DICTA
August 12, 2011 § Leave a comment
- A very tongue-in-cheek take on Twelve things you should never say to your child.
- Politics from the grave … partisan epitaphs.
- Ants have transparent abdomens, which makes for some fascinating photographs when they are dining on brightly colored candy.
- All of Kemper County is in a desert. And so are parts of Meridian. A Food Desert, that is. Or so says the USDA, which has taken upon itself the task of designating areas of the USA where poor people do not have near access to a supermarket as “Food Deserts,” which you can pinpoint on their locator. Their thinking is that lack of nearby supermarkets means that the denizens eat only fattening food at convenience stores and fast food outlets.
- Which dietary supplements are proven to work and which are not? This graphic shows the evidence. Good: folic acid, green tea, probiotics. Not so good: akai, beta carotene, flaxseed oil.
- If you yearn for the “good old days,” remember that a huge chunk of that imaginary era did not include air conditioning, as this article in Slate on the history of air conditioning will tell you.
WHAT DOES IT DO TO YOUR APPEAL WHEN THE TRIAL JUDGE DOES A DOUBLE-TAKE?
August 11, 2011 § 4 Comments
Here’s a little nightmare scenario for you …
Chancellor renders a judgment of divorce. Among other provisions, the judge ordered that the homestead and certain personalty be sold by the Chancery Clerk, the administrative costs be paid, and then the remaining proceeds be divided between the parties. Your client is unhappy enough to pay you to file an appeal from the judge’s adjudication of equitable distribution. It takes him a couple of weeks to scrape together your fee, but the appeal clock still has plenty of ticks. Client comes in at last and pays the freight. You start work on the notice of appeal, and while you’re at it …
Twenty days after the judgment is entered, here comes a sua sponte order from the court clarifying the instructions to the clerk as to the specific items of personalty that were to be sold, and how the homestead proceeds were to be divided. You have other pressing matters on your plate, so you are relieved that the judge reset the appeal clock for you. Finally, 29 days after the clarifying order, your file your notice of appeal.
Is there a problem?
The above facts happened in Penton v. Penton, decided by the COA on April 13, 2010. Judge Barnes’ opinion points out that the appellate rules and our case law are silent as to the effect of a sua sponte order of the trial court such as that in this case. This second order was not a reconsideration with a substantive change of the original judgment. Reconsideration was limited to within ten days of the original judgment under MRCP 59. Nor did it involve correction of a clerical error under MRCP 60. The second order did not substantively change the award in the original judgment; it merely made the instructions clearer for the clerk.
Looking to federal case law, Judge Barnes concluded that ” … only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken … begin to run anew.” She found that the provisions of the second order were not substantive, so it did not have the effect of extending the appeal time from the original judgment.
The opinion noted that entry of the second order still left time for appeal from the original judgment, and that counsel could have filed a motion with the trial court to extend the time for appeal, if that were needed to evaluate the sua sponte order, but no such motion was filed.
The result was that the appeal was dismissed as untimely filed.
As a matter of practice, this case illustrates that it’s better under the current state of the appellate rules to file a premature notice of appeal than to file too late. Once the deadline passes without a motion to extend having been filed, the appeal is dead.
I’ve held off commenting on this case because it’s an unpublished opinion and obviously addresses a matter of first impression of Mississippi. I have surmised that publication is being held pending evaluation by the Supreme Court, since that court has jurisdiction to adjudicate first impression cases.
UCCR 8.05 TWEAKED AGAIN
August 10, 2011 § Leave a comment
The Supreme Court’s Rules Committee is soliciting your comments on proposed changes to UCCR 8.05. The change would add this language:
The disclosures shall include any and all assets and liabilities, whether marital or non-marital. A party is under a duty to supplement prior disclosures if that party knows that the disclosure, though correct when made, no longer accurately reflects any and all actual income and expenses and assets and liabilities, as required by this Rule.
The change addresses both the Trim case non-disclosure of assets problem and the duty to supplement.
As I’ve said before, many cases are plagued by incomplete and woefully inadequate 8.05 statements. Often, the statement offered is months old. Maybe this rule change will be a cure. But then again, I am an eternal optimist, even when reality does not justify it.
If you’re looking for ideas about how to improve your own 8.05’s and financial testimony, you can find some here, here and here.
You can find the proposed new rule here. Deadline for comments is September 6.
BULLETPROOFING YOUR WITNESSES
August 9, 2011 § 5 Comments
If you have never had a witness implode on the stand, this post is not for you.
If, on the other hand, you have struggled inwardly to maintain your composure as your witness apparently has forgotten everything he ever knew about the case, or he has abandoned all common sense, or she blurts out all manner of facts she never revealed to you before and is laying waste to her own case as effectively as if she were her own opposing counsel, then this post may help.
An important part of trial preparation — you do prepare for trial, I hope — is preparing your witnesses. Uh — you do prepare your witnesses, I hope.
It’s pretty clear when a witness is prepared. The witness and the lawyer work almost in tandem. The witness seems to understand where the lawyer is going with the questions and goes along easily, without a lot of leading and prodding. The witness’s testimony is clear. The witness knows how to say what needs to be said, and handles himself well on cross examination.
In other words, the witness is coated in teflon and swathed in kevlar. Non-stick and bullet-proof.
It doesn’t take a lot of time and effort to prep your witness if you focus in on what needs to be addressed. Here are a few helpful tips. Take them as a starting point and fill in with as many others as you can come up with.
- Take a few mintues to explain to your client what it is you have to prove to have a successful day in court. For instance, if modification of child custody is in issue, explain material change, adverse effect and best interest.
- Go over some questions and elicit your client’s answers. Suggest more effective ways to say what the witness is going to testify to. It is entirely ethical to suggest more effective ways to state the facts; of course it is unethical to change the facts or tell the witness to testify to something the witness did not perceive. You can tell the witness how to say it, but you can not tell the witness what to say.
- Remind the witness to testify about facts, and not impressions. Tell what you saw with your own two eyes without using labels. “The windows were all broken out of the car, the side mirrors were broken off and hanging down, the headlights were smashed, and the tires were all flat” is a lot more powerful than “The car was busted up.”
- Tell the witness about courtroom etiquette. Don’t chew gum or chewing tobacco, speak up loud and clear, be respectful of the court and other attorney, wait until the question is finished before answering, don’t interrupt any other speaker, dress conservatively, and avoid confrontation with the other party. If you want to bring something to your lawyer’s attention, write it down and pass a note; the lawyer has enough on her plate without having to deal with interruptions.
- If an 8.05 statement will be used, go over it with the witness. Test memory about figures and identify any trouble spots. Tips for more effective financial statements and financial testimony are here and here.
- Prepare the witness for cross examination. Explain how it works and confront the witness with the most obvious weak points. Suggest ways for the witness to deal with it. Caution the witness about the other lawyer’s typical bag of tricks on cross and offer some strategies to deal with them.
- Explain to the witness that he will be nervous when he takes the stand, but so is everyone else who has to get up there.
- Explain how hearsay works, and that just about every answer that begins, “He said …,” or “I heard her say …” or “The teacher told me that …”, etc. will elicit a reflexive objection. Recommend ways around hearsay.
A few pointers for more effective chancery trials are here.
There are two kinds of witnesses: the kinds who help your case; and the kinds who hurt it. You want every witness called by you to be in the former category. Witness prep will go a long way toward that end.
TAKING THE FIFTH IN A CIVIL CASE
August 8, 2011 § Leave a comment
It is possible for parties and witnesses to invoke their Fifth Amendment privilege against self-incrimination in a civil suit.
You may have experienced some scenarios, or you can imagine them: A party is asked questions about a possibly fraudulent tax return; there are questions that some of the property accumulated in the course of a business subject to equitable distribution may have been criminally acquired; questions about adulterous misconduct could, conceivably, subject the interrogatee to criminal prosecution.
In the case of Morgan v. U.S.F.& G., 222 So.2d 820 (Miss. 1969), the MSSC set out the ground rules at page 828:
- The witness must take the witness stand;
- The witness must invoke the privilege on a question-by-question basis;
- The claim of privilege is determined by the court, and not by the witness;
- An inference may be drawn against the witness.
“The yardstick to be used by the courts in ruling upon privilege in a civil case is whether there is a real and substantial hazard of incrimination resulting from a witness’s answer to a [pleading] or from his testimony in open court … [citations omitted] … The central standard for the privilege’s application has been whether the claimant is confronted by substantial and “real,” and not merely trifling or imaginary, hazards of incrimination … ” (at 830).
The privilege is waivable (at 829). See also, Moore v. Moore, 558 So.2d 834 (Miss. 1990); and Wallace v. Jones, 572 So.2d 371 (Miss. 1990).
Although the attorney may assist and advise the witness, it is the duty of the witness himself to make an affirmative indication to the court that he himself is invoking the privilege. Harrell v. Duncan, 593 So.2d 1, 6 (Miss. 1991).
It is up to the witness to provide the court with enough information for the court to make a determination whether the answer would, in fact, incriminate the witness. Hinds County Board of Supervisors v. Common Cause, 551 So.2d 107, 112 (Miss. 1989). If the court decides that the answer could not be incriminatory, then the witness must answer the question. In re Knapp, 536 So.2d 1330, 1334-5 (Miss. 1988).
There is an anomalous case in Gibson v. Wright, 870 So.2d 1250 (Miss. App. 2004), in which the COA essentially held that a non-party witness could invoke a blanket Fifth Amendment privilege against testifying in a civil trial. You will have to read the decision yourself and draw your own conclusions as to what effect that decision has on the status of Fifth Amendment protections in civil proceedings.
“PAY NO ATTENTION TO THE MAN BEHIND THE CURTAIN”
August 5, 2011 § Leave a comment
“Decision-making is a Gestalt phenomenon, a three-dimensional agitated blob of factual, impressionistic, inferential, prejudicial miscellany from which a decision spins forth, trailing behind it sufficient selective supportive material to assuage the conscience and justify its genesis as a product of the rational mind.”
Thanks to attorney Jak Smith
THE “INABILITY TO PAY” DEFENSE
August 4, 2011 § Leave a comment
We talked about the US Supreme Court’s decision in Turner v. Rogers here. In essence, the case mandates in a contempt proceeding that the defendant or respondent be advised that ability to pay is a critical issue in the case, that he or she may use a form (e.g., 8.05 financial statement) to submit the proof, that he or she be afforded the opportunity to offer testimony and responses about ability to pay, and a finding by the court of ability to pay as a prerequisite to finding contempt.
So what exactly is it that a defendant has to show to establish inability to pay?
In Seghini v. Seghini, 42 So.3d 635, 643 (Miss. App. 2010), the court state the outline of the rule:
The court’s power to imprison a person until he complies with the terms of a decree depends on that person’s present ability to comply with the decree. Wilborn v. Wilborn, 258 So.2d 804, 805 (Miss.1972). “Where the contemnor is unable to pay, even if that present inability is due to his misconduct, imprisonment cannot accomplish the purpose of a civil contempt decree, which is to compel obedience.” Jones v. Hargrove, 516 So.2d 1354, 1358 (Miss.1987) (citing Miss. Const. art. 3, § 30). But the defendant has the burden of proving his inability to pay and must make such showing with particularity and not in general terms. Clements v. Young, 481 So.2d 263, 271 (Miss.1985).
In Seghini, the court rejected the claim of inability to pay on the basis that there was no independent corroboration. The defendant had prepared both the business ledger and the tax return upon which he based his defense (Note: I have posted here previously about the ineffectiveness of self-corroboration). Moreover, the proof showed that the defendant was often paid in cash, and that he had successfully paid a significant sum under the temporary judgment, his alleged inability having arisen only after the divorce judgment.
In Clements v. Young, cited above, the defendant offered no proof at all of inability to pay. In fact, his lawyer conceded on the record that his client had an ability to pay.
In Woodfin v. Woodfin, 26 So.3d 389, 393 (Miss. App. 2010), the court upheld a chancellor’s rejection of the defense on the basis that the defendant had failed to provide “particular evidence” of inability to pay. The decision states that it was his burden to prove inability to pay by clear and convincing evidence. The court went on to find affirmatively that he did have the ability to pay, based on his Rule 8.05 financial statement.
Inability to pay must be shown in particular terms. McIntosh v. DHS, 886 So.2d 721, 725 (Miss. 2004), Howard v. Howard, 913 So.2d 1030, 1036 (Miss. App. 2005)
In Howard, the court pointed out that when the defendant discovers his inability to comply with the court order, he must file a petition to modify immediately, and it is not appropriate to find him in contempt after he does so. See also, Setser v. Piazza, 644 So.2d 1211, 1216 (Miss. 1994). The prompt filing of a modification action, however, only precludes a finding of contempt, and does not excuse any arrearage. Thurman v. Thurman, 559 So.2d 1014, 1016-71 (Miss. 1990); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990).
What constitutes particular proof of inability to pay will obviously depend on the facts of the case at hand. Assets available for liquidation should be taken in consideration. See, Doyle v. Doyle, 55 So.3d 1097, 1111-1112 (Miss. App. 2010). The fact that another resident of the household, such as a new spouse, is helping pay household expenses, would be a factor. And evidence that the defendant enjoys a standard of living inconsistent with inability to pay is persuasive.
THE POT OF GOLD AT THE END OF THE RAINBOW
August 3, 2011 § 8 Comments
You have tried a simply sterling case, and now you are ready to cash in on the pot at the end of the rainbow: an award of attorney’s fees against the opposing party. But the judge says, “no attorney’s fees for you.” Where did you go wrong?
I’ve talked about the best ways to approach attorney’s fees here and here. And fees in an estate matter are covered here and here.
In the case of Evans v. Evans, handed down by the COA on April 26, 2011, you can find a pretty concise statement of the law that you need to know when pursuing a claim for attorney’s fees. The decision is unpublished, and can not be cited itself for authority, but Judge Maxwell did such a good job writing an exposition on the subject that I wanted to bring it to your attention. Here are some excerpts from the opinion, paraphrased and supplemented with a couple of notes of mine:
The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982). The appellate courts are reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award. Smith v. Smith, 614 So.2d 394, 398 (Miss. 1993). Except in contempt actions, attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees. Voda v. Voda, 731 So.2d 1152, 1157 (Miss. 1999); Pacheco v. Pacheco, 770 So.2d 1007, 1012 (Miss. App. 2000).
When awarding attorney’s fees, chancellors must make specific findings regarding the recipient’s ability to pay. Hankins v. Hankins, 729 So.2d 1283, 1286 (Miss. 1999). And chancellors should apply the McKee factors in determining the proper amount of the award:
(1) A sum sufficient to secure a competent attorney; (2) the skill and standing of the attorney employed; (3) the nature of the case and novelty and difficulty of the questions at issue; (4) the degree of responsibility involved in the management of the cause; (5) the time and labor required; (6) the usual and customary charge in the community; (7) and the preclusion of other employment by the attorney due to the acceptance of the case. McKee, 418 So.2d at 767 (internal citation omitted).
Our supreme court has held that “[a] trial court abuses its discretion by awarding attorney’s fees without first finding that the party is unable to pay the fees.” Hankins, 729 So.2d at 1286.
The chancellor must also consider the paying party’s financial situation. Where neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate. Sarver v. Sarver, 687 So.2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.2d 157 (Miss. 2000); see also Bell, at § 12.01[6] [b] (explaining that the chancellor should consider the parties’ financial disparity).
In addition, an award of attorney’s fees must be supported by sufficient evidence for an accurate assessment of fees. See McKee, 418 So.2d at 767 (reversing and remanding award based on insufficient evidence); Powell v. Powell, 644 So.2d 269, 276 (Miss.1994) (same). An itemized bill is not always required. Estimates may support an award in some circumstances if the estimates clearly explain “the method used in approximating the hours consumed on a case.” McKee, 418 So.2d at 767; see also Watkins v. Watkins, 748 So.2d 808, 813 (Miss. App. 1999). A chancellor’s failure to apply the McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So.3d 84, 87 (Miss. App. 2009), the proof must at least support an accurate assessment of fees under the McKee criteria. Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss. 1985).
Attorney’s fees are properly assessed against a party found to be in contempt. Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993). A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action. Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006).
As for parentage cases, MCA § 93-9-45 provides that the “cost of the legal services of the attorney representing the petitioner … shall be taxed against the defendant.”
If you expect to be successful on a claim for attorney’s fees, you have to prove:
- That your client is entitled to an award. In contempt and parentage cases, the adjuducation of contempt or parentage will do the trick. In all other cases, you will have to show inability of your client to pay;
- Each of the McKee factors;
- Quantification of the fees by showing the time and effort expended;
- That the party you want to pay has the ability to pay.
Too many times I see attorneys put on a mere modicum of proof on the issue of getting paid. That’s a shame. Your client would appreciate it to no end if you found your pot of gold at the end of the other party’s rainbow.
THE INTERNET AND THE UNAUTHORIZED PRACTICE OF LAW, CHAPTER TWO
August 2, 2011 § Leave a comment
Only yesterday morning, I posted here about the internet and the unauthorized practice of law, taking the position that internet legal-forms dealers are practicing law without a license and raising the question “I wonder what the state bar and the district attorneys are doing to rein this in?”
Well, ask and ye shall receive.
Yesterday afternoon I received an email from the state bar announcing that it filed a petition with the Supreme Court last Friday to amend the appellate rules and the rules of professional conduct to define more clearly the practice of law and to spell out sanctions available to the courts for those who are found to be engaged in unauthorized practice.
You can read the proposed rules here.
Apropos of what I said in my post yesterday is a provision making it clear that drafting legal documents and pleadings is in itself practicing law. There are many other provisions in what amounts to a sweeping and all-encompassing statement of what constitutes the practice of law.
I urge you to read these proposed changes and I encourage you to comment on them if comments are called for. If the Supreme Court accepts these, they will likely be sent to the Rules Committee, of which I am a member. If it comes to that, I will welcome any input.
As I said in my prior post, this is not about the legal profession or convenience for judges. It is about protecting the public. I commend the bar for addressing this problem.
THE INTERNET AND THE UNAUTHORIZED PRACTICE OF LAW
August 1, 2011 § 3 Comments
It’s no secret that I am at least dubious about the efficacy and advisibility of lay persons representing themselves in court. My distaste for the practice rests primarily on the fact that most often it results in self-inflicted harm. Secondarily, I am concerned that lay litigants are unencumbered by any ethical or professional obligation of candor to the court and fair dealing with the other party.
Many lay-lawyers download forms from online vendors. The purveyors of these forms claim that they enable lay people to handle their own routine legal matters for less money than it would cost them to pay a lawyer.
My problem with that approach is two-fold:
First, how does a layperson decide that a legal matter is routine without some advice? How does a layperson know what the hidden pitfalls are if she has no one but a form to ask? Sure, she can check box A on the computer-downloaded form, but would box B be far more advantageous?
Second, is not the providing of legal forms in itself providing legal representation? The Mississippi Supreme Court answered the question in the case of Mississippi Commission on Judicial Performance v. Jenkins, 725 So.2d 162, 167 (Miss. 1998), in which the court stated:
” This Court defined the practice of law to include ‘… the drafting or selection of documents, the giving of advice in regard to them, and the using of an informed or trained discretion in the drafting of documents to meet the needs of the person being served. So any exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession. Oregon State Bar v. Security Escrows, Inc., 233 Or. 80, 377 P.2d 334 (1962).’ Darby v. Mississippi State Bd. of Bar Admissions, 185 So.2d 684, 687 (Miss.1966).”
There is a class action lawsuit pending in Missouri raising the issue of unauthorized and inadequate practice of law by Legal Zoom, an online seller of legal advice via forms. The thrust of that lawsuit is that the company’s activities are inherently harmful to consumers because they violate the state’s public policy against unauthorized practice of law, which protects consumers. The trial judge has already overruled the company’s motion for summary judgment, and the company is mounting an ad campaign in the state to scare people into believing that their right of self-representation is under threat, and that lawyers are out to get their money.
We have seen our share of Legal Zoom-type documents and other internet lawyers in this district, but that’s not by any means all. We have shadowy individuals in the area who sell “secretarial services” in the form of complaints for irreconcilable differences divorces, PSA’s and judgments. Those clerk-typists are beyond a reasonable doubt unqualified to give legal advice. So what possibly qualifies them to prescribe the forms appropriate for a person’s legal problems, and to determine the appropriate content?
Caveat emptor, you might say. I answer: bull. Neither the legal profession nor the courts should countenance unqualified persons preying on unsuspecting laypeople. I wonder what the state bar and the district attorneys are doing to rein this in? After all, there is a state law making it a crime to practice law without a license.
As I have said before, I am all for self-representation. But I hate to see self-destruction. And I hate even more to see someone on the path to self destruction believing that they are protected by a piece of paper they bought off the internet or from a “secretarial service” with no legal advice to back it up.
This is not all about protecting lawyers or making it easier on the judges. This is all about making sure that the legal process produces as fair a result as possible, and that all who are involved in it deal with each other and the court with integrity and are fully informed of their rights and the ramifications of their actions.
