June 15, 2020 § 30 Comments
As I mentioned here before, today’s is the final post on this blog, except as I mention below.
All of the content posted up to now will remain at this address for your ready access unless WordPress changes the rules to something intolerable, in which case I will try to let you know before disappearance takes place.
Please remember that the law changes all the time, so when you read that post from 2012 and think “Aha! Just the case I’ve been looking for!” it may be that it is no longer good law. This site has never been intended as a substitute for solid research.
Several people have asked me to replace my 4x/week posts with occasional pieces. Well, that would be more of a nuisance to readers trying to keep up than something helpful. I may share some of my photos from time to time. I’m no Ansel Adams or William Eggleston, or even Vivian Maier, but I do enjoy my cameras and I enjoy sharing my pictures.
There is a move afoot to create a chancery practice site. I don’t know whether it will be a static site, or a blog, or what form it ill take, but if you will support it, you will benefit.
More than 65% of my life has been dedicated to the law, the past 14 as chancellor. Despite all its shortcomings, I think the law is the noblest profession. My passion as judge has been to heighten professionalism and the level of practice. I hope this blog served that purpose.
So, thank you for letting me try to enlighten and entertain you these past ten years. It’s been an enjoyable experience. I have enjoyed getting to meet in person and by comment many lawyers I would never have crossed paths with otherwise.
June 10, 2020 § 1 Comment
Reprise replays posts from the past that you might find useful today.
Trial Factors aka “Checklists”
March 6, 2018 § Leave a comment
The MSSC threw down the gauntlet in 1983 in Albright v. Albright, mandating that trial judges must make findings of fact as to certain specific factors when making an award of child custody.
Since then, the number of factor-driven cases has multiplied. There are 13 now, by my count.
I call it “Trial by checklist” because you can reduce every list of factors to a convenient checklist that you can use at trial. I suggest you copy these checklists and have them handy in your trial materials. Build the outline of your client’s case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that, because failure to make findings with respect to the applicable factors is cause for remand — an expensive do-over. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
I try to remind folks twice a year about the importance of using checklists in making your cases.
June 5, 2020 § Leave a comment
May 25, 2020 § Leave a comment
May 22, 2020 § Leave a comment
Half of a Yellow Sun by Chimamanda Ngozi Adichie. The title refers to the golden rising-sun emblem on the national flag of the short-lived (1967-1970) Republic of Biafra (Bee-afra) that seceded from Nigeria, prompting a bloody tribal civil war in which millions were slaughtered and starved to death, and this is a story of that era. We see the unfolding events through several characters, including a professor, twin sisters from a patrician family, a house servant, an Englishman, and their interactions with each other and various minor figures. Adichie is a skilled storyteller adept at developing character, and she has a keen eye for description that she deftly crafts into entertaining prose. Fiction.
A Visit from the Goon Squad by Jennifer Egan. Pulitzer-Prize-winning “novel” that is actually a set of 13 discrete stories through which many of the same characters weave in and out as time oscillates from story to story between the present, past, and even future. The style and voice vary from chapter to chapter, rewarding the reader with a kaleidoscope of expression and points of view. Not only is the structure of the novel unorthodox, but in one chapter Egan adroitly describes a family’s interrelationships through a teenager’s power-point presentation. The writing is bright and crisp, the characters vivid and sharply drawn. Highly recommended. Fiction.
Calypso by David Sedaris. Yet another collection of amusing essays. We have come to expect laugh-out-loud passages in Sedaris’s work, and there are some here. But his reflections in this book on aging, his father, and his siblings sound a more somber, reflective tone. Still, if you enjoy Sedaris, you will enjoy this collection. Fiction or non-fiction; you decide.
Never Enough by Judith Grisel. A PhD neuroscientist and former addict explains addiction from a scientific and experiential point of view. If you’re like me, you will skim the chemistry and get right to the explanations of how addiction occurs, how different substances have different effects, and what is and is not effective treatment. Non-fiction.
A Different Drummer by William Melvin Kelly. A lost treasure, first published in 1962, but largely overlooked and overshadowed as civil-rights confrontations were beginning to grab headlines and attention. Rediscovered and republished in 2018, it is the story of a fictional southern state located between Mississippi and Alabama, and the exodus of its black inhabitants. Kelley, who was black (he died in 2017), tells the story from the viewpoint of the white people who become enraged over the development, with predictable results for that era. Fiction.
The Winter Soldier by Daniel Mason. An Austrian medical student joins the army of the Holy Roman Empire in World War I and is assigned to a field hospital in Hungary where he falls in love with a mysterious nun serving as a nurse. Mason’s writing sparkles, but the plot is thin to the point of transparency, and the book tends to plod toward its finish. Fiction.
An Unexpected Life by Mary Ann Connell. A bored housewife surreptitiously enrolls in law school against her husband’s wishes and goes on to become house counsel for the University of Mississippi, guiding the school through some of its most momentous legal challenges. This book is a Mississippi Who’s Who of the 60’s through the 2000’s, but more significantly is the tale of an indomitable spirit. A native of Louisville and daughter of a small-town lawyer, Connell’s poignant childhood molded her into an overachiever who relentlessly pursued education and excellence. Non-fiction.
The Warmth of Other Suns by Isabel Wilkerson. The remarkable story of the great migration of blacks from the south to the north from 1915-1970. Told through the lens of three emigrants, one from Mississippi, another from Louisiana, and the third from Florida, the book details the struggles, poverty, and oppression that drove them to seek better fortunes in Chicago, Los Angeles, and New York. They found greater freedom and prosperity, but experienced more discrimination and diminished opportunity than they expected. Woven through the stories of the three is the greater story of the millions who were a part of the mass movement. Non-fiction.
The Jersey Brothers by Susan Mott Freeman. Three brothers from New Jersey enlist in the Navy in World War II. One is stationed in the Phillippines when the islands are overrun by the Japanese and he is taken prisoner. This is the story of the family’s quest to find him. Non-fiction.
May 11, 2020 § 3 Comments
As this blog wanes toward its conclusion, here are a few points …
- I will see that the blog continues to be accessible so that you can access its content all the way back to 2010, when it started.
- The only change will be that there will be no new posts after June 15, 2020.
- That means that if you copy some authority to use in a pleading, motion, or brief, be doubly sure that you research to determine whether it is still good authority or whether changes in the law have affected it.
- In the meantime, I’ll continue posting as I have.
May 8, 2020 § 24 Comments
No, not that end; this end.
June 14, 2020, will be the 10th anniversary of this blog. Ten years is a long time for anything, much less a blog that requires weekly attention.
Every June anniversary since I started this I have said that I would continue as long as I enjoyed doing it. Around the beginning of January I began to feel that the burden had begun to outweigh the enjoyment. I found that I was resisting making time to compose these posts, so that I didn’t have a cushion of at least a couple of weeks scheduled ahead, and that created unenjoyable pressure. It had begun feeling more like a chore than an enjoyable project.
I began thinking the unthinkable: how much longer can I keep this up? I wondered whether my feelings might change. After all, we all go through slumps.
But here we are in May and my feelings haven’t changed. The Covid-19 quarantine has brought home to me that I can take a more relaxed approach and still perform at a high level. It taught me, too, that I can slough off some things that I have been toting around without creating an existential threat. One of those things is this blog.
So, my friends, my last post here will be June 15, 2020, when I will bid you a bittersweet farewell. Fear not, the site will remain up; just no more new posts after the closing date.
More on the denouement Monday.
May 5, 2020 § 2 Comments
What happens when one fails to object to clearly objectionable evidence? Should the chancellor even consider that evidence? Or is it to be considered along with all other competent evidence?
Those were questions that arose out of a trial in which heirs of Mary Cook sought to set aside deeds and financial transactions in favor of John Ward based on Ms. Cook’s incompetence. During the trial testimony was elicited by Ward’s own attorney, who made no objection to the hearsay responses. After the chancellor ruled against Ward, he appealed, and one ground was admission of the hearsay.
The COA affirmed in Ward v. Est. of Cook, et al., decided April 21, 2020. Judge Jack Wilson wrote for the unanimous court:
¶22. Ward next argues that the chancellor erred by considering hearsay testimony regarding what a bank teller told Lynn Cook III. However, Ward failed to object to the testimony at trial. Indeed, although Ward fails to provide a relevant record citation, it is appears that he is complaining about testimony that his own attorney elicited. A party cannot complain about testimony that his own attorney elicited. Shaheed v. State, 205 So. 3d 1105, 1111-1112 (¶20) (Miss. Ct. App. 2016). In addition, “[w]hen . . . hearsay goes into evidence without objection, the trial court has no opportunity to evaluate the proffered testimony under [Mississippi Rule of Evidence] 803(24), or any other exception. Thus, the failure to object to hearsay operates as a waiver of the issue on appeal.” Swinney v. State, 241 So. 3d 599, 610 (¶40) (Miss. 2018) (quoting Rubenstein v. State, 941 So. 2d 735, 764 (¶113) (Miss. 2006)). Finally, hearsay evidence that is admitted without objection becomes competent evidence for the trier of fact to consider. Shaheed, 205 So. 3d at 1110 (¶16). Therefore, this issue is entirely without merit.
Notice that the case law says that the hearsay becomes competent evidence for the court to consider, NOT that the chancellor must give it the same weight as other evidence. The chancellor could still find it to have little probative value, or find it not to be credible because of its hearsay nature. The chancellor is the finder of the weight and credibility to be assigned to evidence. In one case I had involving a will, an attorney sat mute through the examination of a witness by his opponent, not asserting a single objection, although nearly every question elicited hearsay testimony. I found that witness’s testimony not to be credible and discounted almost all of it.
Always be mindful in the course of a trial that you are not there solely to obtain a favorable ruling. You are also there to make a record that will win the case on appeal. You can’t do the latter if you fail to make timely objections. Oh, and you have to make sure that everything you need to prevail is in the record, as I pointed out in this old post.