Wow. Just Wow
May 6, 2014 § 5 Comments
I am continually amazed, confounded and stupefied at how nonchalantly some lawyers approach their professional duties to their clients.
Thank goodness that most of the shoddiness I witness falls in the venial category — that merits only remonstrance and mere trial judge disgruntlement — usually involving minor dilatory, tardy, and unpreparedness misconduct, and resulting in few legal fatalities.
It’s one thing to step on a chancellor’s toes, but it’s an entirely different ballgame to run afoul of the Mississippi Supreme Court. Jane Tucker offers up this recent breathtaking example in which counsel for appellee had been ordered to appear before a panel of MSSC justices at 1:30 to show cause why he should not be sanctioned for asking for and getting extensions for, and then not filing, an appellee’s brief. Oh, and this same panel had sanctioned another dilatory lawyer earlier in the day, so whatever benevolence they had started the day with had been whittled away. Here’s Jane’s take:
Vicksburg Healthcare v. Dees – this is an interlocutory appeal from the denial of summary judgment in a med mal case where the plaintiff is seeking damages for bed sores. The case against the nursing home went to arbitration. Vicksburg Health Care moved to dismiss based on the plaintiff’s failure to have expert testimony regarding the alleged malpractice. When the motion was denied, it filed a petition for interlocutory appeal which was granted. Here is its brief.
It is almost 2:00 and the attorney for Dees has not appeared. The weird thing is that there is no requirement that the appellee file a brief. There’s no default rule automatically reversing a case if the appellee fails to file a brief.(I’m not advising that appellees not file a brief, of course). I know from my own experience that when the appellee does not file a brief and there is oral argument, the appellee does not get to make an argument. (I was representing the appellant that time). Apparently Dees’ attorney made three requests for extensions (as explained in this order) and never filed a brief which is why her attorney was hit with a show cause order. The lesson here, then, is that if you are the appellee and you are too busy to file a brief, don’t ask for extensions. Here’s the response to the show cause order.
Dees’ attorney finally arrived. So the first question he is asked is why he was late. Not a good start. Same panel as this morning. Generally my method of fixing a screw up is to apologize, apologize, apologize. This attorney is taking the opposite tactic.
The Court recessed before starting with the show cause hearing. They came back and sanctioned him $500 for being tardy.
Another lesson – keep your address listing with the Miss. Bar current.
Lesson 3: if you’re scheduled for a show cause hearing at the Miss.S.Ct., don’t be late. And if you are late, don’t tell the Court you had an emergency meeting with a client in Canton.
The Miss.S.Ct. has always been extremely understanding when it comes to extensions for time. As far as I know, no one was ever executed in this state after having had their brief refused because it was a day late (that would be Virginia). It is one of the many reasons I would much rather practice in the Mississippi Supreme Court than the Fifth Circuit. I hope a few bad apples don’t screw it up for the rest of us.
All in all, this is painful. I may be having nightmares about this for years. It is so bad that the panel is exceedingly concerned about the attorney’s other cases. Justice Kitchens asked him whether there were people who would be going to jail if he screwed up their cases like he screwed up this one.
At 3:49 the Court recessed to deliberate. Dees’ attorney was told to stay and await a ruling.
Ruling: Around 4:30 the panel reconvened and ordered the following: the brief filed on behalf of Dees on February 26, 2014 at around 9 p.m. with the guard’s office that doesn’t appear on the docket and wasn’t served on the Appellant will be accepted. The $500 for being late to today’s hearing will be paid at $100 a month starting June 1. Dees’ attorney will also have to pay $1500 in expenses to the lawyers for the Appellant at $100 a month. Also, he is to report to the Miss. Judges and Lawyers’ Assistance Program within ten days. Since the Court cannot force him to do this, if he does not do this the Court will have the transcript of the hearing sent to the Miss. Bar to do with it as it sees fit. A copy of the order will be sent to Ms. Dees. Justice Randolph expressed some dismay at the fact that these show cause hearings used to be few and far between but that this was the third one this year.
Jane sent a few more observations from the debacle for me to add here:
In this case, all I can say is “Wow. Just wow.”
And, by the way, if you’re not a regular reader of Jane’s Law Blog, you’re missing out on a super resource.
Is Our Current Appellate Court System the Best We Can Do?
May 5, 2014 § 7 Comments
Should we split our Court of Appeals between civil appeals and criminal appeals? That’s one question raised by Anderson at this link.
Lawyer Joke
May 2, 2014 § 1 Comment
Or maybe a doctor joke …
A doctor and a lawyer are having a pleasant conversation at a weekend cocktail party when a woman interrupts, elbowing the lawyer aside.
“Doctor,” she says, “I have a pain right here, and it won’t go away. What should I do?”
The doctor politely gives her an opinion and suggests she make an appointment to see him within a week. Satisfied, she wanders off into the crowd.
The doctor turns to the lawyer and says,”People do that all the time, and I don’t know how to handle it. How do you discourage people from approaching you outside your office for free legal opinions?”
“Well,” said the lawyer, “what I do is I give them an answer to their question and then send them a bill the next day. Works like a charm.”
“Excellent advice,” said the doctor. “First thing Monday, I’ll send her a bill.”
On Monday, the doctor arrives at his clinic and exuberantly tells his secretary to send a bill for $75 to the lady, for “Consultation at cocktail party.”
Still chuckilng over his cleverness, the doctor enters his office and sits down to read his mail. There, among his other correspondence, is a bill from the lawyer for $200 for “Billing advice at cocktail party.”
A Pro Se Appeal on the Rocks
May 1, 2014 § 4 Comments
Matlock was a 1980’s – 90’s tv drama starring Andy Griffith in the eponymous role as a canny criminal defense lawyer who, more often than not, got his clients acquitted. His courtroom victories were usually the result of brilliant investigation combined with ingenious trial tactics.
Perhaps with that heritage in mind, Heidi Matlock filed a pro se appeal charging that the chancellor was in error when he found her in contempt and in arrears in child support for her minor child in the sum of more than $20,000, and restored the child’s birth certificate to his original given name at birth.
Now, with that narrow adjudication at trial, one would expect the issues assigned on appeal to be pretty straightforward, but Ms. Matlock saw the case much more expansively. Her issues for review:
1. Do the actions of Gordon and Nancy Flake constitute a deprivation of civil rights pursuant to 42 U.S.C. § 1985(3)?
2. Can the Plaintiff seek attorney’s fees and court costs under 42 U.S.C. § 1988(b)?
3. Can Gordon and Nancy Flake keep my son against his will, without any permission? (18 U.S.C. § 1201).
4. Why have the Flakes not been arrested for federal kidnapping?
Gordon and Nancy Flake are the paternal grandparents who had custody of the child. The child support action was brought by DHS.
In Matlock v. DHS, Flake and Todd, handed down April 15, 2014, the COA affirmed, pointing out (a) that none of the issues raised on appeal were ever raised before the trial judge, and (b) Heidi cited no authority to support her arguments. Judge Griffis added, “Certainly, this Court does not possess jurisdiction or any authority to consider or address the alleged “federal kidnapping” and federal civil rights violations that Heidi has discussed in her brief.”
Finding no reversible error apparent in the record, the COA affirmed.
Every now and then, someone sends me an email or attempts to post a comment to this blog complaining that lawyers don’t want non-lawyers practicing law because lawyers are protecting their lucrative turf. Cases like this one, however, demonstrate that a person representing himself/herself in a matter such as this can do as serious damage to oneself as a person trying to remove his or her own appendix. And if Ms. Matlock had the assistance of a “shade tree” legal assistant, then that person needs to be held accountable. I’m not saying Ms. Matlock had a meritorous ground for appeal, but even a basically competent lawyer could have advised her about it, and (a) would have assigned grounds for appeal that sounded in the record, and (b) would have cited a case or two, at a minimum, if for no other reason than appearance’s sake.
What to do in an Administration When a Will Pops Up
April 30, 2014 § 2 Comments
You have opened administration of an intestate estate, and things are moving smoothly along. Your administratrix pops in one day and plops a document on your desk. “What’s this?” you ask. “Pop’s will,” she says. “Crap,” you think.
It happens now and then that a will surfaces in the midst of an intestate estate. It’s a common enough occurrence that there is even a statute telling us what to do when that happens. MCA 91-7-87 says:
If a will shall be found and probated and letters testamentary granted thereon, the same shall be a revocation of the administration; but acts lawfully done by the administrator without actual notice of such revocation shall be valid and binding.
The statute requires that the will be admitted to probate and letters testamentary issued before the administration is revoked.
If there is serious doubt as to the validity of the will, it would be best to file a caveat against probate and proceed per MCA 91-7-21. Otherwise, a petition spelling out the circumstances should be filed, specifically asking the court to revoke the administration per MCA 91-7-87. The judgment admitting the will to probate cancels the administration, and the acts done lawfuly up to that point by the administrator will be valid and binding. I don’t find any case law addressing whether the affidavit and publication for creditors filed in the administration would be valid and binding in the testate estate.
Which Way to go on Proposed Findings?
April 29, 2014 § 16 Comments
Compare the language:
This from the COA on April 8, 2014, in Burnham v. Burnham:
¶15. Usually, the scope of review of a chancellor’s findings is limited in domestic-relations cases. “The chancellor’s determinations will only be reversed when they were manifestly wrong [or] clearly erroneous, or when the chancellor applie[d] an incorrect legal standard.” Greenwood v. Young, 80 So. 3d 140, 145 (¶12) (Miss. Ct. App. 2012). “Questions of law are reviewed de novo.” Marin v. Stewart, 122 So. 3d 153, 156 (¶8) (Miss. Ct. App. 2013).
¶16. In the case at hand, the trial court essentially adopted the proposed findings of fact and conclusions of law [PFFCL] submitted by Dana. We have previously held that “[w]here the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care[.]” Brooks v. Brooks, 652 So. 2d 1113,1118 (Miss. 1995) (citing OmniBank of Mantee v. United S. Bank, 607 So. 2d 76, 83 (Miss.1992)). Further, “the deference normally afforded a chancellor’s findings of fact is lessened.” Id. This does not mean that the appellate court is the fact-finder, nor does it change ourstandard of review. This means that the Court will take a closer look to make sure that our law is followed as interpreted by our courts. Chancellors are charged with the duty of being independent fact-finders, and the adoption of an opinion written by one of the attorneys is not the finding of the chancellor based on his independent reasoning, even though the chancellor may have a similar opinion.
And this from the MSSC in Bluewater Logistics LLC v. Williford, 55 So.3d 148, 157 (Miss. 2011):
I. This Court is not required to apply a different level of deference to the chancellor’s factual findings.
¶24. We review a chancellor’s legal conclusions de novo; that is, we reach our own conclusions as to the applicable law.FN2 But we ordinarily accept a chancellor’s factual findings unless—given the evidence in the record—we conclude that the chancellor abused his or her discretion, and no reasonable chancellor could have come to the same factual conclusions. FN3
FN2. Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 459 (Miss.2009).
FN3. Limbert v. Miss. Univ. for Women Alumnae Ass’n, Inc., 998 So.2d 993, 998 (Miss.2008) ( citing Hamilton v. Hopkins, 834 So.2d 695, 699 (Miss.2003)).
¶ 25. But as to our review of the factual findings in this case, Defendants argue we must apply a different and higher standard of review because the chancellor adopted, verbatim, the plaintiff’s proposed findings of fact and conclusions of law. That may be so, and probably is—Williford responds to the argument without denying it. But we cannot compare the two documents, because Williford’s proposed findings of fact and conclusions of law were not included in the record. Nevertheless, we shall address the issue.
¶ 26. When a chancellor adopts verbatim, or nearly verbatim, a party’s proposed findings of fact, our precedent provides that we should apply “heightened scrutiny” FN4 to the chancellor’s findings of fact. This rule is fairly well-settled and accepted. Yet our precedent provides little guidance as to how we are to comply with our duty to “heighten” our scrutiny—which could be read to require us to review a case more carefully or, perhaps, to apply a different, more stringent standard to our review of the facts.
FN4. See, e.g., In re Estate of Grubbs, 753 So.2d 1043, 1046–47 (Miss.2000); Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995).
¶ 27. But our duty already requires us carefully to scrutinize every case, so we reject the former. And as to the latter, if “heightened scrutiny” requires us to abandon the reasonable-chancellor standard and apply a different, higher standard, we find no caselaw or other authority explaining that different standard, or suggesting how it should be applied.FN5 The dissent suggests that heightened scrutiny requires us to review a chancellor’s findings with “a heightened ‘sensitivity to the possibility of error….’ ” FN6 Yet our duty requires us in every case to be as careful and as sensitive to error as we can be, and we cannot condone a standard that allows us to be less sensitive to error in one case than in another.
FN5. Some possibilities include elevating the standard from “reasonable chancellor” to “very reasonable chancellor,” or from “manifest error” to “catastrophic error.”
FN6. Dissent at ¶ 80 citing In re Estate of Grubbs, 753 So.2d 1043, 1048 (Miss.2000).
¶ 28. In Rice Researchers, Inc. v. Hiter, FN7 this Court provided the following interesting insight into the issue:
FN7. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259 (Miss.1987).
Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.FN8
FN8. Id. at 1266.
¶ 29. The Hiter Court’s “less deference” standard, the Brooks Court’s “heightened scrutiny” standard, and the dissent’s “heightened sensitivity” standard all suggest that this Court—if not completely, then to some unspecified degree—must become the finder of fact, imposing (again, to some degree) our own view of the facts. But that would be a tricky — given that we never saw or heard the witnesses.
¶ 30. One thing is clear. Applying a “heightened-scrutiny” or “lessened-deference” standard would require us to abandon the traditional standard (accepting a chancellor’s factual findings that the evidence supports), and employ some different standard. And although the new standard of review has been named (“heightened-scrutiny” or “less-deference”), this Court has yet to explain how it is to be applied.
[4] ¶ 31. While it is true that the United States Supreme Court has adopted various levels of scrutiny for particular kinds of cases—for instance, “intermediate-scrutiny” review of gender-based classifications FN9—the Court explains the difference in each level, and provides a specific test for its application.FN10
FN9. Craig v. Boren, 429 U.S. 190, 218, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).
FN10. Intermediate scrutiny in gender-based discrimination cases requires that the challenged law or policy further an important government interest in a way that is substantially related to that interest. Id.
¶ 32. If we are to adopt and apply a “heightened-scrutiny” standard, simple fairness and justice requires us to publish that standard—in more than name—to the bench and bar. And because that has not been done—and because we decline to do it today—we shall continue to apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact. And should a party suspect and suggest that the judge’s factual findings are somehow tainted or untrustworthy, we hold that the party—upon proper proof—may seek a new trial.
¶ 33. In the case before us today, we find not one sliver of evidence that the chancellor’s factual findings were untrustworthy or suspect. His bench opinion discussed his factual findings. And at the hearing on post-trial motions, he engaged in lengthy discussions with counsel concerning his view of the facts. Finally, his factual findings—whether or not identical to those submitted by the plaintiff—were supported by substantial evidence. So we are unable to say he abused his discretion, and this issue is without merit.
I could have sworn that Bluewater Logistics signalled an end to the “heightened scrutiny/less deference” concept, but that’s apparently not how the COA sees it.
With all due deference to the COA, I am of the opinion that this statement from Burnham is a non sequitur: “Chancellors are charged with the duty of being independent fact-finders, and the adoption of an opinion written by one of the attorneys is not the finding of the chancellor based on his independent reasoning, even though the chancellor may have a similar opinion.” But what if the PFFCL is not only similar to, but entirely, accurately refIects my own conclusions? If the PFFCL submitted by one of the attorneys matches my conclusions on the facts and my opinion of the law, then why does it not reflect my independent reasoning? Does a change in words used to express the reasoning change the reasoning from dependent to independent, even when the conclusions and rationale are the same?
What about a situation where the trial judge is persuaded by the argument of counsel and adopts her legal reasoning and applies it in the case? Is that an impropriety that justifies heightened scrutiny or less deference?
I am with Justice Dickinson on this. Lawyers may not like it because it looks like the judge favored one side over the other, but actually that’s what the appearance is whenever the judge rules for one side over the other. It’s the nature of the thing. And, besides, if the high court wants to outlaw verbatim adoption of one side’s PFFCL because it could give an appearance of impropriety, that would be logical. But to conclude that adoption of one side’s PFFCL does not reflect the judge’s independent reasoning, thus justifying and triggering heightened scrutiny and less deference, does not make sense to me.
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