The Better Chancery Practice Blog

In the COA case of Bowen v. Bowen, decided September 11, 2012, the court reversed and remanded the chancellor’s award of $10,000 fees in a case where the judge found the defendant in contempt. It was not the award of fees that the COA questioned, but rather the amount and reasonableness.

As we have mentioned here before, inability to pay is not a threshhold issue to an award of attorney’s fees based on contempt. In a contempt case, attorney’s fees may be awarded where a party’s intentional conduct causes the opposing party to spend time and money needlessly.

Judge Ishee’s opinion in Bowen points out that the determination whether a fee is reasonable depends on consideration of Mississippi Rule of Professional Conduct 1.5(a) and the McKee factors. He said:

” … even in contempt actions, “[t]he reasonableness of attorney’s fees [is] controlled by the applicable [Rule] 1.5 factors and the McKeefactors.”   …

¶25. When awarding Patricia attorney’s fees, the chancery court stated:

‘Although [John] has attempted to purge himself of his contempt by bringing the child support and medical insurance payments current, . . . the [c]ourt is going to assess [John] with attorney’s fees incurred by [Patricia]. If not for [John’s] repeated, willful refusal to abide by the orders of this court, [Patricia] would not have incurred the attorney’s fees, which the court finds to be reasonable and [to] meet all of the McKee factors.

There is no indication the chancery court adequately considered the McKee factors when assessing the reasonableness of the attorney’s fees. There was no consideration regarding the parties financial abilities, the novelty and difficulty of the question at issue, or the assessment of the charges.

¶26. The case at hand appears to be a routine contempt action. While large awards for attorney’s fees may still be awarded in contempt actions, they are not typical for a routine contempt action. … Here, an award of $10,000 appears excessive for a routine contempt action in which only $135 in child support remains unpaid. Furthermore, upon a review of the fees incurred, some charges relate to matters outside of the contempt action, such as modification of child support. Because the attorney’s fees were awarded based on John’s ‘repeated, willful refusal to abide by the orders of [the chancery court],’ fees not related to the contempt action should not have been included in the award amount awarded.”

I’ve made the point here before that …

Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factorsand documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.

Most attorneys in my opinion do not devote much attention or care to making a record on attorney’s fees. That’s ironic, because you would think it would be a subject of sublime importance to the trial attorney.

Here’s a post about how to prove attorney’s fees in a divorce case. It’s more elaborate than the minimum required in a contempt, but it will give you an idea of what is involved in making a record that won’t spring a fatal leak.

I would nominate MRE 1002 for second-most misunderstood rule of evidence (the all-time front-runner, without peer, would be the hearsay rule).

It’s fairly common to hear an exchange like this in court:

Atty 1:     How much did you pay for the house?

Atty 2:     Objection. The best evidence of what was paid would be the closing statement.

That objection and every one like it should be overruled.

MRE 1002 states:

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required except as otherwise provided in these rules or by law.  [Emphasis added]

The rule only applies and requires the original when a party is seeking to prove the content of the original.  Farris v. State, 906 So.2d 113, 115 (Miss. App. 2004).  It does not apply simply because there exists a writing, recording or photograph that may be considered the “best” evidence of the matter.

The rule comes into play only when (a) the content of the writing, recording or photograph is itself the thing a party is trying to prove, or (b) a party is trying to prove a matter by using a writing, recording or photograph as evidence of it.  The rule applies only when one seeks to prove the contents of the writing, photograph or recording so that they may be construed, and does not apply when one is seeking only to prove the existence of a writing, recording or photograph.  Kinard v. Morgan, 679 So.2d 623, 625 (Miss. 1996).

An example of (a) would be where the party is trying to testify to the terms of a written contract.  The contract itself would be the best evidence, and the original would need to be produced.

An example of (b) would be where the witness is testifying about the a claim based on an invoice that shows the items purchased, dates of purchase and prices.  The original invoice would itself establish the claim and would be the best evidence of the transaction.

The rule would not apply to the following situations:

A witness with personal knowledge can testify about how much he earned in a pay period without producing the original pay records.  Simply because written documents pertaining to a matter exist does not mean that a witness may not testify on personal knowledge about the matter.  On the contrary, though, if the witness does not have personal knowledge and relies on documents for her information, she would be required to produce the original documents.

A witness may testify that a document exists without producing the original, but any testimony about the document’s content will require production of the original.

A person who heard another make a statement that was recorded may testify about what she heard without having to produce the recording.

The rule does not apply to physical evidence that is not writings, photographs or recordings.  Riley v. State, 1 So.3d 877, 882 (Miss. App. 2008).  In Riley, the appellant argued unsuccessfully that the State had violated the best evidence rule by not offering the original firearm involved in the crime into evidence.

The evidence qualifies as a “duplicate,” as defined in MRE 1001(4).

So here is the bottom line:  A witness may testify on personal knowledge about a matter even if there is a writing, recording or photograph that documents the same thing, and the writing, recording or photograph need not be produced in such an event; but you must produce the original if you are trying to prove its content.

An important caveat:  Just because you have satisfied MRE 1002 by producing the original does not in and of itself make that original admissible.  The document or recording must still meet authentication and hearsay objections, and a foundation must be laid for admission of the photograph.

MRE 1004 provides some exceptions to the requirement for the original, such as loss or destruction of the original, original not obtainable, or original in possession of an opponent.  Production of the original may also be dispensed with if the document, recording or photograph pertains only to collateral matters.