FIVE TIPS TO IMPROVE YOUR PROBATE PRACTICE

April 19, 2011 § 7 Comments

  • Always accompany the executor, administrator, guardian or conservator to the bank or other financial institution to open the estate account.  That way you can make sure that the funds are properly deposited into a restricted account, and that the fiduciary does what she is supposed to do. 
  • Always ask that a duplicate bank statement be sent to you for the estate account.  If the bank balks, direct that the bank statement be sent to you and not the fiduciary.  Review each bank statement promptly when you receive it to make sure that no unauthorized disbursements are being made.  Also, when the next accounting comes due — Voila! — you have a complete set of bank statements.
  • Have your secretary or paralegal call the fiduciary every couple of months to inquire how things are going, to remind of upcoming deadlines, and to ensure that the address and telephone info in your file is accurate.  This is not only great client relations, it’s one of the best means possible to discover and address problems in their early stages.
  • Accompany your fiduciary to inventory that safe deposit box, and, if possible, bring a witness.  It seems that there is often someone lurking in the wings ready to allege that there were all sorts of valuable items in there that the fiduciary is not accounting for.
  • Do an inventory even when one is not required.  Inventory establishes the baseline for accounting.  It also can help neutralize the claims of many disgruntled heirs and sideline-sitters.

TEN TIPS FOR MORE EFFECTIVE RULE 8.05 FINANCIAL STATEMENTS

August 16, 2010 § 16 Comments

If your case involves economic issues or property division, Rule 8.05 of the Uniform Chancery Court Rules requires that you provide a financial statement complying with the form published in the rules. 

An effective financial statement can make or break your case.  It is the template for your client’s testimony, and a poorly-prepared statement will make your client cannon fodder for cross examination, while a well-prepared one will inoculate him or her from serious damage.  Most importantly, the financial statement is what the judge will spend the most time mulling over when fashioning an opinion.  The more effective your statement, the better off your case will be. 

Here are ten ways you can make your Rule 8.05 statements more effective:

  1. Never present a financial statement that you have not gone over in detail with your client.  As part of your trial preparation, question the client’s figures, test his or her mastery of the information on it.  If your experience tells you that a figure is unreasonably high or low, question it and make the client defend it.  If the client can not defend the number, suggest that the client reconsider it.  And while you’re at it, make sure that your client knows what he or she included in every category.  Are there duplications?  For instance, if your client charges clothing for the children on her MasterCard, did she duplicate the amount paid on the card in the line for clothing?  Don’t just take your client’s figures at face value; inquire about them.  I once asked a woman on the witness stand how she came up with $480 a month for entertainment, and she explained that was the amount she had spent the month before for flowers for her aunt’s funeral, and that her sisters were going to reimburse her.  When I asked what she usually spent on entertainment, she said $50.  In one fell swoop, I lopped $430 a month off of her expenses, diminishing her alimony claim against my client.  Her attorney had simply taken her word for the $480 expenditure without questioning behind it.      
  2. Always have the statement typed so that it clearly presents your client’s position.  A handwritten statement with scratched-out figures and marks, notations and arithmetic that doesn’t add up will just add confusion and make the judge’s job disagreeably more difficult.  Take the time to type the figures in their proper places and make sure they add up properly.  Remember the old adage:  “The easier you make the judge’s job, the more likely it is you will prevail.”  Okay, that’s probably not really an old adage, but it should be.  
  3. Make sure the tax returns are attached.  Copies of the preceding year’s state and federal income tax returns “in full form as filed” are required.  This means that all schedules and w-2’s must be attached.  If a document was sent with the original return to the IRS, a copy of it must be included.
  4. Have an adequate number of copies.  “When offered in a trial or a conference, the party offering the disclosure statement shall provide a copy of the disclosure statement to the Court, the witness and opposing counsel.”  This means that, in addition to the original in evidence, you should have three additional copies, plus one for yourself.  It does your client absolutely no good for the court not to have a copy to look at while your client is being examined about it.  It would even be a good idea to provide an extra copy for the judge to mark up with his or her own notes during testimony.
  5. Include a complete employment history.  Some lawyers have deleted this from the form in their computers, for some reason, but it is specifically required in the rule:  “A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of the divorce, whichever is applicable.”  This information is vitally important in connection with property division, alimony, child support and even child custody, and yet it is often omitted by lawyers.
  6. Be sure to explain any discrepancies.  If your client has a perfectly logical explanation why the cell phone bill is $375 a month, be sure to cover it.  If expenses exceed income, how is the client managing to pay the difference?  If your client’s year-to-date income includes a one-time bonus that will never be repeated, notate that and have your client testify about it; if you don’t explain it, you can expect that the judge will include the bonus in your client’s income.
  7. Use an up-to-date statement.  A financial statement prepared six months ago in discovery and not updated since is simply not a statement of “actual income and expenses and assets and liabilities,” as required in the rule.  It defeats the purpose of the rule for a witness to spend a couple of hours explaining how the statement should be updated when that should have been done in trial preparation.  If you come to court without an updated statement, the court may continue your trial to require you to prepare one.
  8. Have your client sign and date the statement.  The Court of Appeals has been critical of unsigned financial statements. 
  9. Make sure the entries really are what they say.  A voluntary 401(k) contribution is not “mandatory retirement,” and should not be listed on that line.  Nor is a private health insurance premium “mandatory insurance.”  The term “mandatory” as used on the form refers to items required by law, such as PERS retirement. 
  10. Remember that a month has more than four weeks.  A month is 52 weeks divided by 12, or 4.3.  A client who says “I get paid $400 every Friday, so I make $1,600 a month” is wrong; the correct amount would be $1,720.

JUDGING IN THE BLIND

August 2, 2010 § 5 Comments

Is this you?  Your client, Otis, is on the witness stand.  Otis is testifying about his finances from Exhibit 2 in evidence, which is his Rule 8.05 financial statement — $350 a month for groceries, $100 for entertainment, $360.48 car note, and so on — and the only ones in the court room who are looking a copy of at his Rule 8.05 financial statement while he testifies are Otis, you and the lawyer on the other side.  You glance at the judge, who is sitting there staring off into some faraway void, eyes glazed, his mind drifting off into starry space where Otis’ crucial testimony will never penetrate.  The judge is missing the most important evidence in your case!

Where did you go wrong?

If you answered that the Chancellor doesn’t have a copy of the exhibit about which Otis is testifying and so is deprived of the most potent tool you have for the judge to follow and later recall Otis’s testimony, you are absolutely correct.  Give yourself a gold star and a pat on the back for a correct answer to this quiz.  Give yourself a big, fat F for your trial technique. 

Uniform Chancery Court Rule 3.05 states that, “Unless excused by the Court, it shall be the duty of an attorney to distribute copies of any exhibits to the Court and opposing counsel when offered.”  That includes the Rule 8.05 financial statements.

Some attorneys not only offer the exhibit; they also offer the court a separate, extra copy for the judge to mark up.  That’s a pretty shrewd practice. 

If you aren’t making sure that the court has the original exhibit or a copy when you ask a witness about it, you are asking the court to judge your case in the blind.  Put yourself in the judge’s shoes:  Without the exhibit, you are asking the judge to listen to, comprehend, copy down and digest literally dozens of figures, often delivered in rapid-fire, machine-gun fashion, when the figures are right there on the exhibit, and the judge could be following along, thoughtfully assimilating the testimony and jotting down a few helpful notes.   

The principle is not limited to financial statements.  I once had an attorney take a stack of photos in evidence from the bench, present them to the witness one by one, and ask the witness to describe and make observations about each.  To this day, I have no idea what the witness was talking about.  Had I had a separate copy, I could have looked at each photo simultaneously with the description, and perhaps that would have influenced the outcome of the case.

A week does not go by that I am put in the position of judging in the blind, and it is always to the detriment of the client.  How do you expect the judge to get the benefit of your client’s testimony about her financial statement or other exhibit if you take the document away from the judge before she testifies about it?

A variation on this theme occurs when the lawyer actually begins questioning the client about the financial statement and the witness, for crying out loud, does not even have a copy to look at.  That’s like sending the poor client into a knife fight without a knife.      

I have actually begun stopping trials and ordering attorneys to comply with Rule 3.05.  The lawyer who complies with Rule 3.05 not only appears to be prepared, professional and effective; she is prepared, professional and effective.  Surely you don’t want to be embarassed by appearing unprepared and clueless.   

Practice Tip:  Always have the original and FOUR copies of all exhibits.  That’s the original for introduction into evidence, copy one for yourself, copy two for your client, copy three for opposing counsel, and copy four either for the opposing party or for the court to mark up.  Copies are cheap, compared to cost to your client of not having them.

TRIAL BY CHECKLIST: GRANDPARENT VISITATION

July 28, 2010 § 16 Comments

A practice tip about trial factors is here.

Martin v. Coop, 693 So.2d 912, 913 (Miss. 1997), factors for grandparent visitation:

  1. Potential disruption in the child’s life;
  2. Suitability of the grandparents’ home;
  3. The child’s age;
  4. The age and physical and mental health of the grandparents;
  5. The emotional ties between grandparents and the child;
  6. The grandparents’ moral fitness;
  7. Physical distance from the parents’ home;
  8. Any undermining of the parents’ discipline;
  9. The grandparents’ employment responsibilities;
  10. The grandparents’ willingness not to interfere with the parents’ rearing of the child.

Except in unusual circumstances, grandparent visitation should not be the equivalent of parental visitation. Martin v. Coop at 913.

If the court awards grandparent visitation equivalent to parental visitation, the court must make specific findings to support the award.  Settle v. Galloway, 682 So.2d 1032, 1034-35 (Miss. 1996).

TRIAL BY CHECKLIST

July 5, 2010 § 23 Comments

Some years ago an old Chancellor complained to me that we were being reduced to “trial by checklist,” what with all the cases being handed down that spelled out factors that the trial court must address in adjudicating certain issues.  Over the years, those so-called checklists have multiplied, so that Chancellors are required to consider and address factors in determining:

  • Child custody
  • Equitable distribution
  • Periodic and rehabilitative alimony
  • Lump sum alimony
  • Grandparent visitation
  • Separate maintenance
  • Modification of child support
  • Adverse possession
  • Attorney’s fees

Over time, I will be posting these factor “checklists” for your use.

Remember that these factors are the ones that must be decided by the judge in order to decide your case.  In essence, the factors are the elements of the case that will determine its outcome.  If you are not putting on proof as to each factor that applies in your case, you are running the risk that the Chancellor will find that there is not enough evidence to rule in your favor. 

Practice Tip:  When trying a case involving any of the foregoing issues, have a list of the factors applicable your case at hand, and methodically cover them in your questions for the witnesses.  Give some thought to questions that will best develop evidence that will support a finding in your client’s favor for as many factors as possible, and how to minimize the impact of factors that are not in your favor.

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