The Better Chancery Practice Blog

The death and devastation that fell on our state and neighboring Alabama last Wednesday is sobering and sad.  Four killed in our own Clarke County.  Another three in Kemper to the north.  A woman who works with Lisa lost four members of her family in the storms, including her husband and mother.  And Smithville.  The images take your breath away.  A friend from Tupelo carried a truckload of supplies down there early Thursday morning before Homeland Security cordoned it off, and he said that the photographs are inadequate to capture the scope and severity of the damage.  He saw bodies scattered in the wreckage and the survivors wandering in shock.

The reports of people responding with help bring a lump to your throat.  Families in the surrounding communities are taking the homeless families in until they can make other arrangements.  A man in Columbus who caters barbecues hitched up his cookers, rounded up some friends and lots of food, and set up in Smithville to cook free for anyone there who needed it.  Yesterday on the Square in Oxford in the midst of Double Decker people were taking up money for the people in the devastated areas.  There were thousands of people there, so I hope they reaped a bountiful harvest.

While so much of Mississippi was being walloped last week by the deadly tornadoes, the judges were in Jackson for the spring conference.  Most of us spent a lot of time on cell phones checking on things back home.  Chancellor Jim Davidson of Columbus learned that his home in Oxford had five trees on it and roof and water damage.  All of our families made it through okay, though.

As always, I picked up a lot of helpful information at the judges’ meeting, and I will be passing much of it on to you here.

On Friday, Lisa and I met up at Oxford for the Double Decker Festival, which is without a doubt one of the best street festivals in the state.  At DD Sarurday morning we ran into folks from Meridian and old friends the Gambrells of Oxford and the Tutors of Pontotoc.  Robert Gambrell, a bankruptcy lawyer, told me the roof was ripped off his office in the storm that hit Oxford, and many files and some equipment were damaged.

The weather for DD was a gorgeous counterpoint to the turmoil of the days before.  It was clear, sunny and cool, and a gentle breeze kept things comfortable.  After wandering the more than 100 vendor booths admiring paintings, pottery, handicrafts, jewelry and whatnots, and enjoying the music and aroma of delicious food wafting across the area, we ambled over to Tom Freeland’s office to meet and visit with him.  He treated me to a delicious rum punch made with fresh-squeezed limes and a generous dose of rum.  Now that’s hospitality.  I think next year I may bring a couple of lawn chairs and trespass on the front lawn of Tom’s office just off the Square on West Jackson so we can make a longer day of it.  Lisa’s back does not enjoy the few hours of walking and standing that DD entails.

From there we had lunch at Two Stick (owned by friends of my daughter) and headed back to our Oxford retreat tired but happy.

Next week we’re going to give some money to that nurse who lost four family members.  I encourage all of you to give whatever you can to the Red Cross or your church, or whomever you know will put it to good use to help the Mississippians who are hurting right now.  No gift is too small for that purpose.  And let’s remember them in our prayers.

In a post aptly entitled Intestinal Fortitude, the blog Mocking Words enlightens us about two recent cases in which various surprising items were discovered in cavity searches of a woman in Scranton, PA and a man in Sarasota, FL.

As the term “cavity” implies, the searches involved rather intimate internal regions of the body accessible only by means that you probably prefer not to think about in detail.

The Scranton woman had concealed 51 packages of heroin, some 30-odd drug baggies, 8-1/2 prescription pills and fifty-two dollars and twenty two cents in her “cavity.”

*Ouch*

In the case of the Sarasota man, the routine cavity search on his booking into jail turned up: 17 oxycodone pills; one cigarette; six matches; a flint (!); an empty hypodermic syringe with an eraser stuck on the needle; one lip balm container; one condom; a drug store recipt; and a coupon.  I don’t know about you, but I don’t care to think about how that stuff got into that — uh — cavity.  I also don’t care to think about whether some unsuspecting bona fide purchaser for value without notice was going to smoke that cigarette or use that lip balm <shudder>.  And how much would you have to be paid to have the job of the store clerk to take that coupon?

Human ingenuity is an amazing thing, isn’t it?  If those two geniuses had devoted as much time and effort toward world peace as they did to hiding stuff in their nether regions, the world might be a better place.  Or maybe not.

Instead of shining his lamp, I guess he’d take out a want ad in the Meridian Star like this dude did last Sunday …

In a way, I’m kind of pulling for him to have success in finding a non-wimp, honest lawyer.

Thanks to Pam Bittick, Esq., for this.

[SIDE NOTE:  If my information is correct, the gentleman who ran this ad was actually a candidate for governor in 2007.]

Tom Freeland’s NMissCommentor blog yesterday had a post entitled Judge Primeaux and the Hydra, which referenced my THE BEST DEFENSE IS A BOILERPLATE post immediately below. It prompted a flurry of comments about pleading affirmative defenses.  The comments are worth reading, but the graphic alone is worth following the link.

Looking at the comments on NMC, the humor fault line appears to run a jagged course with the circuit and federal practitioners on the “not funny” or “I don’t get it” side, and the lawyers with chancery experience on the other, humorous, side.  Those with chancery experience recognize that most of those defenses could never have any applicability in a divorce case, no matter what, and raising them is as ludicrous as a defendant raising recrimination or condonation as a defense to an automobile accident complaint, or unclean hands in a slip and fall case.  [A side question … if you did raise those classic chancery defenses in a circuit court case, reckon the lawyer on the other side would file for Rule 11 sanctions? My money says he/she would.]

I recognize that we in chancery inhabit a strange and alien world for those who seldom venture here.  We deal with matters where the shades of gray have their own shades of gray, and in the absence of juries that are always in danger of being infected by legal poisons, we usually take a somewhat more relaxed approach.  That ambiguity unsettles some, I know.  [I was at a rules committee meeting last week discussing some chancery matters with another member and I heard a lawyer next to me say to another, “I’m glad I don’t practice in chancery court.”]  In circuit court the rules are the rules. Period. In chancery, the rules are the rules until they run up against the best interest of a child or ward.  And without juries the rules of evidence can sometimes be like the speed limit in Italy — merely a suggestion.

As for the absurd divorce defenses, we chancery denizens here on the eastern edge of Mississippi civilization have had a good laugh about them over the past few months, and the perpetrators have good-naturedly endured the ribbing about them.  No pleadings were ever in danger of being dismissed. I never really put anyone to a hearing for those ridiculous pleadings.

Tame the hydra and she will be your friend.

Chief Justice Waller has appointed Judge L. Joseph Lee as Chief Judge of the COA.

New Presiding Judges are Judge Tyree Irving and Judge Kenny Griffis.

For: 58

Against: 59

As expected, Governor Barbour appointed Judge Leslie King of the Court of Appeals to replace Presiding Justice James Graves, who has left the Mississippi Supreme Court to serve on the US Fifth Circuit Court of Appeals.

The press release from Chief Justice Waller:

February 23, 2011

Mississippi Supreme Court Chief Justice Bill Waller Jr. welcomed Justice Leslie D. King to the state’s highest court and thanked Gov. Haley Barbour for his appointment.

Chief Justice Waller said, “Judge King has provided strong and effective leadership of the Court of Appeals for nearly seven years. The Court of Appeals reviews hundreds of legal decisions each year, giving prompt and thorough attention to each case. It is essential that matters affecting people’s lives and liberty be addressed quickly, yet thoroughly. Judge King has guided the Court of Appeals in fulfilling its mission.”

“I welcome Justice King to the Supreme Court. His work ethic and extensive knowledge of the law will be a tremendous asset to the state’s highest court,” Chief Justice Waller said.

Justice King will fill the position vacated by Presiding Justice James E. Graves Jr.,who was appointed to the 5th U.S. Circuit Court of Appeals.

Gov. Barbour will appoint a judge to the vacancy on the Mississippi Court of Appeals. Justice Jess H. Dickinson of Gulfport, third in seniority on the Supreme Court, has become a presiding justice of the Supreme Court.

Mississippi has a two-tier appellate court system. The Mississippi Supreme Court is the court of last resort among state courts. The Mississippi Court of Appeals, an intermediate appellate court, hears cases assigned by the Supreme Court. The Supreme Court has discretion over whether to review decisions of the Court of Appeals. If the Supreme Court declines review, the Court of Appeals decision stands.