How Much is Enough?
February 23, 2016 § 4 Comments
Back when I practiced, I would often think as I pored over 8.05’s, “How can people live on this little income?” On the bench I see financial statements that raise the question quite often.
So it was with some interest that I stumbled on a web site that actually calculates by locales the amount of money people need to maintain a decent living standard, or a “living wage.” This link will take you to the page for the State of Mississippi as a whole. Although there are links to the counties, when I clicked on several different ones, the figures looked suspiciously like Mississippi’s state-wide figures, so I don’t know how useful the local figures are.
A bonus is the “Typical Annual Salaries” table.
Here are some Mississippi figures from the web site that struck me: 2 adults (both working) with two children need $47,822; 2 adults (only one working) with one child need $35,495; and one adult with one child needs $35,989. All of the figures are post-taxes.
I would say that, without exception, those figures are nearly double what I see routinely in my court.
Whether or not you buy into these calculations, they offer some profound food for thought. Your clients and their families are living, breathing individuals who have the same needs that you have for food, shelter, clothing, recreation, and financial security. It’s easy to lose sight of that when you’re accompanying them through the throes of litigation. The fact is that people are poor in our state, and that includes, unfortunately, many people who are working hard to provide for their families.
On the other hand, there are many of us who make significantly greater income than those minimal figures. From our lofty perches, we don’t tend to think much about those far below. That’s too bad, because those people barely getting by are like an anchor on our economy. In some counties, the political leadership has addressed the need and has succeeded in economic development that creates good-paying jobs and helps communities up out of poverty. The rest of us will have to wait.
An Excusable Neglect Second Look?
February 22, 2016 § 2 Comments
Back in July of last year, I did a post entitled “The Excusable Neglect Trap,” based on Estate of Nunnery: Nunnery v. Nunnery.
The case is notable because the chancellor refused to grant a lawyer’s motion to extend the time within which to appeal an adverse ruling in an estate property dispute. The lawyer’s motion was based on a claim that he had not filed an appeal within the deadline because he was called to the bedside of his brother, who had been seriously injured in an automobile accident and died soon after. The COA affirmed the chancellor’s ruling.
On January 29, 2016, the MSSC granted cert from the COA’s decision.
This is a case that bears watching, particularly if the MSSC uses it as an opportunity to clarify for trial judges and lawyers just what the bounds of excusable neglect might be. Stay tuned.
Stress and its Toll on the Legal Professional
February 21, 2016 § 1 Comment
A thoughtful post on Phillip Thomas’s Mississippi Litigation Review & Commentary blog on stress and the unhealthy ways that lawyers cope with it.
Bluewater Again in the COA
February 17, 2016 § Leave a comment
Only last week I posted about a COA decision in which the court cited the Bluewater Logistics case for the proposition that the trial judge’s verbatim adoption of a party’s proposed findings of fact and conclusions of law no longer triggers either heightened scrutiny nor less deference on the part of the appellate court.
That mention, in Carlson v. Brabham, was merely a comment by the court.
Then, last Tuesday, the COA actually had occasion to address the same principle raised in an appellant’s assignment of error.
In Stallings v. Allen, handed down February 9, 2016, Kenneth Stallings appeared pro se in response to a R81 pleading filed by Meeka Allen charging him with contempt and requesting an upward modification of child support. The chancellor rejected his request for a continuance and let the hearing go forward. At the conclusion of the hearing, the judge ordered both sides to present proposed findings of fact and conclusions of law, which they did.
The chancellor adopted Meeka’s proposed findings, and, as a result, Kenneth was: found in contempt; ordered to provide dental insurance for his child; ordered to pay medical expenses; had judgments in excess of $6,500 assessed against him; and was ordered to pay attorney’s fees; and had his child support increased. All in all, it was not a particularly good day for Kenneth in court that day.
Kenneth appealed — again pro se — raising several issues, one of which was that it was error for the chancellor to adopt the other side’s proposed findings. Judge Barnes addressed Kenneth’s homemade argument:
¶11. Kenneth cites in support of his argument Rice Researchers Inc. v. Hiter, 512 So. 2d 1259 (Miss. 1987); [Fn 1] however, this case held, and the Mississippi Supreme Court has repeatedly reiterated, that “a trial court may adopt verbatim, in whole or part, the findings of fact and conclusions of law of a party.” Id. at 1266; Chamblee v. Chamblee, 637 So. 2d 850, 858 (Miss. 1994); Omnibank v. United S. Bank, 607 So. 2d 76, 82-83 (Miss. 1992). Such action is within the trial court’s discretion and is not “reversible error in and of itself.” Hiter, 512 So. 2d at 1265 (citations omitted). The usual standard of review applies: “This Court will not disturb the findings of the chancellor when supported by substantial evidence unless the chancellor has abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Thomas v. Scarborough, 977 So. 2d 393, 397 (¶9) (Miss. Ct. App. 2007) (quoting Sanderson v. Sanderson, 824 So. 2d 623, 625-26 (¶18) (Miss. 2002)). Further, the “heightened scrutiny” standard cited by Meeka no longer applies. The supreme court has held “our duty requires us in every case to be as careful and as sensitive to error as we can be, and we cannot condone a standard that allows us to be less sensitive to error in one case than another.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 156 (¶27) (Miss. 2011). The trial court’s reliance on the party’s findings will not be deemed error if substantial evidence exists to support those findings. Thomas, 977 So. 2d at 396 (¶10) (citing Sanderson, 824 So. 2d at 625-26 (¶8)).
[Fn 1] Kenneth also cites in support Mississippi Code Annotated section 11-7-87 concerning “circuit court” practice, but that code section was repealed in 1991.
¶12. Here, there was no procedural error for the chancery court to adopt verbatim Meeka’s proposed findings of fact and conclusions of law. As stated in the past, “[t]his Court recognizes the complexities and nuances of individual cases, which in addition to crushing trial court caseloads necessitate substantial reliance upon the on submissions of trial counsel. Id. (citing Hiter, 512 So. 2d at 1266).
Aside from the fact that proposed findings of fact and conclusions of law are more work, I wonder why more lawyers don’t offer to do them. As I have posted here before, it can be an unequalled opportunity to write the final judgment in the case.
Sheldon Replaces Beam in the 10th
February 16, 2016 § 2 Comments
Rhea Sheldon of Purvis has been appointed by Governor Bryant to serve as one of the four chancellors in the 10th District, which consists of Forrest, Lamar, Marion, Pearl River, Perry, and Stone Counties. She fills the post vacated by Dawn Beam of Sumrall, who was appointed by Bryant as Justice of the Mississippi Supreme Court. Sheldon has been in private practice since 2003.
Grace and the Deep Well of Mercy
February 12, 2016 § 4 Comments
Richard Rohr’s meditation on grace, mercy, and reward-punishment theology …
I strongly believe that good theology has two important tasks: to keep all people free for God and to keep God free for all people. In my opinion, most churches do not allow God much freedom. God is always so much bigger than the theological and churchy boxes we build for “him.” Without recognizing it, many people have an operative image of God as Santa Claus. He’s “making a list and checking it twice, gonna find out who’s naughty or nice.” He rewards the good kids with toys (heaven) and punishes the bad kids with lumps of coal (hell). If you don’t have a mature spirituality or an honest inner prayer life, you’ll end up with a Santa Claus god, and the Gospel becomes a cheap novel of reward and punishment. That’s not the great Good News! An infinitely loving God is capable of so much more than such a simplistic trade off or buy out.
Bringing social acceptability to Christianity has not helped in this regard. After Constantine made Christianity the established religion of the Roman Empire in 313, the great biblical concepts of grace and forgiveness gradually were controlled by formulas and technique. Empires cannot afford too much mercy or forgiveness. Soon the Church created equations: this much sin results in this many years in purgatory or hell; this much penance results in this much time released from purgatory. Grace and forgiveness became juridical and distant concepts instead of deep spiritual realizations. Disobedience or disloyalty were seen as much more sinful than any failure to love or serve or show mercy.
The work of the priesthood became sin management much more than the marvelous work of transformation and inner realization that we see in Jesus’ ministry. Church largely became a “worthiness attainment system” managed from without, instead of a transformational system awakening us from within.
When forgiveness becomes a weighing and judging process, then we who are in charge can measure it, define who is in and who is out, find ways to earn it, and exclude the unworthy. We have then destroyed the likelihood that people will ever experience the pure gift of God’s grace and forgiveness.
When you fall into the ocean of mercy, you stop all counting and measuring. In fact, counting and weighing no longer make sense; they run counter to the experience of grace. As long as you keep counting, you will not realize that everyone is saved by mercy anyway.
I recently visited the 9/11 Memorial at the site of the Twin Towers in New York City. A huge waterfall drops down into the darkness of a lower pool whose bottom you cannot see. It struck me deeply as a metaphor for God: mercy eternally pouring into darkness, always filling an empty space. Grace fills all the gaps of the universe. Counting and measuring can only increase the space between things. Even better, water always falls and pools up in the very lowest and darkest places, just like mercy does. And mercy is just grace in action.
So you have a Kidnapped a Judge; Now What?
February 11, 2016 § 1 Comment
Three Tupelo men, obviously not members of Mensa, are behind bars after being overheard plotting to burglarize the home of Lee County Circuit Judge Paul Funderburk and to kidnap him if he were home at the time.
You can read about this bizarre development on Phillip Thomas’s and Jane Tucker’s blogs.
Kidnapping is a serious matter. Not only is it serious when a citizen’s personal safety is threatened, but also when the judiciary is threatened.
Still, once you have a judge, what are you going to do with him or her? There’s not likely to be much ransom money to be gotten. And most judges are irascible, cranky characters not particularly tolerant of inconvenience and not happy at all when not getting their way. So kidnappers would have their hands full for little prospect of gain. It reminds me of O.Henry’s Ransom of Red Chief, in which the kidnappers had to pay the father to take back the little brat they had abducted.
Kudos to the alert bystander who overheard the conversation and reported this to law enforcement.
A Bluewater Bravo
February 9, 2016 § 3 Comments
The old rule that, if a trial judge in a ruling adopts one party’s proposed findings of fact and conclusions of law verbatim, her ruling is subject to less deference and greater scrutiny was abolished several years ago in the Bluewater Logistics case. I’ve posted about it here and here.
Now the COA has joined the party, so to speak, in the case of Carlson v. Brabham, decided January 19, 2016, in which the chancellor had adopted one party’s proposed findings of fact and conclusions of law verbatim. Although it was not expressly assigned as error, Judge Griffis took the opportunity to make this pronouncement:
¶12. Further, the supreme court has held that appellate courts must “apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 157 (¶32) (Miss. 2011).
Hear, hear!
The Better Chancery Practice Blog 