The State of HCIT
April 11, 2017 § 1 Comment
If you need a nifty survey of the current law of HCIT in Mississippi, look no farther than the COA’s decision in White v. White, decided December 13, 2016. In that case, the chancellor found that Barbara White had proven her ground of HCIT against her husband, Anderson, despite Anderson’s claim that her proof was insufficiently corroborated, and that he denied her claims.
Judge Barnes wrote for the court:
¶11. First, Anderson argues that the facts asserted by Barbara at trial do not rise to the level necessary to establish habitual cruel and inhuman treatment. In response, Barbara argues that this Court should do as the chancery court did, and review the acts not in isolation, but as a whole. Finding no error with the chancery court’s analysis, we affirm the chancery court’s judgment.
¶12. In Rakestraw v. Rakestraw, 717 So. 2d 1284 (Miss. Ct. App. 1998), this Court
reiterated the long-held principle that:
Habitual cruel and inhuman treatment may be established by a showing of conduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Rakestraw, 717 So. 2d at 1287 (¶8) (citing Daigle v. Daigle, 626 So. 2d 140, 144 (Miss. 1993)). “[S]uch conduct must be habitual, that is, done so often, or continued so long, that its recurrence maybe reasonably expected whenever occasion or opportunity presents itself.” Burnett v. Burnett, 271 So. 2d 90, 92 (Miss. 1972). “Although the cruel and inhuman treatment usually must be shown to have been ‘systematic and continuous,’ a single incident may provide grounds for divorce.” Rakestraw, 717 So. 2d at 1287 (¶8). “While ordinarily one act or an isolated incident will not establish a charge of habitual cruel and inhuman treatment, one incident of personal violence may be of such a violent nature as to endanger the life of the complainant spouse and be of sufficient gravity to establish the charge of habitual cruel and inhuman treatment.” McKee v. Flynt, 630 So. 2d 44, 48 (Miss. 1993). “[T]he charge ‘means something more than unkindness or rudeness or mere incompatibility or want of affection.’” Rakestraw, 717 So. 2d at 1287 (¶8) (quoting Daigle, 626 So. 2d at 144). Habitual cruel and inhuman treatment must be shown by a preponderance of the evidence. Shavers v. Shavers, 982 So. 2d 397, 403 (¶35) (Miss. 2008).
¶13. “The party alleging cruel and inhuman treatment typically must corroborate the testimony.” Id. Nonetheless, “[c]orroborating evidence need not be sufficient in itself to establish habitual cruelty, but rather need only provide enough supporting facts for a court to conclude the plaintiff’s testimony is true.” Smith v. Smith, 90 So. 3d 1259, 1263 (¶12) (Miss. Ct. App. 2011) (citing Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009) (quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] (2005))).
¶14. On appeal, Anderson asserts that the incidents presented in testimony and outlined by the chancery court in its judgment do not show a continuous pattern or course of habitual cruel and inhuman conduct by Anderson toward Barbara. Specifically, Anderson argues that Barbara failed to sufficiently corroborate her testimony regarding the black eye she received, as well as the events surrounding the cocked-gun incident. The chancery court, however, found otherwise, considering the actions described not in isolation, but as a whole. In doing so, the chancellor determined that “[a]s a whole [Anderson]’s conduct has been habitually mean and heartless[,] . . . exhibit[ing] a pattern or a course of conduct which as a whole amounts to cruelty.”
¶15. Regarding the black-eye incident, Anderson denied hitting Barbara, but admitted that Barbara did, in fact, possess the alleged injury. Anderson further testified, however, that he was unaware of how Barbara received the injury. In reviewing Anderson’s testimony, the chancellor specifically noted in her final judgment that Anderson “nonchalantly testified” regarding this incident, and that “[i]t would seem to the court that a husband would make it his business to know how his wife received a black eye.” In relation to the 2009 cocked-gun incident, Barbara, her mother, and her sister all testified that after an argument between the parties, Anderson angrily ran upstairs, where they then heard a gun “cock” or “click.” Barbara’s mother did, however, testify that she did not realize at that time the noise she heard related to the use of a gun. Anderson admitted he owned many guns, but denied that the incident ever occurred; in support, Anderson III also testified that Anderson did not leave the room where the argument took place.
¶16. Upon review, this Court is reminded that “[t]he chancellor is vested with the sole authority and responsibility to assess witness credibility as no jury is present.” Jones, 43 So.3d at 471 (¶10). The chancellor alone “hears the testimony and sees the demeanor of the witnesses.” Boutwell v. Boutwell, 829 So. 2d 1216, 1220 (¶16) (Miss. 2002). This Court “cannot, and will not, reweigh the evidence or reconsider the credibility of the witnesses.” Hammers v. Hammers, 890 So. 2d 944, 951 (¶19) (Miss. Ct. App. 2004). As such, the chancery court found “[t]he black eye and the gun incidents gave [Barbara] a reasonable apprehension of danger to her life, limb or health,” causing her “to be nervous and scared,” as Anderson’s conduct “occurred continually throughout the marriage and its recurrence [could] be reasonably expected whenever occasion or opportunity present[ed] itself.” In light of the corroborating testimony provided by Barbara’s witnesses, as well as that of Anderson himself, we find the record contains more than sufficient evidence to support the chancery court’s grant of a divorce based upon habitual cruel and inhuman treatment. See Gatlin v. Gatlin, 234 So. 2d 634, 635 (Miss. 1970) (holding testimony of the defendant may also provide corroboration of the plaintiff’s testimony).
The chancellor commented unfavorably on Anderson’s cavalier demeanor during his testimony. It cost him. As I’ve said here before, get your witnesses ready for the crucible of court, or be prepared to watch your patient get carved up like a Christmas goose while you stand by twiddling your thumbs.
Fixing Visitation
April 10, 2017 § Leave a comment
A New York court awarded Allison Estes custody of her minor son and authorized her move to Mississippi. Kevin McKeown, the father, was awarded visitation, and he was obligated to provide Allison with notice of visitation, an itinerary, and the address where he would be staying during visitation.
Following several visitations in which Kevin did not provide advance notice or the required information, Allison filed suit in Mississippi. There was a period in which process repeatedly failed, until Kevin was personally served. He then entered an appearance pro se, and made several objections to jurisdiction. Kevin did not attend the trial, at which he was found in contempt. The chancellor also suspended visitation until Kevin would produce proof of residence, and imposed the condition that visitation could not be exercised without proper notice. He also assessed Kevin with $2,200 in attorney’s fees. Kevin appealed.
In McKeown v. Estes, decided March 7, 2017, the COA affirmed. Judge Barnes addressed the issue of limitations on visitation for the court:
¶23. Finally, Kevin claims that the chancellor showed “little regard to the best interest of [the child], [and] bias and poor discretion in ignoring the ‘totality of the circumstances.’” Kevin does not elaborate regarding how the chancellor allegedly showed bias or ignored the totality of some unspecified circumstances. In any event, Kevin cites Ash v. Ash, 622 So. 2d 1264, 1266 (Miss. 1993), as support for his very brief claim.
¶24. Ash did not involve modification of visitation conditions. Instead, Ash followed an order modifying custody of a child. Id. at 1265-67. The mother’s “continued refusal” to allow the child to visit his father led to custody modification. Id. at 1266. But Ash does not support Kevin’s claim that the chancellor erred by modifying certain conditions of Kevin’s visitation. Kevin does not argue that the modified conditions are unreasonable. Moreover, Kevin does not attempt to explain how those conditions are somehow contrary to the child’s best interest, or how they could negatively impact his relationship with his son.
¶25. “To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.” Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016). “The chancellor is granted ‘broad discretion’ in visitation determinations[,] and [an appellate c]ourt will not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record.” Wilburn, 991 So. 2d at 1194 (¶20). “[T]he best interest of the child is the main concern in determining visitation.” Id. at (¶23).
¶26. Allison testified that the New York visitation order was not working because Kevin was not complying with it, and there were no consequences for his noncompliance. When he provided late, last-minute notice that he would exercise his summer visitation, it was difficult to prepare their child for his long interstate trip. Kevin also failed to return the child when he said he would; so the child missed activities that had been scheduled in advance. Additionally, Allison was not able to contact the child during Kevin’s visitation, and Kevin would not disclose the child’s location. Modifying the visitation order to provide specific provisions rather than ones that are flexible and vague was in the child’s best interest, because it tends to foster a more positive and harmonious relationship between Allison and Kevin. See Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Consequently, we find that the chancellor did not act contrary to the child’s best interest, and it was within his discretion to modify the New York visitation order.
¶27. We recognize that “[a]bsent extraordinary circumstances, the noncustodial parent during visitation should have broad authority and discretion with respect to the place and manner of visitation.” Jaggers v. Magruder, 129 So. 3d 965, 969 (¶21) (Miss. Ct. App. 2014). The chancellor’s decision does not impact Kevin’s broad authority and discretion regarding where he takes his son during his visitation periods. He must simply inform Allison where he will be exercising it, and provide her with adequate notice before he does so. Considering the distance between Oxford and New York City, those conditions are not unreasonable. This issue is meritless.
This case highlights the broad authority of a chancellor to the often vexatious conflicts that arise over visitation. Conditions and restrictions may be imposed where reasonable and necessary to address the problems with visitation.
“Quote Unquote”
April 7, 2017 § Leave a comment
“See everything; overlook a great deal; correct a little.” – Angelo Giuseppe Roncalli, Pope John XXIII
“Not the power to remember, but its very opposite, the power to forget, is a necessary condition for our existence.” – Sholem Asch
“True tolerance remains mindful of the humanity of those who make things easy for themselves and welcomes and even loves honest and thoughtful opposition above less thoughtful agreement.” – Walter Kaufmann
No Factors, No Affirmance
April 5, 2017 § 1 Comment
The COA’s March 21, 2017, decision in Sullivan v. Sullivan, is not going to have far-reaching impact on Mississippi law. It’s yet another in a long line of cases that reverses and remands because the chancellor’s findings did not address Ferguson and Armstrong factors. Not that big a deal, really.
Now, we don’t know much from the COA’s decision about what exactly happened in that particular case, but consider this scenario from a case in my court not long ago:
Husband’s attorney withdraws from the case, leaving him unrepresented in a case that had been pending nearly two years. When he appears for trial five months later, he asks for a continuance to get an attorney, which request is denied. The trial proceeds.
In the course of presenting proof on the issue of equitable distribution, the attorney for wife puts on proof as to only one Ferguson factor, a point I noted in my opinion, in which I nonetheless did effect an equitable distribution.
Husband timely filed a R59 motion asking for a do-over because I should have granted the continuance, which would have allowed husband to present an effective challenge to the equitable distribution.
I rejected his argument that I should have given him more time to get an attorney.
But … I felt that I had no choice but to grant the re-do as to the equitable distribution simply due to the paucity of the record as to any proof to support the Ferguson analysis. I am confident that, if I had rejected his argument and he appealed, the COA would have sent the case back for a more substantial record. So the husband will have assistance of counsel when the issue comes ’round again.
This could have been avoided had counsel for wife taken a little more time to get evidence into the record of as many of the Ferguson factors as applied.
Getting back to Sullivan, sometimes when I read these cases I wonder whether the fault was the chancellor’s or whether the fault lay in the cards that the judge was dealt.
April 3, 2017 § 2 Comments
Globetrotting for the next little while, so posts will be somewhat sparse.
I’ll have little-to-no internet access, so moderation of comments will be little-to-none.
More Adventures of Socrates
March 31, 2017 § Leave a comment
Explanation: In what is sort of the founding myth of Western Philosophy, the Oracle of Delphi told Socrates that he was the wisest man in Athens. Socrates couldn’t believe it, so he interrogated all the wise men of Athens on various subjects, such as the nature of virtue, piety, justice, etc. He found that none of them really knew what they were talking about, although they all believed that they did. He then concluded that he was indeed the wisest man in Athens, because although like them he didn’t know anything, he at least “knew that he knew not.”
Mother-in-Law’s Revenge
March 30, 2017 § Leave a comment
What happens when, after a divorce has been granted, the mother-in-law claims that some of the personal property awarded to the wife actually belonged to her (i.e., the mother-in-law)?
Well, one avenue she might pursue is a replevin.
And that is precisely what Mary Stevens did, in County Court, claiming that Ginger Grissom, her former daughter-in-law, was wrongfully holding some rings and knick-knacks belonging to her. Those things, however, had been awarded to Ginger in the divorce. The County Court ruled against Stevens, and she appealed to Circuit Court, which affirmed. Thence she appealed, and the COA affirmed in Stevens v. Grissom, handed down March 21, 2017.
The divorce case was actually mine. Although I don’t make it a habit to comment here about cases from my court, this is really a county court case, and the divorce is only tangentially related. Still, it’s interesting to note that the divorce was settled in mediation and the final judgment approved and incorporated the parties’ own property-settlement agreement that awarded those later-contested items to Grissom.
I found this interesting simply because I had never seen an action like this in the backwash of a divorce.
Who Pays the Cost of Expertise?
March 28, 2017 § 1 Comment
Stephen and Alaina Bullock separated in 2007, and were in divorce proceedings by 2008. When they finally appeared for trial in 2010, Alaina noted that she had yet to receive discovery responses (after around 3 years), but waived her right to them so as to get the matter over with. After a day of testimony, the chancellor realized he had a conflict and recused.
In July, 2011, the successor chancellor entered an order compelling Stephen to answer the discovery requests. On August 7, 2011, the chancellor entered an order appointing a forensic accountant to report on valuation of the parties’ rather extensive assets as of the date of the report, which he did on January 31, 2012. In reaction, Alaina hired her own forensic accountant, Levens, who produced a report that was “significantly broader in scope and detail than that of the court-appointed accountant,” including valuation of assets not mentioned by the court-appointed expert, the parties’ net worth, and final numbers.
In 2014, around six years into the pendency of the case, the parties appeared for trial, and Stephen asked for a continuance to answer the discovery that was now ready to enter first grade. The chancellor denied the request, and the trial commenced. Both experts testified. In his final ruling, among other things, the chancellor ordered Stephen to pay a large part of the fees charged by Alaina’s expert. Stephen appealed.
In the case of Bullock v. Bullock, handed down February 28, 2017, the COA affirmed on the assessment of expert cost. Judge Greenlee wrote for a unanimous court (Lee not participating):
¶24. Stephen asserts that the chancellor erred in assessing him half of Levens’s expert accounting fees. In Burnham-Steptoe v. Steptoe, 755 So. 2d 1225, 1236 (¶40) (Miss. Ct. App. 1999), this Court affirmed a chancellor’s refusal to require a husband to pay his wife’s accountant fees where a court-appointed accountant also testified, the wife’s expert based his calculations on the court-appointed accountant’s testimony, and the court could have derived the value of the asset based solely upon the court-appointed expert’s testimony. We have a different situation in the case at hand. Here, Alaina’s expert generated an independent report greater in scope than that of the court-appointed accountant, a report that included identifying genuine mistakes in the court-appointed accountant’s report as well as identifying the loan and investment that constitute the disputed marital assets on appeal. The chancellor stated that the two experts “supplemented” each other. Unlike in Steptoe, the contributions of Alaina’s expert were not entirely derivative and duplicative of the work done by the court-appointed accountant. The court relied on the combined work of the two experts, and the court’s determination on fees has Alaina and Stephen splitting the cost of both experts evenly. We also note that Stephen’s chronic resistance to meaningfully participating in discovery hampered both experts’ progress. We do not find that the chancellor abused his discretion in assessing Stephen half of Levens’s expert fees.
A few points to ponder:
- If you’re going to hang your client with the extra expense of an expert in addition to the court-appointed expert, be sure that the expert is going to go above and beyond what the court-appointed one did. Merely to take what the court-appointed expert concluded and nick at the edges will only get your client minor relief at a dear price. Here, Levens was able to add substance that gave the chancellor a basis to go beyond what the court-appointed expert did.
- It never ceases to amaze me how some lawyers cavalierly let their clients get months (and in this case, years) behind in discovery responses. Don’t they realize that they are asking for trouble? Do they think the chancellor is going to stand idly by, shrug her shoulders, and say, “Oh, well,” when confronted with a long-standing neglect to respond? At some point a price will be paid. Stephen paid it here.
- It’s hard to imagine a case in which the parties are well-served by a six-year-divorce proceeding, followed by an appeal and a partial remand, which may well be followed by another appeal (not to mention the usual post-ruling motions at both appellate and trial levels). Not to say that I haven’t been involved in lengthy ones myself, but, honestly, if the lawyers can get the parties to answer discovery and do what needs to be done, the case can be brought to a merciful end.
- Here’s a trick I learned from one of the all-time great Chancellors, John Clark Love of Kosciusco. When a party was overdue on discovery and the matter was brought to his attention on a motion to compel, he would inquire of the defaulting attorney, “How much time does your client need to file complete responses?” Invariably the lawyer would lowball the time, and Judge Love would encourage a realistic response. When a realistic date was finally arrived at, he would direct the prevailing attorney to prepare an order that would require the party to answer by that date, and for every day thereafter until the answers were filed, the defaulter would incur a $25 fine payable to the county. You can do the math; it doesn’t take very long for that to become a painful — and hopefully motivational — bite.
Four Judges, and a Remand Makes Five
March 27, 2017 § 2 Comments
When Jon A. Swartzfager and Thomas R. Saul had a disagreement over the sale of some land, Saul filed suit in chancery court for breach of contract, equitable estoppel, and promissory estoppel.
The chancellor of the district recused, and the MSSC appointed Special Chancellor #1. That judge granted partial summary judgment and conducted some proceedings, in one of which he declared a written instrument to be a valid, enforceable contract. Before he got to a trial, however, Chancellor #2 unfortunately died.
Enter Chancellor #3. This time, the judge did set the case for trial, and it was heard on November 29, 2012, and January 25 and April 8, 2013. Before Chancellor #3 could render a final judgment, he, too, died.
The MSSC appointed Chancellor #4, who huddled with the attorneys and entered an order memorializing the parties’ agreement that he could review the existing record and render a decision. Chancellor #4 did just that, finding that Swartzfager had breached the contract, and awarding damages of more than $200,000, which included $79,098.81 in prejudgment interest. Swartzfager appealed.
In the case of Swartzfager v. Saul, decided February 16, 2017, the MSSC reversed in part and remanded. Essentially, the court affirmed everything but the award of prejudgment interest, and remanded for the chancellor to recompute damages without the prejudgment interest.
Only thing is, Chancellor #4 is now retired and is no longer sitting as a senior or special judge, so he will not be available to deal with the case on remand.
Enter Chancellor #5. Stay tuned.
A few interesting points from the decision by Justice Maxwell:
- Swartzfager argued that the MSSC should review the case de novo because Chancellor #4 based his decision on testimony before previously-assigned chancellors; he also urged that the previous chancellors’ findings should be given no deference. The court rejected that claim at ¶18 on the principle of judicial estoppel. The parties had agreed to follow that procedure, and he is precluded from taking a contrary position at a later stage of the case.
- Another point pressed unsuccessfully by Swartzfager was that it was error for the chancellor to adopt Saul’s findings of fact and conclusions of law verbatim. The court disagreed, pointing out that the judge made his own findings, including adopting some findings of previous chancellors. I might add that even if the chancellor had wholly adopted Saul’s findings, it was not error for him to do so. You can read a post about the subject here.
- The reversal on the issue of prejudgment interest came about because Saul had not included a prayer for that relief in his complaint, and so he was precluded from getting that relief per MRCP 8. The court noted that, since the reversal was based on the state of the pleadings, and not on the merits, it did not need to address whether the damages were liquidated, or if there were bad faith, which are two of the bases necessary to support an award of prejudgment interest.
- There’s a lot of substance in this case that you might find useful, including: what it takes for a writing to be a contract; equitable estoppel; emotional distress damages arising out of a contract dispute; and assessment of attorney’s fees in absence of punitive damages.
Reprise: How to Refresh Recollection
March 24, 2017 § Leave a comment
Reprise replays posts from the past that you might find useful today:
Refreshing Recollection
February 27, 2014 § 2 Comments
The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.
To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.
It doesn’t have to be so complicated, however.
Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.
Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.
Here are the proper steps:
- Establish that the witness is unable to recall a particular thing.
- Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
- If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
- Now the lawyer asks again if the witness now remembers after looking at the writing.
- If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
- If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.
MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.
The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).
The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.
In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.
An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.
