Reprise: Checklists
September 23, 2015 § 1 Comment
Reprise replays posts from the past that you might find useful today.
Checklists, Checklists, Checklists
August 12, 2014 § 9 Comments
You can skip over this post if you’ve been paying attention to this blog for any appreciable length of time.
For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.”
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.
I suggest you copy these checklists and have them handy at trial. Build your outline of the 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 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. 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:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
And here are two checklists that will help you in probate matters:
“Quote Unquote”
September 4, 2015 § 1 Comment
“There is no way of telling people that they are all walking around shining like the sun.” — Thomas Merton
“Honor is the presence of God in man.” — Pat Conroy
“In his errors a man is true to type. Observe the errors and you will know the man.” — Confucius
Reprise: The Two Types of Lawyers
August 20, 2015 § 1 Comment
Reprise replays posts from the past that you might find useful today.
The Two Types of Lawyers
July 31, 2014 § 3 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.
R.I.P. Chancellor Ed Prisock
July 31, 2015 § 1 Comment
Retired Chancellor Ed Prisock of Louisville died Thursday, July 30, 2015.
What, Me Argue?
July 23, 2015 § 2 Comments
Top Ten Reasons why lawyers don’t request oral argument on appeal, per Anderson.
Of the 34 or so appeals in which I was involved while practicing law, I never argued a case before the MSSC or COA. Anderson’s reason 8 pretty well sums up my thinking on the point. To be honest, though, some of those other reasons applied in some of my cases. Your mileage may vary.
Addressing the Disconnect
July 9, 2015 § 1 Comment
The MSSC is soliciting comments on an important proposed amendment to MRE 802 and the comment to MRE 804 . You can find the proposed rule and comment changes at this link.
These changes address the current inconsistency between MRCP 32 and MRE 802. MRCP 32(a)(3)(E) makes it possible to offer the testimony of a “medical doctor” via deposition instead of by personal appearance, but MRE 802 does not allow for its admissibility unless the physician meets one of the enumerated exceptions, and mere physicianhood is not one of them. The MRE prevails, though, because MRE 1103 states that “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the [MRE] are hereby repealed.”
We’ve posted about this problem here before. That previous post spells out how lawyers got caught in the gap between the two rules and wound up getting hurt. You don’t want something like that to happen to you.
