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.

DEALING WITH DISCOVERY GAMESMANSHIP

April 26, 2011 § 8 Comments

One of the most frustrating aspects of litigation is the gamesmanship that many lawyers employ in discovery.  If you’ve practiced even a short time, you are acquainted with the repertoire: Late or no answers; failure to supplement; supplementation on the eve of trial; all-encompassing objections; evasive answers; and on and on.

Philip Thomas blogged about the COA’s decision last week upholding a circuit court decision dismissing the City of Jackson’s pleadings for a discovery violation, and followed up with a post highlighting how inconsistent the appellate courts have been in discovery violation cases.

What is the best strategy to cope?

In my experience, most attorneys are too accommodating when it comes to discovery.  You don’t want to press too hard because “what goes around, comes around.”  You call the other attorney who promises the answers “in a few days,” and that stretches into a few weeks and months.  You hate to file a motion because you don’t want to be disagreeable.  The common thread is that these approaches are absolutely ineffective.

If you’re going to get the information you need, you’re going to have to be proactive and make a record.  Here’s what I suggest:

  • Set a hearing to address all those objections.  Make the judge rule on each and every one of them.  Rulings by the judge on the timing and sequence of discovery are discretionary, but her rulings on those objections will be matters of law second-guessable by the appellate courts.  If the judge overrules the objections, you may reap a bonanza of information, and you have disabled your opponent from using them against you at trial.  Remember:  if you don’t make a record, you can’t complain about it on appeal.
  • If you’re going to agree to extend discovery deadlines, get a court order.  Insist on an agreed order documenting the new deadline and any other terms you and counsel opposite agree on.  You can’t enforce an order you haven’t got, and the record does not reflect a handshake deal.  Make your record.
  • Send a good faith letter.  UCCR 1.10(c) requires a certificate that you have made a good faith effort to resolve any discovery conflict with opposing counsel before you can be heard on a motion to compel.  Mention in your letter that if you are unable to reach an agreement you will have no choice but to file a motion.
  • File that motion.  Go ahead and do it.  File your motion to compel. You are making your record.  You can reach an agreement to give more time, or whatever, but don’t wimp out of a hearing unless you get what you need.  Some lawyers consider this approach “ungentlemanly.”  But your duty to your client comes ahead of being properly gentlemanly.  I always considered it more ungentlemanly to play discovery games than to fight them.  This does not mean, by the way, that you should be an aggressive a**h**e.  It does mean that you need to be assertive and firm, standing your ground for the best interest of your client. 

In my years of practicing, I often ran across chancellors who found discovery disputes distasteful.  They made you feel as if you were wasting their time.  My strategy in dealing with them was to treat it like business and make a record.  You’re there to represent your client, not to impress the judge.

Don’t be afraid to be proactive in discovery.  It can make or break your case.

 

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