R.I.P Attorney Leslie C. Gates
March 26, 2020 § 2 Comments
Attorney Gates of Meridian died unexpectedly last evening, March 25, 2020.
News Flash
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.
“Quote Unquote”
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
Reprise: Forget-Me-Not
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.
Dispatches from the Farthest Outposts of Civilization
February 21, 2020 § 1 Comment
[Sorry for being late. I changed computers and somehow left this in draft form on the old one]
Who’s the Father?
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 [1284]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].
Early Morning in the French Quarter
February 14, 2020 § 4 Comments
The French Quarter pre-dawn and early morning of the morning after.
The streets are mostly quiet, free of tourists, although there are folks out and about. Now and then a drunk staggers into view, sometimes crying out, sometimes desperate for balance. But mostly it is people hurrying by, nodding good morning or keeping to themselves. Some are headed to or from work, or just passing through on their way from one place to another. There are the street people, denizens of the night who sleep on the sidewalks. There are others already at work, cleaning, picking up garbage, prepping food, tending bar at the few all-night joints. Shadowy figures appear and disappear around corners. And there is the ubiquitous trash strewn from pilfered trash bins, and discarded drink containers, beer bottles, pizza boxes, food, and other refuse dropped by visitors on the streets and sidewalks.
Tôt le matin dans le Vieux Carré. Here is New Orleans on two foggy mornings in December.
“Quote Unquote”
February 7, 2020 § Leave a comment
“There are in fact four very significant stumbling-blocks in the way of grasping the truth, which hinder every man however learned, and scarcely allow anyone to win a clear title to wisdom, namely, the example of weak and unworthy authority, longstanding custom, the feeling of the ignorant crowd, and the hiding of our own ignorance while making a display of our apparent knowledge.” — Roger Bacon
“Not curiosity, not vanity, not the consideration of expediency, not duty and conscientiousness, but an unquenchable, unhappy thirst that brooks no compromise leads us to truth.” — G. W. F. Hegel
“You touch on a disheartening truth. People never want to be told anything they do not believe already.” — James Branch Cabell
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