EVER IS A LITTLE OVER A DOZEN YEARS
September 12, 2010 § Leave a comment
W. Ralph Eubanks is publishing editor at the Library of Congress and a native of Covington County, Mississippi. His book, EVER IS A LONG TIME, is a thought-provoking exploration of Mississippi in the 1960’s, 70’s, and the present, from the perspective of a black child who grew up in segregation and experienced integration, and that of a young black man who earned a degree from Ole Miss, left Mississippi vowing never to return, achieved in his profession, established a family, and eventually found a way to reconcile himself to the land of his birth.
It was his children’s inquiries about their father’s childhood that led Eubanks to begin to explore the history of the dark era of his childhood. In his quest for a way to help them understand the complex contradictions of that era, he came across the files of the Mississippi Sovereignty Commission and found his parents’ names among those who had been investigated, and he became intrigued to learn more about the state that had spied on its own citizens.
Eubanks’ search led him to Jackson, where he viewed the actual files and their contents and explored the scope of the commission’s activities. He had decided to write a book on the subject, and his research would require trips to Mississippi. It was on these trips that he renewed his acquaintance with the idyllic rural setting of his childhood and the small town of Mount Olive, where, in the middle of his eighth-grade school year, integration came to his school.
There are three remarkable encounters in the book. The author’s meetings with a surviving member of the Sovereignty Commission, a former klansman, and with Ed King, a white Methodist minister who was active in the civil rights movement, are fascinating reading.
The satisfying dénouement of the book is Eubanks’ journey to Mississippi with his two young sons in which he finds reconciliation with his home state and its hostile past.
If there is a flaw in this book, it is a lack of focus and detail. The focus shifts dizzyingly from the Sovereignty Commission, to his relationship with his parents, to his rural boyhood, to life in segregation, to his own children, to his problematic and ultimately healed relatiosnhip with Mississippi. Any one or two of these themes would have been meat enough for one work. As for detail, the reader is left wishing there were more. Eubanks points out that his own experience of segregation was muted because he lived a sheltered country existence, and his memories of integrated schooling are a blur. For such a gifted writer whose pen commands the reader’s attention, it is hard to understand why he did not take a less personal approach and expand the recollections of that era perhaps to include those of his sisters, or other African-Americans contemporaries, or even the white friends he had.
This is an entertaining and thought-provoking book, even with its drawbacks. I would recommend it for anyone who is exploring Mississippi’s metamorphosis from apartheid to open society.
The title of this book has its own interesting history. In June of 1957, Mississippi Governor J. P. Coleman appeared on MEET THE PRESS. He was asked if the public schools in Mississippi would ever be integrated. “Well, ever is a long time,” he replied, ” [but] I would say that a baby born in Mississippi today will never live long enough to see an integrated school.”
In January of 1970, only twelve-and-a-half years after the “ever is a long time” statement, Mississippi public schools were finally integrated by order of the Fifth Circuit Court of Appeals, a member of which, ironically, was Justice J. P. Coleman, former governor of Mississippi.
Eubanks
CHANCERY COURT IN DAYS OF YORE, PART DEUX
September 10, 2010 § 2 Comments
[Chancery Court in Days of Yore, Part One and “High Waters” and Burlap Suits are two older posts that touch on some of these same themes]
Recently in a ramble through the Uniform Chancery Court Rules (UCCR) I stumbled on a couple of curious throwbacks to pre-MRCP practice. You can read and scratch your head over these historical anomalies in Chapter 2 of the rules, dealing with pleadings. I won’t repeat them here, but they include references to bills of complaint, cross-bills and demurrers, as in “Trial not Delayed Because Demurrer Overruled.”
The references to those ancient and outmoded engines of the law got me thinking about that pre-MRCP era when the practice of law was, well, quainter than it is today. So travel back in time with me to 1979, when the “new rules” were not even yet a rumor, being two years away from adoption and four years from going into effect. Things were different then. Or maybe they were really the same, in a different way.
In 1979, Judge Neville ruled his courtroom like a Teutonic prince. He was sovereign, dictator, despot and all-wise, solomonic adjudicator. There were no “factors” for the Chancellor to consider. The Supreme Court understood the role of the Chancellor as finder of fact in complex human relationships and respected him as such. That was back in the day when most appellate judges had trial court experience, including Chancery experience, and the Court of Appeals had not yet been invented.
It’s trial day in a divorce you filed for a friend’s sister. Counsel opposite, a grizzled veteran, has filed a demurrer attacking your Bill of Complaint for Divorce, and the demurrer will be taken up in chambers before the trial. Whether the demurrer is granted in whole or in part, the trial will follow as night follows day because, “Trial not Delayed Because Demurrer Overruled.” The judge could grant a postponement if your case is gutted by the demurrer, but you know Judge Neville isn’t likely to do so, and your client wants this over with anyway.
You settle your client into the courtroom (now Judge Mason’s courtroom) for the duration. You’ve already explained to her that the judge may strike out part of the pleadings you filed on her behalf, but that you’re confident everything will be fine. That’s what you told her, not what you really feel. What you really feel is a knot in your stomach the size of Mount Rushmore.
You gather your file and leave your client in the dark-panelled court room, where dour portraits of previous Chancellors who practiced their alchemy in that chamber, their medieval visages glowering down disdainfully as if they sniff disagreeably the fetid aroma of the weaknesses in your case, stare balefully down on your misery.
In Judge Neville’s dim chambers (Cindy James’ office today), you wait while he relieves himself in the facilities. The air is redolent with fragrance of his ever-present pipe. There are wisps of smoke clinging to the ceiling like disembodied spirits. On the dark-panelled wall is a plaque that reads:
“If you are well, you have nothing to worry about; If you are sick, you have two things to worry about: whether you will live or whether you will die; If you live you have nothing to worry about; If ou die, you have only two things to worry about: whether you will go to heaven or whether you will go to hell; If you go to heaven you have nothing to worry about; If you go to hell, you’ll be so busy greeting your old friends that you won’t have time to worry!”
Before long, your older and more experienced opponent, wielding his superior knowledge of the byzantine rules of pleading, has prevailed, and the negative pregnants and other flaws in your pleading have been lopped away like infected warts. Before you know it, the 36-page Bill of Complaint for Divorce that you proudly filed has been whittled town to a dozen miserable pages.
Before turning you loose for the court room, the judge takes the opportunity to use his best cajolery skills to try to settle the case, telling you how he would rule on this issue and that, and even cussing you good for wasting the court’s precious time. He runs his hand over his balding head, adjusts his glasses, and you can see the trademark red flush spreading up his cheeks toward his forehead, but you stand your ground because you’ve already tried to no avail to talk your clint into a reasonable settlement.
You emerge into the comparatively brightly-lit court room and flash a brave smile at your client. Her attempt at looking brave looks more like crestfallen to you.
The floor is cork, scarred from years of cigarette burns. Brass spitoons, polished and emptied weekly by a jail trusty, are set on each side of the court room, one for the complainant and one for the defendant. In a corner plainly visible to the lawyers is a Coca-Cola clock; the art deco clock built into another wall stopped years ago at 10:05.
In the court room, the old lawyer has taken his place. He is chain smoking cigarettes. As he finishes one, he drops it on the floor and grinds it out under the sole of his two-tone wing-tips on the cork floor. He lights another and removes his linen jacket, revealing his short-sleeve shirt. He is wearing a cheap clip-on tie with Weidmann’s soup stains. His polyester slacks are held up by suspenders. His greased head gleams in the court room light. He is no fashion plate, but he is a dangerous adversary who only a few minutes ago gutted your case. He will smoke like that through the trial, his jacket hanging limply on his chair as he carves up your witnesses.
Your office file has only a few papers in it. There is no voluminous discovery, because you don’t get to propound interrogatories and requests for production. The only discovery is to ask for a Bill of Particulars. The rules of pleading are so arcane and complex that a misplaced adjective just might doom an essential element of your case. The older lawyers have mastered the strange warcraft of pleading and gleefully ambush you from the legal thickets, catching you unawares and pillaging the smoking ruins of your lawsuit.
As the older lawyer tends to other preparatory business, he lays his cigarette on the edge of the table, and the burning end inflicts yet another scar into counsel’s table, adding one more to the many other burn marks. He sticks the cigarette back into his mouth and approaches you to show you some document, wreathing your face in a fog of smoke and raining ashes on the natty pin-striped suit you bought from Harry Mayer (the elder) only last week.
Judge Neville takes the bench, his smoking pipe emitting inscrutable signals, clad in his customary dark suit. Chancellors did not wear a black robe back then, but he is wearing his black suit today, probably in mourning for my case, you muse. Your voice quavers as you read your pleadings into the record for the court, followed by the older lawyer. While you are struggling through the reading, Judge Neville is puffing pensively on his pipe and whittling strenuously on a cedar plug. Shavings curl slowly at first, and then furiously, as the pleadings pour from your mouth into the record for God and all the world to hear, the flaws and weaknesses drawing into clear focus with every heretofore and to-wit, and your spirits sag at the prospect of sour defeat.
By agreement the grounds for divorce are presented first, and the judge will rule whether a divorce will be granted. You call the opposing party first and he denies everything. Your client then testifies unconvincingly about her husband’s mistreatment. Her performance on cross is frightful. The corroborating witness might as well have been in Peru when the offending conduct is alleged to have occurred. Judge Neville ponders and whittles, maufacturing acrid clouds from his pipe. Tension builds until the judge intones his opinion that, “The grounds for divorce are not strong, but the court finds that these parties need to be divorced, and so I will grant the Complainant a divorce.” Whew. It was fairly common for Chancellors to do that back then, but it’s still a relief to get over that hump.
You rise to call your first witness on the remaining issues, but Judge Neville interrupts you in his stentorian tone, “Suh, I will see the lawyuhs in chambuhs,” and he leaps to his feet and bounds out of the court room and into his office, his pipe jutting decisively out of his face. You know what is coming. It’s the arm-twisting conference where the Judge, now that he’s granted the divorce, will bring all of his considerable persuasive power and intimidation to bear. In chambers he wheedles, threatens, sweet-talks, cajoles, cusses and pounds his desk, demanding that you settle, or else.
You confer with your client who is now more amenable to a settlement, having been tenderized by opposing counsel. A few more sessions with the Chancellor and the case is settled.
Somehow you paint the best face on your performance for your client. She’s not thrilled with the settlement, but it’s not really bad for those days: She gets her divorce and custody of the baby; her ex-husband will have to pay a respectable $35 a week for child support (her best friend got a divorce last month and got only $60 a month; after all, there were no statutory child support guidelines then); her ex gets the house because it is titled only in his name (no equitable distribution then; title controlled); she gets the 1971 Dodge, and he will pay the $65 monthly note; she will have to pay the $120 McRae’s bill; she will get the living room and bedroom suites, baby furniture and the 19-inch RCA black-and-white television, and he will get the 19-inch Westinghouse color tv. She’s not terribly happy, but all in all, she’s fairly satisfied that she got good value for the $250 that she paid you to handle her contested divorce.
In the clerk’s office, you stop to visit with Mr. M.B. Cobb, the gentlemanly Chancery Clerk, and deputy clerk Joyce Smith, who try to console you about your misfire in court. That new young deputy clerk, Rubye Hayes, is disgruntled about something, so you try not to lay your already-bruised ego in her path.
Leaving the court house, you meander over to the Southern Kitchen where you find the company of jovial lawyers and even your older adversary scarfing down coffee and pie, as they do every day. You pull up a chair and order a comforting slice of lemon icebox pie, and before your first forkful, you are the butt of their ribbing about how you folded your hot hand when Neville called your bluff. You fight not to blush, but you can’t help but smile with the satisfaction of knowing that they only treat colleagues that way, and that much of their humor is part painful experience and part shared pain.
It’s nearly 10:30, and you head back to your office. You wonder whether you’ll get to finish reading that new John D. MacDonald detective novel or whether you’ll have some work to do.
Back at the office, you have two new clients awaiting, and you receipt them and open files in time for lunch. But before leaving, you ask your secretary to type up the pleadings, which will be on legal-sized paper, the original on bond, and the several copies made with carbon paper on onion-skin; you can’t yet afford the latest technological advance: an IBM memory typewriter. Word processors and computers are unknown. You prefer carbons to photocopies (all of which were called “xerox copies” back then) because your copier, like most, makes sepia-colored copies on slick, coated paper from a roll in the machine, and the copies are not favored by the judges because they tend to curl up and are hard to handle, but worst of all, they tend to turn dark or black over time and become illegible.
Ordinarily you would head over to Weidmann’s to sit at the lunch counter over a vegetable plate with cracklin bread and see many of the people you know, or to the Orange Bowl for a cheeseburger, but today you’ve decided to recover from your court room wounds by spending the afternoon on a friend’s lake, casting crickets on a quill with a fly rod for chinkapins and having a few cool ones. You stop at the bait shop next to Anderson Hospital and visit with James Elmer Smith while he scoops up your crickets. One great thing about being out on the lake: no one will bother you there because there were no cell phones then; in fact, many people still had dial telephones.
On your way out to the lake you think to yourself what a good life you have and how even a disappointing day in court is not so bad in the whole flow of things. And tomorrow is a whole, new day.
GETTING DONE WHAT IS ORDERED TO BE DONE
September 9, 2010 § Leave a comment
The court ordered the opposing party to convey her interest in the homestead to your client, but it’s been a month and you still don’t have the executed deed. Now your client is calling about the riding lawn mower and big-screen tv he was supposed to get. His ex claims she doesn’t know anything about them, but he sees them at her place every time he goes to pick up the children for visitation.
The attorney on the other side has given up in exasperation. She is not having any success in getting her client to cooperate, and she asks you to quit calling her; she considers her representation at an end.
What to do?
Of course, you can file a contempt action, but there are a couple of other avenues.
Rule 70(a), MRCP, provides that you can ask the court to appoint some other person, the Chancery Clerk for example, to execute and deliver that deed. And any cost of getting it done is at the cost of the recalcitrant party. The resulting deed with the court’s order will have “like effect as if done by the party.”
Better yet, next time get the court to include language in the judgment divesting title from the other party and into your client, as provided in Rule 70(b), MRCP. That would eliminate the need to get a deed signed, and, after all, the purpose and effect of the deed is to divest title from the other party into your client. The rule says that “such judgment has the effect of a conveyance executed in due form of law.”
As for the riding lawn mower and tv, Rule 70(c), MRCP may help you out. It states that a certified copy of the judgment or court order shall be sufficient authprity for the sheriff in the county where the property is located to seize it and deliver it to your client. Only problem here is that most attorneys do not put enough information into the record for a sheriff, much less a judge, to determine whether the riding lawn mower and tv your client says he is to seize are really the ones subject to being seized. What is the sheriff to do when the ex-wife claims that this riding lawn mower is her separate property purchased since the separation, and that she does not know where the marital mower is? Does the sheriff seize it and hope that she is lying or that his liability insurance will pay any damages? Or does he hand your client back his papers, shrug his shoulders, and return to his patrol car for the next job at hand? I would choose the latter, if I were the sheriff. Best practice is to be sure there is enough information, such as make, model, color, serial number and any other identifying information you can get in the record and the judgment to back up your client’s claim to possession.
“QUOTE UNQUOTE”
September 9, 2010 § Leave a comment
“I love deadlines. I especially like the whooshing sound they make as they go flying by.” — Douglas Adams
Douglas Adams
“Of course the game is rigged. Don’t let that stop you—if you don’t play, you can’t win.” — Robert Heinlein
“Next to knowing when to seize an opportunity, the most important thing in life is to know when to forego an advantage.” — Benjamin Disraeli
WHEN RULE 41(D) COMES KNOCKING AT YOUR DOOR
September 8, 2010 § 11 Comments
Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …” that the case will be dismissed for want of prosecution. The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.”
You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time. The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery. In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine. Until the next week, when you find your case was dismissed despite your efforts. What went wrong?
In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed. The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed.
There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case. The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor. The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit. Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.
The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path. ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.
If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either: (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires. Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.
Caveat: Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court. It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year. It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.
Comment: The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit. Statutes of limitation are not as often a concern in Chancery. For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation. It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.
LAY OPINION TESTIMONY SOMETIMES LAYS AN EGG
September 7, 2010 § 3 Comments
Some lawyers argue that lay opinion testimony should be strictly proscribed as not helpful to the court and an invasion of the court’s fact-finding province. Others attorneys respond that those concerns are overblown and that the court can filter out any ill effects. Here is a rough transcript of an exchange that happened in my courtroom recently. Judge for yourself:
Q: Now, you said a moment ago that you plan to file for bankruptcy. Do you know what effect bankruptcy will have on your income?
Opposing counsel: Objection. He can’t possibly know what effect bankruptcy would have on his income. He is not an expert.
Counsel: But, judge, he can state his understanding based on what he trying to accomplish by filing bankruptcy.
Court: I believe that any ordinary person with walking-around sense would know what effect bankruptcy would have on their income. I will overrule the objection. Repeat the question for the witness, please.
Q: Do you know what effect bankruptcy will have on your income?
A: No.
A GRAVE DISCOURTESY
September 3, 2010 § 2 Comments
You get 10 points if you can answer this question:
In our law and rules there are transgressions that can be treated as contempt, and there are some that can be sanctioned by removal or disqualification of the attorney.
What action or or omission of an attorney ” … will be considered a grave discourtesy?”
GOLF AND ANATOMY
September 3, 2010 § Leave a comment
“The uglier a man’s legs are, the better he plays golf. It’s almost a law.” — H.G. Wells
Not a golfer myself, so I can’t really say for sure, but I am glad for Wells’ sake that he didn’t mention female golfers.
Thanks to Futility Closet for this insightful quote.
PROVING TAX EFFECTS OF ALIMONY
September 2, 2010 § 3 Comments
Armstrong vs. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), sets out the factors that the trial court is supposed to consider when adjudicating whether to award alimony, and if so, the form, duration and amount.
All of the Armstrong factors are important, and failure to prove even one can doom your claim. One of those factors is “The tax consequences of the spousal support order.”
There are only two ways to establish the tax consequences: (1) Have an expert testify or offer into evidence a learned treatise; or (2) Agree with opposing counsel what they are and present the agreement to the court.
It doesn’t take a legal scholar to appreciate the advantages and disadvantages of these approaches. An expert can offer clarity, but she can be asked about so many extraneous matters on cross until the court is bewildered. A learned treatise can be precise and clear, but you still need to lay a foundation for it with an expert in most cases. In either case, experts are expensive.
By contrast, it doesn’t take much to convince opposing counsel that it is to both parties’ benefit to enter into a stipulation as to the tax consequences. That way, both parties have evdence in the record for the court to consider, and if the case is appealed, the Court of Appeals is not left scratching its collective head about why there is no proof of the tax consequences.
Back when I was practicing, several of us attorneys colluded and came up with a form for a stipulation. I believe it covers every base. It was done several years ago, and may not reflect intervening changes in the tax code, but it will at least provide a template for you to adapt to the current law.
Here is the form:
| MISSISSIPPI CASE LAW | FEDERAL INCOME TAX |
| “Lump-Sum Alimony” | “Lump-Sum Alimony” |
| Represents part of the equitable distribution of the marital estate. Is a fixed sum not subject to modification. Obligation to pay continues after the death of the payee or payer. | Represents a property settlement for income tax purposes and is not taxable by the payer or taxable to the payee. Is not alimony for income tax purposes because payments would continue, by operation of law after the payee’s death. |
| “Periodic Alimony” | “Periodic Alimony” |
| Is based on the payer’s duty to support the payee in the manner to which she or he had become accustomed, is modifiable and terminates on payee’s remarriage, death, or payer’s death. | Is tax deductible by the payer and taxable to the payee; i.e., qualifies as alimony for tax purposes. The reason periodic alimony qualifies as alimony for tax purposes is because under Mississippi law there is no liability to make any payment (in cash or property) after the death of the recipient spouse. |
| “Rehabilitative Alimony” | “Rehabilitative Alimony” |
| Is for a fixed term, but is modifiable. | If the liability to make the payments stops after the death of the recipient spouse, then rehabilitative alimony would qualify as alimony for income tax purposes. |
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The payment is in cash.
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The instrument does not designate the payment as not alimony.
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The spouses are not members of the same household at the time the payments are made. This requirement applies only if the spouses are legally separated under a decree of divorce or separate maintenance.
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There is no liability to make any payment (in cash or property) after the death of the recipient spouse.
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The payment is not treated as child support.
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The obvious advantage of the stipulation is that it establishes the fact without expense and both parties have the information in the record. Unfortunately, this is an element of alimony proof that is almost never addressed by the attorneys in a trial, and it could cost your client dearly.
The Better Chancery Practice Blog 