COACHING FROM COUNSEL’S TABLE
June 20, 2012 § 1 Comment
Atty 1: Can you tell the court why you did not call the police right away when you say that he hit you and knocked you down?
Atty 2: Objection. The witness could not have called because her husband had broken the telephone before he hit her.
That, my friends, is a speaking objection. It’s a pernicious, baleful, noxious thing, odious to judges. So what exactly is the big problem with speaking objections? Let’s look at what predictably happens next in that trial we started above …
Judge: Objection is overruled.
Atty 1: Judge says you can answer my question.
Witness: Well, I could not call because my husband had broken the telephone before he hit me.
How could one expect a different answer after her attorney told her what to say?
One of the most important functions of a chancellor is to weigh the credibility of witnesses and to determine the weight to give to their testimony. I think most chancery judges, if not all, would assign that witness’s testimony on that point almost no weight at all because it was not her testimony.
I have had to caution counsel not to make speaking objections and to limit any comment on objections to legal bases (e.g., hearsay, irrelevant, compound question, etc.).
Speaking objections actually do your case more harm than good.
JUDICIAL ELECTIONS 2012
May 14, 2012 § Leave a comment
Friday, May 11, was the qualifying deadline for 2012 judicial elections. Although this is not a general judicial election year, some appellate posts are up in their rotation, and there are three special elections. Here are the qualifiers:
- Chief Justice William Waller, Jr., will face Earle S. Banks for Supreme Court Justice District One, Position One.
- Justice Leslie D. King is unopposed for Supreme Court Justice District One, Position Two.
- Justice Mike Randolph will face Talmadge Braddock for Supreme Court Justice District Two, Position Three.
- Josiah Dennis Coleman and Richard (Flip) Phillips are running for Supreme Court Justice District Three, Position Three, which is the position being vacated by retiring Justice George C. Carlson, Jr.
- Judge Ermea Russell is opposed by Ceola James and Latrice Westbrooks in the special election for Court of Appeals District Two, Position Two.
- Judge Gene Fair is unopposed in the special election for Court of Appeals District Five, Position One.
- Chancellor M. Ronald Doleac is unopposed in the special election for Chancery Court Judge District Ten, Place Four.
2012 LAWS THAT MAY AFFECT YOUR CHANCERY PRACTICE
May 9, 2012 § Leave a comment
Here is the final list of 2011-2012 legislative session bills that passed both houses. Some of these are awaiting the governor’s signature.
HB 159. Revises confidentiality in domestic abuse cases. Although this statute is among the criminal procedure laws, it offers some guidance for the chancery/county court practitioner who handles domestic violence cases about who is entitled to confidentiality in such cases, what information should be treated as confidential, and some means to accomplish it. Signed by the Governor. Effective July 1, 2012.
HB 484. Judicial pay raise. Discussed here before. Signed by the governor.
HB 780. Revises jurisdiction in domestic violence cases. This bill makes several significant changes. Venue is in the county where the alleged abuse occurred, and if the case is filed in the wrong county the judge “shall transfer” the action to the appropriate venue. A chancellor presented with a petition for emergency relief may refuse to consider it, but not for the sole reason that it should have been filed in justice or county court instead. The obvious problem with requests for emergency relief in chancery is that they can be used to “poison the well,” so to speak, or to prejudice the chancellor for or against a party in a pending divorce case. This bill makes many other changes to the law that you need to be aware of if you do any domestic violence practice. It has been signed into law by the governor, and takes effect July 1, 2012.
HB 1157. Conforms DHS child support enforcement to federal requirements. A few minor tweaks to the law, passed in conference, not yet signed by the governor.
HB 1268. Revises various statutes pertaining to adoption. If you do any adoptions at all, you must get familiar with this bill. It amends MCA 93-17-3 to add the requirement that a home study be done in all adoptions, and to provide that no out-of-state residents may adopt unless they have first complied with the Interstate Compact for Placement of Children, and adds some post-placement reporting requirements. It requires that the Indian Child Welfare Act be complied with as a prerequisite to adoption in appropriate cases. It amends MCA 93-17-6 to require DNA testing when the father appears or contests, and, most importantly, clarifies the publication requirements for an unknown father. It adds an interesting qualifier to the provision that the parental rights of a father who has not “met his full responsibilities of parenthood” be terminated by tacking on the phrase “and is unwilling to do so,” changing, in my opinion, the emphasis from past non-performance to past non-performance coupled with future unwillingness. The bill passed conference and is awaiting the governor’s signature.
HB 1588. Appropriations for the judicial branch.
HB 2256. Prohibits sex offender access to MYCIDS, beaches and campgrounds. This bill adds more proscriptions against sex offender activity where they may come into contact with children, prohibiting them from beaches and camp grounds where children gather. They are also prohibited from accessing the youth court MYCIDS data base. The bill also permits youth court referral to drug courts. Signed by the governor. Effective in part on passage, and in part on July 1, 2012.
HB 2367. Clarifies the definition of abuse and neglect of vulnerable adults. Amends MCA 43-47-5 and other statutes to clarify the definition of abuse and neglect as it relates to vulnerable adults. Signed by the governor. Effective July 1, 2012.
Click on this link to view a list, with links, of all the legislation affecting courts that passed during this session.
CARROLLTON
May 5, 2012 § Leave a comment
Carrollton, population 400, County Seat of Carroll County, population 10,500, a hillcountry county for the most part, falling off into the Delta along its western edge. The Carroll County Picture Show in Bobbie Gentry’s Ode to Billy Joe was here. The movie version of Faulkner’s The Reivers, starring Paul Newman, was filmed in Carrolton. The extinct hamlet of Avalon, in northwest Carroll County, was the birthplace of bluesman Mississippi John Hurt.
The courthouse in Carrollton was built around 1870 and features breezeway halls that cross perpendicularly. The halls are cool in the summer and cold in winter. A dog was enjoying the cool of the concrete floor on the warm afternoon when we dropped in. Upstairs is the old court room, its electronic trial gadgets adding a discordant punctuation to the plain, stately setting.
The day we visited, jail trustees had just finished moving all of the Justice Court records out of the old courthouse to the newer, storefront version in Vaiden, in the southern part of the county. Vaiden is the largest town in mostly rural Carroll County, and is the seat of the County’s other judicial district. Carroll is one of around 10 Mississippi Counties that have 2 judicial districts, making them for court purposes like two separate, distinct counties. It’s an archaic concept, but unlikely to be undone any time soon, since Carrollton and Vaiden are unfriendly rivals.
Across from the courthouse to the north is the white frame building that was the 19th-century law office of James Zachariah George, a formidable figure in Mississippi history. You can see it in street scene photo below. J.Z. George was a native of Georgia who moved to Mississippi. He fought with Jefferson Davis in the Mexican-American War and later became a lawyer. He was a reporter for the Mississippi Supreme Court, and signer of Mississippi’s Ordinance of Secession. He was an officer in the Civil War, and was taken prisoner twice. After the war, he served as Chief Justice of the Mississippi Supreme Court, and later as US Senator. His statue is Mississippi’s offering in Statuary Hall in the US Capitol.
Carrolton is a sleepy town that seems to cling tightly to its past, as the photos suggest. There are old homes and old churches, the flag of a defeated cause, and a patina of faded glory.
LITERARY HYBRIDS
April 5, 2012 § Leave a comment
Back in the 90’s the Washington Post invited its readers to create new literature by combining the works of two different authors, and to provide a suitable description of the merged book.
The prizewinners:
Machiavelli’s Little Prince. Antoine de Saint-Exupery’s classic children’s tale as presented by Machiavelli. The whimsy of human nature is embodied in many delightful and intriguing characters, all of whom are executed.
Green Eggs and Hamlet. Would you kill him in his bed? Thrust a dagger through his head? I would not, could not, kill the King. I could not do that evil thing. I would not wed this girl, you see. Now get her to a nunnery.
Where’s Walden? Alas, the challenge of locating Henry David Thoreau in each richly-detailed drawing loses its appeal when it quickly becomes clear that he is always in the woods.
Catch-22 in the Rye. Holden learns that if you’re insane, you’ll probably flunk out of prep school, but if you’re flunking out of prep school, you’re probably not insane.
2001: A Space Iliad. The Hal 9000 computer wages an insane 10-year war against the Greeks after falling victim to the Y2K bug.
Rikki-Kon-Tiki-Tavi. Thor Heyerdahl recounts his attempt to prove Rudyard Kipling’s theory that the mongoose first came to India on a raft from Polynesia.
The Maltese Faulkner. Is the black bird a tortured symbol of Sam’s struggles with race and family? Does it signify his decay of soul along with the soul of the Old South? Is it merely a crow, mocking his attempts to understand? Or is it worth a cool mil?
Jane Eyre Jordan. Plucky English orphan girl survives hardships to lead the Chicago Bulls to the NBA championship.
Looking for Mr. Godot. A young woman waits for Mr. Right to enter her life. She has a loooong wait.
The Scarlet Pimpernel Letter. An 18th-century English nobleman leads a double life, freeing comely young adulteresses from the prisons of post-Revolution France.
Lorna Dune. An English farmer, Paul Atreides, falls for the daughter of a notorious rival clan, the Harkonnens, and pursues a career as a giant worm jockey in order to impress her.
The Remains of the Day of the Jackal. A formal English butler puts his loyalty to his employer above all else, until he is persuaded to join a plot to assassinate Charles de Gaulle.
The Invisible Man of La Mancha. Don Quixote discovers a mysterious elixir, which renders him invisible. He proceeds to go on a mad rampage of corruption and terror, attacking innocent people in the streets and all the while singing “To Fight the Invisible Man!” until he is finally stopped by a windmill.
Of Three Blind Mice and Men. Burgess Meredith has his limbs hacked off by a psychopathic farmer’s wife. Did you ever see such a sight in your life?
Planet of the Grapes of Wrath. Astronaut lands on mysterious planet only to discover that it is his very own home planet of Earth which has been taken over by the Joads, a race of dirt-poor corn farmers who miraculously developed rudimentary technology and regained the ability to speak after exposure to nuclear radiation.
The Exorstentialist. Camus psychological thriller about a priest who casts out a demon by convincing it that there’s really no purpose to what it’s doing.
Paradise Lost in Space. Satan, Moloch, and Belial are sentenced to spend eternity in a flying saucer with a goofy robot, an evil scientist, and two annoying children.
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