IT’S TIME FOR YOUR YEAR-END PROFESSIONALISM CHECK-UP
December 22, 2010 § 1 Comment
The Christmas lull, that blessedly quiet period in the few days before and after Christmas, is a perfect time to catch up on matters that you kept shoving to the back burner for the past few months.
Like reassessing your professionalism. Where you are in your practice and where you want to go. How you’re doing. Your strong and weak points. What can you do to do a better job?
So set aside a few minutes and ponder your own professionalism. Here are a few points to start from:
- “I do solemnly swear (or affirm) that I will demean myself, as an attorney and counselor of this court, according to the best of my learning and ability, and with all good fidelity as well to the court as to the client; that I will use no falsehood nor delay any person’s cause for lucre or malice, and that I will support the Constitution of the State of Mississippi so long as I continue a citizen thereof. So help me God.” That’s the oath you took to practice law. Ever stop to think why lawyers take an oath and folks in other lines of work do not?
- I posted the Lawyer’s Creed and Aspirational Ideals here. Re-read them and even keep a copy handy in the middle drawer of your desk. Pull them out and read over them every now and again and assess how you’re measuring up. You can find and print out or download them at the Mississippi Bar website.
- Re-Read the Rules of Professional Conduct from time to time.
- Check out the bar’s resources for professionalism.
- Take stock of where you are professionally. Are you making your clients’ lives better, or are you just doing what it takes to get by? Are you becoming the kind of lawyer you idealized when you decided to become a lawyer? Are you adding something to your profession? And are you treating your practice as a profession, or is it just another job?
- If you have been practicing five years or less, have you found a mentor who is a competent attorney to rely on that attorney’s guidance and advice through thorny areas where you have doubts about how to do what you think needs to be done?
- What are your ideals, and what are you doing to accompish them?
And here’s a thought for young lawyers: Set aside an hour or so and thoughfully write the eulogy for your funeral. Yes, the eulogy you’d like to have delivered at your funeral. Include all the accomplishments and admirable traits you’d hope to have mentioned when your gone. Stick it away in the back of a desk drawer and then set out to achieve those accomplishments and develop those admirable traits. Why should you do this? Because you are writing your own eulogy every day you live anyway, and you might as well be intentional about it. Next year around this time, pull out that scrap of paper and reassess where you are. Re-draft it if you like.
And what about the day-to-day practice of law?
Lawyers are busy these days. Too busy, maybe. Today’s financial demands, compounded by spiraling overhead and household expenses, put tremendous pressure on attorneys to take on more and more work until they feel they can only succeed by adopting an assembly-line, boilerplate approach.
What concerns me about it, though, is that it seems to me that lawyers are less and less familiar with the law and the rules, relying on forms and old information to get by. Sometimes I will call a rule to the attention of a lawyer and will find that the lawyer was not even aware of it. Or I will point out a case and the lawyer is surprised that it exists. There have been times that I am convinced that the lawyer knows nothing more about the procedure he or she is invoking than what is set out in the pleadings (that often are copied from someone else or are dredged up from the bowels of the lawyer’s own computer with little additional thought). I know I’m painting with a broad brush here, but bear with me if you think this doesn’t really apply to you. You may find a few nourishing morsels if you’ll take a few minutes out of your busy schedule to read the rest of this.
Granted, the pressures of time for today’s practitioner are great. Caseloads are far heavier, and the law has become more complex over time so that what used to be a “simple divorce” now requires much more attention. Time has become more compressed for the family law practitioner. The fourteen hour workdays and weekend work so common in my early career have given way to a more sane eight-to-ten hour day and fewer weekends that allow for time with and attention for spouses and children, but the compression of time means more concentrated demands.
Have you noticed how many times on this blog that I mention the importance of reading and keeping up with changes to the code, case law and the rules? I hammer away at it because it is not only essential to your success as an attorney, but also to the benefit of your client. Too often we think of professionalism as ethics, but I challenge you to think of professionalism not only in ethical terms, but also in terms of competence and how you present yourself and represent clients.
Given all of this, I contend that it’s time to consider a few changes to the way you do business that will make you a better lawyer and make your clients more pleased with your performance. And if you are doing one or all of these, more power to you. Here they are:
- Before you file your next probate matter, read the rules and look over the applicable statutes. You will be amazed what you will find. If nothing else, you will be shocked to see what a heavy load of responsibility you are taking on by signing and filing those pleadings.
- For that matter, look back at the code the next time you file some familiar pleadings and look for changes you might have missed or some other little twist in the law you may have always overlooked.
- Carefully read over every pleading before it’s filed. Be honest: you let your secretary do most of your pleadings, don’t you? Do you know that they’re right? Are they up to date? Remember that everything you produce is a portrait of yourself.
- Read the appellate court decisions each and every week without fail. Court of Appeals hand downs are on Tuesdays after lunch, and Supreme Court’s are on Thursdays after lunch. As you run across case law that will help you in pending cases, print out the decisions and put them in those files for use in court.
- Read the rules. Lawyers who know and follow the rules generally impress judges as better lawyers because, quite frankly, they are better lawyers, and better lawyers can get better results.
- Read the statutes. Before you file that habeas, read the law. If you’re wondering how to sell a parcel of real property in an estate, look for a statute in the code. The answer to how to record and enforce a judgment is in the code.
- Use your brain. It seems to me that too many young lawyers want to get by with a fill-in-the-blank practice. No innovative approach, no novel arguments based on sound research, no extra effort. It’s so refreshing as a judge to see lawyer come into court with a soundly-prepared approach to a legal problem that is well supported by authority.
- Advise your client. If you simply do what the client says to do, you are not a lawyer, you are merely your client’s alter ego with a license; you are a tool. Guide your client in the right way to go. Influence what your client wishes to do with your judgment and knowledge. If your client demands you to do something unethical or questionable, try to persuade him or her to take another course, and if they refuse, file a motion to withdraw. Tell your client up front what the chances of success are. Never take on the cause of a client who is seeking vendetta as opposed to legal redress; the former is malicious, and the latter is justice.
These are merely a starting point. As a lawyer you have a duty not only to your client, but also to advance the profession. It only takes a little time and devotion each day. And if you are not devoted to your profession, perhaps you need to find something else to do.
Professionalism requires not only that you zealously represent your client, but also that you do it competently.
Take advantage of this quiet time and take a look at yourself and your career. It will be a rewarding investment of your time.
REMINDER: THE LAWYERS CREED AND ASPIRATIONAL IDEALS
December 21, 2010 § 2 Comments
A LAWYER’S CREED
To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust.
To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek to fairly resolve differences and, if we fail to reconcile disagreements, I will strive to make our dispute a dignified one.
To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice.
To my colleagues in the practice of law, I offer concern for your reputation and well being. I will extend to you the same courtesy, respect, candor and dignity that I expect to be extended to me. I will strive to make our association a professional friendship.
To the profession, I will strive to keep our business a profession and our profession a calling in the spirit of public service.
To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through effective and ethical representation of my clients.
ASPIRATIONAL IDEALS
As a lawyer, I will aspire:
(a) To put fidelity to clients and, through clients, to the common good, before my personal interests.
(b) To model for others, and particularly for my clients, the respect due to those we call upon to resolve our disputes and the regard due to all participants in our dispute resolution processes.
(c) To pursue the goals of equality and fairness in my personal and professional activities.
(d) To preserve and improve the law, the legal system, and other dispute resolution processes as instruments for the common good.
(e) To make the law, the legal system, and other dispute resolution processes available to all.
(f) To practice with a personal commitment to the rules governing our profession and to encourage others to do the same.
(g) To preserve the dignity and the integrity of our profession by my conduct. The dignity and the integrity of our profession is an inheritance that must be maintained by each successive generation of lawyers.
(h) To achieve excellence in my work.
(i) To practice law not only as a business, but as a calling in the spirit of public service.
As to clients, I will aspire:
(a) To expeditious and economical achievement of client objectives.
(b) To fully informed client decision-making. As a professional, I will:
(1) Counsel clients about various forms of dispute resolution;
(2) Counsel clients about the value of cooperation as a means towards
the productive resolution of disputes;
(3) Maintain the sympathetic detachment that permits objective and independent
advice to clients;
(4) Communicate promptly and clearly with clients; and
(5) Reach clear agreements with clients concerning the nature of the
representation.
(c) To fair and equitable fee agreements. As a professional, I will:
(1) Consider and discuss with clients alternative fee arrangements as may be
appropriate in the circumstances;
(2) Reach fee agreements with clients as early in the relationship as possible;
and
(3) Determine the amount of fees by consideration of many factors and not just
time spent by the attorney.
(d) To comply with the obligations of confidentiality and the avoidance of conflicting loyalties in a manner designed to achieve the fidelity to clients.
(e) To achieve and maintain a high level of competence in my fields of practice.
As to opposing parties and their counsel, I will aspire:
(a) To cooperate with opposing counsel in a manner consistent with the competent representation of my client. As a professional, I will:
(1) Notify opposing counsel in a timely fashion of any canceled appearance;
(2) Grant reasonable requests for extensions or scheduling changes; and
(3) Consult with opposing counsel in the scheduling of appearances, meetings,
and depositions.
(b) To treat opposing counsel in a manner consistent with his or her professional obligations and consistent with the dignity of the search for justice. As a professional, I will:
(1) Not serve motions or pleadings in such a manner or at such a time as to
preclude opportunity for a competent response;
(2) Be courteous and civil in all communications;
(3) Respond promptly to all requests by opposing counsel;
(4) Avoid rudeness and other acts of disrespect in all meetings including
depositions and negotiations;
(5) Prepare documents that accurately reflect the agreement of all parties; and
(6) Clearly identify all changes made in documents submitted by opposing
counsel for review.
As to the courts, other tribunals, and to those who assist them, I will aspire:
(a) To represent my clients in a manner consistent with the proper functioning of a fair, efficient, and humane system of justice. As a professional, I will:
(1) Avoid non-essential litigation and non-essential pleading in litigation;
(2) Explore with clients and opposing parties the possibilities of settlement of
litigated matters;
(3) Seek non-coerced agreement between the parties on procedural and
discovery matters;
(4) Avoid all delays not dictated by a competent presentation of a client’s claims;
(5) Prevent misuses of court time by verifying the availability of key participants for
scheduled appearances before the court and by being punctual; and
(6) Advise clients about the obligations of civility, courtesy, fairness, cooperation,
and other proper behavior expected of those who use our systems of justice.
(b) To model for others the respect due to our courts. As a professional, I will:
(1) Act with complete honesty;
(2) Know court rules and procedures;
(3) Give appropriate deference to court rulings;
(4) Avoid undue familiarity and any appearance or claim of any undue influence
with members of the judiciary;
(5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members of
the judiciary;
(6) Show respect with my attire and demeanor;
(7) Assist the judiciary in determining the applicable law; and
(8) Seek to understand the judiciary’s obligations of informed and impartial
decision-making.
As to my colleagues in the practice of law, I will aspire:
(a) To recognize and to develop our interdependence;
(b) To assist my colleagues to become better people in the practice of law and to accept their assistance offered to me.
(c) To defend my colleagues against unjust criticism; and
(d) To offer my colleagues appropriate assistance with your personal and professional needs.
As to our profession, I will aspire:
(a) To improve the practice of law. As a professional, I will:
(1) Support high-quality continuing legal education;
(2) Participate in organized activities of the bar and other legal organizations;
(3) Assist when requested in the education of future lawyers; and
(4) Promote understanding of professionalism and ethical standards among
members of the profession.
(b) To protect the public from incompetent or other wrongful lawyering. As a professional, I will:
(1) Support high standards in bar admissions; and
(2) Assist in the enforcement of the legal and ethical standards imposed upon all
lawyers.
(c) To support diversity in the profession, especially the practice of law by members of historically underrepresented groups.
(d) To promote the understanding of and an appreciation for our profession by the public. I will:
(1) Use appropriate opportunities, publicly and privately, to comment upon the
roles of lawyers in society and government, as well as in our system of justice;
and
(2) Conduct myself always with an awareness that my actions and demeanor
reflect upon our profession.
(e) To devote my time and skills to activities that promote the common good.
As to the public and our systems of justice, I will aspire:
(a) To counsel clients about the moral and social consequences of their conduct.
(b) To consider the effect of my conduct on the image of our systems of justice including the social effect of advertising methods.
(c) To provide the pro bono representation that is necessary to make our system of justice available to all.
(d) To support organizations that provide pro bono representation to indigent clients.
(e) To improve our laws and legal system by, for example:
(1) Serving as a public official;
(2) Assisting in the education of the public concerning our laws and legal system;
(3) Commenting publicly upon our laws; and
(4) Using other appropriate methods of effecting positive change in our laws and legal system.
The Creed and Aspirational Ideals are published by the Mississippi Bar.
TEN COMMANDMENTS FOR REDUCING STRESS
December 20, 2010 § 1 Comment
This from a judges’ meeting a couple of years ago.
I Thou shall not be perfect or even attempt to be.
II Thou shall not try to be all things to all people.
III Thou shall not leave undone things that ought to be done.
IV Thou shall not spread thyself too thin.
V Thou shall learn to say “no” without guilt.
VI Thou shall schedule time for thyself.
VII Thou shall have something to look forward to every day.
VIII Thou shall sometime be slack, idle and inelegant.
IX Thou shall keep thyself happily fit.
X Thou shall embrace the present and let go of the past.
THE LATEST ON CUSTODY OF OUT-OF-WEDLOCK CHILDREN
December 17, 2010 § Leave a comment
In the case of Reed and Daniels v. Fair, decided December 14, 2010, the court of appeals once again addressed the issue of the proper legal standard to apply when the unmarried parents of a child born out of wedlock face off over custody of the child.
Theresa Reed and Marvin Fair had a relationship that resulted in the birth of their son, M.T.F, in 1997. The parents never married each other, but Fair did acknowledge paternity. For most of the next twelve years, the child lived with his maternal grandmother, Irene Daniels. While in the grandmother’s care, M.T.F. was molested by another grandson.
Fair filed an action for custody, and Reed and Daniels counterclaimed in turn for custody. At trial, Reed and Daniels argued that, because of the length of time that M.T.F. was in Daniels’ care, the court should apply a modification standard. The chancellor found that, since there had never been a judgment awarding custody, it was not proper to apply a modification standard, and he adjudicated the case by application of the Albright factors. The chancellor awarded custody to Fair, and both Reed and Daniels appealed, complaining that the court should have analyzed the case as one for modification.
Justice Maxwell wrote the majority opinion, and it is such a concise exposition of the law on the subject that I have excerpted it here:
Generally, in an initial custody proceeding, the parties are “deemed on equal footing,” and custody is awarded based on the best interest of the child under the Albright factors. See Brown v. Crum, 30 So. 3d 1254, 1258 (Miss. App. 2010) (quoting Law v. Page, 618 So. 2d 96, 101 (Miss. 1993)).
But there are situations where certain legal presumptions prevent the parties from having an equal claim to custody. For example, the father of a child born out of wedlock would not stand on equal footing with the mother where the father does not acknowledge the child as his own. Hemphill-Weathers v. Farrish, 779 So. 2d 167, 172 (Miss. App. 2001). Absent other factors, all jurisdictions recognize that the mother of a child born out of wedlock, if a suitable person, possesses the primary right to the child’s custody where the father has not acknowledged the child. Smith v. Watson, 425 So. 2d 1030, 1033 (Miss. 1983), at 1033 (citing N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981) (“upon acknowledging the child as his own, the father has an equal claim . . . to the parental and custodial rights of the child”).
While chancellors must also consider the Albright factors in modification proceedings, “the movant carries a heavier burden[.]” Romans v. Fulgham, 939 So. 2d 849, 852 (Miss. App. 2006). In a modification action, the party seeking custody must prove that since the original custody award, there has been a material change in circumstances adverse to the child, and a modification in custody would be in the child’s best interest. Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1984).
In Law, the Mississippi supreme court held that “The ‘material changes’ standard used in modification proceedings is dependent on there being a prior determination of custody.” 618 So. 2d at 101. Relying on Law, the court of appeals has consistently held that where no previous custody determination has been made, the relevant standard is the child’s best interest under the Albright factors — not a “material change” modification standard. See Brown, 30 So. 3d 5 at 1258; , 990 So. 2d 774, 776 (Miss. App. 2008); Romans, 939 So. 2d at 853; C.W.L. v. R.A., 919 So. 2d 267, 271 (Miss. App. 2005); S.B. v. L.W., 793 So. 2d 656, 659 (Miss. App. 2001).
The court of appeals also rejected the theory that a modification standard applies by virtue of one parent’s receipt of child-support payments. Brown, 30 So. 3d at 1257-58; Romans, 939 So. 2d at 852.
The majority opinion rejected the appellants’ argument that because Fair had waited longer than parties in other court of appeals decisions to seek custody, that this case should be distinguished from the earlier decisions. The court refused to establish a “length of time” rule because (1) the resulting legal standard would likely be nebulous, and (2) no case law, including Mississippi supreme court precedent, supports hinging the applicable legal standard solely on the timeliness of the request for custody. See Romans, 939 So. 2d at 853. The majority declined to create a new rule or to overturn the established line of authority. Nonetheless, the opinion emphasized that its holding in no way prevents chancellors from considering the length of a parent’s delay in asserting a claim for custody when determining the best interest of the child. See Brown, 30 So. 3d at 1259 (“Although delay in asserting custody may be a factor to be considered in determining the best interest of the child, it is not the controlling factor.”).
So the state of the law at this point is that a father who acknowledged an out-of-wedlock child as his own stands on an equal footing with the natural mother in a custody determination, which will be treated as an original proceeding, and not as a modification.
“QUOTE UNQUOTE”
December 17, 2010 § Leave a comment
Viktor Frankl
“What is to give light must endure burning.” — Viktor Frankl
“When a true genius appears in the world, you may know him by this sign: that all the dunces are in confederacy against him. — Jonathan Swift
“The only kinds of fights worth fighting are those you’re going to lose, because somebody has to fight them and lose and lose and lose until someday, somebody who believes as you do wins. — I.F. Stone
CHILDREN AS WITNESSES
December 16, 2010 § Leave a comment
Lawyers who practice in my court are familiar with my prejudice against calling the children of the parties as witnesses in domestic cases. As the Supreme Court has said, ” … parents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage, of tender years at least, as witnesses, and counsel should advise their clients against doing so, except in the most exigent cases.” Jethrow v. Jethrow, 571 So.2d 270, 274 (Miss. 1990).
As for the definition of tender years, “[A] child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998). A child over four years of age may no longer be considered of tender years. Copeland v. Copeland, 904 So.2d 1066, 1075 (Miss.2004). There is a rebuttable presumption that a child under the age of twelve is of tender years. Veasley v. State, 735 So.2d 432, 436-37 (Miss. 1999).
Jethrow does make it clear, however, that there is no per se rule against calling children of the parties as witnesses, and the case prescribes a procedure for the court to examine the child to make a determination whether the child is competent as a witness under Mississippi law and whether testifying is in the child’s best interest.
It is always within the trial judge’s discretion whether to allow the testimony of a child, and the line that I usually draw is to allow the child to testify only where omission of such testimony would be harmful to the child’s best interests. Even then, the court must find after a Jethrow examination that it is in the child’s best interest to testify. It is a weighing test, with the possible harm that may result to the child’s best interest from not testifying on one side of the scale and the possible harm from testifying on the other. Every case is different, and slightly different facts may yield radically different results.
As an attorney, you should counsel your client on the ramifications of calling a child as a witness. It pits the child against one of the parties, puts the child under incredible pressure, and subjects the child to cross examination that may confuse and intimidate the child.
Never, ever, tell your client that the child will definitely be allowed to “talk to the judge” or testify in chambers or out of the presence of the parents. Not only is that misleading and setting the child and the clients up for disappointment, it is not the law. The only way that the law allows the court to take substantive testimony (other than the Jethrow examination) outside the presence of the parties is with their express agreement on the record. MCA § 93-5-17 mandates that divorce proceedings be had in open court. MCA § 93-5-21 allows the court to exclude persons from the court room during a divorce trial ” … except the officers of the court, attorneys engaged in the case, parties to the suit and the witness being examined.” The rule should apply in modifications and contempts, since they are no more than an extension of the divorce trial. Moreover, the Due Process Clause of the U.S. Constitution requires that a party not be excluded involuntarily from his or her own trial.
If you need the child’s testimony to prove a crucial element of your case, ask to make an offer of proof on the point before the court undertakes its Jethrow examination so that the judge will know what it is you are trying to prove and how much weight it carries. If there are other witnesses who can establish the same facts, opt instead to call them.
A CHECKLIST OF CHECKLISTS
December 15, 2010 § Leave a comment
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist.
Here are the checklists I’ve posted (you can click on the links to get to them):
Modification of child support.
Periodic and rehabilitative alimony.
Income tax dependency exemption.
Those are all of the checklists of which I am aware. If you know of others, please let me know and I will add them to the list.
I also posted a checklist for closing an estate, but it’s a procedural cheklist rather than a substantive checklist.
A CHANGE IN COMMENT POLICY
December 14, 2010 § 4 Comments
I enjoy reading people’s different opinions, including those that disagree with my own. It doesn’t bother me when people get testy and personal when they present their positions; how they say it says as much about their positions as what they say. The thread of comments below on the SYMPATHY FOR THE DEVIL post is a case in point. I like the exchange of ideas.
What I don’t approve of, though, is people taking pot shots at others from a position of anonymity. My name is up there for all to see, and most comment-makers have used their real names.
In my opinion, anonymous opinions are worthless. Anybody can boldly hold forth if he or she knows reputation is not at stake. If you have something to say, be ready to put your name behind it.
From here on out, if you have a comment, sign it with your first and last name, telephone number, city and e-mail address. If the post has to do with case law, I will require in addition your bar number. When I allow your comment, it will show your real name and city, but not your e-mail address, bar number or other info. All comments will be moderated for these requirements. This may necessitate a little longer delay in your comments appearing. Please be patient.
No more anonymous or alias posts.
As I have from the beginning, comments by non-lawyers about pending cases, or seeking legal advice,or commenting on judges in particular rulings will not be allowed.
A FEW POINTERS FOR MORE EFFECTIVE CHANCERY TRIALS
December 14, 2010 § 8 Comments
A few thoughts that might help:
Facts, not impressions. Okay, you’re the judge and you have to decide whether the defendant assaulted the plaintiff. Here are two different versions in response to the question “Please tell the court what you observed when you entered the room.”
Version One: “The defendant was going crazy. I mean he went mental. Kaflooey! And I couldn’t believe it. Never saw anything like it. Mmm, Mmm, Mmm; I mean to tell you. Crazy. And, Lordy, such language. I didn’t know which way to turn. Didn’t really scare me, though — I was in Viet Nam. But it might have scared the others.”
Version Two: “The defendant picked up a recliner chair and threw it through the window. Then he grabbed a beer bottle and rared back like he was going to hit the plaintiff in the head, but instead he slapped her in the face and screamed that he liked to kill her. She was all balled up on the floor crying and begging, yelling out “please don’t break my arm like you done the last time!” and then he turned and glared at me and I thought he was going to kill me.”
Version one doesn’t convey a single thought about what the defendant actually did to assault anyone. It is ineffective because it is full of impressions and adjectives. Where are the specifics?
Version two, on the other hand paints a vivid picture chock full of verbs that unmistakably conveys the violence and anger. All the details are there.
When you’re prepping your witnesses for trial (Uh — you do prep your witnesses, I hope), train them to paint a word picture of what happened instead of just babbling a bunch of labels.
Eliminate pronouns from your questions. Keep in mind that you are doing two important things while you are questioning the witness: You are telling the judge your client’s story as persuasively as you can; and you are making a record for the appellate court to use if necessary. So how does the following help your client?
Q. So when they entered the room, what did he say?
A. They was all talking loud, but he said he was going to kill her for messin’ around with him.
Q. Who else was in the room?
A. Just all them and me.
Q. What if anything did you see him do?
A. Well, he left the room and then he came with guns and then they both had guns.
Q. What did he do?
A. He started to shooting. That’s when he shot her by mistake, I guess.
Huh? Who’s on first? What’s on second? I dunno’s on third? How in the world can anybody follow that? Let’s go back and eliminate the pronouns:
Q. So when Robert, Travis and Bo entered the room, what did Bo say?
A. Robert, Travis and Bo was all talking loud, but Bo said he was going to kill Charlene for messin’ around with Billy Joe.
Q. Who else was in the room?
A. Just Rita and Charlene and me.
Q. What if anything did you see Bo do?
A. Well, Travis left the room and then Caleb came with guns and then Travis and Bo both had guns.
Q. What did Bo do?
A. Bo started to shooting. That’s when Bo shot Rita by mistake, I guess.
Clearer? It is to me.
Focus on the points you need to prove. If, for example, you are trying to modify child support, it makes no sense to take your client early in her testimony through a long, meandering history of the marriage and divorce, and then how the children are doing in school, and then get several pictures into evidence that one of the children finger-painted in kindergarten, and then a narration of the soccer tournament in Brandon, and then ad nauseam. Get into the Adams factors for child support modification, sit down and hush. Just hush. Sometimes I have the impression that an attorney has no clue about what he or she is supposed to prove because the witnesses and exhibits are all talking about something entirely different from what is at issue.
It’s your job to establish jurisdiction. Yes, it’s your job. Nevertheless, I have had to do it on more than one occasion for the attorney. Here’s the deal:
If you are trying a divorce, you have to ask your witness about residence in the state of Mississippi for the requisite time, and you have to establish venue, and of course a marriage;
if you are trying a modification, you have to establish that the court has continuing jurisdiction by virtue of a prior judgment; and
ditto for a contempt action;
if you are trying a property dispute, where on this green earth is the property located?
The pleadings are not evidence in chancery court. Don’t think just because it’s in the pleadings that it is proven. The pleadings are your template for what must be proven through competent evidence at trial. If you want the trial judge and possibly the appellate court to consider it, you must put it into the record at trial.
No corroboration = no divorce. Unless the parties lived in near-total isolation and were incommunicado, which is almost unheard of in this internet-connected, smart-phone world, corroboration is a prerequisite to a divorce. What constitutes adequate corroboration is beyond the scope of this post, but you can find what you need to know in Professor Bell’s or Professor Hand’s treatise. In uncontested cases, I will sometimes “recess” the hearing to allow a lawyer time to recoup some of his or her dignity by scrounging up some corroboration, but in a contested case, I can not do that without prejudicing the opponent, and the result is an unfortunate denial of the divorce.
Spend some time on your 8.05. A post with ten tips for more effective financial statements is here. I have seen cases turn on the 8.05’s, and the one that is clear and better-presented prevails every time.
Oh, and here’s something to keep in mind: If you’re in a modification of child support case, the most crucial thing to prove is that there has been a CHANGE in circumstances. Use your brain here. If you are trying to prove a change, and it involves money, what is the best tool to use to show that change? Yes! It’s the 8.05! Of course! Add a column to your current 8.05 showing the expenses and income from back in 2003 when the divorce was granted. You can ask your client to dig around and find the 8.05 from back then to base your figures on, or ask her to reconstruct those figures for you. If she does have the 2003 8.05, you could offer that into evidence to prove the expenses and income back then.
Finally, do yourself, the witnesses, opposing counsel and above all the court a favor and simply number the pages and items of your financial statement. Imagine how mind-numbing this unfortunately typical exchange is for the judge (and everyone else within earshot):
Q: So you spend $200 a month on clothes?
A: Yes. No. I’m not sure I know what you’re talking about.
Q: It’s on page 3.
A: (Flipping pages of the 8.05) No. I think that’s the equity in my house. Or maybe that’s my life insurance. Or pet expense. I’m not sure.
Q: No, look at the third page, the third page. 1-2-3.
A. Do you mean the GMAC here? That must be my church donation — Greater Meridian Adventist Church? Hmm, I don’t even go to that church.
Q: You’re looking at your car payment. Turn to the page that looks like this (Showing the witness the document).
A: I don’t see where it says that I spend money on clothes.
Q: Well, you have the figure $200 down there where it says “clothing.” What is it for?
A: Oh, clothing. I see it on line 11, but that’s the fourth page.
Q: No, it isn’t, it’s the third.
A: You’re right, it’s the third. Now what was the question?
Wouldn’t it have been more effective to direct the witness to the numbered page and to a particular line number? It certainly would save wear and tear on the judge, if nothing else. And the less wear and tear you inflict on the judge, the better your case turns out. Every time.
ADEMPTION
December 13, 2010 § 2 Comments
Ademption occurs when the testator leaves a specific devise or bequest that can not be satisfied because the testator disposed of the property during her lifetime.
The case of Rousseau v. Rousseau, 910 So.2d 1214, 1218 (Miss. App. 2005), upheld a chancellor’s finding that the testator’s bequest of specific shares of stock to a trust had been adeemed by extinction where the testator sold the shares during his lifetime and did not change the will.
If the testator disposes of the devised or bequeathed property and acquires property that is of the same kind and description of the disposed-of property and whch he owns at his death, the disposition of the second property should be the same as that of the first, unless the will provides otherwise. In Milton v. Milton, 10 So.2d 175, 177 (Miss. 1942), the testator devised “my home place” to his widow for life, with the remainder to his daughter. After he made the will, he sold the residence he had at the time of making the will and acquired another. The Mississippi Supreme Court held that his use of the phrase “my home place” was general enough to embrace any residence he owned at the time of his death, so that the devise was not adeemed.
In Re Estate of Pickett, 879 So.2d 421 (Miss. App. 2004), was a case in which the testator had devised 181 acres of land to specific legatees, the Van Ettens. After execution of the will, and during the testator’s lifetime, his attorney in fact had entered into contract for sale of the land to Kirkland. Before the contract could be carried out, however, the testator died. The court of appeals upheld the chancellor’s decision that the contract acted as an ademption of the specific devise which extinguished the claim of the Van Ettens. The execution of the contract essentially converted the real property into a right of the estate to receive the proceeds. Although there was no Mississippi case law directly on point to guide the chancellor, the court of appeals upheld her decision based on analysis of other authorities. The court stated:
“In the absence of any statutory enactment by the Mississippi Legislature altering what appears to be a widely-recognized rule of will interpretation under the common law, we are convinced that the chancellor was correct and that the general rule set out above must be applied to this case.
¶ 25. The contract of sale gave to Kirkland the absolute right to purchase the real property. Under the rule of construction discussed above, the execution of that contract worked as an ademption of the specific devise of that same property to the Van Ettens. In that circumstance, the Van Ettens have no claim to the real property or to the proceeds ultimately realized when the sale of the land was closed pursuant to the contract of sale.” (at 473).
The decision includes an interesting discussion of the authority relied on by the chancellor. (at 472-473).
The Better Chancery Practice Blog 