The Better Chancery Practice Blog

Reprise replays posts from the past that you may find useful today.

BULLETPROOFING YOUR WITNESSES

August 9, 2011 § 5 Comments

If you have never had a witness implode on the stand, this post is not for you.

If, on the other hand, you have struggled inwardly to maintain your composure as your witness apparently has forgotten everything he ever knew about the case, or he has abandoned all common sense, or she blurts out all manner of facts she never revealed to you before and is laying waste to her own case as effectively as if she were her own opposing counsel, then this post may help.

An important part of trial preparation — you do prepare for trial, I hope — is preparing your witnesses. Uh — you do prepare your witnesses, I hope.

It’s pretty clear when a witness is prepared. The witness and the lawyer work almost in tandem. The witness seems to understand where the lawyer is going with the questions and goes along easily, without a lot of leading and prodding. The witness’s testimony is clear. The witness knows how to say what needs to be said, and handles himself well on cross examination.

In other words, the witness is coated in teflon and swathed in kevlar. Non-stick and bullet-proof.

It doesn’t take a lot of time and effort to prep your witness if you focus in on what needs to be addressed. Here are a few helpful tips. Take them as a starting point and fill in with as many others as you can come up with.
•Take a few mintues to explain to your client what it is you have to prove to have a successful day in court. For instance, if modification of child custody is in issue, explain material change, adverse effect and best interest.
•Go over some questions and elicit your client’s answers. Suggest more effective ways to say what the witness is going to testify to. It is entirely ethical to suggest more effective ways to state the facts; of course it is unethical to change the facts or tell the witness to testify to something the witness did not perceive. You can tell the witness how to say it, but you can not tell the witness what to say.
•Remind the witness to testify about facts, and not impressions. Tell what you saw with your own two eyes without using labels. “The windows were all broken out of the car, the side mirrors were broken off and hanging down, the headlights were smashed, and the tires were all flat” is a lot more powerful than “The car was busted up.”
•Tell the witness about courtroom etiquette. Don’t chew gum or chewing tobacco, speak up loud and clear, be respectful of the court and other attorney, wait until the question is finished before answering, don’t interrupt any other speaker, dress conservatively, and avoid confrontation with the other party. If you want to bring something to your lawyer’s attention, write it down and pass a note; the lawyer has enough on her plate without having to deal with interruptions.
•If an 8.05 statement will be used, go over it with the witness. Test memory about figures and identify any trouble spots. Tips for more effective financial statements and financial testimony are here and here.
•Prepare the witness for cross examination. Explain how it works and confront the witness with the most obvious weak points. Suggest ways for the witness to deal with it. Caution the witness about the other lawyer’s typical bag of tricks on cross and offer some strategies to deal with them.
•Explain to the witness that he will be nervous when he takes the stand, but so is everyone else who has to get up there.
•Explain how hearsay works, and that just about every answer that begins, “He said …,” or “I heard her say …” or “The teacher told me that …”, etc. will elicit a reflexive objection. Recommend ways around hearsay.

A few pointers for more effective chancery trials are here.

There are two kinds of witnesses: the kinds who help your case; and the kinds who hurt it. You want every witness called by you to be in the former category. Witness prep will go a long way toward that end.

In days of yore — before the MRCP — discovery was limited. There was a device, however, called the “Bill of Discovery in Chancery” that was recognized as the vehicle by which a party could discover material facts known to or in the control of the other party.

In a recent case the COA affirmed a chancellor’s ruling that dismissed a plaintiff’s Bill of Discovery (BOD) filed in chancery court. The plaintiff, Cynthia Kuljis, had filed the pleading to discover information about her slip-and-fall case involving Winn-Dixie of Montgomery. Kujlis argued that the BOD was prudent so that she could determine whether she had a viable cause of action before filing a law suit. The chancellor dismissed on the basis that the matter should have been brought in circuit court, where discovery should ensue.

The COA affirmed in Kuljis v.Winn-Dixie Montgomery, LLC, decided March 29, 2016.

What I want to point out, though, is the dissent written by Judge Fair, joined by Lee, Griffis, Greenlee, and, in part, James, in which he cites State Oil and Gas Board v. McGowan, 542 So.2d 244 (Miss. 1989) as authority for the proposition that the BOD is viable and effective, even since enactment of the MRCP.

So, is this the end of this venerable instrument? We’ll have to wait and see whether the MSSC gets a shot at this issue.

I have not seen a BOD filed since the MRCP went into effect, and that includes both my time both as a lawyer and as a chancellor. I have twice dismissed efforts to use an estate for discovery of a possible PI cause of action, ruling that the matter should be pursued in circuit with discovery, but in neither case was a BOD sought.

The COA reversed and remanded in a recent case because the chancellor did not award interest on a contempt judgment.

In Oster v. Ratliff, handed down April 19, 2016, Judge Irving wrote for the court:

¶21. Consuelo [Ratliff] argues that under Mississippi Code Annotated section 75-17-7 (Rev. 2009), the chancellor erred in failing to award post-judgment interest on the judgment against Crieg [Oster]. In response, Crieg argues that this issue is barred because Consuelo failed to raise it during the hearing. In the alternative, he argues that an award of interest on the judgment would have been punitive in nature and would have resulted in a windfall for Consuelo.

¶22. In the final judgment, the chancery court did not award Consuelo interest on the judgment. Section 75-17-7 provides, in relevant part: “All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.” Under that section, “it is error, as a matter of law, for a chancellor not to award interest on a judgment for past-due support.” Caplinger v. Caplinger, 108 So. 3d 992, 999 (¶25) (Miss. Ct. App. 2013) (citation omitted). Under a different set of circumstances, we would agree with Crieg that the issue is procedurally barred because Consuelo failed to raise this issue for resolution by the chancery court (see Scally v. Scally, 802 So. 2d 128, 131 (¶¶27-28) (Miss. 2001) (citations omitted)), but because this involves child support, which cannot be waived, we see no reason why interest on it should be waived. Moreover, section 75-17-7 makes it clear that a judge should award interest at a per annum rate on judgments such as this one. The chancery court rendered a judgment in favor of Consuelo for $7,819.50 in past-due child support and insurance premiums and $2,500 in attorney’s fees, which were incurred in attempting to collect past-due child support from Crieg. Interest should be calculated on these amounts.

A few points:

• Not only did Ratliff fail to give the chancellor the chance to address the error via a R59 motion, but I have it from an informed source that she did not even ask in her pleadings for interest. So the duty to impose an interest rate is with the judge, who must assign it whether there is a prayer for it, and whether there is any evidence to support the rate assigned.
• MCA 75-17-7 says that the rate is whatever the chancellor has “determined to be fair,” but what evidence is required to support that determination? In this case, obviously none. And in my experience, lawyers never put on such proof. And what findings must the judge make to support a finding that the rate is fair?
• I talked about various aspects of judgment interest in this previous post.

The Department of Mental Health announced that, effective July 1, 2016, it will no longer accept new male patients into its drug and alcohol treatment facilities at Whitfield and Meridian. The programs are being discontinued due to budget cuts by the Mississippi legislature.

Men who are on the agency’s waiting list will be admitted until the cut-off date, but no new patients will be added to the list.

More than 50 employees will be laid off, although some will be eligible for reassignment to other jobs.

Women’s alcohol and drug treatment services at Whitfield will continue for now. Those services were unavailable for women in Meridian.

In this part of the state, Weems Community Mental Health offers an alcohol and drug treatment program, but it accepts voluntary patients only, all of whom must pay for treatment on a sliding scale.

Also, I understand that the number of psychiatric beds at East Mississippi, Whitfield, and smaller facilities is being scaled back for budgetary reasons, but I don’t have any particulars.

These are the people in the shadows about whom I have blogged here before.

[Note: This is the best information I could piece together; if I learn anything different, I will edit this post.]

Attorney Carlos Moore filed suit in federal court to have Mississippi’s 1894 flag declared unconstitutional. That case is still pending.

Randy Wallace posted a link to an attempted responsive pleading filed by a person or persons self-styled as “CITIZEN’S [Citizen’s] OF THE STATE OF MISSISSIPPI,” purporting to be “with” Governor Dewey Phillip Bryant. You can access Randy’s link to the document here. Randy says that an exhibit to the so-called pleading was a Bible. Oh, and whoever filed this thing is not a named defendant.

Regardless how you view the merits of Mr. Moore’s suit, I am confident that you will concur that, as an attempted pleading, this document is pathetic. U.S. District Judge Carlton Reeves apparently agreed; he dismissed it with a cursory order.

This blog has a new domain name: betterchancery.com. You should continue to be able to access it via chancery12.wordpress.com. I hope you don’t encounter any problems getting here via the old address.

As I mentioned here before, 2016 is not a judicial election year, but there are plenty of contested judicial elections coming up in November due to turnover. The qualifying deadline is past, and here are the posts that will be on the ballot:

MSSC

District 1, Place 3. Jim Kitchens; Kenny Griffis.

District 2, Place 2. Dawn Beam; Michael T. Shareef.

District 3, Place 1. James T. Kitchens; John Brady; Bobby Chamberlain; Steve Crampton.

District 3, Place 2. Jimmy Maxwell.

COA

District 1, Place 1. Jim Greenlee.

District 2, Place 2. Ceola James; Latrice Westbrooks.

District 3, Place 1. Jack Wilson; Ed Hannan; Dow Yoder.

District 5, Place 2. David Ishee.

Chancery Court

District 1, Place 4. T.K. Moffett;

District 20, Place 1. John McLaurin; Jim Nix.

Circuit Court

District 5, Place 2. George M. Mitchell, Jr.; Doug S. Crosby.

District 10, Place 1. Justin M. Cobb.

District 11, Place 2. Linda F. Coleman.

The next regularly-scheduled judicial election year for trial judges is 2018, but all of the appointments that were made in 2015 will make for an unusually busy judicial election cycle this year, since appointees appointed more than nine months before the general election are required to stand for election at the next regular general election.

Every now and then a suit is filed in chancery court to enforce a non-compete clause in an employment contract. I have heard cases involving bank employees, employment counselors, and broadcasting sales personnel. There may have been others that I don’t recall right now.

Non-competes are used in the legal profession, although the professional rules would seem to proscribe divulging the kinds of confidential information that those clauses aim to prevent.

Our law requires that they be reasonable in scope, geographical coverage, and time, and the reasonableness is relative to the nature and responsibilities of the position. A three-year prohibition against working as a managing nuclear engineer at a competitor anywhere in Mississippi could well be reasonable, while a three-year prohibition against working as a teller at a competing bank anywhere in Mississippi likely would not.

One of the most interesting non-competes I have heard about involves a fast-food sandwich chain that requires sandwich-makers and delivery drivers not to take a similar job within two years at a competitor within three miles of one of their stores, which means practically nowhere. Most people at that level of the pay scale don’t have the money to fight an injunction in a case like that.

An interesting article by Justin Fox on the Bloomberg site explores how non-competes stifle entrepreneurship and innovation, and how their absence allowed Silicon Valley to thrive at the expense of Boston, which (with its MIT and numerous other universities) had been the early seat of technology advancement.