A NOTE ON COMMENTS
October 25, 2012 § 2 Comments
This blog certainly welcomes comments. Thoughtful and thought-provoking comments about trial experience, insights into the law and its application, and the practice of law are encouraged.
The focus of this blog, though, is to be a help to lawyers and judges. Non-lawyers who happen upon this site need to be aware that the information here is of only limited use unless you have the training, background and experience to understand and apply it. And it represents only one individual’s interpretation, which may or may not carry the day in any given case with any particular judge.
Lately I have received comments that I have not published because they are clearly by laypersons seeking legal advice or wanting to trash lawyers or judges or the law in general. Those kinds of posts will never be published here, so you needn’t waste your time writing them.
Likewise, if your comment is unaccompanied by a valid email address I will not publish it (the email address will not appear on the published comment; it’s for my use to determine your bona fides and standing as a member of the legal profession).
WHAT COULD THESE ADD TO YOUR LIFE?
October 19, 2012 § 1 Comment
… and the lives of those who come into contact with you …
“But the fruit of the Spirit is
- Love
- Joy
- Peace
- Patience
- Kindness
- Goodness
- Self-control“
Galatians 5:22
AND MORE RE FRAUD ON THE COURT
October 18, 2012 § Leave a comment
Only last week I posted here about what it takes to trigger relief from fraud on the court. There was yet another case dealing with fraud on the court handed down by the COA last week, and it’s one you need to add to your notes on the subject.
Dogan v. Dogan, decided October 9, 2012, by the COA, is an involved equitable distribution/alimony case that covers many familiar financial issues that arise in the course of a high-dollar divorce. David Dogan was a partner in a law firm and had earnings as much as $35,000 a month. The firm lost a major client, Durabla, to bankruptcy, though, which negatively impacted his earnings. The chancellor wrestled with calculation of David’s income and concluded that it was $19,000 a month. David’s wife, Barbara, charged that David committed a fraud on the court because, although he reported the lower income figure on his 8.05 statement, he had filed a home loan application stating his income as $35,000. Keep in mind that, under the general principle of Trim, knowingly submitting a false financial statement to the court is fraud on the court.
The COA, by Judge Roberts, beginning at ¶14, upheld the chancellor’s decision as to David’s income:
In Mississippi, the general rule is that fraud will not be presumed but must be affirmatively proven by clear and convincing evidence. See Hamilton v. McGill, 352 So. 2d 825, 831 (Miss. 1977); Taft v Taft, 252 Miss. 204, 213, 172 So. 2d 403, 407 (1965). Further, on appeal, there are four requirements to vacate a decree due to fraud:
(1) that the facts constituting the fraud, accident, mistake or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree, and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.
Manning v. Tanner, 594 So. 2d 1164, 1167 (Miss. 1992). Barbara has failed to meet these requirements. First, the chancellor did not make his decision solely on David’s Rule 8.05 financial statement; therefore, the amount in his statement was not a controlling factor in the decree as is required under the first prong. Barbara also fails under prongs three and four because, assuming the discrepancy on the Rule 8.05 financial statement and loan application to be true, Barbara was aware of it at the time of the original decree. Additionally, the chancellor addressed the discrepancy and found that the amount of the loan application was an average of the last two federal tax returns and did not take into consideration the bankruptcy of Durabla and its financial impact on the firm.
Thus the COA continued to flesh out how Trim will affect our case law. Before you cry “Fraud” to the trial court, make sure you can support your claim with proof in the record of the four Manning factors.
WINNING THE EXPERT BATTLE AND LOSING THE WAR
September 25, 2012 § Leave a comment
You fight like the devil to get the trial judge to rule that your experts are qualified, and that they meet the criteria of MRCP 702 and Miss. Transportation Commission v. McLemore, 863 So.2d 31, 38 (Miss. 2003). The judge has done her job as gatekeeper, has found all to be well, and has let you get that expert testimony into the record. So you’re home free, right? Smooth sailing from here on out, right?
Not so fast, my friend (apologies, if any due, to Lee Corso).
Your little lawsuit sloop may still run aground.
That’s what happened in Ballard Realty, et al. v. Ohazurike, et al., decided by the MSSC on September 6, 2012. There, the court reversed the trial court’s ruling that allowed three different experts to offer testimony that quantified damages. The appellate court’s ruling found that one expert based her testimony on ” … insufficient and faux facts and data, not the product of reliable principles and methods, properly applied … ” and found that the trial judge had abused his discretion in admitting her testimony. Another expert was found by the MSSC not to be qualified, and his testimony was improper and irrelevant to damages. The third expert’s testimony was found to be unreliable. While they were at it, the MSSC also threw out the unqualified lay opinion testimony of another witness, characterizing his testimony as ” … not a fact, but an inadmisssible opinion based on wishful thinking.”
The ouch factor in this case, as we have posted about it before, is that it reversed a jury verdict in excess of $3.5 million.
The lesson here is to keep in mind that as much as you want to win your case, you have to make sure that the experts you use are qualified, that their testimony is, indeed, relevant, that it is based on sufficient facts and data, that it is based on reliably certain principles and methods, and that the experts have applied the methods and principles reliably to the facts in your case. It’s your job to make sure that all of these factors are established without fail in the record. The mere fact that you convince the trial judge to let you proceed without satisfying all the criteria may win you the (trial) battle, but it will more than likely lose you the (appeal) war.
THE COLOR OF A BLUE JAY FEATHER
September 2, 2012 § Leave a comment
There is no word for the color of a blue jay feather
not blue, anyway, so they say –
they who also say the bumble bee should not fly
A blue jay erupted from a myrtle tree,
a single feather in the grass
the only emblem that remained of him
To reach it I startled a bumble bee at his tasks
in a jasmine and he fled annoyed from me
into his improbable flight against physics
Against physics: the color of a blue jay feather
is blue
CHOOSING NOT TO PLAY CATCH-UP, PART DEUX
August 20, 2012 § 2 Comments
I posted before about Mississippi’s refusal to play catch-up with the rest of the South (and the rest of the US, too) in providing pre-k education for our children.
Turns out I’m not alone. Here’s Sid Salter’s column “No Early Childhood Ed an Obstacle” that appeared in newspapers across Mississippi, including the Meridian Star, this past Sunday.
The point of his column, as I posted before, is that other southern states are investing in early childhood education, and it is paying dividends in elevation of test scores and later school performance, with resultant greater attention from outside investment.
And this is important: Investors interested in locating industries in the South don’t care to put their money into backwaters that have low levels of education and don’t want to show any competitive edge. Those industries need a trainable, educable work force. Investors want to put their money where it will maximize their chances of profitable return. They don’t care to invest in losers.
It’s been proven that the more we invest in education of our workforce, the more we will reap in industry, jobs, and economic development.
The converse is true: the more we refuse to invest in our children, the bigger and more insuperable advantage Alabama, Louisiana, Arkansas and Tennessee will have over us.
Oh, and by the way. Those neighboring southern states I named are already at their own disadvantage to other states that got ahead of them. So we are behind the states that are already behind.
Here’s the bottom line: We can stand pat and fall further and further behind, or we can take action and get in position to move ahead.
Even Sid Salter agrees.
These children are our future. They are our treasure. Why are we so loath to invest in them?
Come on, Mississippi. You know it’s right. Let’s do it.
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