Maxims: No Wrong Without a Remedy
September 9, 2013 § 1 Comment
“Equity will not suffer a wrong without a remedy” is the maxim from which all of equity jurisprudence springs.
Over centuries the idea of “wrong” has been refined to include matters that are actionable, and to exclude those that the law deems not actionable. Judge Griffith explained it this way: ” … the maxim at this day is subordinate to positive institutions, and cannot be applied either to subvert established rules of law or to give a court of equity a jurisdiction beyond established principles.”
When the equity court has jurisdiction over the subject matter and the parties, it should be given wide latitude to fashion a remedy to correct a wrongful situation. As Judge Griffith stated:
“The maxim now means this: It is not necessary that some exact precedent must be found for extending relief in a given situation, if the case be such that under the established law of the land some relief is clearly requisite and a practical remedy consonant with established principles of procedure may be applied, — such a remedy is not to be denied merely because it cannot be found that the remedy was ever before applied in just that manner to that exact state of case. Under the operation of the maxim, modern equity is not authorized to create a substantive right where none such exists in the law of the land, nor to invent a distinctly new procedure to fit the case, beyond or outside of the procedural methods already established.” Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 35, p. 38.
When the law bestows a right, it also extends a remedy that can be granted in equity. Conversely, a court of equity will not supply a cause of action where none exists in the law.
In its early days, as the law developed procedures and forms of operation, claimants were limited to a few writs by which they could bring causes of action before the courts. The variety of writs was necessarily restricted in number, lest the courts be overwhelmed by multiplicity of suits. This system worked adequately as long as the parties were feudal lords who were relatively few in number. As commerce grew, however, and as more and more individuals acquired property interests and wealth, more and more controversies arose that simply did not fit within the confines of the recognized writs. Claimants were forced to appeal to the conscience of the King for relief from wrongs for which the writs did not afford a remedy. The King, having other matters of state to deal with, delegated that responsibility to the chancellor, who soon needed counterparts to handle the caseload. Over time the chancellors established precedent and certain principles — the maxims — that they followed in cases presented. The legal system administered by the King’s chancellors came to be known as equity, separate and distinct from the law.
At the very heart of equity is the principle that, if the court has jurisdiction, it will not allow a wrong recognized by our law to go unremedied, and it will always extend a remedy to a person who has a right conferred by the law. It is this principle, more than any other, that sets equity uniquely apart from the law.
“Quote Unquote”
September 6, 2013 § Leave a comment
“What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it… What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.
“What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.” — Learned Hand
“Of course, there are dangers in religious freedom and freedom of opinion. But to deny these rights is worse than dangerous, it is absolutely fatal to liberty. The external threat to liberty should not drive us into suppressing liberty at home. Those who want the Government to regulate matters of the mind and spirit are like men who are so afraid of being murdered that they commit suicide to avoid assassination.” — Harry S. Truman
“It is incorrect to think of liberty as synonymous with unrestrained action. Liberty does not and cannot include any action, regardless of sponsorship, which lessens the liberty of a single human being. To argue contrarily is to claim that liberty can be composed of liberty negations, patently absurd. Unrestraint carried to the point of impairing the liberty of others is the exercise of license, not liberty. To minimize the exercise of license is to maximize the area of liberty. Ideally, government would restrain license, not indulge in it; make it difficult, not easy; disgraceful, not popular …” — Leonard E. Read
The Maxims of Equity
September 5, 2013 § 10 Comments
I made the statement several weeks ago that:
Yes, the maxims of equity. Have you heard of them? If you graduated from law school before 1982, you probably spent some time in the law library committing them and some of their key cases to memory. Since then, I’m not so sure. When the MRCP went into effect, it seems that there was a de-emphasis on teaching the idea of equity in chancery. If the procedures were in most matters identical to circuit practice, why was all that folderol about equity necessary?
Today, in an age when even evidence has been eliminated as a required subject in law school, I shudder to think that there might no longer be any formal effort to educate law students in the philosophical underpinnings of chancery and, indeed, the entire system of equity that is administered in our chancery courts.
The Mississippi Constitution, § 159, specifically confers on chancery courts full jurisdiction in “All matters in equity … ” as well as certain other enumerated areas.
Equity is distinguished from the law in civil cases in that the law may grant a money judgment (and by statute may even enter an injunction), but equity courts act on the person, imposing duties and obligations, creating equitable remedies to carry out the court’s orders to set right what is found to be wrong. The court of equity is a court of conscience. As the great Judge Griffith stated,
“It is more than a trite phrase that the court of equity is a court of conscience; and it is immaterial what rights a party could assert in a court of law, — a court of equity will limit him to those rights of which he could conscientiously avail himself. It has been tersely expressed that nothing but conscience, good faith, and reasonable diligence can call forth the activities of a court of equity, and when these requisites are wanting, the court is passive and does nothing.” Griffith, Mississippi Chancery Practice, § 32, p. 35.
The foundation and spirit of equity have been distilled into aphorisms known as the Maxims of Equity. Every equitable proceeding touches on or embodies them in one way or another, whether expressly or impliedly. They inform not only the form, but also the substance, of all equity matters. Traditionally there were 12 great maxims and 12 so-called lesser maxims. Judge Griffith combined them into 14 essential statements of equity principles.
The 14 essential maxims are:
- Equity will not suffer a wrong without a remedy.
- Equity delights to do complete justice and not by halves.
- Equity acts upon the person.
- Equity acts specifically, and not by way of compensation.
- Equity looks to the intent, and will regard substance rather than form.
- Equity follows the law.
- Equity aids the vigilant and not those who slumber on their rights.
- He who comes into equity must come with clean hands.
- He who seeks equity must do equity.
- To protect and enforce property rights is the object of equity.
- When parties are disabled equity will act for them.
- Courts of equity will not tolerate interference with their orders nor with their officers in the enforcement thereof.
- No person bound to act for another can act for himself.
- No person should be condemned without a legal chance to be heard.
The last two are equally applicable in law and equity courts.
If you’re going to spend time in chancery, you have got to understand how these maxims act as the very structure of equity upon which the chancellor bases his or her rulings.
This begins a series of posts that will focus on the Maxims of Equity. I will quote liberally in each from Judge Griffith’s 1950 monumental work on chancery practice. Although his tome is of only academic interest insofar as it relates to the pre-MRCP practice in chancery courts, Judge Griffith’s masterful grasp of the law of equity and its philosophy is unmatched. His book, now out of print, was once considered the authoritative work on Mississippi chancery practice, and was even employed as the law school textbook on the subject in the pre-MRCP era.
My goal is to acquaint a new generation of Mississippi solicitors (the traditional term for practitioners in Mississippi chancery courts) with these concepts, and to try to reintroduce them into the 21st century discussion of chancery court practice for the rest of us.
Helping Your Client to Ease the Pain of Visitation
September 4, 2013 § 2 Comments
Yes, I said pain. What should be a joyous reunion for the children with the non-custodial parent is often fraught with anxiety and insecurity.
That’s because the children are aware of the animosity and tension between the combatant parents. Some children have seen angry confrontations and even violence between the two persons whom they love more than anyone else. They want to have a relationship with each parent, but they are afraid to hurt the feelings of one if they show any enthusiasm for the other.
You are in a unique position to influence your clients to do a better job in making it easier and healthier for the children in these situations. Here are a few suggestions for the custodial parent:
- Reassure the child that you will be okay while he or she is away. A child I spoke with years ago told me she did not want to go visit with her dad because she was worried that her mother would be lonely and sad without her. Remember that children have seen their parents sad, crying, upset and emotional during the heat of the divorce. They feel it is their responsibility to try to fix it. The custodial parent can alleviate the child’s concern by assuring him or her in the few days leading up to visitation that the parent has plenty to do, and will be happy to see the child go off for an enjoyable visit.
- Let the non-custodial parent participate in the children’s lives. The transition to visitation is much easier when the non-custodial parent is not a stranger who drops in every other weekend. Encourage the children to call the other parent, to send birthday and holiday cards, to Skype every now and then, to call with news like good grades or a smiley face for good behavior in school. Let the children invite the other parent to school and church programs, sports, and award preseentations.
- Leave the visitation schedule free for visitation. Never schedule outings, events, or even sports activities during the other parent’s visitation without his or her permission.
- Be flexible in scheduling. Both parents should yield to the other’s reasonable requests for rescheduling due to family reunions, weddings, family holidays, and the like. If the non-custodial parent can only schedule Disney World with the children during the first week in July, why shouldn’t the custodial parent give up her July 4 holiday for some other time?
- Make exchanges amicable. Leave the drama at home when it comes time to exchange the children for visitation.
- Share school pictures. Get extra copies for the children to give to the non-custodial parent, the grandparents and other members of the family. The little wallet-sized and 4×6 sizes are not that expensive. Get a few copies of the order forms to give to the other parent and family so that they can order as many and whatever size photos they want.
- Listen to the children’s experiences when they return home. Show interest in their experiences, and encourage them to share their enthusiasm, but never pry into what is going on in the other home or use the children as spies.
- Understand that parenting styles are different, and that’s okay. The children may come home with wide-eyed tales of being able to stay up to midnight, or to watch a scary movie, or being able to eat popcorn in bed. Reassure them that the rules can be different in different places, and the important thing is that they honor the rules set down by each parent.
You can come up with some more, based on your experiences as a family lawyer. The important thing is that you are not only a legal advisor; you are a wise counselor who can help defuse and heal some hostile situations. Clients remember that kind of help when their friends ask who they would recommend in their own divorce situations.
Before someone brings it up in a comment: Yes, I am aware that sometimes the other parent is beyond reason and commits all manner of atrocities in the visitation process. That does not mean, however, that your client should not try to “wear the white hat,” and do the right thing. One one hand, it’s the best thing for the children, and it’s the right thing to do. And on the other hand, it always puts your client in a better standing with the judge when he or she has been the one to do right.
Settling for Something
September 3, 2013 § Leave a comment
We’ve discussed here the lawyer’s power to bind the client, as in a settlement announcement where the agreement was to dismiss the lawsuit with prejudice upon payment of a settlement sum. The specific case we focused on was Williams v. Homecoming Financial, a COA case handed down July 23, 2013.
In Williams, the disappointed plaintiffs felt that there was not enough money on the table, and sued to get out of the settlement agreement. The attorney countered that the terms of the settlement had been thoroughly discussed with and agreed to by the Williamses before the settlement was announced. They were unsuccessful in their quest to escape the agreement.
How and what you communicate with the client about settlement is critical. That’s because Mississipi Rule of Professional Conduct 1.2 specifies that there is only one decision in chancery court where the client retains absolute decisional autonomy, and that is whether to accept an offer of settlement. That means that your client calls the shots when it comes to how the case will settle.
An extreme case where the lawyer ran right over, around and through that autonomy is Culpepper v. Miss. Bar, 588 So.2d 413 (Miss. 1991), in which the attorney: (a) did not communicate the terms to the client before announcing it in open court; (b) failed to advise the court that his client thought the case was being settled on different terms; (c) did not disclose to the court that the settlement agreement was different from one his client had signed; (d) represented to the court that the parties had agreed to the terms of the agreed judgment, knowing that was not true.
Three clear duties arise from R 1.2:
- The duty to communicate any offer or demand to the client, no matter how unreasonable;
- The duty to confer with and avise the client about the pros and cons of settlement, and the strengths and weaknesses of both sides’ cases; and
- The duty to zeaalously represent the client to accomplish the client’s settlement goals, unless the lawyer feels that they are so unreasonable, frivolous, or otherwise unmeritorious that withdrawal is warranted.
The autonomy of the client can be varied by contract, but not eliminated. For instance, the lawyer-client contract can provide that the lawyer may settle the case within certain parameters. That would be ethical. But an agreement that vests in the lawyer sole, final decision-making authority would be unprofessional, because only the client can make that final decision. See, Jackson and Campbell, Professional Responsibility for Mississippi Lawyers, 2010, § 8.4 – 5, pp. 8-6 – 8-8.
The only exception to the rule is in MRPC 1.14, which addresses how to deal with impaired clients.
It’s true that a lawyer should not let the client dictate the strategy and tactics of representation. But the end of the litigation is always within the client’s discretion. You have the power to bind your client, but if you invade the client’s province to settle, you may face some unpleasant consequences.
Reprise: Making an Effective Record
August 29, 2013 § 3 Comments
Reprise replays posts from the past that you might find useful today.
BROKEN RECORD
December 12, 2011 § Leave a Comment
Do you ever stop to think about what kind of record you are making as you try a case?
When I first took the bench, I was called upon to judge a case that had been tried two years before, but had never been decided. I was asked by counsel for both parties to read a 200-page trial transcript to determine whether I could adjudicate the case based on it, or whether a trial date needed to be set, all as provided in MRCP 63(a). The attorneys were all experienced and skilled trial lawyers.
It did not take many pages to discover that the record was in woeful shape. Here are some of its problems:
- The first 22 pages consisted of banter among the lawyers about a hunting camp, a weekend cookout, and exchange of good-natured barbs. That’s 22 pages, not a page or two.
- When the first witness was called, the questioning was interrupted repeatedly by jokes among counsel.
- When objections were made, they degenerated into exchanges back and forth among the lawyers.
- Witnesses were asked questions like, “Let me show you this paper,” followed by questions without a clue as to what the paper might have been.
- Many of the questions lacked context: “Can you tell us what he was doing when you saw him there?” Who was doing what and where?
There were other flaws, but the coup de grace came in the last pages of the transcript where the then-chancellor announced that the trial would be continued to another day (it never was), so I decided they would just have to start over, given the passage of time and the state of the record. I ordered a new trial.
As a lawyer, you have to realize that putting on your case in a way to persuade your judge is only part of your job. It’s also critically important that you make an effective record for review. That means at least that you need to:
- Keep banter and comments to an absolute minimum.
- Confer with counsel opposite off the record or aside at counsel’s table with permission of the court and record any agreements or stipulations with a coherent announcement affirmed on the record by the other side.
- Before you begin announcing a stipulation, make sure you have an agreement on every point, and on the wording of every point. Even better: your stipulations should be in writing, even if it means asking for a recess to hammer out the language.
- Always make sure your questions are clear, which means either limiting the number of pronouns and indefinite descriptives or being quite precise in defining them.
- Make sure that any document, photograph or other item referred to by a witness is clearly identified for the record.
- If the witness’s response is unclear or confused, ask the witness to restate it or clarify.
- Don’t interrupt someone else who is speaking, and don’t speak over someone else. Don’t let your witnesses do it.
I try to make sure that the record is free of interruptions, clear of colloquy between attorneys, uncluttered with thinking out loud and other particles of nebulae, any and all of which can obscure the record, even to the point of being unintelligible. But I’m not always 100% successful, and it’s the duty of the attorneys to make their own record.
FYI, here are links to a few posts on trial techniques that can help you make a better record:
A few pointers for more effective chancery trials
Making sure the chancellor sees what you want him or her to see
Where Do the Children’s Vehicles Go?
August 28, 2013 § 4 Comments
The parties have complied with the court’s order to produce at trial a consolidated list of all the marital assets. There, among all the end tables, pots, pans, what-nots, and nick-nacks, is the 1994 Honda auto — worth $15,275 — that was purchased for the daughter to transport herself to and from college. Husband says wife should get it in equitable distribution, and wife says husband should get it. Whoever winds up with it gets a $15,275 bump in the asset column.
Those were the essential facts in the COA case of Terrell v. Terrell, decided July 16, 2013.
In that case, Robert Terrell had purchased the car for his daughter, Catherine, titled it in her name, and transferred ownership to her. The chancellor nonetheless included the vehicle in wife Mary Terrell’s share of equitable distribution. Mary appealed, arguing that the asset value of the car erroneously inflated her allocation of the marital estate.
The COA agreed with Mary, reversing and rendering:
¶17. We agree that the vehicle should not have been deemed a part of the marital estate. While it was purchased during the course of the marriage, it is not marital property, nor is it separate property. Rather, it was a gift from Robert and Mary to Catherine, who was a third-party recipient. Catherine has retained physical custody of the vehicle and has been the legal title holder of the vehicle since it was purchased. It was not an asset of Robert or Mary either jointly or separately. Accordingly, we reverse and render this issue specifically for the elimination of Catherine’s automobile from the marital estate.
The outcome here is pretty clear, but there are all kinds of permutations of this fact scenario, in my experience. Robert could have kept the car titled in his name, for insurance purposes. Or the car could have been titled in Mary for the same reason. Some parents want the car titled in either or both names solely as a control mechanism. Sometimes the car is titled in one parent’s name until the child pays some consideration for it. The possibilities are limited only by one’s imagination.
I have put the child’s auto in the column of a parent who testified that he had the car titled in his name, and did not know whether he would continue to provide the child with a vehicle. It seems to me that where the car goes depends on the particular facts of the case. In general, however, I think it’s safe to say that if the car is clearly going to stay with the child, it should be kept out of equitable distribution, and if it is really only a chattel that a parent is going to exercise control over, it should go with that parent.
I do the same with the children’s furniture and moveables.
One final point. There is plenty of case law that says if one part of the determination of assets-equitable distribution-alimony triangle is disturbed, the chancellor must look at it again and redo the whole ball of wax. Here, the appeal result is to reduce Mary’s distribution by $15,275, a not inconsiderable chunk of change. I just wonder why this was rendered and not remanded.
A Primer on Termination of Alimony
August 27, 2013 § 2 Comments
The chancery court always retains jurisdiction to modify an award of alimony. For many years, Mississippi law was that periodic alimony was terminable upon a showing that the recipient had cohabited or engaged in a sexual relationship. That rigid rule has softened over the years.
In the COA case of Pritchard v. Pritchard, handed down October 23, 2012, Judge Griffis penned as good a synopsis of the law on termination of alimony as you will be likely to find. Here it is:
¶20. The supreme court has found “that cohabitation creates a presumption of mutual support.” Scharwath v. Scharwath, 702 So. 2d 1210, 1210 (¶2) (Miss. Ct. App. 1997). The presumption shifts “the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support within his or her de facto marriage.” Id. at 1211 (¶7).
¶21. In Scharwath, the ex-wife, recipient spouse, had a sexual relationship with another man and provided him a truck and rent-free home. Id. at 1211 (¶¶5-6). The man, in turn, provided support around the house when he built a deck, retiled the basement, moved furniture, cut the grass, washed the car, and carried out the garbage. Id. at (¶6). “In kind” services must be assigned monetary value. See Tedford v. Dempsey, 437 So. 2d 410, 422 n.11 (Miss. 1983). The supreme court in Scharwath held that the chancellor erred when he did not consider the mutual support. Scharwath, 702 So. 2d at 1211 (¶6).
¶22. Periodic alimony may be terminated based on cohabitation or a de facto marriage. In her book, Professor Deborah H. Bell summarized this principle as follows:
Cohabitation and presumed support. In 1997, the supreme court discarded the fact-based test for determining whether an alimony payee’s cohabitation involves mutual financial support. The court reasoned that an alimony payor lacks the necessary information to prove mutual support between cohabitants. Accordingly, the court adopted a presumption that cohabitation is accompanied by financial support. . . . [Scharwath, 702 So. 2d at 1211; see Alexis v. Tarver, 879 So. 2d 1078, 1082 (Miss. Ct. App. 2004).]
A short period of cohabitation may not trigger the presumption. A chancellor properly refused to reduce alimony to a recipient whose friend and two sons moved into her house for five weeks after a hurricane. Her friend did not share her bedroom, bought groceries only once, and moved when his home was repaired. [Tillman v. Tillman, 809 So. 2d 767, 770 (Miss. Ct. App. 2002).] In a factually unusual case, a chancellor properly conditioned an award of rehabilitative alimony on the wife’s moving from her boyfriend’s home and establishing her own residence. [Alexis, 879 So. 2d at 1082.]
. . .
De facto marriage. Alimony may also be terminated even in the absence of cohabitation if a court finds that a payee is avoiding marriage to continue alimony. Alimony was terminated to a payee who was engaged without immediate plans to marry, even though there was little evidence of mutual financial support, on the basis that she had entered a de facto marriage. The court found significant that the couple appeared to forego marriage to obtain the benefits of alimony, stating that “equity should not require the paying spouse to endure supporting such misconduct.” [Martin v. Martin, 751 So. 2d 1132, 1136 (Miss. Ct. App. 1999).]
The de facto marriage test was restated recently to include an element of financial support. The court of appeals stated that alimony may be terminated where a recipient and another person “so fashioned their relationship, to include their physical living arrangements and their financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Applying this test, no de facto marriage existed based on proof that a woman spent several weekends with a man, that he stayed at her house overnight five or six times, and that he purchased groceries on those occasions. [Pope, 803 So. 2d at 504.]
Deborah H. Bell, Bell on Mississippi Family Law § 9.10[2][a]-[b] (2005).
¶23. In Burrus, the recipient spouse was paying for her “live in”’s psychological evaluation, car tag, attorney’s fees, clothes, cell phone, materials for his job, and motel room charges. Burrus, 962 So. 2d at 622-23 (¶18). The “live in” provided “in kind” household services and chores, such as maintenance and repair of the home. We held that there was sufficient evidence to support the chancellor’s decision there to modify alimony, child support, and custody. Id. at 626 (¶33).
The Pritchard case was the subject of a prior post on this blog that was somewhat summary. This issue can be so intricate, however, that I thought it would be helpful to set out the applicable law in a concise fashion for your use.
The Better Chancery Practice Blog 