Reprise: Making a Record
June 23, 2017 § Leave a comment
Reprise replays posts from the past that you may find useful today.
In Evidence
March 30, 2015 § Leave a comment
Have you ever stopped to ask yourself what the phrase “in evidence” means? We toss it around all the time. “Is that in evidence?” “Your honor, I object because that document is not in evidence.”
The phrase simply means that the judge or the jury can look at the document or hear the testimony, and can consider it in reaching a decision.
The meaning is simple, but the ramifications can be profound.
- If something is not in evidence, it is not part of the record. If it is not part of the record, the judge can not consider it.
- If you offered something into evidence and were denied, you must make the proffered evidence part of the record. If it was oral testimony, you must make an offer of proof (MRE 103(a)(2)). You can do this by requesting to make an “offer of proof,” or a “proffer.” The judge will then allow you to state on the record what the testimony would have been, or will allow you to do it in question-and-answer form (MRE 103(b)). If the ruling was one denying entry of a document in evidence, then you must ask that the document be marked for identification only, which request will always be granted. Remember that neither a proffer nor a document marked solely for identification may be considered by the judge in ruling on the merits; however, they are part of the record on appeal.
- Pleadings are not evidence. Just because you pled something does not mean it is proven.
- Never fail to put on proof based on your assumption that the judge will connect the dots and draw the conclusion favorable to your client. The judge might not. Or the judge might, but there will be inadequate evidence in the record to support the judge’s conclusions, which is the formula for reversal on appeal.
Make sure that every element or factor that you need to prove is supported by proof in evidence. A graphic illustrating this vital concept is here.
Better, I Hope
June 14, 2017 § 9 Comments
It was seven years ago today that I started my quest via this blog to influence as many lawyers as I could to be better chancery practitioners, to reach higher, to be more professional, and to be the best lawyers they could be.
It has been gratifying to run into lawyers and judges who tell me that they do draw inspiration and useful information, and even humor, from this blog. Mission accomplished as to them.
When it comes time to hang up my robe and turn this office over to my successor, I will have been a successful chancellor if I inspired the lawyers with whom I came in contact to improve their practices and become better … better lawyers, better people, better at all they do. If, on the other hand, those who crossed my path are no better or are worse, then I failed.
That’s why I’ll continue this for the time being. It’s a quest to influence people, particularly lawyers. Oh, and along the way it’s even helped me make some friends.
Guns and the Courtroom
June 5, 2017 § 6 Comments
There is a significant case pending before the Mississippi Supreme Court that raises some important issues of public policy and safety, constitutionality, and separation of powers. You may wish to file an Amicus brief.
The case is Ward v. Colom, et al., no. 2016-M-01072. It is before the court on a petition seeking a writ of prohibition against the chancellors of the Fourteenth Chancery Court District. The chancellors had entered an order extending the courtrooms of their courthouses out to the entrances of the courthouses, with the effect that persons carrying firearms could not come within 200 feet of the courthouse entrances. The order applied to permitted persons as well as non-permitted persons.
Ward complains that he is an enhanced-carry permit-holder, and he was denied entry into one of the courthouses of the district with his firearm. He acknowledges that judges have the right by statute to restrict firearms from their courtrooms, but argues that the chancellors did not have the authority to extend the coverage of that authority in the way that they did. He asks the high court to void the order.
On April 26, 2017, the court, by Justice King, ordered briefing on the following issues:
1) What is the authority of judges to exercise control over security issues beyond the four walls of the courtroom itself?
2) Whether the judiciary has the inherent authority to exercise control of security extending beyond the four walls of a courtroom.
3) Whether Mississippi Code Section 97-3 7-7 (2) prohibits judges from controlling courthouse security. Specifically, what is the definition of “courtrooms during a judicial proceeding,” and does that definition either allow or prohibit judges from exercising control of security beyond the four walls of a specific courtroom while court is in session.
4) If Mississippi Code Section 97-37-7(2) does prohibit judges from exercising control over courthouse security, whether it violates the separation of powers doctrine.
The order specifically allows Amicus briefs within “fourteen days of the service of the responsive briefs.” That refers to the responsive briefs of the chancellors, which are due within thirty days of May 26, 2017. That means that Amicus briefs are due within 14 days of June 26.
I encourage chancery practitioners in particular to weigh in on this issue. For myself, I know that hard feelings can spill over to violence that is not limited to the courtroom. In a case here several years ago one of the parties and her attorney were fired upon as they left the courthouse after a nasty custody battle. They were outside on the steps to the south entrance. No one was hurt, thank goodness.
Whether to ban guns entirely as the chancellors did in the Fourteenth should be a judgment call by judges on the ground who are familiar with their courthouse situations, the types of cases that they handle, and the people who come before them. In our courthouses there is adequate, well-armed security. If they are ever called upon to draw their weapons to deal with a deadly situation, I would hope that they don’t have to stop to figure out which armed people are the “good guys.” That hesitation could be fatal.
Reprise: Man ist was er Isst
May 30, 2017 § 1 Comment
“Man ist was er isst.”
“You are what you eat.” — Feuerbach
Reprise replays posts from the past that you may find useful today.
Garbage in, Garbage out
April 29, 2015 § 3 Comments
Output often bears a marked resemblance to input.
One cannot expect to emulate the deep luster and luxe of mahogany with coarse plywood. Nor does ground round yield an acceptable chateaubriand. In either case, the product will look shabbily like the original material.
So why should we expect that the cultural garbage that we daily consume in the form of trash novels (for the few of us who still read), situation comedies, reality dance and bachelor shows, alarmist “news” programs, and television “dramas,” will produce from us any more refined output than the quality of what we have consumed?
What do these rubbish add to our store of wisdom, or our deeper understanding of human nature, or our grasp of how other cultures view the world, or how we can make things better?
This is not to suggest that one should not add a little cultural cotton candy, or broadcast Ben & Jerry’s, or reading Reese’s peanut butter cups to one’s life every now and then. No. What I am saying is that a steady diet of that stuff will transform you from a lithe, supple thinker into a bloated, lazy advocacy short-cutter.
Before I entered law school, a wise judge told me that the more exposure one is able get to the great ideas, to the history behind the way things are, to the principles that influence people in their daily lives, the better one can understand how to use the tools of the legal profession for the benefit of one’s clients. That process takes place over a lifetime, and it does not end when one graduates from law school.
We learn much of what we come to know from our experiences. You decide what you are learning by the experiences you choose.
Anderson made a similar point recently on his blog with reference to writing: the best way to learn the art of persuasive writing is to read persuasive writers. [Note: Anderson’s blog is regretably defunct since the original publication of this post in 2015].
The quality of what you produce depends on the quality of the raw materials used.
Cuba Travelogue
May 26, 2017 § 1 Comment
Click any smaller photo for a slide show. If the picture is not sharp, reload your page. For more Cuba photos, click on this link.
Does Mississippi Need Class Actions?
May 23, 2017 § 1 Comment
When the idea of Mississippi rules of court first took flight, the drafters modelled the MRCP on the federal rules. For the most part, anyway. When it came to class actions — FRCP 23, 23.1, and 23.2 — the MRCP counterparts read, “Omitted.”
Now the MSSC has posted proposed MRCP 23, 23.1, and 23.2. You can read the proposed rule at this link. Your comments and suggestions are solicited.
I don’t really have a position on this one way or the other. I do note that Mississippi is the only state that does not have class-action practice. We leave it to the federal courts to do class-action work in cases arising in our state that meet the Erie criteria for federal jurisdiction.
Bell Seminar
May 22, 2017 § Leave a comment
As I have said here many times, if you are going to practice family law in Mississippi, there is no better way to keep up with the developing case law than to attend Professor Deborah Bell’s seminars.
This year’s venues and dates are: Jackson, Downtown Marriott, July 21, 2017; Oxford, Oxford Conference Center, July 28, 2017; Biloxi, Imperial Palace, August 4, 2017. (Note that a brochure already mailed has the Jackson and Oxford dates transposed). You can verify the correct seminar info and register online at this link.
While you’re at it, the very best reference resource available to you for family law is Professor Bell’s Bell on Mississippi Family Law. Click the link for more information.
My only interest in encouraging you to attend the seminar and purchase the book is that lawyers who do their research and keep up with this ever-changing area of law tend to run circles in court and in negotiations around those who do not. This seminar and this book will help you with that.
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