LINCOLN’S NOTES ON THE PRACTICE OF LAW

February 18, 2011 § 4 Comments

Among the many facets of his notable life, often overlooked, is Abraham Lincoln’s career as a lawyer.  It’s not hard to imagine the rough-hewn Lincoln in country courthouses questioning witnesses, holding forth to the court, and regaling juries.  Even though he achieved respect of his peers and some wealth in his practice in his representation of a railroad, he retained his homespun country lawyer patina.  

These notes are some he roughed out for a speech on the practice of law that he never delivered.  Despite the fact that they were never refined to the point of oratory, they reflect the philosophy of an everyday lawyer that we can appreciate nearly 150 years later.   

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, — ordinary collection cases, foreclosures, partitions, and the like, — make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not.

Extemporaneous speaking should be practised and cultivated. It is the lawyer’s avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave. 

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note — at least not before the consideration service is performed. It leads to negligence and dishonesty — negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

Thanks to Legal Ethics Blog.

“QUOTE UNQUOTE”

February 18, 2011 § 1 Comment

Sartre with Simone de Beauvoir

“Words are loaded pistols.”  —  Jean-Paul Sartre

“Mind your thoughts, for they become words.  Mind your words, for they become actions.  Mind your actions, for they become habits.  Mind your habits, for they become character.  Mind your character, for it becomes your destiny.”  —  Old saying

“A kind word is like a spring day.”  —  Russian Proverb

NO VOTE TODAY

February 17, 2011 § Leave a comment

The judicial pay raise bill was called for a third time today to keep it alive until the ultimate deadline around mid-March.  This is a tactic commonly used when the sense is that there are not enough votes to pass.  It gives more time to marshal votes.

My sources suggest that there was plenty of misinformation floated today. There were astronomical figures circulated about how much the bill will cost the counties due to county court, although only 5 counties would be affected.  DHS weighed in against it due to the increase in filing fees, despite the fact that the chancellors can and do assess costs against the defaulting child support payors.

I hope this turns out all right, but I’m not optimistic.  I look at judges like Mason and Bailey who have served the state faithfully and have done a phenomenal job with only a rare reward of a pay increase, and I wonder what the message is that our legislators are trying to send.  The judge is nearly always the lowest paid lawyer in the room, yet they manage to uphold the dignity and authority of the State of Mississippi day in and day out.

I sincerely believe that if the members of the bar will get behind this and push their legislators, it will pass.

One last request:  Please talk to your legislator.  We need the best government we can afford, not the cheapest we can get by with.  I won’t bother you with this any more.

THE PAY RAISE BILL TODAY

February 17, 2011 § Leave a comment

The judicial pay raise bill comes up for a vote before the full House today at 2:00 p.m.  If you support the bill, and I hope you do, it’s critical that you contact your legislators and tell them how important it is to you for them to vote for it.

As lawyers, you can appreciate the importance of an independent judiciary.  Adequate pay is an important component of independence.  Trial judges in Mississippi have not had a pay raise in seven years, and our pay is the lowest in the United States.  In that seven year period, other state employees have had significant pay increases, some of which have been quite large.  The judges have been told repeatedly to wait.  When we had the money to fund judicial raises, the “time is not right” for one reason or another.  Now that we do not have the money and we are seeking to fund the raise with an increase in our court fees (which will still be the lowest in the southeast after the increase), there are still objections:

  • Some argue that the bill does not fund itself.  Justice Waller insists that the numbers do work.  The prosecutors hitched themselves to our bill, and those numbers are being crunched, but the hope is that it will work.  If the bill will not pay for itself, Governor Barbour will not sign it. 
  • I am hearing that the board of supervisors association is working against the bill on the basis that it is an unfunded mandate for the five counties whose county court judges are tied to the trial judges salaries.  This is an interesting argument since the supervisors made no such objection to the dramatic increases in justice court judge and county prosecutor pay increases.  I understand from one source that there were brochures being circulated within an hour or so of the bill coming out of Judicial “A” on this issue.  
  • DHS has pointed out that the bill will impose additional court costs on its child support filings. 
  • Members of the conservative caucus are against any increase of anything.  If your legislators were among those who voted against any funding of the judiciary at all, it would help if you would give them a call and explain why the judicial branch not only needs to be funded, but why the trial judges need pay increases. 

I’ve spelled out these objections so that you can be prepared to meet them when you talk with legislators.  It would also help to arm yourself with the facts from Justice Waller’s message below.

The entire judicial branch budget is not even one percent of the entire state budget.  We say that we have three equal branches of government that balance each other, but our budget does not bear that out. 

This issue is important to your trial judges.  If you feel the same as a member of the bar, I ask you please to exercise your influence with your legislators.  A simple call or email will do the job.  Thanks.

HR VOTE TODAY OR TOMORROW

February 16, 2011 § 1 Comment

Judiciary A Committee of the House of Representatives will take up the judicial pay raise bill today, and it is expected that the bill will be voted out.  The full house will get the bill either today or tomorrow.  A 3/5 vote is required, since it increases fees.

Please contact your representative and urge support of this measure.  Justice Waller’s presentation on the merits is below.

THE LATEST ON ROBINSON V. BROWN

February 16, 2011 § 4 Comments

The COA case of Robinson v. Brown, handed down January 25, was the subject of a previous post in which I alerted chancery lawyers that the case appeared to change the law that post-trial motions were not required in chancery court to preserve error for appeal.  I also pointed out that MRCP 52(b) specifically excepts non-jury trials from the post-trial motion requirement. 

In the COA’s handdowns on February 15, this entry appeared: 

EN BANC

2009-CA-01599-COA

Mary Elizabeth Brown Robinson v. Paul Arthur Brown

Lee Chancery Court; LC Case #: 02-0518(41)H; Ruling Date: 08/06/2009; Ruling Judge: John Hatcher; Disposition: The Court on its own motion stays the mandate and grants rehearing. Order entered.

Is the COA going to circle back to where we were pre-January 25?  Stay tuned.

AN URGENT MESSAGE FROM CHIEF JUSTICE WALLER

February 15, 2011 § 1 Comment

To Fellow Judges and Members of the Bar:

Last week, the Mississippi Senate passed Senate Bill 2253, which provides a pay increase for our trial and appellate judges. This increase is essential for preserving a well qualified and independent judiciary. We need your support. Please contact your representative in the House and encourage them to support SB 2253.

According to the National Center for State Courts (NCSC), Mississippi ranks 51st in the nation in terms of judicial pay. Mississippi judges, furthermore, have not had a pay increase since 2003. Two disturbing trends have developed as a result of the low level of judicial pay. First, the salaries of other public officials have far outpaced that of judges. For example, the Chairman of the Workers’ Compensation Commission is paid more than every trial judge in the State and the Chief Judge of the Court of Appeals – despite the fact that the Commission’s decisions are reviewed by the trial and appellate judges. Second, and even more disconcerting, is the high rate of turnover we have experienced recently.  Twenty-one new judges have taken office during the last two years. I know from personal conversations that the low level of pay is one of the main reasons that many judges are leaving office. The proposed salary increases in SB 2253 would make Mississippi’s judicial pay comparable to our neighboring states. The increases set forth in SB 2253 would make each judge and justice’s salary equal to seventy percent of the salary of an equivalent judge at the federal level. And significantly, no general funds are used for this increase. Funding is primarily derived from user fees. The pay increase, furthermore, is not effective until FY 2013. Admittedly, this increase is substantial, somewhere in the thirty percent range. Much of the debate has centered around the arguments that, given the dire economic climate, this is not the proper time to give anyone a raise, and that all state employees deserve a pay increase. We are aware and sensitive to both of these concerns. These pay increases, however, are funded by user fees. Moreover, Mississippi judges have been underpaid for quite some time. We need the best and the brightest of the legal profession making decisions that dramatically impact the lives of our citizens. The only way to attract and retain such individuals is to provide a competitive level of pay.

Below are a few arguments in support of SB 2253 that you may find helpful:

  • 51st in the Nation. According to the National Center for State Courts (NCSC), Mississippi has the lowest paid judges in the nation.
  • High Turnover. Not counting the newly created judicial posts, twenty-one new trial judges have taken office in the past two years. This is an unprecedented rate of turnover, which impedes the efficiency of our courts.
  • Need for Realignment. The Chairman of the Workers’ Compensation Commission earns $112,436, and a Commission member earns $108,698. This is more than any trial judge or Court of Appeals judge, including the Chief Judge.
  • Funded by User Fees. Funding for this pay increase is derived primarily from user fees. The civil filing fee will increase $40. Our civil filing fees will still be the lowest in the southeast.
  • Delayed Implementation. The pay increase is not effective until FY 2013.
  • Other State Employees. Non-elected state employees have had three pay increases since 2003. And some executive personnel have had very substantial increases during this same period. For example, in May 2010, the Department of Public Safety Administrator received a $16,000 salary increase (from $122,115 to $138,115). A number of other Department of Public Safety employees received raises of 20 percent or higher between July 2008 and March 2010.

 

JUSTICE GRAVES TO THE FIFTH CIRCUIT

February 15, 2011 § 2 Comments

Justice James Graves of the Mississippi Supreme Court was confirmed yesterday as the first Mississippi African-American to serve on the US Fifth Circuit Court of Appeals.  His nomination was approved by the US Senate late yesterday afternoon.

Graves’ nomination received bi-partisan support of the Mississippi US Senatorial and Congressional delegations. 

Justice Graves, of Clinton, will leave an opening on the Mississippi Supreme Court that will have to be filled by appointment of Governor Hailey Barbour, until an election can be held to replace his successor.  Philip Thomas, in his Mississippi Litigation Review and Commentary blog speculates about the appointment.

PAY ATTENTION TO JURISDICTION AND VENUE FOR DIVORCE

February 15, 2011 § Leave a comment

Before a Mississippi Chancery Court can consider whether to grant a divorce, it must make four fundamental findings:

  1. That the parties were married to each other (subject matter jurisdiction);
  2. That the parties are properly before the court by process and notice (personal jurisdiction);
  3. That the action is filed in the appropriate county (venue, also called “venue jurisdiction”); and
  4. That at least one of the parties meets the statutory residency requirement, and that residence in Mississippi was not obtained in order to get a divorce. 

These are commonly referred to as the “jurisdictional facts,” and you can not even get to address whether there are grounds, or equitable distribution, or any other divorce issues unless the jurisdictional facts are established in the record.

If you are in doubt about the proper venue of your action, consulting MCA § 93-5-11 will give you the answer. 

All of the above may appear elementary to you, but it is astonishing to me how many contested divorce cases I see presented where neither attorney establishes even one or more of the jurisdictional facts, and there are many where none of them are mentioned.  In some cases, I have invoked MRE 614(b) to get the information myself into the record; after all, if I lack subject matter jurisdiction or venue is improper any action I take is void, and if I lack personal jurisdiction any action is voidable.

Remember that your pleadings are not evidence.  Just because you pled it does not put it into the record.  If you don’t establish jurisdiction on the record so that the judge’s finding of jurisdiction is supported by evidence, you are leaving your client’s judgment vulnerable to attack by the disgruntled other party.

WHAT IS YOUR DUTY TO THE COURT WHEN YOU HAVE CONTACT FROM THE OTHER SIDE?

February 14, 2011 § 1 Comment

You have filed a Complaint for Divorce for your client, and thirty days have elapsed with no answer being filed by defendant. Your client wants you to get this over with, and has been calling and asking when you plan to present his case to the court. Only problem is you received a letter from another attorney the day after the defendant was served with process. The letter says that she wants to settle, and if no settlement can be reached, she intends to defend. Since that letter, though, you haven’t heard anything further.

What do you do? Can you present the case as an uncontested divorce? Do you have a duty to tell the court about the letter?

The facts above are close to those in Holmes v. Holmes, 628 So.2d 1361, (Miss. 1993), in which the Mississippi Supreme Court reversed a chancellor’s refusal to set aside an uncontested judgment of divorce in those circumstances. The supreme court stated:

“In the case at bar, Mrs. Holmes promptly contacted an attorney. Her attorney wrote her husband’s attorney and informed him that Mrs. Holmes was represented by counsel and that she wished to settle the case if possible; however, he made clear Mrs. Holmes’ intent to defend the suit should no settlement be reached. With knowledge of this letter, Mr. Holmes’ attorney nevertheless proceeded to secure a divorce by default against Mrs. Holmes. In this regard, his conduct suggests gamesmanship. In the Comment to M.R.C.P. 1, it is stated that “properly utilized, the rules will tend to discourage battles over mere form and to sweep away needless procedural controversies that either delay a trial on the merits or deny a party his day in court because of technical deficiencies.” Conversely, improper utilization of the rules invariably results in the type of gamesmanship and ambush techniques, employed in the case at bar, that the rules were designed to abolish. We refuse to condone such behavior and therefore reverse the judgment of the chancellor and remand for proceedings consistent with the opinion rendered in this cause.”

So what is your duty to the court? At your first opportunity, tell the judge with all candor what contact you have had from another attorney. The judge will decide whether the contact is sufficient to constitute an appearance. You should offer the court any correspondence for the judge to examine. If your only contact was in the form of a conversation, relate accurately what the conversation was. Sometimes that contact was with the other party. Tell the court and let the judge decide whether it was enough to be treated as a contest. The judge may rule that the other side is entitled to a notice of hearing before you may proceed.

If you fail to disclose contact from another attorney or the other party, you run the risk that the other side may file a motion to set aside that judgment, and the judge may just file away a mental note about you that you are one of those lawyers who doesn’t tell the court all it needs to know to make a fair decision.

Read the entire Holmes decision and keep in mind the supreme court’s use of the distasteful terms “gamesmanship and ambush techniques.” Judges don’t appreciate those kinds of tactics that bring both the courts and the legal profession into disrepute.

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