MANAGING CLIENT EXPECTATIONS
October 18, 2010 § 4 Comments
One of the challenges of being a Chancery practitioner is keeping your clients’ expectations realistic. And I’m not talking only about expections regarding outcome. I’m talking expectations about you, your firm, the court and the legal process itself.
The Pincus Family Law firm in Columbia, South Carolina has a page on its web site that may just be a home run in addressing client expectations. You may find something useful here. I’ve copied and pasted the text for you:
CLIENT EXPECTATIONS (REALISTIC OR UNREALISTIC)
ABOUT US:
We do not work on the weekends and do not provide emergency numbers for the weekends. There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.
Do not think we are perfect. We make mistakes. We are competent attorneys and paralegals, but we make mistakes. We will correct a mistake if we find it or if you point it out. Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.
We will return phone calls in the order they are received and based on the priority of the situation. If you leave a message, your message will be passed on to the attorney. Calling three or four or multiple times in a day will not get your call answered any faster. Email is the quickest way to get a response from an attorney.
Attorneys work by appointments only. Please do not show up at our offices to speak with an attorney without an appointment.
Please utilize our paralegals to answer your questions and give you status reports. Our paralegals are very experienced and can, most of the time, respond to your request. We bill our paralegal time at less than 50% than what the attorneys charge so take advantage of their experience and knowledge.
ABOUT OTHERS:
You may not get any consideration from your spouse for anything you have done or will do because you are nice. You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it.
Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you. As your attorneys, we are the only reliable source of information regarding the process and status of your case.
The opposing attorney may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office. It is unrealistic to expect that we can control how an opposing attorney handles his or her file or practices law.
The legal pleadings (Complaint, Answer, Counterclaim, etc.) are legal documents filled with allegations that must be pled (and some that are merely made to posture for a client). Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf. It is not worth it.
We cannot control the court’s schedule or docket. The courts schedule cases as they are processed and in line with the thousands of other cases filed. You will not be happy with the time it takes your case to get through the system. There are thousands of family law cases filed in Lexington and Richland counties each year and most contested cases take several months, sometimes more than one year, to finish.
What you can expect during a Trial (Contested Case)
COURT APPEARANCES—Bonnie and Monet generally work files together although one attorney may be your “lead” attorney. Therefore, at court appearances, it may be necessary for one to cover a court appearance for the other. We will try to give you advance notice if your “lead” attorney will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.
SUBPOENAS—the other party can send a subpoena to any third party that MAY have information about you, your spouse, your business dealings, your employment, your education, your children and the like. Banks, lenders, business partners, educational facilities, stock brokers, teachers, churches, etc. can all be issued subpoenas for any records they may have regarding you. We can do the same. There is very little we can do to stop this so be prepared to deal with the frustration you may experience. If there is a legitimate reason to try and stop the subpoena, which there rarely is, we can file a motion to do so. Unless the information is privileged in some fashion, the third party will have to disclose the information requested.
DEPOSITIONS—the other party can issue a notice of deposition to any third party witness. This means that a third party can be required to give testimony under oath usually in one of our offices. The purpose of depositions is to find out information and to find out ahead of time what a person may testify to in court. You and your spouse could each be deposed for the same reason. We can issue notices of depositions as well. A fact witness is entitled to a fee of $25 to appear and professionals (doctors, psychiatrists, etc) are entitled to have their time paid for to appear (by the party that deposes them). A court reporter must be present and is paid to attend as well. The attorneys are paid to attend as well. Depositions are costly.
NOTHING HAPPENS QUICKLY—generally, contested cases take several months to move through the court system. A complicated custody or equitable division case can take one, sometimes two, years to complete. The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, a guardian ad litem investigation, discovery, depositions, pre-trial hearings and motion hearings. It takes a long time to move a contested case through the court system and this will likely be your number one frustration. We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case. Please prepare yourself ahead of time and please do not take this frustration out on us or my staff. We are doing everything we can to move the case along.
DISCOVERY—this is the “formal” name for exchanging information through subpoenas, written questions (interrogatories) and request for documents. Discovery has its own set of rules and deadlines which we will inform you about during the process.
CHILDREN—Marital problems are terribly difficult for children. Do your children a favor and do not “poison” the minds of your children against their other parent. Do not speak about their parent’s faults to children. Do not complain to your children about how much child support you are paying or how little child support you are receiving. Visitation with parents is NOT a bargaining chip or game. Each parent is entitled to visitation privileges with their children. Children are not your property. They are not your pawns. They are absolutely not your messenger. They are innocent individual human beings that need both of their parents, not just the “best” parent.
ADULTERY—Do not become romantically involved with someone other than your spouse if you are still legally married (even if you are separated)! During marital litigation you should behave as though a detective and camera crew were following you and recording you and your conversations at all times.
CHILD CUSTODY CASES—You should behave as though a detective and camera crew were following you and recording you and your conversations at all times. Do not do anything that you would not perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.
ATTORNEY’S FEES—in a child custody case, you could spend the price of a car in attorney’s fees. Most contested custody cases run upwards of 10-20 thousand in fees paid out over the course of the case. This usually includes attorney’s fees, guardian fees, psychological fees and expert witness fees. In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets. Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value. A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in attorney’s fees over the life of the case. The most expensive part of the case is going to be trial preparation and attendance costs. That is why a trial retainer (an “up front” payment) is required in all contested cases. You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.
Thanks to the LegalEthicsForum.com for this.
HEY, NINETEEN
October 15, 2010 § Leave a comment
I was talking with a young lawyer the other day and he asked when the MRCP went into effect. I told him how the rules were announced in 1981 and put into effect in 1983. He laughed and said “I wasn’t even born then.” Of course, I reacted with aplomb, I think, but after he left I had to tap figures into a calculator to believe it, and, yes, the little sapsucker was right. Dadgum.
Nowadays I have to ask my wife who someone is on tv, or who some comedian is referring to when he makes a joke. Being born in the first half of the last century will do that for you, I guess.
If you want to get a handle on just how great is the disconnect between the understanding and life experiences of a 60-year-old (or 40 for that matter) and a 20-year-old, you need to ckeck out Beloit College’s Mindset List, an annual survey it publishes showing the many things that this year’s freshman college class has no clue about because they were born so recently.
Here are some excerpts from this year’s list. From a lawyer’s standpoint, it’s nice to know how irrelevant you’re becoming, so when you go to preaching to your 20-something-year-old client, you can realize just how little you’re communicating. Here are a couple of things the Beloit site tells us …
“The class of 2014 has never found Korean-made cars unusual on the Interstate and five hundred cable channels, of which they will watch a handful, have always been the norm. Since “digital” has always been in the cultural DNA, they’ve never written in cursive and with cell phones to tell them the time, there is no need for a wrist watch. Dirty Harry (who’s that?) is to them a great Hollywood director. The America they have inherited is one of soaring American trade and budget deficits; Russia has presumably never aimed nukes at the United States and China has always posed an economic threat.
Nonetheless, they plan to enjoy college. The males among them are likely to be a minority. They will be armed with iPhones and BlackBerries, on which making a phone call will be only one of many, many functions they will perform. They will now be awash with a computerized technology that will not distinguish information and knowledge. So it will be up to their professors to help them. A generation accustomed to instant access will need to acquire the patience of scholarship. They will discover how to research information in books and journals and not just on-line. Their professors, who might be tempted to think that they are hip enough and therefore ready and relevant to teach the new generation, might remember that Kurt Cobain is now on the classic oldies station. The college class of 2014 reminds us, once again, that a generation comes and goes in the blink of our eyes, which are, like the rest of us, getting older and older.”
Back in the 1970’s, Steely Dan sang about this very phenomenon in Hey, Nineteen, a lament about a 20-something guy who could not communicate with his date because she was, alas, too young to remember Aretha Franklin. (If you need to know who Steely Dan or Aretha Franklin are, drop by my office and I will tell you through clenched teeth). Here’s more beyond Aretha that today’s entering freshmen don’t have in their life experience set …
Most students entering college for the first time this fall—the Class of 2014—were born in 1992.
For these students, Benny Hill, Sam Kinison, Sam Walton, Bert Parks and Tony Perkins have always been dead.
Few in the class know how to write in cursive.
Email is just too slow, and they seldom if ever use snail mail.
With increasing numbers of ramps, Braille signs, and handicapped parking spaces, the world has always been trying harder to accommodate people with disabilities.
Had it remained operational, the villainous computer HAL [from 2001 A Space Odyssey] could be their college classmate this fall, but they have a better chance of running into Miley Cyrus’s folks on Parents’ Weekend.
Entering college this fall in a country where a quarter of young people under 18 have at least one immigrant parent, they aren’t afraid of immigration…unless it involves “real” aliens from another planet.
John McEnroe has never played professional tennis.
Clint Eastwood is better known as a sensitive director than as Dirty Harry.
Parents and teachers feared that Beavis and Butt-head might be the voice of a lost generation.
Doctor Kevorkian has never been licensed to practice medicine.
Colorful lapel ribbons have always been worn to indicate support for a cause.
Korean cars have always been a staple on American highways.
Trading Chocolate the Moose for Patti the Platypus helped build their Beanie Baby collection.
Fergie is a pop singer, not a princess.
They never twisted the coiled handset wire aimlessly around their wrists while chatting on the phone.
DNA fingerprinting and maps of the human genome have always existed.
Woody Allen, whose heart has wanted what it wanted, has always been with Soon-Yi Previn.
Cross-burning has always been deemed protected speech.
Leasing has always allowed the folks to upgrade their tastes in cars.
Leno and Letterman have always been trading insults on opposing networks.
Unless they found one in their grandparents’ closet, they have never seen a carousel of Kodachrome slides.
Computers have never lacked a CD-ROM disk drive.
They’ve never recognized that pointing to their wrists was a request for the time of day.
Reggie Jackson has always been enshrined in Cooperstown.
“Viewer Discretion” has always been an available warning on TV shows.
Czechoslovakia has never existed.
Second-hand smoke has always been an official carcinogen.
“Assisted Living” has always been replacing nursing homes, while Hospice has always offered an alternative to the hospital.
Once they got through security, going to the airport has always resembled going to the mall.
Adhesive strips have always been available in varying skin tones.
Bud Selig has always been the Commissioner of Major League Baseball.
Pizza jockeys from Domino’s have never killed themselves to get your pizza there in under 30 minutes.
There have always been HIV positive athletes in the Olympics.
American companies have always done business in Vietnam.
Russians and Americans have always been living together in space.
The dominance of television news by the three networks passed while they were still in their cribs.
Nirvana is on the classic oldies station.
There have always been women priests in the Anglican Church.
Rock bands have always played at presidential inaugural parties.
Presidential appointees have always been required to be more precise about paying their nannies’ withholding tax, or else.
Having hundreds of cable channels but nothing to watch has always been routine.
Their parents’ favorite TV sitcoms have always been showing up as movies.
Ruth Bader Ginsburg has always sat on the Supreme Court.
They have never worried about a Russian missile strike on the U.S.
It seems the Post Office has always been going broke.
The artist formerly known as Snoop Doggy Dogg has always been rapping.
The nation has never approved of the job Congress is doing.
Honda has always been a major competitor on Memorial Day at Indianapolis.
YET ANOTHER REASON TO TAKE EXTRA CARE WITH 8.05’S
October 14, 2010 § 4 Comments
In the case of Trim v. Trim, 33 So.3d 471 (Miss. 2010), the Mississippi Supreme Court held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court.
So what is the significance of the Trim case for everyday practitioners?
Let’s say that your client isn’t deliriously happy with the outcome of her equitable distribution case, but she accepts it without an appeal. Ten months later she comes in to your office mad as a hornet with sheaves of paperwork that prove conclusively that her ex substantially understated on his 8.05 the value of financial assets that he controlled, and the gain to your client could be in the hundreds of thousands of dollars. Aha! You think, we have the sorry so-and-so right by the [indelicate word deleted]!
But wait. How are you going to get this before the court? MRCP Rule 59 relief expired 10 days after the judgment was entered, and the appeal time ran 30 days after entry. MRCP Rule 60 actions to set aside a judgment for fraud have to be brought within six months of the date of the judgment.
That’s where Trim comes in. By finding substantial misrepresentation on the 8.05 to be a fraud on the court, as opposed to fraud on the opposing party, the Supreme Court essentially ruled that there is no time limit to bringing an action to aside an action based on 8.05 fraud. That’s because MRCP Rule 60 expressly states: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”
Trim has ramifications for lawyers in Chancery. If you are in the habit of accepting your client’s 8.05 at face value without going over it with him or her, and without questioning behind it, you may be leaving your client open to an action to set aside that divorce judgment you thought you had laid to rest long ago. The client may well question why you never went over the statement with him and counseled him about what to include and what not to include. “My lawyer never told me that I had to list those three securities accounts; in fact, he never talked with me at all about what to include on the form.”
In case you think this is the kind of thing that happens to somebody else somewhere else, think again. Only this year, I set aside a divorce that was nearly two years old for substantial misrepresentation of financial assets that amounted to a fraud on the court. It can happen to you.
FIVE SIMPLE STEPS TO PROVE ATTORNEY’S FEES
October 13, 2010 § 7 Comments
You would think that the award of an attorney’s fee would get special attention from both the client and the attorney. After all, the client is looking for some help with the financial burden, and the lawyer representing him is looking for some assurance that she will be paid. And one of the best ways to impress your client favorably is to hang your fees on the opposing party.
In many cases, though, I find that the lawyer takes a sort of slap-dash approach. Sometimes the lawyer confers with the other side and reaches a low-ball stipulation about a reasonable fee. Or the lawyer takes the witness stand (one of the very few occasions when an advocate is allowed to testify per Rule 3.7 of the Rules of Professional Conduct) and offers some general testimony in vague terms about a ballpark figure. Or the lawyer simply asks his client what she paid him and apparently thinks that will suffice.
Proving a reasonable attorney’s fee is actually a fairly simple process, but you need to cover all the points to make your client’s claim airtight. Before we talk about what you need to prove at trial, though, be sure you’ve done what you need to do before trial to lay a foundation for your claim:
- Record your time as you move toward trial, and have your time record printed neatly. You will need it for your testimony in court.
- Be sure there is a prayer for a reasonable attorney’s fee in your pleading. You are asking the court to take your opponent’s money, and that requires due process.
Now that the preliminaries are in order, here are the five steps to prove attorney’s fees:
- Be sure to have your client testify about his or her ability to pay. In divorce cases, ability to pay is the most critical consideration, and if you do not establish your client’s inability to pay, she will not be eligible for an award of an attorney’s fee. Deen v. Deen, 856 So.2d 736, 739 (Miss. App. 2003); Bates v. Bates, 755 So.2d 478, 482 (Miss. App. 1998). Even in a contempt case, where inability to pay is not required, you are wise to offer testimony about the financial effect of the contempt and the resulting attorney’s fees on your client, since an award of an attorney’s fee is not mandatory in contempt. Suess v. Suess, 718 So.2d 1126, 1129 (Miss. App. 1998). Remember that the ethical rules do not allow you as an advocate to testify about the contested merits of the case. If you are going to prove your client’s inability to pay, you will need your client’s testimony.
- Testify yourself about the prevailing rate charged by attorneys in the district. The award must be reasonable, and one of the key touchstones for reasonability is the usual and customary rate charged by attorneys in the district. But the prevailing rate is not binding on the court. The judge may award a fee at a greater or lesser rate if the circumstances warrant it. If you charged a rate different from the prevailing rate in the district, what rate did you charge and why? And if your rate exceeded the prevailing rate, what is your justification for doing so? Make your record.
- Put into evidence an itemization of the time you devoted to the case. Here’s where that itemized statement comes in. Identify it and ask that it be admitted into evidence. Before you do, though ask yourself: Is it credible? Does it look like a genuine fee statement that one would tender to a client for payment, or does it look like something you scratched together 5 minutes before setting foot in the courtroom? Are the times reported credible? Does it reflect charges for “one competent lawyer,” or are there charges included for others? Before you ever get to trial, pore over your statement and subject it to your own cross examination.
- Be sure to capture all the time in the case. Ask the court to take judicial notice of the time spent to that point in the trial, and estimate for the record how much more time will be needed to complete the trial. Estimate also the total number of hours that will be needed for any post-trial matters, such as drafting a judgment or preparing proposed findings of fact and conclusions of law.
- Address each and every one of the McKee factors. You can read more about the McKee factors here. The McKee factors govern the amount of the award, but as a practical matter, if you don’t prove them there is nothing in the record to determine what is reasonable, which means that a reward of zero is most likely. No matter how badly you and your client want that attorney’s fee award, if you don’t include proof of the McKee factors, you likely won’t get it.
AVOIDING AN EXPENSIVE ERROR
October 12, 2010 § 1 Comment
Imagine having this nightmare:
You represent the husband. He has $376,000 in his securities account. You negotiate a property settlement agreement by which the wife will receive $203,200 from the account, and he will own the remaining $172,800. Couldn’t be plainer or more clear-cut. A few months drag by before you finally get the QDRO drafted and approved by the court. You ship it off to the plan manager, who calls you and tells you that the account is now only worth $204,000, and what exactly is it that you would like her to do. At this point in the nightmare, you wake up in a cold sweat.
Unfortunately for the parties in In re Dissolution of Marriage of Wood, 35 So.3d 507 (Miss. 2010), the nightmare was all too real. The facts set out above are the facts in their case. The former Mrs. Wood sued to collect her entire amount due under the agreement, and Mr. Wood took the position that sticking with the numbers in the property settlement agreement was an impossibility, and to grant Mrs. Wood her relief would produce an unfair and inequitable result.
Chancellor Dorothy Colomb ruled that the parties had actually negotiated an agreement whereby Mrs. Wood would receive 54% of the account balance at the time of the divorce, and Mr. Wood would receive 46%.
In affirming the chancellor, the Supreme Court addressed valuation dates, impossibility of performance and canons of construction. You can read the decision to get an appreciation for the complexity of legal issues that the draftsmanship created in this case.
The cardinal point for practitioners, however, is best summed up in the court’s own language at page 515:
“As this case illustrates, incorporating an estimate of an asset’s value into a property settlement agreement can cause problems when the parties later try to divide the asset, and the estimate turns out to be incorrect or inaccurate. Therefore, we make the following recommendations for the benefit of the bar. Where the value of an asset must be estimated because of the inherently indefinite or fluctuating nature of the asset itself, we recommend the use of percentages when setting forth the asset’s intended distribution in a property settlement agreement. Where the value of an asset remains sufficiently concrete or static, however, we recommend the use of specific dollar amounts.”
Mrs Wood expected to get $203,000, and that’s what she negotiated for. Instead, she got $110,160, or $93,000 less than what she expected. The lesson is to think about what you’re doing and what could or might go wrong, and how you can guard against it.
VOICES FROM THE ABYSS
October 11, 2010 § Leave a comment
It was for only a dozen years that Adolf Hitler held power by political means in Germany and by conquest over much of Europe. Yet, in that relatively brief span of time, the Nazi regime that he masterminded managed to plunge the entire world into an abyss of degradation, terror, inhumanity and conflict so barbarous that we can scarcely imagine its scope and depth 65 years after its end.
I recently read or re-read three books dealing with life in Nazi Germany during the Hitler years.
The first is WHAT WE KNEW: TERROR, MASS MURDER AND EVERYDAY LIFE IN NAZI GERMANY by Eric A. Johnson and Karl-Heinz Reuband. If you click on the picture to the left, it will take you to Amazon.com where you can read excerpts.
What makes this book a fascinating read is the first 250 or so pages, consisting of oral histories related by people who lived through the Nazi terror. Interviewees include: Jews who left Nazi Germany before Kristallnacht and those who left after; Jews who were deported; Jews who went into hiding; Germans who knew little about mass murder; Germans who had heard about mass murder; and Germans who knew about, witnessed or participated in mass murder.
What emerges from the testimony of these survivors is an engrossing picture of what everyday life was like in Nazi Germany from around 1932 to the end of World War II.
There are the stories of Jews who managed to flee ahead of the Nazi terror, as well as that of those who were transported to the death camps, and what they did to survive there. There is the testimony of Jews who somehow managed to hide out in Germany or its subjugated states, escaping extermination. They tell persecution by the government, and of the verbal and physical abuse they suffered at the hands of ordinary Germans who had once been their friends and neighbors, as well as of the rare kind and courageous Germans who helped them, often surreptitously so as to avoid repercussions from the Nazis.
Also here is the testimony of the Germans. There are the stories of those who adored and idolized Hitler and of those who despised and resisted him to their detriment and even destruction. There are the stories, too, of those who claim they knew nothing of the systematic extermination of the Jews and of those who knew and even participated in it.
One of the enduring questions arising out of Nazi Germany is what did ordinary people know about the atrocities of the Nazis? The authors devote the remainder of the book to analyzing the data they accumulated to address that question and others such as how anti-semitism took hold under the Nazis, the extent of spying and denunciation by ordinary citizens, the scope of police persecution, and the various forms of persecution of the Jews and others selected for torment and even annihilation. Their conclusions? You will have to read the book.
It is important for Americans to know and understand how the Nazis rose to power and came so close to dominating the entire world but for the determined resistance of England and the industrial might of the United States. After all, the Nazi phenomenon did not arise out of some ignorant peasant backwater. It occurred in the country long known as the “Land of Poets and Thinkers,” the nation that gave birth to Goethe, Schiller, Kant, Beethoven, Leibniz, Einstein, Bach, Holbein, and so many other luminaries of western civilization. It was grinding depression, political instability and desperate economic straits in the lingering aftermath of World War I that opened the way for the Nazis to capture the allegiance of the German voters, who made a devil’s bargain by surrendering their freedom in exchange for stability and economic improvement.
If the Germans could cast aside their considerable legacy of civilization and embrace the barbarity and totalitarianism of the Nazis for comfort and security, who is to say that we could not fall on the same sword?
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I also re-read NIGHT by Elie Wiesel.
If you have never read this powerful little book (only 120 pages) written by the Nobel-prize-winning author who as a teenager wsa transported with his family to Auschwitz and then to Buchenwald, you need to put down whatever you are reading and pause to read this. This latest edition is a new translation of the original French by his wife, Marion, and purports to be closest of all editions to Wiesel’s own voice.
Other than the substance itself, what makes this book so powerful is its spare, minimalist style, pared down ruthlessly from the original Yiddish into French by the French writer François Mauriac.
The book opens in Wiesel’s hometown of Sighet, in Transylvania, where the Jewish community was warned but refused to heed an eccentric who had been briefly imprisoned by the Nazis. It goes on to recount the establishment of a Jewish ghetto in the town and the ultimate transportation to the death camps or work camps. Wiesel saw his mother and sister taken off to the gas chamber. He and his father were put to slave labor in the camp at Buna. As the war wound down and the Russians closed in on western Poland where their camp was situated, Wiesel, his father and the other inmates were forced to march in a bitter winter blizzard from Auschwitz-Buna to Gleiwitz, a march in which thousands died. Wiesel and his father survived the march, but his father contracted dysentery soon after being savagely beaten by an SS guard, and the elder Wiesel was taken off to the gas chamber. The author poignantly tells of his last conversation with his father, a passage of the book you will not soon forget.
Wiesel’s haunting retelling of the inhumanity he endured and how he survived it will live vividly in your mind long after you have read this book.
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The final book is MAN’S SEARCH FOR MEANING by Viktor Frankl, which I re-read. This little book was listed by the Library of Congress in 1991 among the 10 most influential books in the United States.
Like Wiesel’s, Frankl’s book includes his eyewitness account of the brutality and suffering that he survived as a Jewish slave/prisoner in various Nazi concentration camps. Unlike Wiesel, Frankl approaches the experience from a psychological and psychoanalytical perspective, from which he developed the theory of Logotherapy. His theory is that life has meaning in even the most apocalyptic circumstances and finding that meaning is the main motivation in life, and that we have the freedom to find our own meaning in our suffering and the unchangeable obstacles we face. The first part of the book is Frankl’s account of his experiences, and the second is his analysis of those experiences and his conclusions about their meaning.
This is an inspirational book that rejects the notions of victimhood and determinism. It will challenge some of your own notions about how one addresses and rises successfully above the vicissitudes and misfortunes of life.
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Some years ago I visited Dachau concentration camp only a few miles from Munich. The entrance gate bore the cynical epigram “Arbeit macht frei” — “Work makes you free” — the words that were copied from there and placed over the gate to Wiesel’s Auschwitz.
Dachau was not established as an extermination camp for Jews, although many Jews were imprisoned and died there. Dachau’s original and primary function was as an internment camp for political opponents of the Nazis, homosexuals and the mentally ill or erratic. Later in the war, Russian prisoners of war were transported there by the thousands, and were put to death by the bullet, some being used for target practice by the guards.
Dachau was also the site of scientific experimentation on the prisoners, which was intended to be of some military benefit. Some prisoners were put into chambers and subjected to increasing pressure until their brains literally burst out of their ears and mouths, in order to see how much pressure a human could stand. Some had organs removed and were sewn back up to see how long one could live without, say, a liver. Some had objects implanted inside of them so the effects could be observed. Some were guinea pigs for drug testing, and others were administered lethal substances to determine just how much dosage was lethal.
It was chilling to stand in the barracks where so many suffered and perished, to walk across the appelplatz where the roll call of walking dead took place every day, to see the guard towers, to stare into the crematorium where the bodies of the executed were disposed of. Gazing across the huge expanse of the camp, one could see through the barbed-wire fence the homes where German citizens of Dachau village lived their mundane lives, oblivious — they claimed — to the profound suffering and obscene atrocities taking place literally across the street.
The main gate and grounds of Dachau Concentration Camp today
TRIAL BY CHECKLIST: INCOME TAX DEPENDENCY EXEMPTION
October 11, 2010 § 9 Comments
A practice tip about trial factors is here.
The Mississippi Supreme Court ruled in Nichols v. Tedder, 547 So.2d 766, 775 (Miss. 1989), that the Chancellor may award the dependency exemption for income tax purposes to either parent as part of its determination of child support.
If your client wants the court to award her the tax dependency exemption, it will take more than just asking her what she wants the court to do. In Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000), the Mississippi Supreme Court laid out the factors that the Chancellor is required to consider before making the award. They are:
- The value of the exemption at the marginal rate of each parent;
- The income of each parent;
- The age of the children and how long the exemption will be available;
- The percentage of the cost of supporting the children borne by each parent; and
- The financial burden assumed by each parent under the property settlement agreement in the case.
In Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001), the Court of Appeals added a sixth: the value of the non-economic but valuable contributions made by the custodial parent.
Although I have often heard parties testify that they wanted the court to award them the exemption, I have never heard any testimony on factor 1.
It seems to me that if you fail to put on the requisite proof, you run the risk that the judge will simply say that the proof did not support such an award, or, if the trial judge does award it, that the Court of Appeals will take it away or put your client to the considerable expense of having to retry the issue so that the trial judge will have the evidence necessary to adjudicate it.
“QUOTE UNQUOTE”
October 8, 2010 § Leave a comment
Mignon McLaughlin
“Every day of our lives we are on the verge of making those slight changes that would make all the difference.” — Mignon McLaughlin
“Do not let the fact that things were not made for you, that conditions are not as they should be, stop you. Go on anyway. Everything depends on those who go on anyway.” — Robert Henri
“Do not be too timid and squeamish about your actions. All life is an experiment. The more experiments you make the better. What if they are a little coarse, and you get your coat soiled or torn? What if you do fail, and get fairly rolled in the dirt once or twice? Up again, you shall never be so afraid of a tumble.” — Ralph Waldo Emerson
BETTER CHANCERY PRACTICE FAQ
October 8, 2010 § 2 Comments
My 8.05 financial statements stink. How can I improve them?
Here are Ten Tips for More Effective Rule 8.05 Financial Statements.
Is my estate ready to close?
Check out this Checklist for Closing an Estate.
I think I need to file a habeas action. Any tips?
This Habeas Corpus Step by Step should help.
One more time: what are those child custody factors I need to prove at an upcoming trial?
The Albright factors are what you’re looking for.
Help! We need to sell some real property in an estate, and I don’t know where to start?
How to Sell Real Property in an Estate may be just what you need.
I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before. What do I need to do?
This Outline for Handling a Minor’s Settlement will get you started.
My mail has an MRCP 41(d) notice in it this morning. I remember you said something about it, but I don’t have time to look for it. Can you remind me what I am supposed to do?
<Sigh> Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door.
I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify. Any ideas on what I should do?
Try looking at Proving Tax Effects of Alimony.
My Chancery Judge is really nitpicky. How can I draft my adoption Complaint to satisfy him?
Are you talking about me? Whatever. Here is a post on pleading Jurisdiction for Adoption.
Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire. Any suggestions? I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.
You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines. Until you do, try reading “High Waters” and Burlap Suits. It won’t change anything, but it may help you to feel better.
JUDGMENTS: PARTIAL AND FINAL
October 7, 2010 § 4 Comments
After a few weeks, the judge has issued his opinion in that thorny divorce trial. He granted your client’s wife a divorce and gave her custody and child support, but ordered that you and the other attorney produce appraisals before he will adjudicate the equitable distribution and the alimony claim. Your client is hopping mad at the outcome and demands that you appeal the judge’s ruling immediately. Can you?
MRCP 54(b) provides that the when there are multiple claims for relief or multiple parties, the court may order final relief as to one or more but fewer than all of the claims or parties “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment.” If the court does not so direct, then any order issued that adjudicates fewer than all of the claims or rights of fewer than all of the parties, no matter whether it is entitled as a judgment, is not final, and is subject to revision at any time.
So what does this mean? There are several ramifications. One is that if the partial judgment or order does not specifically direct that it is final, you may not appeal from it until the entire action is finalized. If it does include the required finality language and you do not file a timely appeal, you may find yourself shut out from an appeal on the matters addressed in that order. Another ramification of non-finality is that the Chancellor may change it at any time, even beyond ten days after its date, because the provision of MRCP 59 that allows the Chancellor to alter his judgment within ten days of entry applies exclusively to final, appealable judgments.
And what exactly is a judgment, anyway? MRCP 54(a) states that “‘Judgment’ as used in these rules [MRCP] includes a final decree and any order from which an appeal lies.” Any interlocutory adjudication is an order, and not a judgment; thus, e.g., Temporary Order, Order Compelling Discovery, Scheduling Order, Order Deeming Requests for Admission as Admitted.
The Better Chancery Practice Blog 