Blaming it on the Judge
May 10, 2017 § 3 Comments
I am totally comfortable with the fact that one side in nearly every case that I decide is convinced that I am: (a) a raving, total, lunatic; (b) an idiot who lacks common sense; (c) a gullible fool duped by the liars on the other side; (d) an ignoramus about the law; (d) “on the take” from the other side or from sinister, unknown vectors; or (e) any combination or all of the above.
I get that. It comes with the territory. It’s part of the reason why I get a paycheck from the state each month. It would be in my job description if I had one.
But what I do not get, and what I totally do not appreciate, is getting blamed for the lawyer’s lapses. It happens, and when I find out about it, it chaps me to no end.
One example occurred several months ago when a frustrated party called the chancery clerk and complained that she was told that I was refusing to set a case for trial. I pulled the file and found that it was a case for contempt and modification that had been pending several months. Neither lawyer had answered discovery, which was overdue. No one had filed a motion for a trial setting. There was no scheduling order. There had been no status conference. Where, then, had the unfortunate client gotten the idea that I was refusing to set the case for trial? Surely not from her lawyer, right?
A judge told me recently that he had a similar experience and set the case for the following Saturday. That nipped that bud.
When I was in practice, several times I had people wanting to hire me for contempts or modifications who had been previously represented by a particular lawyer in town. Their property settlement agreements or agreed judgments were disadvantageous to them, and I asked why they had agreed to those terms in the first place. Their answer every time was that the lawyer had asked for a conference with the court and emerged to report sorrowfully that the judge said either to agree to those terms or else. They felt they had no choice. I can tell you that no chancellor in our district ever did such a thing. I can also tell you that I carefully avoided in-chambers conferences with that lawyer afterward.
When Judge Gene Fair was a chancellor, he refused to allow in-chamber conferences with lawyers alone for that very reason. He either conducted conferences from the bench, or invited the clients into chambers along with the lawyers.
It’s okay to blame a bad outcome for your client on the judge’s bad judgment or ignorance of the law.
It’s not okay to shrug off your lack of attention, or failure to do your job, or inability to negotiate effectively as the judge’s fault.
No Hearing on Attorney’s Fees
May 8, 2017 § 2 Comments
When the Livingston Property Owners Association (LPOA) denied Paul and Janice Berlin permission to construct a fence where they wished on their property, the couple went ahead anyway with their plans.
The LPOA sued in chancery court, and the chancellor ordered the Berlins to remove part of the fence and awarded the association reasonable attorney’s fees. The Berlins appealed.
In Berlin v. LPOA, decided April 25, 2017, the COA affirmed. One of the grounds for appeal was the manner in which the trial court made its determination about attorney’s fees. Judge Wilson’s declaration on the issue for a unanimous court describes both the appellants’ claim and its disposition:
¶29. The Berlins argue that the chancellor erred in awarding attorneys’ fees to LPOA without conducting a hearing on the reasonableness of the amount awarded. This issue requires discussion of some additional procedural background.
¶30. At the conclusion of LPOA’s case-in-chief in September 2014, LPOA’s attorney in the litigation, James L. Martin, requested permission to wait until after the conclusion of the trial to submit an affidavit regarding LPOA’s attorneys’ fees and costs. The chancellor granted his request, and Martin then asked whether LPOA would “be permitted to have a hearing as to the reasonableness of those fees.” The chancellor responded, “Yes, of course. Always.” The next day, at the conclusion of the trial, the chancellor gave the parties oral instructions regarding post-trial briefing and submissions, which included the following:
“[T]he parties each ask that their attorneys be allowed to present testimony of fees . . . at a later date. This Court hereby requires the same to be done in writing. The affidavit . . . as to the reasonableness and necessity of said services can be attached thereto.”
In her final instructions to the parties, the chancellor did not mention a hearing on attorneys’ fees; rather, she indicated that she would issue her opinion after receiving the parties’ submissions.
¶31. On November 14, 2014, Martin filed an affidavit in support of LPOA’s request for
attorneys’ fees and costs of $17,485.58. Martin stated that he had over thirty years of
experience as a practicing attorney, including significant experience in real property matters, and that his usual hourly rate was $300. Martin’s affidavit also addressed the other factors set out in Rule 1.5 of the Mississippi Rules of Professional Conduct. [Fn omitted] Martin attached an itemization and hourly breakdown of his work on the case, which showed a total of 59.75 hours billed from 2010 to 2014. On November 17, 2014, one of the Berlins’ attorneys filed a similar affidavit in support of their request for $31,637.50 in attorneys’ fees and costs, along with itemized billing records. The Berlins’ request for attorneys’ fees was based on approximately 125 hours of attorney time at a rate of $250 per hour.
¶32. On June 24, 2015, the chancellor issued her opinion and final judgment and found that LPOA was entitled to recover $17,485.58 in attorneys’ fees and costs pursuant to section 14.01 of the covenants. In their motion for reconsideration or a new trial, the Berlins objected that they had not been “afforded an opportunity to contest . . . whether [LPOA’s attorneys’ fees] were reasonable and necessary.” LPOA responded that the chancellor’s posttrial instructions put the Berlins on notice that the court intended to rule on the issue without a further hearing. LPOA also argued that its attorney’s affidavit was sufficient and that no hearing was necessary. On September 3, 2015, the chancellor denied the Berlins’ motion without specifically addressing the issue of attorneys’ fees.
¶33. The Berlins do not dispute that a prevailing party in an action to enforce the covenants is entitled to an award of attorneys’ fees, and section 14.01 makes clear that a prevailing party is entitled to such an award. See Journeay v. Berry, 953 So. 2d 1145, 1162-63 (¶¶63-66) (Miss. Ct. App. 2007) (holding that valid restrictive covenants are contractual in nature and therefore may support an award of attorneys’ fees). However, “[a] contractual provision to pay attorney’s fees is not a blank check; it is limited by the reasonableness of the fee which includes an analysis of whether work performed was actually necessary.” Pikco Fin. Inc. v. Staten (In re Staten), 559 B.R. 666, 674 (Bankr. S.D. Miss. 2016). “[W]e review the issue of the reasonableness of the trial court’s award of attorneys fees applying an abuse of discretion standard. This Court will not disturb the finding of the trial court on such an issue unless it is manifestly wrong or exhibits a manifest abuse of discretion.” Microtek Med. Inc.
v. 3M Co., 942 So. 2d 122, 130 (¶24) (Miss. 2006), abrogated on other grounds by Upchurch Plumbing Inc. v. Greenwood Utils. Comm’n, 964 So. 2d 1100, 1116-17 (¶¶41-43) (Miss. 2007). “In this context, the word ‘manifest’ has been defined to mean ‘unmistakable, clear, plain, or indisputable.’” Id. (quoting Mosley v. Mosley, 784 So. 2d 901, 904 (¶7) (Miss. 1997)).
¶34. No rule requires a chancellor to hold a hearing prior to making a determination as to the reasonableness of requested attorneys’ fees. In addition, Mississippi Code Annotated section 9-1-41 (Rev. 2014) provides:
In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.[Fn 4]
[Fn 4] Section 9-1-41 applies “[i]n any action” in which an award of reasonable attorneys’ fees is authorized and thus applies regardless of whether the award is based on a statute, a contractual provision, or common law. See Staten, 559 B.R. at 670 n.4.
Finally, although a chancellor generally should provide some on-the-record analysis of the factors set out in Rule 1.5 of the Rules of Professional Conduct, the failure to do so is not per se reversible error, and the chancellor’s award may be upheld so long as the amount is “not unreasonable.” West v. West, 88 So. 3d 735, 747 (¶58) (Miss. 2012); see Jordan v. Jordan, 105 So. 3d 1130, 1135-36 (¶¶24-28) (Miss. Ct. App. 2012) (Fair, J., specially concurring).
¶35. Given the history of this litigation, the amount of fees awarded by the chancellor was “not unreasonable,” and we cannot say that she abused her discretion. The case was pending for five years and involved multiple depositions, a two-day trial, a motion to reopen the case, and other post-trial briefing and motions. Nonetheless, LPOA requested and was awarded attorneys’ fees for less than 60 hours of attorney time. We also note that the Berlins claimed that they were entitled to a considerably larger award of attorneys’ fees and costs ($31,637.50 as compared to $17,485.58) and claimed that their lawyers reasonably spent more that twice as many hours working on the case (about 125 hours as compared to about 60 hours). If the Berlins’ fee request was even in the ballpark of “reasonable,” then the chancellor’s award to
LPOA cannot be unreasonable. Finally, we note that although LPOA’s attorney filed his detailed time records with his affidavit in November 2014, the Berlins have never identified any duplicative or unnecessary time entries or articulated any way in which LPOA’s requested fees are unreasonable. Given the particular facts and history of this case, the amount of fees awarded was not unreasonable, and we cannot say that the chancellor abused her discretion by awarding fees without a hearing or additional findings of fact. See West, 88 So. 3d at 747 (¶58). Accordingly, the award of attorneys’ fees is affirmed.
A few points:
- If you really, really, really want to make a record on the reasonableness and amount of attorney’s fees, you’d better insist on an on-the-record hearing. This case says you have no right to it, but you can’t really complain later if you don’t insist and make a record of your insistence.
- I am so glad to see MCA 9-1-41 cited favorably in an appellate decision. It’s an underutilized tool, but one that can have considerable power.
- Clever how Judge Wilson turned the Berlins’ argument as to the amount of their own attorney’s fees against them.
The (Non) Emergency
May 4, 2017 § Leave a comment
The lawyer comes crashing breathlessly into your office and throws a sheaf of papers onto your desk. You read enough to see that it’s a request for a R65 TRO. “It’s a real emergency, judge,” he says. You quiz him about the facts in the pleading, and it does seem to be urgent. The lawyer explains that notice can’t be given for this or that reason, the papers are compliant with R65, and you reluctantly agree to set a hearing.
“How about this afternoon at 1:30?” You offer.
“Can’t do it then, judge, I’m scheduled to be in Justice Court.”
“What about tomorrow?”
“Nope. I have to be at a docket call in Decatur.”
“Wednesday? I can delay the start of a two-day trial.”
“Can’t. Temporary hearing in Laurel.”
“Okay. Thursday after lunch on the second day of that trial.”
“Only if I’m done with arraignments in Carthage and can make it back in time.”
“Friday?”
“Well, we’re leaving Friday to take the kids to DisneyWorld; next week is Spring Break.”
And so on and so forth.
I compared notes with several other chancellors last week at the judges’ meeting, and we all have had similar experiences. I, for one, wonder why that lawyer took the “emergency” case in the first place, knowing he didn’t have a free minute over the next several weeks.
If it’s truly an emergency, then be prepared to deal with it right away. If the judge is willing to clear the decks to accommodate you, then you’d better reciprocate, because the next time you have a similar urgency, you likely won’t receive such kindly treatment.
In a previous life, another lawyer and I approached Judge Warner and asked him to give us a divorce trial setting “at the earliest possible date,” because we both had troublesome clients that we needed to be shed of. Judge Warner cordially offered a date later that week, which we turned down because of conflicts. After he unsuccessfully offered us several other dates within the next two months, he became noticeably exasperated. He flipped the calendar to December — 10 months distant — and pencilled the case in for the week before Christmas. “Bring me an order,” he said icily, and dismissed us from his office. I think we settled that one.
Reprise: Lawyers Who Can be Trusted … or not
April 25, 2017 § Leave a comment
Reprise replays posts from the past that you might find useful today …
The Two Types of Lawyers
July 31, 2014 § 4 Comments
There are as many ways to categorize lawyers as there are lawyers, I suppose.
Just off the top of my head, here are a few that come to mind, presented as dichotomies: professional and unprofessional; learned and ignorant; court room and office; courtly and obnoxious; prepared and unprepared; rich and poor; pit bull and diplomat; tenacious and doormat; zealous and lazy; melodramatic and understated; scholar and street smart; and so on.
Lawyers and non-lawyers alike can come up with an almost unlimited number of similar categories.
To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.
If you think about it, much of our legal system rests on the trustworthiness of a lawyer in his or her dealings with the court. The judge relies on the lawyer to be candid and truthful in pleadings, evidence, legal citations, and statements.
The trustworthy lawyer never knowingly makes a false representation to the court, and promptly notifies the judge when he or she discovers that something presented proves to be untrue. He or she is timely and accurate in probate and fiduciary matters, and stays in contact with the fiduciary. The trustworthy lawyer’s pleadings are in order and are accurate. When the trustworthy lawyer cites a case, it is on point. The trustworthy lawyer distinguishes unfavorable law, and acknowledges the weaknesses of his or her case, suggesting how the court can and should address them to the client’s advantage. The trustworthy lawyer is never caught in a lie because she or he never lies. If the trustworthy lawyer has overlooked a court appointment, he or she apologizes and acknowledges the mistake, rather than fabricating a half-baked, incredible excuse. The trustworthy lawyer is in control of his or her case, and never lets a client dictate strategy and tactics. He or she will withdraw from representing a client before allowing that client put him or her in a position of dishonesty, trickery, craftiness, or misrepresentation. A trustworthy lawyer’s word is his or her bond.
A lawyer who can not be trusted is one who has proven that his or her word is worthless. The untrustworthy lawyer tells the court things that prove to be untrue, and bends the truth to the client’s advantage. His or her pleadings are full of allegations that can not be supported by any facts. The untrustworthy lawyer tries to hide the truth from the court, citing only law that is favorable, suppressing what is unfavorable. When caught in a lie, he or she persists in falsehood and makes up flimsy explanations. He or she files incorrect, incomplete and false accountings in probate matters, and regularly loses contact with the fiduciary. The untrustworthy lawyer can not be relied on to be on time or prepared; the judge worries that the client is being prejudiced by poor representation. The untrustworthy lawyer does what the client wants her or him to do, even if it is underhanded and unethical.
There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign.
I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.
The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.
When a lawyer presents case after case as emergencies demanding urgent attention, and those cases prove to be anything but, that lawyer’s trustworthiness takes a hit.
When a lawyer’s accountings in probate matters are full of inaccuracies and miscalculations, and loses track of the fiduciary, that lawyer’s trustworthiness takes a hit.
When a lawyer files motion after motion asking the court to address minutiae and praying for sanctions to rain down on the opposition, that lawyer’s trustworthiness takes a hit.
When a lawyer wastes the court’s and everyone else’s time with frivolous matters that have no chance of success, that lawyer’s trustworthiness takes a hit.
Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.
April 3, 2017 § 2 Comments
Globetrotting for the next little while, so posts will be somewhat sparse.
I’ll have little-to-no internet access, so moderation of comments will be little-to-none.
Reprise: How to Refresh Recollection
March 24, 2017 § Leave a comment
Reprise replays posts from the past that you might find useful today:
Refreshing Recollection
February 27, 2014 § 2 Comments
The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.
To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.
It doesn’t have to be so complicated, however.
Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.
Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.
Here are the proper steps:
- Establish that the witness is unable to recall a particular thing.
- Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
- If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
- Now the lawyer asks again if the witness now remembers after looking at the writing.
- If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
- If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.
MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.
The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).
The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.
In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.
An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.
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