“Pay no Attention to That Man Behind the Curtain”: How Cases are Decided at the COA, Part One
May 14, 2014 § 5 Comments
Like the great and mighty Wizard of Oz, appellate judges wield immense power from on high, and their ways are shrouded in mystery.
COA Presiding Judge Kenny Griffis set out to de-mystify how the court goes about its business, and put the details in a paper he delivered to the judges’ meeting last Fall. I’ve gotten his permission to republish it here, for your benefit, verbatim. Due to the length, it will take several posts to get through.
Here’s Part One:
A Texas appellate judge once noted the perception “that appellate judges watch from on high the legal battle fought elow, and when the dust and smoke of battle clear they come down out of the hills and shoot the wounded.” Black v. State, 723 SW2d 674, 677, n.1 (Tex.Crim.App. 1986)(Opinion, P.J. dissenting). Lawyers hear this and laugh, nervously. Trial judges hear it and laugh out lud, some even shout “amen.”
More than one trial judge has told me that they do not understand how appellate courts decde cases. This article should help you understand how the Mississippi Court of Appeals decides a case and writes the opinion.
I. How a decision is made at the Court of Appeals
A. Background
The Court of Appeals was created in 1993 to address the heavy workload of the Supreme Court. The purpose of the Court is to reduce delays in the resolution of appeals.
The Court consists of ten judges elected from five designated Court of Appeals districts. The judges are elected from a district, but they exercise statewide authority. Judges serve eight year terms, and their elections are staggered. The Chief Judge is selected by the Chief Justice of the Mississippi Supreme Court and serves a four year term.
Of the current judges, five were initially elected, and five were initially appointed. The current judges have also served as: chancellors (2), circuit judge (1), county judge (1), municipal judge (2), justice court judge (1), prosecutor (3), and supreme court law clerk (2).
B. Jurisdiction
Every appeal is filed with the Mississippi Supreme Court. The Supreme Court then decides which cases to assign to the Court of Appeals. The Supreme Court may assign a caseto the Court of Appeals at any time. There is no limit on the time that a case may be assigned to the Court of Appeals.
The jurisdiction of the Court of Appeals is limited to cases that are “deflected” or assigned by the Supreme Court. The Court of Appeals is often considered an “error correction” court. The Supreme Court may not assign cases that involve: (1) the imposition of the death penalty; (2) utility rates; (3) annexations; (4) bond issues; (5) election contests; or (6) a statute held unconstitutional by the trial court.
Miss. Code Ann. §9-4-3(1). The Supreme Court must retain all cases involving attorney discipline, judicial performance, and certified questions from federal court.
MRP 16(d). The Supreme Court will also retain cases that involve: (1) a major question of first impression; (2) fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the Supreme Court; (3) substantial constitutional questions as to the validity of a statute, ordinance, court rule, or administrative rule or regulation; and (4) issues on which there is an inconsistency in the decisions of the Court of Appeals or the Supreme Court or conflict between the decisions of the two courts.
The Supreme Court has a process to decide which cases to assign to the Court of Appeals. The Supreme Court retains about one of every five cases that are eligible for assignment. The Supreme Court routinely assigns cases within certain clearly defined categories. For example, the Court of Appeals will be assigned all cases that involve workers’ compensation, domestic relations, post-conviction relief, and adminidtrative agency decisions.
THe decision to assign a case to the Court of Appeals is final. No motion to reconsider an assignment may be filed. Only the Supreme Court can change the assignment of a case, and this happens rarely. When it does, the assignment is changed because the case was assigned to the Court of Appeals in violation of section 9-4-3(1).
The decisions of the Court of Appeals are final. The Supreme Court may review the Court’s decisions only by writ of certiorari. MRAP 17. Certiorari may be granted upon the vote of at least four Supreme Court Justices. Miss. Code Ann. §9-4-3(2).
Next: The Decision Process from initial Assignment Through Oral Argument
The Limits of Confidentiality
May 13, 2014 § 2 Comments
When most of us in the legal profession think of client confidentiality, we tend to think in absolute terms. That is, if it involves a communication between lawyer and client, or client documents or other forms of client secrets, it can not be disclosed.
The rule is not absolute, however. Rule of Professional Conduct (RPC) 1.6 provides six exceptions by which the lawyer may reveal otherwise confidential information of a client. RPC 3.3 and 4.1 complement 1.6.
MRE 502 is the lawyer-client privilege rule. It states that a lawyer may invoke the privilege on behalf of a client in order to keep attorney-client communications confidential. Subsection (d) sets out five exceptions in which the privilege may not be invoked: (1) if the lawyer acted to aid a client in committing a crime or fraud; (2) claimants through the same deceased client; (3) if the communication is relevant to a claim of breach of duty by a lawyer to a client; (4) if the communication pertains to an attested document to which the lawyer is the attesting witness; and (5) communications relevant to interests of joint clients in certain situations.
That third exception reads that there is no privilege under MRE 502:
… As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.
Exception 3 was the subject of an interlocutory order entered by the MSSC May 8, 2014, in the case of Flechas v. Pitts. The matter was before the court on “Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues filed by Petitioner; the Motion to Dismiss and to Strike the Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues, or to Partially Strike filed by Respondent; Respondent’s Rule 48A(d) Mississippi Rules of Appellate Procedure Motion for Access to Sealed Document, and all responses and rebuttals.”
The issue arose in the course of litigation involving a will contest between Alyce Pitts and Todd Pitts, who claimed to be beneficiaries of the decedent, Troy Pitts, under competing wills. Attorney Flechas had represented Troy Pitts in various matters. He also represented Todd in the will contest. Flechas was served by Alyce with a subpoena duces tecum for “all files, records, electronic communications, written or any documents . . . including . . . all divorce files, personal injury defense files, estate files, Will or trust files, [and] deed preparation files.”
Flechas responded to the subpoena with a motion to withdraw, since the subpoena placed him in a testimonial role as to the contested matter at issue. He also objected to the subpoena on grounds of attorney-client privilege. The chancellor overruled both the motion and the objection based on MRE 503(d), ordering the attorney to produce all of the requested information. Flechas appealed.
The MSSC reversed the chancellor’s ruling, directing that he conduct an in camera inspection of every document produced in order to determine whether it is relevant to the issues in the will contest, and that he limit disclosure to those relevant documents. The MSSC’s rationale, involving analysis of MRE 502, MRCP 26, and MRCP 45, and applicable case law, is worth your time to read.
Alyce noted for the first time in her response to Flechas’s motion that she had filed pleadings with the trial court to disqualify the attorney, and asking that he be directed to disgorge funds allegedly held fraudulently. The chancellor defended his actions, in part, based on the fraudulent acts provision of MRE 502(d)(1). The Supreme Court took note, but did not alter its position.
In an age where lawyers are increasingly finding themselves in the cross-hairs of litigation involving themselves or others, this order is important authority for the proposition that you may be called upon to disclose your client’s information entrusted to you, along with your work product, and you had better be ready to help the court understand the limitations involved.
Contested Chancery Races
May 12, 2014 § Leave a comment
In the general election November 4, 2014 …
Eighth District (Hancock, Harrison and Stone), Place 2
- C. Stephen Benvenutti
- Jennifer Schloegel (incumbent)
Eighth District, Place 3
- Ronnie Cochran
- Sanford R. “Sandy” Steckler (Incumbent)
Eleventh District (Holmes, Leake, Madison and Yazoo)
- Barbara Ann Blunston
- Robert G. Clark, III
To fill the seat being vacated by Chancellor Janace Harvey-Goree
Thirteenth District (Covington, Jefferson Davis, Lawrence, Simpson and Smith), Place 1
- J. Larry Buffington
- David Shoemake (Incumbent)
Thirteenth District, Place 2
- Mary K. Burnham
- Deborah Kennedy
- Gerald M. Martin
To fill the seat being vacated by Chancellor Joe Dale Walker
Sixteenth District (George, Greene and Jackson), Place 1
- D. Neil Harris (incumbent)
- Paula S. Yancey
Sixteenth District, Place 3
- G. Charles “Chuck” Bordis (incumbent)
- Michael L. Fondren
- Gary L. Roberts
Eighteenth District (Benton, Calhoun, Lafayette, Marshall and Tippah), Place 1
- Glenn Alderson (incumbent)
- Carnelia Pettis Fondren
- Tina Duggard Scott
Eighteenth District, Place 2
- Helen Kennedy Robinson
- Robert Q. Whitwell (incumbent)
“Quote Unquote”
May 9, 2014 § Leave a comment
“Just as the water of the streams we see is small in amount compared to that which flows underground, so the idealism which becomes visible is small in amount compared with what men and women bear locked in their hearts … To unbind what is bound, to bring the underground waters to the surface: mankind is waiting and longing for such as can do that.” — Albert Schweitzer
“Trapped dreams must die.” — James Branch Cabell
“I hope for nothing. I fear nothing. I am free.” — Nikos Kazantzakis, epitaph 
Rejection and the GAL
May 8, 2014 § 3 Comments
Most of the guardians ad litem (GALs) with whom I talk react noticeably when the chancellor does not accept or follow their recommendations. Reactions range from mild puzzlement to indignation.
It has never been the rule in Mississippi that the chancellor is required to follow the GAL’s recommendations or accept the GAL’s conclusions. The rule that applies when the judge opts to go in a different direction was stated in the case of Floyd v. Floyd, 949 So. 2d 26, 29 (¶ 8) (Miss. 2007), which said:
This Court has held that a chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. S.N.C. v. J.R.D., Jr., 755 So. 2d [1077,] 1082 [(Miss. 2000)]. Furthermore, if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations. Id. While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. Id., Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002).
So, the requirements are that the judge’s ruling must include a summary review of the GAL’s recommendations, and must include its reasons for rejecting them.
In the MSSC case of Darnell v. Darnell, handed down April 24, 2014, the court held that the chancellor’s failure to follow the dictates of Floyd did not in and of itself warrant reversal, although the case was reversed on another ground. Here is how Justice Coleman’s opinion addressed the issue:
¶40. “The chancellor was in no way bound to follow the recommendation made by the [guardian ad litem].” Hensarling v. Hensarling, 824 So. 2d 583, 587 (¶ 10) (Miss. 2002). Under the Court’s standard of review, the Court does not find that the chancellor’s determination was manifestly wrong or that he abused his discretion.
In any case where a GAL is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the GAL, as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves. Thus, the question to be answered by the Court is not . . . whether the chancellor ignored the GAL’s recommendation; but rather, whether the evidence in the record supports the chancellor’s decision.
Lorenz v. Strait, 987 So. 2d 427, 431 (¶ 16) (Miss. 2008) (internal citations omitted). In the case sub judice, the chancellor considered the guardian ad litem’s recommendations and conducted his own analysis of the Albright factors. The chancellor was the fact-finder, and his holding made clear the reasons for his decision. While it is the better practice for a chancellor to describe specifically why he or she disagrees with a guardian ad litem’s findings, the Court cannot find that the chancellor in the instant case abused his discretion in reaching the result he reached. Therefore, the issue is without merit.
In Darnell, the MSSC explained how the chancellor had done a thorough Albright analysis that addressed pertinent points of the GAL report. It found that the chancellor’s basis for not following the GAL report was clear in his Albright analysis.
I don’t see this case as pointing a new direction or changing the rules. What the court found here was that, although the chancellor did not expressly say why he was rejecting the GAL’s recommendations, his rationale was clear enough in his Albright findings so that the case did not require reversal on that point.
You should read this case for its analysis of the hearsay rule and its applicability in child sexual abuse cases. It’s particularly noteworthy for its exposition on the principle that hearsay may be introduced for purposes other than to prove the matter asserted.
The Nefarious Practice of Trial Briefs
May 7, 2014 § 11 Comments
The COA case of Dean v. Slade, et al., decided April 22, 2014, references a practice that I consider to be deceptively nefarious.
It’s the practice of presenting the trial judge in advance of trial with a document discussing the anticipated testimony and exhibits, the applicable law, and argument on the merits. These offerings are variously styled as “Trial Brief,” or “Trial Memorandum,” or the like.
In Dean, the content of the trial brief is described by the COA as ” … a summary of facts and the pertinent law on adverse possession.” The COA rejected the appellant’s argument that it was an improper ex parte communication because he had failed to raise it in an earlier appeal on the merits, and the court held that he could not relitigate the issue in this later appeal on other issues.
The COA did not address the propriety of this practice because that issue was not squarely presented, but it is a practice that I think needs to be addressed.
In a custody case I tried before the turn of the century, counsel opposite presented the judge at the opening of the trial with a so-called “Trial Binder” that included summaries of the expected testimony of each of his side’s witnesses, a copy of each exhibit he expected to offer in evidence, and a brief setting forth his argument on the law applicable to each contested issue. I vigorously objected, arguing that the documents included inadmissible hearsay, that some of the witnesses, some testimony, and some exhibits may not even make it into evidence, and that it was improper to attempt to influence the judge in that manner. The judge swept aside my objections, stating that there had been exhaustive discovery, and that she was sure there were no surprises. After a five-day trial, the judge ruled in favor of the other party. We appealed and the COA reversed on other grounds. The issue of the trial binder was not raised; there was enough other error that we did not need it.
A lawyer in this district told me of a recent experience he had in north Mississippi. He said that he was handed a “Trial Brief” immediately before the opening of trial, and was pretty steamed to see a certificate of service showing that a copy of the document had been mailed to the judge several days before. The trial brief included all of the same type information described above. When the chancellor opened court, the lawyer stood to voice his objection, but the judge cut him off with the announcement that he had received the trial brief, and when he discovered what it was, sealed it back in its envelope and set it aside without reading it. When his staff attorney told him that she had also received a copy, he directed her not to look at it either.
Good for him.
The chancellor’s job is to hear and consider all of the admissible evidence taken in open court, and to make an independent, impartial decision, untainted by outside information or influence. As the COA said recently in Burnham v. Burnham, “Chancellors are charged with the duty of being independent fact-finders … ” To me, these so-called trial briefs are nothing more than a naked attempt to influence the trial judge with information on the merits outside the trial that may be inadmissible and even inflammatory. I think it’s fair to say that it’s an underhanded way for an attorney to get the judge to see and possibly consider evidence that the lawyer knows he will be unsuccessful in getting into evidence at trial.
When a chancellor says, “Let it be admitted into evidence,” what she is really saying is, “I can hear or look at this evidence because it meets the threshhold requirements of the rules of evidence.” That can only be done in the context of a trial, where both sides have the opportunity to object and cross examine.
Another aspect of the experiences noted above is the ex parte nature of the communication. As I have pointed out here before, just because you hand opposing counsel a copy of the document that does not mean it is not earwigging. Uniform Chancery Court Rule (UCCR) 3.10 states in part:
No person shall undertake to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith. No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.
That reference to briefs in the rule does not alter, amend or cancel the language preceding it.
In Dean, the trial memo called into question the impartiality of the sitting chancellor to the extent that she recused herself from further participation in the case. The same can happen in your cases.
The only way that a pre-trial brief can be proper, in my opinion, is if a chancellor asks the parties for one addressing certain matters in advance of trial. Assuming it asks for argument on the law, I would think that would be perfectly permissible, because it puts both sides on an even footing. I can hardly imagine a chancellor, though, who would ever ask parties to include prospective evidence in the submission. The law, yes; evidence, no.
In my court, I would be offended by an attempt to present me with extra-evidentiary material in a matter pending before me. I believe most chancellors would agree, or at least would do as the north Mississippi chancellor did in his case. I want my opinion to reflect only what is in the record (sometimes I do a better job of that than other times), and nothing more. The old saying, “You can’t unring a bell,” is applicable here.
I wish there were an explicit ban against this practice. Maybe a rewording of UCCR 3.10 is in order.
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.
