April 10, 2013 § Leave a comment

Twenty-Five Ways You can Improve Your Chancery Trial Practice, published in the Mississippi Law Journal’s online edition Supra. Click on the .pdf link.


February 14, 2012 § 2 Comments

Lawyers frequently refer to the fact that chancellors are “judge and jury” because the chancellor makes findings of fact as well as conclusions of law in the case.

But there’s another legitimate role of the chancellor … developer of the facts. It’s a duty of chancellors long recognized in our jurisprudence, as this passage from the venerable case of Moore v. Sykes’ Estate, 167 Miss. 212, 219-221, 149 So. 789, 791 (1933), illustrates:

“Ever since our chancery court system has been in operation in this state, going back to the earlier days of our judicial history, it has been an established and well-recognized part of that system that one of the important obligations of the chancellor is to see that causes are fully and definitely developed on the facts, and that so far as practicable every issue on the merits shall be covered in testimony, if available, rather than that results may be labored out by inferences, or decisions reached for want of testimony when the testimony at hand discloses that other and pertinent testimony can be had, and which when had will furnish a firmer path upon which to travel towards the justice of the case in hand. The power and obligation reaches back into the ancient days of chancery when the chancellor called the parties before him and conducted a thorough and searching examination of the parties and the available witnesses and decreed accordingly. And, while now this duty of calling the witnesses and the conduct of their examination is placed in the first instance and generally throughout on counsel, the power and duty of the chancellor in that respect is not thereby abrogated; and while to be exercised only in cases in which it is fairly clear that the duty of the chancellor to intervene has arrived and is present, when that situation does arise and is perceived to be present, the duty must be exercised and is as obligatory as any other responsible duty which the constitution of the court imposes on the chancellor.”

And where the attorneys have failed to develop the proof necessary, the chancellor may reopen the proof, or leave the record open to acquire the necessary proof, so as to be able to adjudicate the case. In In re Prine’s Estate, 208 So.2d 187, 192-93 (Miss. 1968), the court said:

“More than a half century ago our Supreme Court in Beard v. Green, 51 Miss. (856) 859, expressly pronounced upon the obligation and responsibility mentioned, and in that case said: ‘The power of the chancery court to remand a cause for further proof at any time before final decree, and in some cases after it, either with or without the consent of parties, is one of the marked characteristics distinguishing it from a court of law, and is one of its most salutary and beneficent powers. It should always be exercised where it is necessary to the ascertainment of the true merits of the controversy.’ And the court went on to say that it was immaterial as to how the necessity of the action by the court arose, whether through inattention or misapprehension or misconception by counsel or litigants, and that none of these or the like should be allowed to prevent the doing of justice. And the duty of the chancellor in this respect was again declared in a later case, McAllister v. Richardson, 103 Miss. (418), 433, 60 So. 570, 572, wherein it was pointed out that the duty, and this of course carries the power, is not only to remand to rules, but includes the obligation on the part of the chancellor during the hearing to see ‘that all proper testimony was introduced to enable him to render a decision giving exact justice between the contending parties’-to conduct the hearing in such manner ‘that all testimony which will throw light upon the matters in controversy is introduced,‘ and that he is within his privileges and duties in aiding to bring out further competent and relevant evidence during the examination of the witnesses who are produced.”

The ancient practice is incorporated in MRE 614, which expressly provides that “The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.”  The rule goes on to say that the court may itself interrogate any witness called by anyone, and objections to the court calling or interrogating a witness in chancery should be contemporaneous.

Imagine a case where only one side puts on proof of the Albright factors in a child custody case with horrific allegations. The neglectful side is represented by counsel who is not quite up to the task. Should the chancellor allow the best interest of a child to be determined on lopsided proof? Or should she let the better-represented side play “gotcha!”? Neither. As Albright itself reiterates, the polestar consideration is the best interest of the child. In her role as the child’s superior guardian (Carpenter v. Berry, 58 So.3d 1158, 1163 (Miss. 2011)), the chancellor has the duty to make sure that there is adequate proof in the record before making a decision. Rule 614 and the judge’s authority to reopen or leave the record open are the tools that the judge can put to good use.

It goes without saying that this considerable power should be exercised with discretion. There is the well-worn tale of the chancellor who interrupted counsel’s questioning of a witness and proceeded into his own lengthy cross examination. The attorney asked to approach the bench and told the judge, “Your honor, I don’t mind you questioning my witness, but please don’t lose the case for me.” So, a judge can be too fond of the sound of his own voice. The balance, perhaps, was laid out best by the Mississippi Supreme Court in Bumpus v. State, 166 Miss. 267, 144 So. 897 (1932): “It is true that ‘an overspeaking judge is no well-tuned cymbal,’ but, in language somewhat similar to that of Mr. Justice McReynolds, in Berger v. U. S., 255 U. S. 43, 41 S. Ct. 230, 65 L. Ed. 489, neither is an aphonic dummy a becoming receptacle for judicial power.”


March 23, 2011 § 3 Comments

I’ve posted here about the necessity to file post-trial motions to preserve error in chancery court, and how the COA’s January 25, 2011, decision in Robinson v. Brown may have changed our traditional practice.  Then the COA stayed the mandate and we awaited a new decision.

The new Robinson v. Brown opinion was issued yesterday, March 22, 2011, and in my judgment we are back exactly where we started: You’d better file those post-trial motions if you expect to raise an issue on appeal

Although the new opinion actually addresses and analyzes the sufficiency of the chancellor’s findings, the court states at ¶ 23 that, “In this case, we likewise find the challenge of the chancellor’s findings in the instant case procedurally barred.”  The two cases cited in support of the point are distinguishable both on their facts and their procedural posture, but no matter.  The COA is determined to interpret MRCP 52(b) in its own way.

I have other fish to fry, so I don’t really have the time or energy to devote to breaking this down further.  Besides, I am out of the appeal business.  It’s lawyers like you who have to deal with this.

If the supreme court will take this case on cert and look closely at it, perhaps our supreme chancellor, Justice Pierce, will be afforded the opportunity to elucidate this for us.  If I were still practicing law in chancery court I would certainly want the point clarified for the sake of my clients and my malpractice insurance premiums.   

In the meantime, I stand by my earlier suggestion to file those post-trial motions raising every conceivable point possible that you may wish to raise on appeal.  If you don’t you may find yourself “procedurally barred” in the COA.


November 16, 2010 § Leave a comment

Unlike the practice in Circuit Court, where a motion to set aside the verdict and for a new trial is a prerequisite to the right to appeal, it has never been the rule in Chancery Court that a motion for reconsideration or for a new trial or for relief from judgment operate in the same fashion.  In two opinions issued last year (I have not taken the time to dig them up, but they are out there), our appellate courts commented that no motion for a new trial had been filed by the appellant before taking appeal from Chancery.  It raised a question in my mind whether we were poised to go in a new direction. 

MRCP Rule 52(b) would seem to dispose of the matter, although I do not recall it being mentioned in the appellate decisions mentioned above.  It states:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.

Of course, the question of sufficiency of fact to support the findings is only one possible basis of appeal.  One may also appeal on the ground that the decision of the Chancellor is contrary to the law, or that there is a defect in personal jurisdiction (subject matter jurisdiction may be questioned for the first time at any point).  Is a motion necessary to preserve those points?

Without doing substantial research, I can only say that in my years of practice I never saw a case where an appeal from Chancery Court was rejected for failure to file a motion for a new trial.  Your mileage may vary.


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.


June 29, 2010 § 3 Comments

Last week in Clarke County I took the bench one day in a dark suit and dispatched the day’s business in that attire because my robe was in chambers with a Circuit Judge whom I did not wish to bother.  The Chancery Clerk pointed out later that the younger lawyers were abuzz about it.  They had never seen such a thing.  Imagine — a judge adjudicating sans black robe.

Down through the decades it was a hallmark of our courts that the Chancery Judge did not wear a robe.  The Chancellor presided in his (yes, in those days there were few female Chancery Judges) dark suit, dispensing equity like an ancient Titan loosing thunderbolts.   

Long after Circuit Judges donned the robe, Chancellors continued unrobed.  It was not until the late 80’s, as far as I recall, that Chancellors donned robes in our part of the state, and then not every Chancellor did.  Judge John Clark Love in District Six never wore a robe until the day he retired in 2005.  Neither did his counterpart, Judge Ed Prisock. 

The philosophy behind the robe is that it instantly lends authority and recognition of office to the wearer, but Chancellors in those pre-robe days didn’t really need a cloak to lend them weight.  Authority emanated from them like deadly radiation from a chunk of uranium.  For those of us who practiced before some of the really great old lions of the Chancery bench, there was no question of authority.  A wilting glance or stabbing remark could inflict a wound in one’s case that would bleed to a fateful conclusion.  Heaven help the unprepared lawyer.   

Billy Neville of Meridian was the commander of his court room.  He sat on the bench, pipe jutting MacArthur-like out of his face, whittling on a cedar plug until he carved an eye-shaped piece — rounded in the middle and sharp on each end — whence he would start another.  A lying witness never escaped his ire.  “Suh!” he would thunder, “Do you expect me to believe that?”  You knew that was coming because only a few questions before he had begin running his hand across his forehead and then over his scalp as first his cheeks and then his temples and then his forehead changed hues from peach to crimson to scarlet.  “Mr. Bailiff, suh!  Take this man upstairs!” 

Judge Neville was also a master at communicating subtly to the attorney the futility of one’s case.  “Yes, suh, I will sustain the objection because this has nothing to do with the case, and even if it did there is no law in Mississippi that would permit me to do what the Complainant has prayed for.  Now you may proceed, suh.”  Okay, how do you frame the next question when the judge has just let all the air out of your case?

Judge Ed Cortright of Yazoo City was a gentleman of the first order and a scholar of note in his long career on the bench.  He was reversed on appeal only once that I know of, and that by Frank Coleman, now County Judge Coleman, of Meridian.  As gentlemanly as he was, there was a steely side to Judge Cortright, and he could communicate his displeasure at a lawyerly gaffe in no uncertain terms.  His disdain for the illogical argument or a position unsupported by the law was unmistakable. 

Judge Mike Sullivan of Columbia was so revered and respected that he was elevated to the Supreme Court, where he made his mark as a voice for Chancery Court in the appellate court.  His calm demeanor and measured speech left no doubt who was in control of his court room. 

Judge John Clark Love of Kosciusko had a way of eviscerating lawyers who wandered ill-prepared into his lair. 

Judge Ray Montgomery of Canton could shrink your head two to three sizes from his tirade if you wound up on his wrong side or if your case did not impress him.        

There were many robeless Chancellors, too many to mention, some great and some forgettable.  We sometimes quaked in their presence, but in the crucible of their courtrooms we were molded into better lawyers.


June 21, 2010 § Leave a comment

There will be a reception honoring Chancellor J. Max Kilpatrick Tuesday, June 22, 2010, at the Neshoba County Court House from 4 pm to 6 pm.  Judge Kilpatrick is retiring from the bench effective June 30. 

Kilpatrick was appointed by Governor Barbour to replace Chancellor John Clark Love of Kosciusko, who retired in 2005.  Kilpatrick was unopposed for the seat in 2006, and he will have served three and a half years of the four-year term to which he was elected.

We wish “Max” much success and hapiness in his return to politics and the prectice of law.

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