and April filed untimely responses to Randall and Laura’s requests for admissions. See id. at (¶21). They failed to request a withdrawal or amendment of the admissions prior to trial. See id. Thus, the operation of the rules deems the matters admitted. Id. (citing M.R.C.P. 36(a)). “Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” Id. (quoting DeBlanc v. Stancil, 814 So. 2d 796, 799 (¶17) (Miss. 2002)).
¶21. However, in Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005), we held that “child custody is a judicial determination, and is never to be regarded as a merely evidentiary matter.” Boyd, 83 So. 3d at 417 (¶23). Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Id.
¶22. In her bench ruling, the chancellor considered Arthur and April’s admissions. But then the chancellor stated:
[T]his [c]ourt is a court of equity and the attorneys for the plaintiffs know that. They did not . . . rest their case [after the admissions were deemed admitted and] ask me to find by clear and convincing evidence that the parents [were] unfit . . . . They went on to present evidence to this [c]ourt, which gave the [c]ourt some . . . very real concerns.
After discussing the evidence, the chancellor stated that she “considered the totality of the [r]equest for [a]dmissions, the guardian [a]d litem report, [and] the testimony . . . from all of the witnesses” and found “that the [natural-]parent presumption [had] been overcome.”
¶23. Upon a thorough review of the record, we do not find that the chancellor abused her discretion. See id. at 418 (¶28). It is clear that the admissions were not the sole basis for the custody decision. See id. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Arthur and April. See id. Therefore, this issue is without merit.
You can take away at some points:
- Failure to answer RFA’s can have as significant effect in a chancery court as in a law court.
- The chancellor in a child custody case may not rely solely on admissions to make its custody decision.
- The only way a chancellor (or any other judge operating under the MRCP) may relieve your client of the effect of admissions, whether deemed or expressly made, is if you timely file a motion and put on proof that (a) the merits of the case will be served by granting the motion, and (b) there is not prejudice to the other party. Fail to do that, and your client is stuck. Wait until the day of trial, and you probably will fail on (b).
- Don’t forget that you can move to “withdraw” or amend even when your client wholly failed to respond at all. You just have to go through the motion routine above.
- But, hey, instead of putting all your chips on a rescue procedure that relies on the possibly sketchy discretion of the judge, why not focus instead on your office procedures? Have a protocol in place that the minute a RFA appears in your email inbox, or is served with process, or is hand-delivered, or arrives in the mail, your staff knows to give it top priority and get it to your immediate attention. Calendar the due date. Make an immediate appointment with the client to come up with responses ASAP. Get the answers filed within a reasonable time.
- Resist the temptation to answer every question with something like, “Defendant is without knowledge or information sufficient to form a belief …” unless that really and truly is the case. On a bad day the judge could find that sort of response sanctionable.
March 26, 2020 § 1 Comment
Attorney Gates of Meridian died unexpectedly last evening, March 25, 2020.
March 16, 2020 § 7 Comments
Chancellor Charles Smith of Meridian was shot as he exited his vehicle at the court house this morning around 7:30. He was taken to Anderson Hospital by ambulance with considerable loss of blood and is in surgery.
Those are all the facts we have at this time.
March 6, 2020 § Leave a comment
“For if we open our eyes and see clearly, it becomes obvious that there is no other time than this instant, and that the past and future are abstractions without any concrete reality. Until this becomes clear, it seems that our life is all past and future, and that the present is nothing more than the infinitesimal hairline which divides them.” — Alan Watts
“There is only one moment, and yet the moment is always giving way to the next, so that there is not even Now, there is Nothing. True, true. There is nothing, if that is the way to understand how much there is.” — M.C. Richards
“Only when one understands that we live life on the precarious edge of the present, which is a mere millionth of a second, as we rush moment by moment at warp speed into an unknown and unknowable future, can one begin to appreciate how courageous and brave is the act of living with only our memory of the accumulating past for balance.” — Daedelus
March 2, 2020 § Leave a comment
Out a few days.
Next post March 6, 2020.
February 28, 2020 § Leave a comment
Reprise replays posts from the past that you may find useful today.
RESCUING THE FORGETFUL WITNESS
February 24, 2011 § 2 Comments
It’s a familiar scene. The witness is asked a crucial question and suffers that dreaded lapse of memory. “I don’t remember,” she says, and the lawyer knows the answer is right there on counsel’s table. How do you recover?
Unfortunately many lawyers follow the “I don’t remember” response with a leading question in an attempt to suggest the answer. That provokes a series of objections to leading questions and even, “The witness has already said she doesn’t remember, so she can’t answer any questions about this!” Often the examining lawyer gives up and moves on to something else.
The solution is in MRE 612, which allows a witness to use just about anything, admissible or not, to refresh his or her recollection.
Instead of asking that suggestive question, simply ask the forgetful witness whether there is anything she could refer to that would refresh her recollection. When she says she needs to look at her calendar, or her checkbook, or her diary, or her driver’s license, hand it to her and ask her to take a moment and look it over, and then ask the question again. Any objection should be overruled because she said she needed to refresh her recollection, and she should be allowed to do so. Note that any object can be used. It may be a photograph of a loved one, or a pencil, or a cell phone. The rule does not require that it be admissible in evidence.
Whatever object is used is subject to examination and inspection by the other side. And, of course, that is the practice as to any document or object used by a witness on the witness stand. The other party has the right under Rule 612 to offer into evidence those portions relating to the witness’s testimony, and there is a procedure for objecting to portions of the document that are not relevant, and preserving for appellate review any matter not made a part of the record.
It is quite common in court for a witness to say, “I need to look at some papers on the table to answer that.” The court will routinely allow the witness to look at what he or she needs to answer.
Rule 612 is the only procedure available to refresh a witness’s recollection. It is limited to a writing or a tangible object, and does not apply to an out-of-court oral statement, which would simply be an attempt to circumvent the hearsay rule. Eastover Bank v. Hall, 587 So.2d 266, 269 (Miss. 1991).
Some lawyers apparently confuse attempts to refresh the recollection of the witness with MRE 803(5), which pertains to the admissibility of a recorded recollection in a memorandum or record in lieu of the witness’s testimony when the witness has no recollection of the facts in the record. The two rules address different problems: Rule 612 is a method to refresh the recollection of the witness; Rule 803(5) is a way to get the facts in the record via documentary proof when the witness has no recollection.
Another source of confusion for older lawyers is that Rule 612 is a departure from pre-MRCP practice. In the era before MRCP it was much more cumbersome to refresh a witness’s faulty memory. But that was then (now 28 years ago) and this is now. If you’re still playing tapes of pre-rules practice in your head after all these years, you need to get out a rule book and get up to date.
February 21, 2020 § 1 Comment
February 19, 2020 § Leave a comment
Michelle Pope and Brian Martin married in 1994. In 2006, Martin had a vasectomy. In 2007, while separated from Martin, Pope became pregnant by Daniel Fountain. All of them knew that Fountain was the biological father, but Martin was listed as father of the child, J.M., on the birth certificate.
Pope and Martin resumed living together, and both worked to support the child. Fountain was allowed to visit with and babysit the child.
In 2012, when the child was 5 years old, Pope and Martin were divorced. The divorce decree named Martin as father, granted custody of J.M. to Pope, granted visitation to Martin, and ordered him to pay child support and provide insurance covering the child.
In 2016, Fountain filed an emergency proceeding seeking temporary custody of J.M., claiming abuse by Pope. The court granted Fountain his temporary relief, which necessitated a full custody trial, but Fountain had filed in a different district from that where the divorce was granted, and so the case had to be transferred to the divorce court and it was.
In the course of proceedings, the chancellor noted several times that Martin (remember him?) had been adjudicated the father, making him a necessary party. But he was never joined, even though he did testify at trial.
Following the hearing, the chancellor adjudicated Fountain to be the father of J.M. and entered a “temporary order” granting Fountain visitation. Michelle appealed, arguing that Martin should have been joined as a party.
In Pope v. Martin, rendered December 17, 2019, the COA reversed and remanded in a unanimous ruling. Judge Corey Wilson wrote the opinion:
I. Rule 19(a)(1)
¶21. As noted supra, for the entirety of J.M.’s life (arguably until now), Martin has been considered J.M.’s legal father. And pursuant to a George County divorce decree, Martin has joint legal custody of J.M., visitation rights, and child support responsibilities. Given these rights and responsibilities, it is apparent that “in [Martin’s] absence complete relief cannot be accorded among [Pope and Fountain]” in this action. M.R.C.P. 19(a)(1).
¶22. Pope has asked the court to “award [her] the sole paramount care, custody and control of [J.M.], as well as [establish] permanent child support payments to be made to [her] . . . .” And in his counter-petition, Fountain has requested a full hearing on the merits to determine
permanent custody, visitation, and support rights and obligations of the parties. If Martin is the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. not added as a party to this action, the chancery court risks conflicting orders regarding J.M. and his custody, his child support, and his accessibility for visitation.
II. Rule 19(a)(2)
¶23. Along this same vein, Martin “claims an interest relating to the subject of th[is] action,” namely, J.M.12 And the complete “disposition of th[is] action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” M.R.C.P. 19(a)(2). Pope notes that disposition of this action has the potential to diminish Martin’s “custodial and visitation rights” as well as dilute Martin’s “rights of inheritance.” We agree, though we do not know why Pope—who as plaintiff sought the very relief the chancery court granted—did not include Martin as a party at the outset or after any of the multiple times the chancery court instructed the parties to join him. Moreover, complete disposition may leave Pope at risk of being subject to inconsistent or contradictory obligations in regard to J.M.’s visitation with Martin and Fountain. For these reasons, we find that Martin is a “necessary party” to this action. See Mahaffey [v. Alexander], 800 So. 3d at 1285 (¶5).
¶24. “In discussing the joinder of parties under Rule 19, our supreme court has stated that the ‘failure to join interested parties . . . under M.R.C.P. 19(a) justifies reversal and remand as a violation of fundamental due process.’” Am. Pub. Fin. Inc. v. Smith, 45 So. 3d 307, 311 (¶9) (Miss. Ct. App. 2010) (quoting Bd. of Educ. of Calhoun Cty. v. Warner, 853 So. 2d 1159, 1170 (¶38) (Miss. 2003)). This is true even if, “on remand, the same result might be reached.” Powell v. Evans, 113 So. 3d 1270, 1275 (¶23) (Miss. Ct. App. 2013); see also Davis v. Guar. Bank & Trust Co., 58 So. 3d 1233, 1238 (¶26) (Miss. Ct. App. 2011). Accordingly, we reverse the chancellor’s judgment establishing paternity and remand for further proceedings once Martin has been properly joined.
[Fn 12] Martin testified at the May 22 hearing that he considered J.M. to be his child and that he has no intention to voluntarily disestablish paternity.
The opinion states at ¶2 that “Pope … now appeals from the judgment establishing paternity and the temporary order.” At ¶17, the court held that it had no jurisdiction to consider the temporary order, citing McDonald I and II. A temporary order is not a final, appealable judgment per MRCP 54. “We find nothing to review about this explicitly temporary order entered three years ago. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (appellate review of temporary orders is improper.)” McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss. Ct. App. 2002).” McDonald v. McDonald, 876 So. 2d 296, 298 (Miss. 2004) [My emphasis].
February 17, 2020 § Leave a comment