“Quote Unquote”
June 3, 2016 § 2 Comments
“Widespread ignorance bordering on idiocy is our new national goal. … The ideal citizen of a politically corrupt state … is a gullible dolt unable to tell truth from [bs]. An educated, well-informed population, the kind that a functioning democracy requires, would be difficult to lie to, and could not be led by the nose by the various vested interests running amok in this country.” – Charles Simic
“The educated differ from the uneducated as much as the living from the dead.” – Attributed to Aristotle
“The mind is not a vessel to be filled, but a fire to be kindled.” – Plutarch
Five Sure-fire Ways to P*** off Your Chancellor
June 2, 2016 § Leave a comment
It should go without saying that chancellors have god-like powers over your cases, and it behooves you (and your client) to respect those powers when it comes to interactions with the court.
There are some irascible chancellors, I will grant you. But in my experience the great majority are sympathetic, patient, focused on doing the right thing the right way, and interested in improving practice in their courts.
So, whether you are dealing with a splenetic judge or one with the disposition of Saint Teresa, you want to be sure you avoid behaviors that will be sure to get you on the chancellor’s bad side.
Here are my top five:
5. Being chronically late for court. Everyone has occasional emergencies that affect the ability to be on time, but when it’s chronic, it’s an annoyance beyond measure. Your judge may have a higher pain threshold than I, but to me being late merely because you’re late is an ultimate insult not only to the judge, but also to everyone else involved in the case. It communicates that you consider yourself more important than anyone else awaiting your arrival, and I assure you that, in that situation, you will be the only one there who agrees with your opinion. If you find yourself being late more than on rare occasions, you’d best do some rearranging of your priorities and your ways of doing business.
4. Not learning from your mistakes. It gets tiresome having to deal with the same lawyers making the same mistakes over and over, such as late and incomplete accountings, improper process, failure to comply with discovery orders, and failure to present orders after being ordered to do so, to name only a few. It’s not the judge’s job to pull your irons out of the fire. And if it’s a contested case, it would be improper for the judge to aid one side or the other. If this is your problem, don’t be surprised if one day the judge loses patience, throws her hands up, and says, in effect, get your own self out of this mess; I’m not doing it any more.
3. Being unprepared. You have to ask the court to delay your divorce or modification hearing to give you time to throw together an 8.05. Or you try to convince the judge to take a particular position, but you don’t have any case law to cite because you haven’t done a lick of research. Or you have to ask for a continuance because your pleadings are not in order. Or you neglected to tell your client to be there for court. These are not only symptoms of unpreparedness; they also indicate lack of competence. Once you convince the judge that you are unprepared and/or incompetent, you can expect that everything you do will be carefully scrutinized, slowing down your ability to get things done for your clients.
2. Being disrespectful. We all have bad days in court. Those are compounded when the judge has one, too. No matter the outcome, it is your professional duty as a lawyer to suck it up, keep your thoughts to yourself, and show respect. Like a bell that can not be unrung, a snide or flip comment will continue to resonate with your judge long after you regretted saying it. Likewise, being disrespectful of opposing counsel, opposing party, witnesses, and anyone else involved will diminish you, and not the object of your disdain. Arrogance is a trait best left at your office.
1. Lying. This is the cardinal sin — the one that may earn you years of or even permanent distrust from your chancellor. Never lie even when the truth will hurt. If you’re in the wrong, admit it and ask the court’s indulgence. Lame excuses sound like lies and often are. If you find out that something you represented to the court turns out to be untrue, get with the judge as soon as possible to straighten it out.
MRE 103 Amended
May 31, 2016 § Leave a comment
The MSSC entered an order on May 26 amending MRE 103. The full text of the order and the amended rule are at this link.
This particular rule change adds a subparagraph (3) to R103(a) that reads as follows:
(3) Effects of Definitive Rulings. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. Moreover, a party who objects to evidence of a prior conviction the court finds admissible in a definitive ruling does not waive or forfeit a claim of error by offering the evidence. But if under the court’s ruling there is a condition precedent to admission or exclusion, such as the introduction of certain testimony or the pursuit of a certain claim or defense, no claim of error may be predicated upon the ruling unless the condition precedent is satisfied.
This brings Mississippi’s R103 closer to the federal counterpart.
I’ll leave it to you to puzzle out exactly how this might affect your practice, but I think the key word is renew, meaning that once the court has ruled definitely on admissibility, nothing needs to be renewed. It does not mean that an offer of proof per R103(a)(2) is not necessary to place the controverted evidence into the record. I also think as a practical matter that this will have greater application in criminal cases, where pre-trial exclusionary orders have been entered, than it will in chancery matters.
Redaction that Works
May 27, 2016 § 2 Comments
MRCP 5.1 and the MEC administrative rules require that you redact certain information from pleadings filed electronically. We’ve discussed the topic here previously. I’ve also encouraged you to redact similar information from discovery responses and exhibits in evidence.
But how do you redact? Are you doing it effectively?
The federal courts, which have similar privacy requirements to Mississippi’s, have studied the question. Here’s a link to an article on the web site of the US District Court for the Northern District of California that explains what methods of redaction do the job — and those that do not.
Rehabilitative Alimony vis a vis Equitable Distribution
May 25, 2016 § Leave a comment
In a recent case, the COA reversed a chancellor’s calculation of equitable distribution because she counted the mortgage balance both as a liability and as a reduction of the value of the mortgage property. The chancellor had also awarded rehabilitative alimony.
The appellant, Tony Hearn, argued that the chancellor was in error in awarding rehabilitative alimony to his ex, Varena, and that the COA’s reversal of equitable distribution mandated reversal of the rehabilitative alimony award. That’s because as equitable distribution expands, periodic alimony contracts, and vice versa. So, when equitable distribution is thrown out for recalculation, it’s back to the drawing board for periodic alimony recalculation.
Does that rule apply to rehabilitative alimony, though?
In the COA case Hearn v. Hearn, handed down May 10, 2016, the court answered, “no,” and affirmed the chancellor’s award. Judge Lee’s opinion explained:
¶16. In his other issue on appeal, Tony contends the chancellor erred in awarding Varena rehabilitative alimony. “Rehabilitative alimony provides for a party who is trying to become self-supporting and prevents that party from becoming destitute while searching for a means of income. Moreover, ‘the primary purpose of rehabilitative alimony is to give the former spouse the opportunity to enter the work force.’” McCarrell v. McCarrell, 19 So. 3d 168, 170 (¶8) (Miss. Ct. App. 2009) (quoting Alexis v. Tarver, 879 So. 2d 1078, 1080 (¶7) (Miss. Ct. App. 2004)) (internal citation omitted).
¶17. Ordinarily, the reversal of a chancellor’s division of marital property requires reversal of an alimony award. Mace v. Mace, 818 So. 2d 1130, 1134 (¶16) (Miss. 2002). However, the decision to award rehabilitative alimony “is not considered during equitable distribution.” Lauro v. Lauro, 847 So. 2d 843, 849 (¶15) (Miss. 2003); see also Hensarling v. Hensarling, 824 So. 2d 583, 595 (¶39) (Miss. 2002) (court affirmed award of rehabilitative alimony even though it reversed for chancellor to reevaluate value of marital estate); Rhodes v. Rhodes, 52 So. 3d 430, 447 (¶72) (Miss. Ct. App. 2011) (“[A]n award of rehabilitative alimony is exempted from the general proposition that reversal of one financial award requires reversal of all.”); Lauro v. Lauro, 924 So. 2d 584, 588 (¶14) (Miss. Ct. App. 2006) (“Periodic alimony is to be reconsidered when the marital estate is redistributed under principles of equitable distribution. However, rehabilitative alimony is not considered during equitable distribution.”). “Rehabilitative periodic alimony is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Hubbard v. Hubbard, 656 So. 2d 124, 130 (Miss. 1995).
¶18. In this instance, the chancellor evaluated the award of alimony under the factors enunciated in Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). The chancellor divided the marital estate in order to adequately provide for Varena, eliminating the need for periodic alimony. In her amended judgment, the chancellor noted that Varena was employed and working towards self-sufficiency but her monthly expenses still exceeded her monthly income. The chancellor stated that “[c]learly, the award of rehabilitative alimony was intended to . . . allow [Varena] to start anew without becoming destitute.” The chancellor reduced the award of rehabilitative alimony from $650 per month for three years to $600 per month for six months, finding that six months was “a reasonable amount of time to allow [Varena] to address the financial issues involved in her becoming self-sufficient in her living conditions.” We can find no abuse of discretion by the chancellor in awarding Varena rehabilitative alimony. This issue is without merit.
The mention of an amended judgment must refer either to a post-R59(a) ruling by the judge, or to a change in her ruling within ten days per R59(d)..
Can Your Client Do What She Agreed to Do?
May 24, 2016 § Leave a comment
When Karen and Rickey Chance got an ID divorce in 2003, the parties’ PSA provided that Karen would get ownership of a home in Ocean Springs. Rickey was to be responsible to obtain a 30-year mortgage on the property, and to pay the mortgage debt and one-half of the ad valorem taxes for 96 months. Karen was responsible to pay her one-half of the ad valorem taxes, the hazard insurance, and to pay all taxes, insurance, and mortgage debt payments after Rickey’s obligation expired. Rickey also was to pay Karen alimony.
In 2004, Rickey got the mortgage, and the closing attorney suggested in a letter that Rickey simply reduce his alimony payments by the amount of Karen’s monthly obligation, but neither party acted on the recommendation.
To make a long story somewhat shorter, Karen never paid either her half of the taxes or the hazard insurance between 2003 and 2013. In 2013, Karen did send Rickey nearly $4,500 to pay her share of the 2013 expenses.
In the 10-year interim between 2003 and 2013, the parties talked about the situation. Karen steadfastly maintained that she did not have the financial ability to carry out her end of the deal.
In 2013, Rickey filed a petition for contempt against Karen, who responded with several defenses, most notably that of inability to pay. After a hearing the chancellor awarded Rickey a judgment for $38,584.90, and attorney’s fees. Karen appealed.
In the case of Chance v. Chance, decided May 10, 2016, the COA affirmed. You can read the opinion for yourself to see how the court dealt with Karen’s claims of laches, inability to pay, and error in award of attorney’s fees.
I want to focus on the agreement itself:
- I have seen several PSA’s lately in which one party agrees to refinance the home within some stated period of time. In every case, when I asked the lawyer whether the obligated party had the ability to do it, the answer was a shrug with a whimsical smile and “that’s what they agreed to do.” Yes, but if it’s your client who is on the hook, have you discussed whether he or she has the ability to do it? And if it’s the other party who has the duty, what impact will it have on your client if he or she proves incapable of doing as promised? Have you explored these things?
- One critical reason why this is so important to your client’s interest is that the property-division portions of a PSA are unmodifiable. East v. East, 493 So.2d 927, 931 (Miss. 1986). Your client does not get a do-over on the “oops” principle.
- Another important factor is that attempting to prove inability to pay is rarely successful. The burden is heavy, as I have pointed out here before.
- To avoid these swivet-inducing situations, build some alternatives into the agreement. If, say, your client ever can not pay her share of the taxes or insurance, the home could be listed for sale, the other party may reduce alimony and pay the taxes and insurance himself until sold, and he will be reimbursed from the proceeds. That’s one example; I am sure your creative legal genius can conjure up many others.
- Remember that if all you do is take your client’s notes and convert them into a legal-looking sheaf of papers, you are nothing more than a clerk-typist; you are misleading the public and fooling yourself if that’s what you do and you call yourself a lawyer.
Heirs vs. Beneficiaries
May 23, 2016 § Leave a comment
It often happens in a testate estate that I am called upon in one order or another to adjudicate a legatee or other person designated to receive a bequest as an “heir of the decedent.”
A beneficiary under a will may, indeed, be an heir, but not necessarily.
An heir is a person having a right of descent and distribution by virtue of MCA 91-1-1, et seq. when there is no will.
A beneficiary is a person designated in a will to receive a specific devise or bequest or to receive all or part of the residuary estate. It is not required that heirs be named as devisees or legatees in a will. Heirs may be disinherited.
Thus, it is inaccurate, and can be misleading, to include language in your pleadings and proposed orders and judgments naming devisees and legatees of wills as “heirs” when they are not necessarily so.
To be accurate, name the beneficiaries under the will in your case as “beneficiaries.” Save the designation of “heirs” for your intestate cases; however, in districts where your chancellors require determination of heirship even in testate estates, limit your use of the term “heirs” to those so determined to be, distinguishing them from the beneficiaries under the will.
A helpful glossary of terms used in probate matters can be found at this link.
Reprise: Armour-All for the Client
May 19, 2016 § Leave a comment
Reprise replays posts from the past that you may find useful today.
BULLETPROOFING YOUR WITNESSES
August 9, 2011 § 5 Comments
If you have never had a witness implode on the stand, this post is not for you.
If, on the other hand, you have struggled inwardly to maintain your composure as your witness apparently has forgotten everything he ever knew about the case, or he has abandoned all common sense, or she blurts out all manner of facts she never revealed to you before and is laying waste to her own case as effectively as if she were her own opposing counsel, then this post may help.
An important part of trial preparation — you do prepare for trial, I hope — is preparing your witnesses. Uh — you do prepare your witnesses, I hope.
It’s pretty clear when a witness is prepared. The witness and the lawyer work almost in tandem. The witness seems to understand where the lawyer is going with the questions and goes along easily, without a lot of leading and prodding. The witness’s testimony is clear. The witness knows how to say what needs to be said, and handles himself well on cross examination.
In other words, the witness is coated in teflon and swathed in kevlar. Non-stick and bullet-proof.
It doesn’t take a lot of time and effort to prep your witness if you focus in on what needs to be addressed. Here are a few helpful tips. Take them as a starting point and fill in with as many others as you can come up with.
•Take a few mintues to explain to your client what it is you have to prove to have a successful day in court. For instance, if modification of child custody is in issue, explain material change, adverse effect and best interest.
•Go over some questions and elicit your client’s answers. Suggest more effective ways to say what the witness is going to testify to. It is entirely ethical to suggest more effective ways to state the facts; of course it is unethical to change the facts or tell the witness to testify to something the witness did not perceive. You can tell the witness how to say it, but you can not tell the witness what to say.
•Remind the witness to testify about facts, and not impressions. Tell what you saw with your own two eyes without using labels. “The windows were all broken out of the car, the side mirrors were broken off and hanging down, the headlights were smashed, and the tires were all flat” is a lot more powerful than “The car was busted up.”
•Tell the witness about courtroom etiquette. Don’t chew gum or chewing tobacco, speak up loud and clear, be respectful of the court and other attorney, wait until the question is finished before answering, don’t interrupt any other speaker, dress conservatively, and avoid confrontation with the other party. If you want to bring something to your lawyer’s attention, write it down and pass a note; the lawyer has enough on her plate without having to deal with interruptions.
•If an 8.05 statement will be used, go over it with the witness. Test memory about figures and identify any trouble spots. Tips for more effective financial statements and financial testimony are here and here.
•Prepare the witness for cross examination. Explain how it works and confront the witness with the most obvious weak points. Suggest ways for the witness to deal with it. Caution the witness about the other lawyer’s typical bag of tricks on cross and offer some strategies to deal with them.
•Explain to the witness that he will be nervous when he takes the stand, but so is everyone else who has to get up there.
•Explain how hearsay works, and that just about every answer that begins, “He said …,” or “I heard her say …” or “The teacher told me that …”, etc. will elicit a reflexive objection. Recommend ways around hearsay.
A few pointers for more effective chancery trials are here.
There are two kinds of witnesses: the kinds who help your case; and the kinds who hurt it. You want every witness called by you to be in the former category. Witness prep will go a long way toward that end.
The Better Chancery Practice Blog 