DRINKING FROM THE POISONED WELL
January 7, 2013 § Leave a comment
Copied this tip on one way to lose an appeal from a new blog, Lost Gap: Commentary of Mississippi Law:
Attack the trial judge. You might start out by suggesting that he must be on the take because he ruled against you. Or that he is senile or drunk with power, or just plain drunk. Chances are I’ll be seeing that district judge soon at one of those secret conferences where judges go off together to gossip about the lawyers. I find that you can always get a real chuckle out of the district judge by copying the page where he is described as “a disgrace to the robe he wears” or as “mean-spirited, vindictive, biased and lacking in judicial temperament” and sticking it under his nose right as he is sipping his hot soup. Trial judges love to laugh at themselves, and you can be sure that the next time you appear in his courtroom, the judge will find some way of thanking you for the moment of mirth you provided him.
Any trial judge can identify with that heavily tongue-in-cheek humor. We judges do get copies of your briefs and other filing with the appellate courts, and, while it may satisfy your primitive urge to take a retributive swipe in a brief at the one whom you feel wronged you, it’s best to keep in mind that judges are human, and can identify with Shylock’s plaint: “If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, do we not revenge?”
That last statement is a tad much, I believe. Most judges practiced law long enough before taking the bench that they let most slings and arrows bounce off their thick hides. And most judges I know focus on the law and the facts of a given case, and try hard not to let the personalities of the lawyers or parties decide it.
Still, it’s hard to imagine why one would — to paraphrase a colorful, often-used lawyer adage — urinate in the well one has to drink from.
The rest of the post, copied from a law journal article by a Ninth Circuit appellate judge is an eye-opening exposition in outline form of the imaginative ways that lawyers poison their own cases on appeal. It’s something you should copy and put in that special place where you keep your practical practice guide material.
Check out Lost Gap for your legal reading. If it keeps up the way it started, it’s going to be worth looking at regularly. I’ve added a link over there on the right.
YEAR OF THE SNAKE
January 4, 2013 § Leave a comment
According to the Chinese zodiac — and who can argue with that — 2013 is the Year of the Snake.
The idea that this will be the Year of the Snake got me thinking about the law. I guess that’s because, after sharks, snakes are the most likely creatures to be mentioned in the same breath with lawyers, as in “A shark, a snake, and a lawyer walk into a bar …”
If you were born under the Sign of the Snake, the Chinese believe that you possess the snake’s attributes. So what can we learn about lawyers born under this serpentine sign? I did a little research to find out.
From what I read, the snake symbolizes such character traits as intelligence and gracefulness. Good start. Both are certainly desirable traits for any lawyer.
Snakes are also considered by the Chinese to be materialistic. Yes, this is what they maintain, but this seems problematic to me on a couple of counts. First, most materialistic people are considered “grasping,” but how can one grasp when one has no appendage with which to grasp? Second, I am unaware of any hoarding snake species, although I do have to confess that my lack of knowledge is due not only to lack of research on the subject, but also to utter reluctance to do any personal invesitigation. Too, it seems odd to me to think of snakes as materialistic. Magpies, yes. Raccoons, yes. Chimpanzees, yes. Copperheads, not so much. Lawyers? To be honest, I have to admit that the pursuit of materialism that is a motivator for many of us in the legal profession is more shark-like than snake-like.
Not mentioned anywhere in the sources I researched are the facts that snakes are cold-blooded, and have beady eyes, that forked-tongue thing, and fangs. All wincingly stereotypical lawyer traits. Snakes also eat fluffy, cute animals that would be great pets for little children if they were not eaten by the snakes. On the whole probably not so positive an attribute for lawyers, at least in most circles outside of the membership of the bar.
If you were born under this sign, you have no problem making an asp of yourself. Okay, I just made that up to be funny. If you thought it was funny, fangs a lot.
“When it comes to decision-making, Snakes are extremely analytical and as a result, they don’t jump into situations.” I read that on a web site. Now, I don’t know about you, but my encounters with snakes, both the deadly pit vipers, as well as the non-poisonous and merely scary-as-hell kinds, have never given me the impression that they are analytical. In fact, they impress me as being insanely impulsive. And if you’ve ever seen one strike up close, I think you would agree that they do, indeed, “jump into situations.” You would prefer that one not jump into your particular situation.
The authorities say that snakes are effective at getting the things they want. Yes, I think they usually do, considering the consequences of not giving a venomous reptile exactly whatever its cold-blooded heart desires.
According to one piece I read, snakes like calmness, preferring quiet over noise. This may be one reason why none of us has ever heard a snake scream.
Another source said that humans born under this sign want a manageable workload rather than a schedule that’s overly-booked, and they become easily stressed when their lives aren’t peaceful or in order. Next time you encounter a right choleric lawyer who turns out to be a snake, you just might find that she’s too busy and needs some orderly peace and quiet. I am sure you can contrive some ways to turn that to your advantage. But why would someone who craves peace, order and breathing room want to enter the high-pressure legal profession in the first place?
Good question, because although snakes are diligent, creative, hard workers who are excellent problem solvers, my research indicates that good career choices for snakes include: scientist, analyst, investigator, painter, potter, jeweler, astrologer, magician, dietician, and sociologist. No mention of the law.
In their personal relationships, snakes excel at seduction. Interesting. I always thought it was that turbaned flute player who had the cobra in thrall, but the Chinese say it’s vice versa. Snakes can be insecure (who knew?), jealous and possessive (grasping?). The snake is compatible with those born under the sign of the rooster and the ox, and incompatible with pig and monkey. There are all kinds of thoughts I could offer on that, but I will leave you to draw your own conclusions.
Finally, without going into too much detail, different snake years have the added attributes of metal, water, wood, fire, and earth. If you’re a snake, here are yours:
Metal Snake – Years 1941 and 2001
Incredibly goal-oriented, Metal Snakes will stop at nothing to get that which they believe they deserve. Failure is not in their vocabularies. With their money, they’re continually acquiring more and more possessions – for themselves.
Water Snake – Years 1953 and 2013
Influential, motivated, insightful, and highly intellectual are words that best characterize Water Snakes. These Snakes work well with others and enjoy being recognized and rewarded. They’ll reveal feelings to those closest to them, but no one else.
Wood Snake – Years 1905 and 1965
Kind and genuine, these Snakes enjoy building a solid foundation of friends and family whom they love deeply and whose company they enjoy immensely. But even with all this support, Wood Snakes rarely seek the advice of others.
Fire Snake – Years 1917 and 1977
Fire Snakes are more extroverted, forever offering opinions and telling others what’s on their minds. Even so, others enjoy listening to Fire Snakes. They’re very persuasive and are especially good at convincing others that their ways are best.
Earth Snakes – Years 1929 and 1989
Earth Snakes always seem to be calm and content. They’re friendly and approachable and believe that they’ll reap great rewards by working hard and relying on common sense.
I am proud to say that, as an ox myself, I am compatible with snakes. That’s for the best, since I have had many occasions to deal with, handle, and avoid getting bitten by any number of them through the years — professionally and otherwise. I’m with the snakes, too, when it comes to pigs and monkeys. The less I have to deal with those, the better.
THE ZWEBER ZIG-ZAG ON COLLEGE SUPPORT
January 3, 2013 § 3 Comments
You may recall my post back in February, 2012, about the COA decision in Zweber v. Zweber, in which that court adopted what I described as a rather expansive definition of college education support. This is the case, you may remember, where the daughter took flying lessons toward an aviation degree, and the mother balked at paying her part of the rather pricy tab. The chancellor ruled that she must, and the COA agreed, holding in essence that any expense in furtherance of the college degree is included.
Well, the MSSC reversed that COA decision on December 13, 2012. The MSSC decision in Zweber v. Zweber is one that all of you who prepare property settlement agreements (PSA) should study and take to heart.
The parties in Zweber had entered into a PSA that included the following language for college education support:
“The Husband and Wife shall each be required to pay for the cost of the minor children, with Husband paying two-thirds (2/3) of the expense and Wife paying one-third (1/3) of the expense, based on the cost of the child attending college at a four[-]year state[-]supported institution in such state as the child is a resident of. All costs are to be based on the average costs of meals, tuition, books and room, published in a state[-]supported catalog and not to exceed the cost of a four[-]year state[-]supported institution. This obligation shall continue even if the child is over twenty-one (21) years of age prior to the completion of college.” [Emphasis added]
At ¶ 15, Justice Dickinson’s opinion states: ” … the Court of Appeals correctly concluded that … in certain situations, parents may be required to pay for their children’s college educations and the extent of that obligation may go beyond payment for “meals, tuition, books, and room. But because the divorce decree in this case includes a specific provision addressing specific college expenses, it is distinguished” [from the cases cited by the COA].
This case highlights the critical importance of making sure that the PSA you offer for a particular client specifically meets the needs of that particular client. Don’t assume just because a provision got the desired results in one case that it will do the job an another case. One size does not fit all. In Zweber, if the provision had been drawn with less specificity, and possibly even made reference to the flying lessons, the result would likely have been different. Instead, the Supreme Court held that the unambiguous language of the parties’ contract governed. The specific, narrowly drafted language of the agreement saved Mrs. Zweber and cost Mr. Zweber.
As the MSSC said, in some cases, the covered costs may well go beyond, meals, tuition, books and room, but that depends on how the PSA is drafted.
NEW YEAR’S REVOLUTION
January 2, 2013 § Leave a comment
New Year’s resolutions are ‘way overrated. Almost all are ignored after a few weeks — if that much — of sporadic observance.
So this year, instead of making resolutions, why not look at your professional life and start a revolution.
Revolt against —
- Sloppy pleading and draftsmanship, indifferent trial prep and unprepared trials.
- Neglected probate matters.
- Unreturned phone calls.
- Rudeness, incivility, impatience, harshness, lack of self-control, egocentrism, meanness, trickery, slyness and sharp dealing.
Overthrow those despotic habits that have chained you down and kept you from being the best lawyer you can be.
And while you’re at it, let the revolution spread to your personal life.
Revolt against the people you associate with who suck all the joy out of life with their passive-aggression, guilt-trips, negativity and cynicism.
Revolt against the clients and others who try to make you feel worthless if you pay any attention to your family, your children and your own emotional and mental health.
Revolt against anything that keeps you from feeling the breath of God, enjoying the warmth of a sunny spring day, marveling at the coo of an infant, or savoring the creamy goodness of banana pudding.
Revolt for your birthright to be happy, loved, fulfilled, free, independent and full of joy.
2013 is a great year for a revolution. Get started!
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