Q & A WITH JUDGE CLARK
October 13, 2011 § Leave a comment
Chancellor H. David Clark, II, sole chancery judge of the Second Chancery District (Jasper, Newton and Scott) shared some of his thoughts on chancery court practice with 12 CCDM.
Q: Tell us some of your personal preferences that lawyers from outside your district need to know before they come before you.
A: Based on my observations both as an attorney and as a Chancellor, litigation, especially divorce, custody and child support, is not only expensive and time consuming, it is extremely stressful on the parties as well as their children. The sooner the litigation is completed the sooner the litigants, and the children can put the matter behind them and move forward with their lives. I use our computer program [Court Clerk] to monitor cases and move them along toward completion in a reasonable manner and within a reasonable time. Thus, attorneys should be prepared to present and conclude matters within the suggested time standards contained in Administrative Order 2001-00001 entered by the Supreme Court on November 15, 2001.
All cases that are set for trial in the Second Chancery Court District are also set for Settlement Conference prior to the trial date. As the name suggest, the purpose of these conferences is to attempt to resolve the issues between the parties [i.e.: settle the case]. If the matter cannot be fully resolved, these conferences are used to dispose of any outstanding motions or issues and to narrow the issues so that there will be no impediment to completion of the matter on the date it is set for trial. Thus, it is vitally important that all parties and their counsels appear at these Settlement Conferences.
Some trials cannot be complete in one day. In that event, be prepared to return and complete the matter the next day. Personally, I do not like to try cases piecemeal over 3, 4 or 6 months. Let the Judge know how long you anticipate the matter will take to complete, and be prepared to try the case to completion.
Q: What are the three attributes that you would consider to set the good lawyers apart from the bad ones?
A: A “good” lawyer:
✓ Is always prepared and knowledgeable of the issues, the facts and the law and can support her/his positions with applicable legal authority;
✓ Takes care of her/his client’s business [“TCB”] in a timely manner and at a reasonable cost;
✓ Communicates regularly with her/his client to keep them apprised of the status of the case and with counsel opposite regarding scheduling and resolution of issues.
A “bad” lawyer:
✓ Is seldom prepared to discuss the issues, facts or the law. They are more prone to just “Shoot from the hip.” Research is what they do when they have lost their car keys;
✓ Accept employment in more cases than she/he is able and/or willing to work on and complete. “Bad” lawyers delay litigation in an effort to “milk” every case for all they can get and are never interested in streamlining procedures, narrowing issues or resolving matters.
✓ Can never be found by his/her client, by counsel opposite or by the Court. A “bad” lawyer seldom returns telephone calls, emails or letters. A “bad” lawyer is “AWOL” most of the time.
Q: What is the main thing lawyers should know to avoid doing in your court room during a trial?
✓ Don’t begin a trial unless you are ready. Always be prepared!
✓ Never walk in to a courtroom with only one copy of documents or exhibits. You should have sufficient copies of every document for all counsels and for the Court. It does no good to hand the witness a document and begin questioning the witness regarding the contents of that document if the Chancellor, the trier-of-fact, does not have a copy to view and understand.
✓ Never submit to the Court an 8.05 you are not throughly familiar with. If you have not reviewed it and do not understand it, the Court will not understand it either, and you will be dealing with one frustrated Judge.
✓ Oh, and while we are talking about things not to do, never ask a Chancery Court to approve a wrongful death claim for adult heirs-at law. The Court’s only concern is with estates and minors. We have no control over how adults settle their claims.
Q: There are 19 appellate judges. What would be the ideal number of former chancellors serving on the two appellate courts?
A: 19!
Seriously, if you have a Chancery Court background, and if you regularly read cases rendered by the Supreme Court and the Court of Appeals, you know that there exist a serious dearth of Chancery perspective on both courts. I won’t go into that here, but would strongly encourage a change in the present demographics. [Circuit vs Chancery vs academic vs practitioner vs other] Think about it.
YET MORE ON POST-TRIAL MOTIONS AND APPEALS
October 12, 2011 § 3 Comments
I posted here, here and here about the COA and post-trial motions.
On October 11, 2011, the COA in Aspired Custom Homes, LLC v. Todd and Tina Melton, there is this language by Judge Carlton, at ¶ 11:
While Aspired appeals the judgment of the chancery court questioning the judgment’s substance, we acknowledge the record reflects the chancellor denied a timely filed post-trial motion brought by Aspired pursuant to Rule 59(e) — a motion to alter or amend judgment. See M.R.C.P. 59. Aspired filed a motion pursuant to Rule 59(e) and raised four issues before the chancellor. However, a party is not required to file a post-trial motion in chancery court in order to appeal the chancery court’s judgment. We therefore address the merits of the appeal before us, questioning the substance of the chancellor’s judgment. [Emphasis added]
In a footnote to that paragraph, the opinion stated:
If a party’s motion for reconsideration is served within ten days of the rendition of judgment, the motion falls under Rule 59(e) of the Mississippi Rules of Civil Procedure. Carlisle v. Allen, 40 So. 3d 1252, 1260 (¶33) (Miss. 2010) (citing Cannon v. Cannon, 571 So. 2d 976, 978 (Miss. 1990)). The Mississippi Supreme Court has established that to succeed on a Rule 59(e) motion, “the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004). Case law has also provided that “[a]n appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge’s denial of a Rule 59 motion is limited to abuse of discretion.” Perkins v. Perkins, 787 So. 2d 1256, 1261 (¶9) (Miss. 2001). In this case, the notice of appeal reflects only an appeal by Aspired from the judgment of the chancellor, with no reference to the unsuccessful post-trial motion.
That, in my opinion, is an accurate statement of what Mississippi law has been in chancery bench trials, and I’m glad to see it clearly stated.
So, based on the language above, a post-trial motion is not a prerequisite to an appeal from a chancery bench trial. But the question remains whether a post-trial motion is necessary to preserve particular issues for appeal, as the COA case cited in the prior post would indicate. Here’s some language that may remove all doubt:
“It is clearly the better practice to include all potential assignments of error in a motion for new trial. However, this approach is not always practical. Because a trial transcript is rarely available within the time frame for filing post-trial motions, the most prudent attorney cannot be expected to pinpoint every objection raised and ruling made during the course of the trial. Thus, when the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter’s transcript, such as the admission or omission of evidence, we may consider it regardless of whether it was raised in the motion for new trial. [Emphasis added] Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993).
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Thanks to Thus Blogged Anderson for the Kiddy v. Lipscomb cite .
ADOPTION DECREE DO’S AND DON’TS
October 11, 2011 § 1 Comment
Before you draft your adoption final decree, be sure to read MCA §§ 93-17-13 and 29. There are some critical provisions in those statutes that you need to address.
Here are the highlights of 93-17-13:
- DO include in your judgment a six-month interlocutory period unless the child to be adopted is the stepchild of a petitioner or is related to a petitioner by blood within the third degree, unless the chancellor has determined that the interlocutory period is not necessary for the benefit of the court; if the judge does waive the interlocutory period, DO include language in your final judgment that the interlocutory period is waived and the reason why.
- If the chancellor shortens the interlocutory period by the length of time that the child has lived with the adoptive parent in their residence, DO include that explanation in your judgment.
- DO include in your judgment that that the child shall (a) inherit from and through the adoptive parents and siblings as would a child of the full blood. The language of the statute is explicit, and you should track it verbatim.
- DO specify in your judgment that the child, adoptive parent(s) and kin are all vested with all of the rights and responsibilities as if the child had been born to the adoptive parents as their natural child. Again, the language of the statute is explicit, and you would do well to copy it verbatim into your judgment.
- DO adjudicate in the body of the decree that the name of the child is changed, if desired.
And here are the highlights of 93-17-29:
- DON’T state the name of the natural parent or parents in the style of the case or where they can be spread on the minutes of the court.
- DON’T state the name of the natural parent or parents in your final decree.
- DON’T state the original name of the child or children in the style of the case. Use “the child named herein,” or “a minor child,” or words to that effect.
- DON’T state the original name of the child or children in the decree unless the name of the child will be unchanged.
Section 29 addresses confidentiality issues. Use your common sense. Any confidential information that you add to the style of your case will find its way into the docket entry and even into a publication notice. “Confidential information” in the sense of adoption embraces any information that will identify the child by original name, or that identifies either or both of the natural parents. I have seen publication notices that are blatant violations of this code section. Once that kind of improper publication is made, confidentiality for all intents and purposes is eliminated. If you have any doubts about how to style your case to avoid these problems, sit down with your chancellor and hash it out before you file your pleadings.
Some lawyers ask how to accomplish an adjudication of termination of parental rights without naming the terminated parent(s) in the final decree. Two methods come to mind: (1) enter a separate judgment specifically terminating the parental rights and reference that judgment in your final decree with language like “The parental rights of the natural parents were terminated by separate judgment in this action rendered March 16, 2011, which is incorporated herein by reference for all purposes;” or (2) in the final decree, simply state that the rights of the natural parents identified in the Complaint for Adoption are hereby terminated, etc.
I heard a report from another district that the State Board of Health is requiring that the name of the parent or parents whose rights are terminated must be included in the decree. If so, that agency is requiring by its directives a violation of the statute. Based on my training, background and experience, I take the position that the statutory law of Mississippi trumps agency directives every time.
THE YOKE OF PROBATE
October 10, 2011 § 1 Comment
It looks like easy money. Grandma is sitting in your office with a fistful of greenbacks, asking you to open a guardianship so that she can get grandson into the county school. Momma is agreeable, daddy is in prison and will sign whatever you send him, and the child needs to get into school.
Before you file those papers and track down your chancellor, consider:
- When you enter your appearance, you are responsible as attorney for the guardianship forever, or until the judge lets you out, or until the guardianship is closed, whichever occurs first.
- There will be an accounting, or at least a reporting, requirement, for which you as counsel will be held responsible.
- Your compensation will be fixed by the chancellor, and it may not be as much as you would like to charge.
- You will be responsible to report to the court any misfeasance, malfeasance or neglect of duty by the fiduciary.
I encourage you to read UCCR 6.01 and 6.02 before you file that petition to open the guardianship. Your duty and liability as an attorney in a simple guardianship of the person is every bit as great as it is in a guardianship where the ward has thousands of dollars in the bank.
We regularly send out orders for lawyers to bring their accounts current in all probate matters, including guardianships of the person only. In guardianships of the person, we require a report at least every other year that (a) the guardianship continues to be necessary due to the age or circumstance of the ward, and (b) that no assets have come to the ward since the last report. It is not uncommon for lawyers to call and have some problem with that requirement. Some customary complaints:
- “I wasn’t paid enough to continue to do work in this case.” UCCR 6.01 expressly states that “When an attorney has once appeared for a fiduciary, in any respect, he may withdraw only with the consent of the Chancellor, after notice to the Chancellor, after notice to the client.” That rule also requires the fiduciary to be represented by a lawyer at all times. This means that once you appear, you are in it until someone takes your place or the matter is finally closed.
- “I can’t find my fiduciary.” You are responsible to keep up with the guardian and his or her activities so as to advise the court as required by UCCR 6.02. You have some liability to the ward if the fiduciary receives assets of the ward and squanders them.
- “This was only a guardianship for school purposes; why do we have to jump through all these hoops?” Because the law does not lower the protective bar for benefit of a ward “merely” because this is a guardianship of the person, and you, as attorney for the fiduciary, have a professional, legal, ethical and equitable duty to the ficuciary, the court and the ward.
I am not suggesting that you not file that guardianship action. I am suggesting that you read the rules and understand exactly what you and your client are taking on when you shoulder the yoke of probate.
“QUOTE UNQUOTE”
October 7, 2011 § Leave a comment
The poet Gary Snyder
“Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.” — Dr. Seuss
“Find your place on the planet, dig in, and take responsibility from there.” — Gary Snyder
“The question is not ‘Can you make a difference?’ You already do make a difference. It’s just a matter of what kind of difference you want to make during your life on this planet.” — Julia Butterfly Hill
Q & A WITH JUDGE GAMBRELL
October 6, 2011 § 1 Comment
Chancellor Deborah J. Gambrell presides in the 10th District (Forrest, Lamar, Marion, Pearl River and Perry). Here’s an interview she provided for 12 CCDM.
Q: Tell us some of your personal preferences that lawyers from outside your district need to know before they come before you.
A: Please bring the court file from the respective county. Pre-Trial conferences shall be held prior to trials. They are scheduled on Fridays and you should contact the Court Administrator for a setting. We do not schedule hearings that require a court reporter on Fridays.
Q: What are the 3 attributes that you would consider to set the good lawyers apart from the bad ones?
A: Good lawyers represent their clients zealously and in doing so are prepared, knowledgeable, and courteous. Lawyers that are not deemed “good” are ones that appear in court unprepared, without necessary documentation for the court to properly determine the disputed issues, and are rude or argumentative. Arguing and screaming is not impressive to me. I have raised six (6) daughters; three (3) of whom lived through sharing the same room without maiming each other. I sat as a Justice Court Judge for thirty (30) years hearing litigants’ disputes without the benefit of counsel so just tell me what you need me to know. Do not interrupt, and do not get upset if I’m not impressed by the bickering back and forth.
Q: What is the main thing lawyers should know to avoid doing in your court room during a trial?
A: DO NOT ANNOUNCE “READY FOR TRIAL” IF YOU ARE NOT. Being ready for trial means: 1) having three (3) copies of all proposed Exhibits; 2) having presented a copy of the proposed Exhibits and Exhibit List to counsel opposite; and 3) having all necessary parties present. I’d rather hear, “Judge we’d like to proceed but realize that we are missing a few things that would assist the court in resolving the matter.”
Q: What part of the job do you enjoy the most?
A: I enjoy serving my community by seeking to bring litigants to a win-win resolution of disputes. I know that cannot happen all of the time, but when it does, I feel good and have my faith restored in “seeking the good” in people.
Q: What is your pet peeve as a judge?
A: I get extremely upset when lawyers are not truthful with me!!! If you have weaknesses or advantages over the other attorney, spit them out in “Pre-trial.” Do not withhold information that will ultimately come to light. It makes me wary of you.
ALL COMMENTS ARE NOT CREATED EQUAL
October 5, 2011 § Leave a comment
Comments are most welcome on this blog. I encourage you to question, react or add your opinion. The law is an art, not a science, so ideas and interpretations can vary.
Having said that, though, I have to say that all comments are not on a level playing field. There are some subspecies of comments that are, well, different.
For one, there are the so-called “spam comments,” which apparently are generated either by machines or by humans with the linguistic skills and intelligence no greater than that of machines. Here are three recent examples:
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The foregoing specimens were trapped in my spam filter, which claims to have snagged 4,608 of them over the life of my blog, which is now 16 months old. That’s an average of 288 spam comments a month, or 9.6 per day.
The above are exemplars of the English-language variety spam. Spam comments also arrive in Russian (in Cyrillic, no less), French, Italian, Bulgarian and Romanian (I know the latter two only from the suffix on the name of the web site, since those languages are beyond my ken). These comments may actually have been intelligent commentary on something I posted, for all I know. For lack of knowing, I send them the way of spam.
Spam comments are intended by the sender to plant a link on your blog that will either generate traffic for the sender or allow the sender to inundate your blog with ads and other unpleasantries. I delete all spam comments and send them to spam hell, wherever that is.
Another genre of comments is the disgruntled litigant. I have had several proposed comments from litigants critical of their judge (in one instance me as judge), the legal system, their attorney, and the appellate courts. Most come from outside Mississippi. A major reason I moderate comments is to screen those out.
There are also commentors who ask for legal advice. Sorry, judicial ethics preclude me from doing that. Besides, that’s not the purpose of this blog.
Then there are the commentors who ask for a slot on my blogroll. One proposed commentor asked me to add a link to his blog, but I politely declined because it was a blog promoting dissolution of the legal system, abolition of the legal profession, and encouraging self-representation until the courts can be done away with. Anybody who has read this blog for any length of time will recognize that those topics are somewhat inconsistent with what I am doing here. He was very polite, though; I’ll grant him that.
So, all of you “blog crazed persons” out there, keep your comments coming. For all your comments, I “Truly thank you a large amount.”
FATHER FOREVER
October 4, 2011 § 7 Comments
I posted here about the new statutory procedure to disestablish paternity.
One of the interesting aspects of the new code section is that it enumerates the reasons that would disqualify a father from attempting to prove he is not the father.
The flip side of the coin, then, is that these are the bases that conclusively establish paternity and preclude the mother or anyone else from denying his parentage. From the statute, the man is the father if he did any one of the following:
(a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father;
(b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact;
(c) signed a stipulated agreement of paternity that has been approved by order of the court;
(d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father;
(e) had been named as legal father or ordered to pay support after he declined to undergo genetic testing; or
(f) failed to appear for a genetic testing draw pursuant to a valid court order.
I am not aware of any other place where these bases for paternity have before been listed in such a handy form.
KICKING THE CAN DOWN THE ROAD
October 3, 2011 § 1 Comment
What you thought would be a simple irreconcilable differences divorce has proven to be anything but. You’re bone-weary of your client’s whining. The other party is an intransigent j*ck*$$ over every minor detail. Counsel opposite has been an uncommunicative pain and no help at all with his client. Getting all the issues nailed down has taken a monumental effort. And now, with the final draft of the property settlement agreement nearing the finish line, all that remains is to settle the personal property.
But, that is where the parties are stuck. Husband wants this and that. Wife wants this and that. Counsel opposite is no help at all. You could spend some more time insisting that the parties resolve the personal property issues, but you don’t want to make the effort, especially without any help from the other attorney.
So you say to yourself, “What the heck; let someone else deal with it,” and you draft some language to fill in that pothole in the agreement. Parties sign and judge signs the judgment.
Deal done. Case closed. For now.
Only problem is, the parties will likely be back in court sooner or later battling over that pothole.
I call that “kicking the can down the road (KCDTR).” You do enough to get by, but in the process you draft a ticket back to court for your clients. You kick the can down the road where the next person coming along will have to pick it up and deal with it.
Of course, case weariness is only one source of the KCDTR phenomenon. Some lawyers KCDTR out of sheer laziness, others out of lack of drafting skills, others from haste, and others from oversight or lack of care.
Consider a recent case I had in which the property division read, “Husband shall have ownership of the former marital residence, and wife shall have ownership of the furnishing [sic].”
Wife moved and took with her all of the furniture and her personal effects. She also took the light fixtures and window blinds, along with a barbecue grill, a fountain (she left the base), a yard sweeper implement and various other items in the yard. Husband punched his ticket back to court.
After three days of trial (there were other issues involved), it was left to me to determine whether all the stuff that wife took was “furnishing.”
No need to go into detail about my ruling. You can probably guess how it came out. My point here is that if the drafting lawyer had said, “No, I am not going to put this PSA in final form unless and until you can give me a list of all the items that you two agree that wife will remove,” we would have avoided having to try that issue later.
Incidentally, the COA case of Aegler v. Gambrell, decided April 26, 2011, offers an insight into what exactly are considered “furnishings,” “personal things,” and fixtures.
Some other KCDTR examples:
- “The former marital residence shall be sold at a price to be agreed between the parties.” What if the parties can’t agree?
- “Husband shall be responsible for one-half of the school expenses.” Husband thinks this means he will pay for daughter’s cheerleading expenses. Wife thinks it means that husband will pay one-half of the private school tuition and assessments.
- “Husband and wife shall each pay one-half of the child’s extra-curricular activities.” What activities are included, and who decides?
I could go on and on, but I hope you get my point. A lawyer is paid to draft an agreement that will avoid future problems. If you are not accomplishing that in the instruments you draft, you are taking your clients’ money and not delivering what was paid for.
FYI … you can read some tips for PSA drafting here and here. A post on some hidden dangers in some commonly-used PSA language is here. A post on the hidden costs of divorce is here. An object lesson in the ramifications of drafting is here. A few tips from Ernest Hemingway that may help improve your legal writing are here.
Draftsmanship is one of the hallmarks of a good lawyer. The good ones draft PSA’s that are clear and unambiguous, address all that needs to be addressed without unnecessary prolixity and fluff, and are not only enforceable on their own terms, but also are stout enough to withstand attack.
Good lawyering = good draftsmanship. Not-so-good lawyering = KCDTR.
The Better Chancery Practice Blog 