Tuesday, December 31, 2013

Tax Refunds

The end of the year is here.  Thanks to everyone who has been reading my blog.  I have gotten a lot of good feedback.  With the end of the year comes tax time.  Unfortunately, divorce cases often drag on for extensive periods of time.  A tax refund is martial property and often times parties separate around the end of the year.  An earlier post of mine located here deals with some tax issues in divorce.  I am in the process of drafting a motion on a case this morning to require the parties on an ongoing divorce case to execute joint tax returns for 2013 with the parties to split the refund.  As long as the parties are married at the end of the year, they can file a joint return.  IRC 6013(a) and 7703(a)(1).  This often benefits both parties more than filing as married filing separate. 

Monday, December 30, 2013

Typography for Lawyers

I finished reading yesterday Typography for Lawyers by Matthew Butterick.  The book is available for purchase on Amazon.  It is pretty good on some things.  The main emphasis of the book is how to make your documents look more presentable and easier to read.  I am still old school and prefer Times New Roman which the author does not like but I may experiment with doing briefs in Century Schoolbook which makes them easier to read.  Several federal circuits require briefs to be written in the Century family of fonts now.  This book is worth the purchase to make you start thinking in new directions as far as presentation. 

Friday, December 27, 2013


I have been off for a few days with the holidays.  I am actually at home writing this article at the moment.  Holidays for some reason brings out the best and the worst in people.  On personal injury cases, insurance companies tend to get more reasonable toward the end of the year.  On family law matters, parents tend to deny visitation this time of year more than any.  This is the time of year that it is important to get parents on the same page when it comes to kids and get everything going in the right direction on all cases whether it be resolution or trial. 

Tuesday, December 24, 2013

Federal Tort Claims Act Case

On Monday U.S. District Judge Carlton Reeves entered a judgment of $1,903,961 in Chickaway v. U.S. located here.  This was a Federal Tort Claims Act case dealing with medical negligence.  I previously discussed the Federal Tort Claims Act here.    The opinion in the case does one of the best jobs I have seen in discussing all the elements of proof in a medical malpractice claim which makes it worth adding to the research file. 

Monday, December 23, 2013

Book of Interest

I started reading Spy the Lie by Philip Houston.  It has been a good read so far.  It deals with CIA interrogation techniques which can be useful in a deposition setting.  These kind of techniques can play a vital role in determining if someone is lying as opposed to being honestly mistaken.  I took a deposition recently where everyone in the room knew the guy was lying after a little questing but lots of times it is not that easy.  This might be something to look into in order to hone those skills. 

Friday, December 20, 2013

Both Parties at Fault

In divorce cases, many times both parties have statutory grounds for divorce.  What does the judge do then?  A discussion of this is in Kimbrough v. Kimbrough, 81 So. 3d 1187, 1188 (Miss. Ct. App. 2012) located here.  In this case the trial court granted both parties a divorce on mutual desertion.  The case was appealed and the Court of Appeals ruled that only one party may be granted a divorce on fault based grounds.  Ultimately, the trial court has to pick whose conduct is greater in being the proximate cause of the breakup of the marriage.  This can create a mess and yet another good reason for parties to proceed on irreconcilable differences.

Thursday, December 19, 2013

Request Supplementation

Rule 26 of the Mississippi Rules of Civil Procedure requires that an opposing party supplement their discovery timely.  Some do, some do not.  One avenue to consider is to file a request for supplementation a few weeks before trial.  That way, if they do not supplement it, they have no real argument to get the case continued. 

Wednesday, December 18, 2013

Final Judgment Part II

Larry Primeaux talked about the final judgment problem I discussed yesterday on his blog today located here.  He made a good point about the final judgment certification issue in another case where the appellate court found that despite the trial judge certifying the case as a final judgment, the appellate court found it was not.  The plot thickens on this issue and make me more paranoid.

Tuesday, December 17, 2013

Final Judgment Certification

The Mississippi Court of Appeals has been sending a ton of judgments back here lately saying that the judgments are not final.  On the face of the case, many of them appear to be final and are not.  As a result, I have started adding a Rule 54(b) certification on my orders to be on the safe side at the end of a case.  I think it is a good practice and can prevent a case from being sent back if it is not final.

Monday, December 16, 2013

Division of Homestead

The Mississippi Supreme Court decided Noone v. Noone located here last Thursday.  The parties had previously been denied a divorce and one spouse sought to petition the homestead of the parties.  The trial court found that the homestead was exempt from partition pursuant to Mississippi Code Annotated 11-21-1 and the Supreme Court affirmed.  Really what this case amounts to is if the parties are denied a divorce, there is no way to divide the house up if the parties cannot agree on a division.   

Friday, December 13, 2013

Diagnostic Testing

The Mississippi Supreme Court decided Estate of Miles v. Burcham yesterday located here.  This is an important case because it ruled for the first time in Mississippi that diagnostic testing for injuries unrelated to an accident are recoverable in order to show that no injury occurred.  This is important as defense attorneys and insurance adjusters had been arguing for years to discount or not include these amounts in a Plaintiff's damages claim. 

Thursday, December 12, 2013

Waiver of Affirmative Defenses

The Court of Appeals decided   Doe v. Rankin County School District on Tuesday located here.  This was a legally complex case dealing with whether a school has immunity regarding the rape of a student on campus for failing to follow certain safety procedures.  The trial court granted summary judgment ruling that the school was immune.  The Court of Appeals reversed finding that the school had waived its affirmative defense by actively participating in litigation for sixteen (16) months.  This case seems to be the latest in a long line of cases that indicate if the Defendant does not timely raise an affirmative defense, it is waived. 

Wednesday, December 11, 2013

Recent Appellate Case

On Tuesday, the Court of Appeals handed down Crittenden v. Crittenden located here.  There were some complex issues in the case.  The main issue in the case was what justified an upward increase in alimony and an adjustment of the property division from the divorce of the parties.  The chancellor found that the purpose of the property division had been frustrated by a bankruptcy filing that was later dismissed which necessitated an upward modification of alimony and an additional lump sum property transfer post-divorce of $30,000.00.   The chancellor also deviated from the child support guidelines because the children were accustomed to an expensive lifestyle.  The Court of Appeals affirmed the chancellor's decision.  The facts of the case are complex but there is several good pieces of analysis in the opinion worth reading.

Tuesday, December 10, 2013

Beware Rule 1103

There is an interesting conflict between the Rules of Civil Procedure and the Mississippi Rules of Evidence that is often overlooked.  Rule 1103 of the Mississippi Rules of Evidence provides that "All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.”  This creates a situation where if there is any conflict with the Rules of Civil Procedure in the Rules of Evidence, the Rules of Evidence win.  This is particularly important with regard to depositions particularly of doctors as Rule 32 of the Mississippi Rules of Civil Procedure seems to conflict with Rule 804 of the Rules of Evidence as there is no "doctor exception" on unavailability.  Lots of times parties can work out an agreement on this issue but document it heavily if you do and beware.

Monday, December 9, 2013

Federal Tort Claims Act and Medical Malpractice

Medical Malpractice claims are complex to say the least.  There are times these claims have to be brought in federal court.  If a health care provider committed medical malpractice at a domestic military base or a Veteran's Affairs (VA) hospital, the Federal Tort Claims Act (FTCA) most likely applies.  The same may also apply if healthcare is provided on an Indian reservation or under Indian Health Services.  There are all sorts of administrative requirements prior to filing suit and there is no right to a jury trial.  Where it gets more complicated at that certain state law requirements may still be required (i.e. pre-suit notice, etc.) as there are considered substantive rights where the federal court still has to apply state law.   Be mindful and don't get blindsided. 

Friday, December 6, 2013


Crashworthiness is an interesting issue to look into when a client has substantial injuries with relatively small amounts of insurance.  At times, there is a defect in the motor vehicle which can make a standard crash a catastrophic injury.  Before settling with an at fault party, this area may need to be explored in the right circumstances.

Thursday, December 5, 2013

Tax Returns

Tax season is approaching quickly.  One area people get made about is that your tax refund actually goes into calculating child support.  This is because this is money that was overpaid in taxes.  Of course, the flip side of that is true also.  If you have to pay in, arguably the child support needs to be lower. 

Wednesday, December 4, 2013

Paternity Presumption

The Mississippi Court of Appeals handed down In the Interest of a Minor, V.D.W.:  J.S.W. v. A.W.R. and T. J. S.  located here.  The facts of the case are interesting and are a potential nightmare to handle in trial.  Here is the short version.  Couple is married and have two children.  Couple divorces.  In a later custody modification hearing, it is discovered that one of the minor children is not the ex-husband's child.  The natural father then appears to file for custody.  The chancellors awards custody of the disputed minor child to the mother and finds that the father who has raised the child as his own is a third party to the case and not entitled to the natural parent presumption.  As such, the defrauded father was not entitled to an Albright analysis to determine what was in the child's best interest.  On appeal, the Court of Appeals disagreed and stated that when a parent raises the child as his own, they are acting in loco parentis and this rebuts the natural parent presumption.  What this had the practical effect of doing is putting the defrauded father in the identical position as the biological father on equal playing field.  This issue comes up more than one would think and this case potentially has far reaching implications outside of the facts of the case.        

Tuesday, December 3, 2013

Child Support Interest

With the economy like it is, there are lots of people getting behind on child support.  What kind of interest is to be set on past due amounts?  Mississippi Code 75-17-7 provides that: “All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.”  It is error to not award interest on past due support.  Ladner v. Logan, 857 So.2d 764, 772-773 (Miss. 2003).  The question then arises, is the court to award simple interest (i.e interest on just the principal amount due) or compound interest (i.e. interest on the amount due and then interest on any interest that accrues or accrued)? 

"The general rule is that 'when interest is allowable, it is to be computed on a simple rather than compound basis in the absence of express authorization otherwise.'" Exxon Corp. v. Crosby-Miss. Res., Ltd., 40 F.3d 1474, 1489 (5th Cir. 1995) (citing Stovall v. Illinois Cent. Gulf R.R., 722 F.2d 190, 192 (5th Cir.1984)). Mississippi Code Annotated section 75-17-7 (Rev. 2009) allows the trial court to set the rate and in effect the method of its calculation. See Estate of Baxter v. Shaw Assocs., Inc., 797 So.2d 396, 407 (48) (Miss. Ct. App. 2001) (Pursuant to section 75-17-7, the trial court could decide whether prejudgment interest was simple or compound.); see also In re Guardianship of Duckett v. Duckett, 991 So.2d 1165, 1182 (40) (Miss. 2008) ("The purpose of [s]ection 75-17-7 is to allow parties to recover both prejudgment and post-judgment interest.").

Based on this line of cases, the trial court can set whether the interest should be simple or compound.  Unless the court specifically says otherwise, the interest is simple.  A good practice would be to start asking for compound interest in the event you represent the party who is not in default. 

Monday, December 2, 2013

Oral Arguments

I had oral arguments on my pending same-sex divorce case today.  The Court denied the motion to find the statutes unconstitutional.  As he noted in his opinion, he felt his hands were tied with the current status of the law which is largely in limbo.  An appeal is expected to follow.

Friday, November 29, 2013

Oral Arguments

Oral arguments are set for Monday on the same sex divorce case I have.  Right before the holiday, there was an interesting development that is now on public record.  The parties reached a settlement on their pending divorce issues right before the holidays.  The only issue remaining will be the constitutional challenge as to whether the court can deny a now uncontested and unopposed divorce between a same sex couple.  The State of Mississippi has intervened to block the granting of the divorce citing the statutory bans on same sex marriage. 

Thursday, November 28, 2013

Holiday Visitation

Holiday visitation is nerve racking for both custodial and non-custodial parent alike.  The custodial parent does not like their child being away from them on the holidays and visa-versa.  My experience has been that once the parents adjust to it, things get better over time particularly with the custodial parent.  The custodial parent gets some rest which eases tension over a number of issues.

Adverse Affect on Abuse Allegations

On Tuesday, the Mississippi Court of Appeals handed down James v. James located here.  The Court made note of one issue that is important to note.  During the case, there were all kinds of abuse allegations which turned out to be false against Mr. James.  As a result in part, Mr. James sought custody of the minor children which the chancellor denied.  The main issue that was affirmed by the Court of Appeals was that there was no proof of adverse affect on the children as a result of the false allegations.  The father was the only one adversely affected and not the children.  To me, this sets up some potential bad situations which I have seen first hand unfortunately where one parent will make these allegations to gain leverage in a custody case or to seek modification.  Even after the allegations are proven false, it still leaves a stink which can harm the innocent party. 

Tuesday, November 26, 2013


Last week, the Mississippi Court of Appeals handed down Peterson v. Peterson located here.  This case has probably one of the best discussions on the proof needed to modify alimony post divorce.  Ultimately, the Court of Appeals in this case ruled that the modification of alimony under the facts presented was reasonable.  However, the case was remanded on cross-appeal because the trial court failed to make any findings on the record that Mr. Peterson had the ability to pay the amount ordered. 

Monday, November 25, 2013

Same-Sex Marriage Part III

On Friday, my office filed the reply brief to the State's brief on the ongoing same-sex divorce case I have.  The reply brief is located here.  We pulled a lot of resources from various articles and briefs in order to have it fit the facts of this case.  The constitutional issue of what is required by Full Faith and Credit seems to be what most everything hinges on.  We spent a lot of time going through the framer's intent in the brief on the issue.  The case has big potential issues far outside of the family law context. 

Friday, November 22, 2013

Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) provides certain protections to workers regarding the minimum amount of pay and when overtime must be paid.  There are a lot of exceptions in the statutes, but typically a worker must be paid time and a half for any hour over forty worked in a week.  This is useful to know if you are dealing with construction clients in particular.  Lots of times you can pick up a second case against their employer for violating the FLSA which provides numerous penalties for violating it, including reasonable attorney's fees. 

Thursday, November 21, 2013

Agreement Immediately Enforceable

Larry Primeaux wrote a good article today on various clauses for property settlements in Mississippi located here.  He talks about the execution of property settlements and whether they are immediately enforceable.  Grier v. Grier, 616 So.2d 337, 341 (Miss. 1993) stated that “Today we hold that a property settlement agreement executed in contemplation of a divorce based upon irreconcilable differences is unenforceable when one party withdraws from the irreconcilable differences proceeding and seeks a divorce on grounds other than irreconcilable differences. Much confusion may be avoided by inserting appropriate language within the property settlement agreement which specifically addresses this contingency … the contract should specify, with particularity, within its four corners, whether it is to be limited to an irreconcilable differences divorce or whether it is intended to be binding in a divorce granted on any other grounds.”

I have always put a clause to allow the settlement to be revoked during the 60 day waiting period particularly where custody is involved.  A number of years ago,  I had a set of parties who came in and agreed on a property settlement and then signed it.  One party waived rather large pension claims and alimony to get the divorce over with.  The other party had apparently talked to an attorney before hand and waited until day 59 of the 60 day waiting period to file a revocation.  He tried to argue the with an attorney now that the property settlement was all contractual and he was here to litigate child custody now that the spouse had waived her claim to the pensions since custody always has to be approved by the Court.  Luckily, the settlement provided the whole thing was void if consent was withdrawn which apparently he did not read.   The client still ended up with custody, portions of the pension with additional support.  One thing to consider is whether entering an agreed temporary order with the entry of the property settlement would be beneficial and may discourage this. 

Wednesday, November 20, 2013

Firearms and Mental Illness

Occasionally, a person will be declared incompetent in a divorce proceeding or as part of a conservatorship.  One thing to be aware of is that disqualifies them from being able to get a license to carry firearms pursuant to Mississippi Code Annotated 45-9-101.  Additionally, under
18 U.S.C. § 922(d), it is unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person “has been adjudicated as a mental defective or has been committed to any mental institution.”   As such, there are certain ramifications you need to go over with someone if they are mentally ill even if they are going to voluntarily seek treatment. 

Tuesday, November 19, 2013

Same-Sex Marriage Part II

I previously talked about here the case I have pending on whether a same-sex couple can get a divorce in Mississippi.  The State of Mississippi through the attorney general's office has responded with the brief located here.  I will be filing a reply brief in the next ten (10) days or so.  To me, the big issues are going to be:  (1)  whether DOMA section 2 is to be read as broadly as the state contends and (2) the distinction between a marriage going forward and a divorce.  The reply brief my office is working on will address that.

Monday, November 18, 2013

Forgotten Prong of Modification

In Mississippi, the traditional test for child custody modification is well established. Ferguson v. Ferguson, 782 So.2d 181, 183 (¶ 5) (Miss. Ct. App. 2001). In order to modify a child custody decree, the party seeking modification must first show that, since entry of the decree sought to be modified, there has been a material change in circumstances which adversely affect the welfare of the child. Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 15) (Miss. Ct. App. 2002) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss. 1995)). Second, the party must show that the best interest of the child requires a custody modification. Id.   Not every change in circumstances is so adverse that it warrants a custody modification; the chancellor must consider the totality of the circumstances. Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993). "In all custody cases, the polestar consideration is the best interest of the child." Id.(quoting Sellers v. Sellers, 638 So.2d 481, 485 (Miss. 1994)).   "[A] material change in circumstances . . . requires proof of a serious material change in the home of the custodial parent." Deborah H. Bell, Bell on Mississippi Family Law § 12.11(5)(a) (2d ed. 2011) (emphasis added).

Traditionally, Mississippi law has held that, "a change in the circumstances of the non-custodial parent does not, by itself, merit a modification of custody." Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996). In Riley, the supreme court created a narrow exception to this principle. Id. This exception applies if the custodial parent's home environment is found to be contrary to the child's best interest and the non-custodial parent's home environment has improved and surpassed that of the custodial parent, so that it is now in the child's best interest to live with the non-custodial parent. Id.

The Supreme Court further defined part one of the modification test by stating that "[a]n isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change of custody. Before custody should be changed, the chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed ...." Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss. 1984).

To me, the last part is what is not focused on as much as it should be.  The proof requires a showing that the change in circumstances is likely to continue.  This is one area that a little bit of developing the record and potential improvement by a client can prevent a modification of custody. 

Friday, November 15, 2013

Indian Child Welfare Act

I previously discussed the Indian Child Welfare Act here.  If you read the statute, it almost appears that even if the statute is non-applicable you must file an affidavit regarding it or the adoption is not final.  Located here is a form that can you add to the adoption file to assist with this.  Ironically, last week's episode of the television show The Good Wife dealt with this issue and the fact that an adoption fell through due to tribal objection. 

Thursday, November 14, 2013

Pets and Divorce

There are all kinds of emotional issues in divorce.  One that has not made it to the Mississippi Appellate Courts as of yet that I am aware of is "custody" of the family pet.  Most people, myself included, consider their pet a member of the family.  When a couple divorces, how is "custody" of the pet treated?  There is no law in Mississippi I have located.  Some states have treated this issue as standard property division.  Other states have started doing a "best interest" analysis similar to custody.  Court have been hesitate to do this until recently because giving one party "custody" and the other "visitation" with the family pet has been viewed as more or less the equivalent of swapping a television or other property around every few weeks.  If I were to make an educated guess on how this would be handled in Mississippi, I suspect a hybrid Ferguson analysis with the use of a "best interest" analysis under the other factors portion of Ferguson would be used.  People maintain joint ownership of property all the time during divorce with each party benefiting from it being maintained.  Why not Fido too?

Wednesday, November 13, 2013

Uninsured/Underinsured Coverage

One simple marketing tool I am experimenting with on PI cases is at the close of a case to advise the client about getting uninsured/underinsured coverage.  Sometime after that, I am going to try to start following up with a letter or email.  For only a few hundred dollars extra a year on coverage, a party can secure a policy for at least $500,000 if not more.  Many of the cases I get unfortunately are high damages with low insurance amounts.  Many times a higher limit policy if the difference in everyone being satisfied with the result and a neverending fight with lienholders.  For any of my clients and colleagues reading this, contact your insurance agent to discuss.  It can make a world of difference. 

Tuesday, November 12, 2013

Joint Custody

The Mississippi Court of Appeals handed down Clark v. Clark today located here.  To me, this is a little bit of an interesting case.  The parties agreed on sharing joint legal custody but submitted the issue of physical custody of the parties' minor child to the Court.  The Court awarded custody to the Mother and the Father appealed.  The Court of Appeals reversed the case and stated that there was no finding by the Court that joint physical custody between the parties would not work.  They reversed the case to determine if joint physical custody was possible. To me, this case almost sounds like that if the Albright factors and such warrant it, the Court has to make some kind of finding on the record that joint physical custody will not work. 

Monday, November 11, 2013


In Mississippi, adultery is still a crime.  In light of Lawrence v. Texas decided by the United States Supreme Court, the chances of it being constitutional are slim.  This may be an issue to challenge on a constitutional basis where a client has enough money and really wants the information where a party asserts a Fifth Amendment Privilege which is still common in Mississippi divorce practice.  Are there any remedies though if they refuse to answer?  The answer, like most things in the law is a definite maybe.

A party who files a divorce action waives certain rights and puts their conduct and behavior in question.  Just as in Rule 503 of the Mississippi Rules of Evidence, if a party puts their physical health in issue, the medical privilege is waived.  Identically here, the Defendant/Counter-Plaintiff, Peter Amminger, has waived his privilege.   Additionally under the legal standards for child custody (Albright v. Albright), alimony factors (Armstrong v. Armstrong), and property division (Ferguson v. Ferguson), martial fault and/or moral fitness are factors that are required to be considered by the Court.   The clean hands doctrine has long been recognized by our Courts.  “…he who comes into an equity court must come with clean hands.  One cannot use the process of that court when his conduct with respect to the transaction in question as been characterized by willful inequity, illegality, and fraud.  Griffith, Miss. Chancery Practice, (2d. ed. 1950), Section 32, 42).” While there is not Mississippi case on point, in the Missouri case of Franklin v. Franklin, 283 SW2d 483 (Mo. 1955), the Missouri Court held that a spouse certainly has a right not to answer questions regarding adultery, however by refusing to answer the same, it is justifiable to strike their pleadings.  Additionally, in a Washington Court case, Annest v. Annest, 298 P.2d 483 (Wash. 1956), the Court found that where a party refuses to answer questions regarding their adulterous relationship by asserting their 5th amendment privilege, it is proper to strike their entire testimony.  

This seems to be the view adopted by the majority of jurisdictions.   If a spouse invokes a fifth amendment privilege regarding questions about adultery, a court is free to impose a variety of sanctions against that spouse, including the denial of affirmative relief. E.g., Anonymous v. Anonymous, 353 So. 2d 510 (Ala. 1977) (as result of wife's claim against self-incrimination, court was free to make any and all inferences against her regarding substance of questions propounded); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (after wife claimed privilege, court was free to dismiss her claim); Harwell v. Harwell, 355 S.W.2d 137 (Mo. Ct. App. 1961) (court free to make any inferences against party claiming privilege); Levin v. Bornstein, 13 Misc. 2d 161, 174 N.Y.S.2d 574 (Sup. Ct. 1958), aff'd, 7 A.D.2d 995, 183 N.Y.S.2d 868, aff'd, 6 N.Y.2d 892, 190 N.Y.S.2d 702 (1959) (court free to impose sanctions on party who invokes fifth amendment privilege); Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987) (moving party in civil action who exercises privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion); Donaldson v. Donaldson, 27 Va. Cir. 327 (Fairfax County 1992) (court free to impose noncriminal sanctions on the husband who invoked his fifth amendment privilege against self-incrimination); Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970) (it was error for court not to take an adverse inference against wife who claimed privilege). See generally Annotation, Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question, 4 A.L.R.3d 545 (1965); Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation, 39 Brooklyn L. Rev. 121 (1972); Madsen, Penalizing the Civil Litigant who Invokes the Privilege Against Self-Incrimination, 24 U. Fla. L. Rev. 541 (1972).
The rationale for this rule was explained in Dodson v. Dodson, 855 S.W.2d 383 (Mo. Ct. App. 1993). In that case, the court stated: “Although a party has the right to take the Fifth Amendment against self-incrimination in a civil case, the right is not without its price. Where a party takes the Fifth Amendment in a dissolution action and thereby conceals pertinent information, the party is not entitled to affirmative relief when timely objection is made. . . . Furthermore, whether asserted by the petitioner or the respondent, invocation of the Fifth Amendment privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence. In this regard, the trial court is vested with discretion in fashioning an appropriate remedy to prevent unfairness and disadvantage from the concealment of pertinent information.” Id. at 385; accord Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225, 227 (1974) (in civil proceedings, the courts have, in the interest of truth and justice, displayed understandable readiness to impose noncriminal sanctions for refusal to submit to pretrial discovery on the basis of the privilege; thus, where the plaintiff in a civil action refuses to testify in pretrial discovery on the grounds of self-incrimination, it is generally held that he may be subjected to some lesser noncriminal sanctions); Hackes v. Hackes, 446 A.2d 396, 399 (D.C. 1982) (when a civil litigant invokes the fifth amendment to prevent discovery, he is subject to noncriminal sanctions; the imposition of sanctions should strike the proper balance between the public and private interests in broad discovery, while preserving the purpose of the privilege; striking a pleading should be the last resort).

Additionally, the Court can draw an adverse inference from the failure of the party to answer questions.  Morgan v. United States Fidelity & Guaranty Co., 222 So. 2d 820 (Miss. 1969).  There are arguments dealing with a parties ability to conduct meaningful discovery.  This appears to be an issue ripe for review which has not been really addressed in Mississippi.   

Friday, November 8, 2013

Prenuptial and Postnuptial Consequences

Prenuptial agreements and postnuptial agreements have their good points and bad ones.  The good points is that it can contractually deal with many issues in the event of divorce.  One of the bad points is that if everything goes well, what happens if the spouse is killed in a wrongful death?  This is what happened in Tennessee in Rickman v. Rickman located here.  In that case, the Tennessee Court of  Appeals ruled that a postnuptial agreement prevented a spouse from claiming any proceeds of the husband's wrongful death claim.  The same would hold true in Mississippi depending on how the agreement is drafted.  This may be an agree to look at on these agreements when drafting them for clients.

Thursday, November 7, 2013

Book of Interest

I received a new book in the mail from Amazon yesterday.  I bought the direct examination volume of Herbert Stern's Trying Cases to Win.  I started reading it this morning.  So far, it is one of the better books I have bought.  It has lots of ideas on developing witness testimony that is helpful.  I will probably order some of the other volume after I finish this one.  You can order the complete set from either Amazon or Trial Guides.

Wednesday, November 6, 2013

Settlement Maybe??

I think everyone has had a case where the parties settle the morning of trial and then the devil gets in the details.  The latest example of this is Sanford v. Sanford decided by the Mississippi Supreme Court last week located here.  The main issue in the case is that the parties had an agreement, changed their mind, agreed to let the court decide one or more issues, and then changed their mind again.  Ultimately, the Mississippi Supreme Court found that since neither party filed the proper consents under 93-5-2 under any section of the statute, the parties had no agreement and sent the matter back to the trial court with the parties still being legally married.  From reading the opinion, there was also a Writ of Habeas filed when the trial court put one party in jail for failure to execute the settlement agreement which the Supreme Court granted.  This is an opinion to print and file away somewhere. 

Tuesday, November 5, 2013

Partial Summary Judgment

Partial summary judgment is one of the least used items in family law.  Lots of times there are so many issues of genuine fact, that it is impossible to actually do summary judgment.  However, on certain limited issues, it can be helpful.  Some examples are on cases of paternity in establishing that one party is the parent of the child or on cases of whether a prenuptial agreement is valid.  This is one area I think needs to be examined more in narrowing down issues for trial.

Monday, November 4, 2013

Past History Matters

The past history of a child not before the Court often matters in a custody case.  It often goes to the parent's willingness and ability to care for a child.  Take a look at Gantenbein v. Gantenbien located here.  Under the other factors of the Albright analysis, the chancellor gave great weight to the fact that one parent had voluntarily terminated his parental rights on a child and failed to pay child support to them.  The Court of Appeals affirmed the decision.  As such, it is a good practice to ask about those other kids not before the court.  It can play a factor.

Friday, November 1, 2013

Stipulation of Liability

It is becoming more and more common for defense attorneys to offer to stipulate to liability.  This is partially because juries are still largely conservative and still indoctrinated with the idea of "tort reform."  A stipulation of liability is dangerous though.  It makes any aggravating factor of the accident (i.e. drinking, cell phone use, etc.) irrelevant and also inadmissible.  Lots of times it is better to decline the stipulation if there is any aggravating factor which may inflame the jury. 

Thursday, October 31, 2013

Using Documents Not Admitted Into Evidence

Learned this trick a while back which has all kinds of interesting twists.  Lots of times in discovery we get all kinds of documents that will never make it into evidence for whatever reason.  While they may not make it into evidence, the documents may be used to refresh a witnesses memory which kind of backdoors them in.  This can come in handy in items like police reports.  They can be great for cross-examining a witness who suddenly remembers nothing about being arrested. 

Wednesday, October 30, 2013


I previously talked about Twombly pleading here.  Currently, Mississippi is still a notice pleading state.  However, you have to be careful.  Here is an interesting scenario where this can come up.  State court action filed with notice pleading.  Creative defendant able to remove case to federal court where Twombly pleading applies and then moves to dismiss case alleging the complaint is insufficient.  I think you can see where this could go south real quick for a Plaintiff. 

Tuesday, October 29, 2013

Per Diem

One of the best ways to explain pain and suffering to a jury is through a per diem argument.  (i.e. pain x number of days which is worth x amount per day).  This argument has been approved in Foradori v. Harris located here.  In some jurisdictions these type of arguments are barred but there is authority in this case that this is permissible.  The entire case is required reading for personal injury practice with a large verdict on a tragic situation being upheld.   

Monday, October 28, 2013

Punitive Damages

Mississippi Code Annotated 11-1-65 imposes certain limitations on punitive damages. However, most people do not know there are two exceptions where there are no caps under section (d) of the statute. Section (d) provides that:  "The limitation on the amount of punitive damages imposed by this subsection (3) shall not apply to actions brought for damages or an injury resulting from an act or failure to act by the defendant: (i)  If the defendant was convicted of a felony under the laws of this state or under federal law which caused the damages or injury; or (ii)  While the defendant was under the influence of alcohol or under the influence of drugs other than lawfully prescribed drugs administered in accordance with a prescription." This can be important in issues of drunk driving or criminal negligence matters.  However, the flip side of the issue is that punitive damages are outside the coverage of most insurance policies.

Friday, October 25, 2013

Little Things

There are lots of little things that matter on a case.   I was reading about a case recently where part of the injuries a person had required a few extra hours of getting ready in the morning every day of that person's life.  Reduced to present net value, it amounted to over $165,000.00 and that was just for that one minor aspect.  The lesson is that little things matter and there is lots of hidden things that can be inadvertently left on the table if you are not looking.  On the family law side, think about those credit card points and frequent flyer miles.  Lots of times those can amount to several thousand dollars and are often overlooked.  

Thursday, October 24, 2013

Admitting Photograph Into Evidence

Admitting a photograph into evidence is fairly easy.  To me, any personal injury case or divorce case can be greatly enhanced with photos.  He said vs. she said does not do a lot for any fact finder when they cannot visualize the story.  All that is need to get the photograph into evidence is:

(1)  Show that the witness knows relevant facts about the scene or objects represented in the photo; and
(2)  That he or she can say that it correctly and accurately portrays those facts (or, as many of us say, “It is a true and accurate depiction …”).

Fortunately, long gone are the days of showing that the camera worked properly and such.  This is still an issue on getting voice recordings and such in though.  Biggest issue on these is normally laying the foundation of personal knowledge regarding what the pictures shows and that the witness has personal knowledge that it is accurate.

Wednesday, October 23, 2013

Legal Malpractice Decision

Not long ago, the Mississippi Supreme Court handed down Baker & McKenzie v. Evans.  A link to the opinion is located here.  The case is an extremely complex legal malpractice action.  The main issue seems to revolve around allegations that the Defendant had undisclosed conflicts of interest which influenced the advice given to the Plaintiff.  The advice given to the Plaintiff ultimately caused huge financial losses.  The jury awarded the Plaintiff a verdict of 103 million.  The Mississippi Supreme Court reversed for a new trial on damages but found ample evidence for liability.  The lesson of the day, keep detailed records of who your clients are and if there is any question, make a written disclosure to clients.

Tuesday, October 22, 2013

Separate Maintenance

Separate maintenance is an equitable remedy created in Mississippi.  I am working on a brief dealing with the issue now.  “[S]eparate maintenance is . . . court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Forthner v. Forthner, 52 So. 3d 1212, 1219 (¶13) (Miss. Ct. App. 2010).  The Mississippi Supreme Court explained that the jurisdictional basis of a separate-maintenance decree stems from equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The very power of the court to grant separate maintenance was based upon the following two requirements: (1) a separation without fault on the part of the wife, and (b) the husband’s willful abandonment.  Stated another way, the Chancery Court is deprived of jurisdiction to order separate maintenance absent proof of these two items.  To me it is interesting that the two requirements for this are stated as jurisdictional as opposed to an element of proof.  With the issue being jurisdictional, this leaves the judgment open to attack on appeal and potentially even collaterally at another proceeding. 

Monday, October 21, 2013

Accident Reports

Accident reports are a great source of evidence in pre-suit stage in dealing with insurance adjusters.  However, what happens to the report when it gets to the jury stage?  The case to read on this issue is Rhoda v. Weathers located here.  In this case the Court of Appeals affirmed the trial court excluding an accident report created as unreliable.  The officer testified outside the presence of the jury that he had no independent memory of the accident and that he did not actually reconstruct the accident.  As such, the report lacked trustworthiness and was excluded.  This was important in the case as the report noted that the Defendant failed to yield the right of way and eventually the jury returned a defense verdict.   

Friday, October 18, 2013

Rule 1006 and Learned Treatise

I previously discussed Rule 1006 of the Mississippi Rules of Evidence here.  The rules of evidence also allow for a learned treatise to be an exception to the hearsay rule pursuant to Mississippi Rules of Evidence 803(18).  I am toying with the idea of making a merger of these two rules of a trial exhibit which can be helpful in saving clients some money.  For example, do a Rule 1006 summary of the treatment of alimony as contained in Bell on Family Law which is considered the standard in family law in Mississippi or alternatively a summary of the tax code dealing with alimony treatment.  Based on the rules, the two should be admissible and can save the trouble of calling an accountant to trial.   

Thursday, October 17, 2013

Amending Complaint as a Settlement Tool

Rule 15 of the Mississippi Rules of Civil Procedure allows a party to amend once as of right without leave of Court.  Sometimes this can be a nice settlement tool in a divorce where there is sufficient communication between the parties.  One can file a complaint for divorce on irreconcilable differences to see if the other party will sign off on an agreement.  If they will not, you can file an amended complaint without leave of court to assert fault based grounds.  This can be helpful with high profile parties who want to minimize public exposure of their dirty laundry. 

Wednesday, October 16, 2013

Interplay of Rule 32 and Hearsay

Larry Primeaux wrote an excellent article this morning dealing with the interplay of Rule 32 of the Mississippi Rules of Civil Procedure and Rule 804 of the Mississippi Rules of Evidence dealing with doctors depositions and the use of depositions of an unavailable party.  The article is here.  Usually this issue can be taken care of by stipulation.  I have in the past asked the court for permission to allow a "trial deposition" of a witness and having the court to essentially make that deposition part of the proceeding just as if court was going on then.  I have never had any problem with that and most opposing counsel do not either.  My experience has been that the testimony gets worse for the opposing party when they object to not allowing a party to offer testimony by trial deposition and they have to appear.

Tuesday, October 15, 2013

Motor Vehicle as College Expense

The Court of Appeals handed down Brooks v. Fields today located here.  This is an interesting case on college support.  The short version is that the Court of Appeals reversed and rendered a judgment obligating a parent to purchase a vehicle for a child in college and an award of attorney's fees.  The main issue appeared to turn on the fact that the proof was not there to support obligating Mr. Brooks to pay for the car.  However, the opinion noted that there are circumstances where this would be appropriate.  Interesting read and one to file away. 

Monday, October 14, 2013

Rule 52

Just spent a long day in trial.  Judge has ordered both parties to prepare findings of fact and conclusion of law under Rule 52.  Rule 52 requests are a good item to add to the Court file as a separate pleading.  In the long run, they help to prevent errors made by the parties and the court as it gives everyone time to process what all happened at trial. 

Friday, October 11, 2013

Minor Settlements

Larry Primeaux recently wrote an interesting article regarding minor settlements that is worth reading.  I am evaluating myself if I need to update my forms.  A link to the article is here

Thursday, October 10, 2013

Recent Appellate Decision

On Tuesday, the Mississippi Court of Appeals handed down Cupp v. Cupp located here.  I got involved in the case post trial when Mr. Cupp appealed.  I was retained to represent Ms. Cupp.  There are two issues of interest in this case.  One deals with the martial home and the other deals with contempt.  In this case, the Court of Appeals affirmed the chancellor finding that the martial home was not separate property due to Ms. Cupp's contributions and improvements to it even though the home was purchased prior to the marriage.  The other issue is that this is one of the few cases that show a defense of contempt where it is impossible to comply with the Court order.  The Court of Appeals found that the chancellor was correct in not holding Ms. Cupp in contempt as the Court order was impossible literally to comply with.  This case is worth a read. 

Wednesday, October 9, 2013

Employer/Employee Liability

The Court of Appeals granted a rehearing of a prior opinion yesterday in Sykes v. Home Health Care Affiliates, Inc. located here.  This case is important as the prior opinion had held that an employer is not liable for an employee's torts unless both parties are served.  This started a frenzy in the Plaintiff's bar as employees often tend to go "missing" once litigation is discussed.  The rehearing opinion however corrected this and stated that liability is joint and several.  As such, if the employee cannot be found, the employer is still on the hook.  The opinion is worth a read.

Tuesday, October 8, 2013

Special Master

Rule 53 of the Mississippi Rules of Civil Procedure is one of the least used rules.  However, it is good for certain issues of complex discovery disputes or complex property issues.  Rule 53 authorizes the Court to appoint an attorney to act as a arbitrator for certain disputes in ongoing litigation with the fees to be taxed as costs.  This may be a good avenue on certain issues where the Court may not have time to deal with complex issues.  The decision of the master is appealable to the chancellor or circuit court judge.  This is something to keep in the back of your mind for the right case. 

Monday, October 7, 2013

Same-Sex Divorce Brief

My office just filed our brief regarding the same-sex divorce case we have pending.  I have attached a copy here.  Please feel free to email me any legal thoughts regarding the constitutional law issues.  In light of Windsor, myself and many other attorneys are in uncharted waters in dealing with this issue no matter which side of the issue one is on. 

Friday, October 4, 2013

Disclosure of Medical Records

Defense attorneys for some reason love to send the same form discovery.  They keep asking for all medical records essentially for the Plaintiff's entire life.  This is not permitted.  They are entitled to know about any pre-existing injury that may possibly have already been injured and was re-injured in the accident.  However,  all medical bills incurred from an accident are reasonable and necessary and no further proof is required, except that they were incurred as a proximate result of the accident and but for the accident the bills would not have been incurred and that the bills are substantially related to the injuries from the wreck.  Alfa Insurance v. Cascio, 909 So.2d 174 (Miss. Ct. App. 2005).  In Florida, there was a recent case where a Court found that requiring a Plaintiff to disclose all medical records in pre-suit stage of a medical malpractice action was a violation of HIPPA and as such the state statute was preempted by federal law. 

Thursday, October 3, 2013

Constitutional Challenge

I am in the middle of a case where my office is working on a constitutional challenge to Mississippi's same-sex marriage ban.  There are several Mississippi statutes in family law and personal injury that are ripe for constitutional challenges.  One thing to look at is Rule 24 of the Mississippi Rules of Civil Procedure.  It requires that the Mississippi Attorney General be notified in the event of a constitutional challenge to give them the opportunity to intervene.  As such, they really become a necessary party almost before moving forward.

Wednesday, October 2, 2013

Unmarried Equitable Distribution

In today's society, cohabitation by couples without marriage is common.  Additionally, at times there are situations that arise where parties live in a bigamous marriage or potentially a void marriage.  Regardless, there is law in Mississippi to deal with this situation.  Mississippi law sanctions an equitable division of property accumulated by two persons as the result of their joint efforts. See Cotton v. Cotton, 44 So.3d 371, 374 (¶¶7-10) (Miss. Ct. App. 2010); Wooldridge v. Wooldridge, 856 So.2d 446, 452 (¶17) (Miss. Ct. App. 2003); see also Pickens v. Pickens, 490 So.2d 872, 875-76 (Miss. 1986); Taylor v. Taylor, 317 So.2d 422, 423 (Miss. 1975); Chrismond v. Chrismond, 211 Miss. 746, 757, 52 So.2d 624, 629 (1951). As the Mississippi Supreme Court stated in Pickens, "our law authorizes and sanctions an equitable division of property accumulated by two persons as a result of their joint efforts. This would be the case were a common[-]law business partnership breaking up." Pickens, 490 So.2d at 875.  This line of cases is helpful if you have parties in a long term relationship that are not married but have accumulated stuff that needs to be divided. 

Tuesday, October 1, 2013

Oral Arguments on Same-Sex Divorce Case

Several people have asked me about the same-sex divorce case I have on file.  Today, the Chancellor set oral arguments for December 2, 2013 at 9:00 A.M. in Hernando. 

Monday, September 30, 2013

Social Media

Social media (Facebook, Twitter, etc.) has become a staple of most people's lives.  It has also been a constant source of evidence for both Plaintiffs and Defendants in almost every kind of case.   As an attorney or a client, you cannot destroy items on your Facebook page when litigation is commenced.  Otherwise,  you run into issues of spoliation of evidence that I have talked about here previously.  An attorney accepted a five year suspension in an article by the ABA Journal published on August 7, 2013 as a result of telling a client to clean up his Facebook.  That article is here.  Something to be careful of for sure.

Friday, September 27, 2013

Recovery for Injuries in Divorce

I was thinking about an issue that is involved in a case I am working on.  I have an issue where a spouse was assaulted and incurred substantial medical bills as a result.  No civil suit was filed within one (1) year as required by Mississippi Code Annotated 15-1-35.   Parties are now divorcing.  The Chancery Court in my opinion can allocate the bills as part of the equitable distribution process even though no suit was filed.  This may be an interesting way around the statute of limitations issue to get a client some relief. 

Thursday, September 26, 2013

Rule 1006 Summary Admissibility

Gardner v. Gardner decided on Tuesday of this week by the Mississippi Court of Appeals had an interesting issue in it concerning Rule 1006 of the Mississippi Rules of Evidence.  The case is located here.  The issue was that there was a Rule 1006 summary of bank account information entered into evidence and one of the parties claimed it was error.  The Court of Appeals said no it was not error since the underlying documents were made available to opposing counsel.  Here is one issue I did not see addressed in the case that I think is overlooked.  What if the underlying documents are not admissible, why should the summary be?  To me, the underlying documents have to be admissible too.  As such, if there is an objection to the authenticity of the underlying documents, the summary should logically be inadmissible too.   

Wednesday, September 25, 2013

Child Support Deviation

The Mississippi Court of Appeals issued an interesting decision yesterday in Marin v. Stewart located here.  In this case, the Court of Appeals affirmed a chancellor awarding 25% of a noncustodial parent's income as child support which is way above the statutory 14%.  The issue in the case seemed to turn on the fact that the Mother had significant daycare expenses and the Father was able to live with minimal living expenses of his own as he lived with his parents.   I am starting to see more cases where chancellors are deviating from the child support guidelines.  Partly, this is because Mississippi has some of the lowest guidelines in the country.  However, Mississippi also has some of the longest since they exceed to twenty-one (21) and a chancellor has the authority to order college support.  There has been a bill in the legislature for a while to change this up.  Last I heard it was still in committee. 

Tuesday, September 24, 2013

Rule of Evidence 703

Rule 703 of the Mississippi Rules of Evidence states that an expert’s opinion may be based off of inadmissible evidence, such as hearsay, if it is the type reasonably relied upon by experts in the particular field.  M.R.E. 703.    This is an important item to know.  Potentially, in my opinion, an expert can testify as to the substance of what he or she based his opinion which allows items that may be inadmissible (i.e. hearsay) into the record.  From a practical standpoint, this may allow various things that would not normally get into evidence to at least get in the record.  Additionally, many times even if the Court is to give them limited weight, they will still be in the mind of the fact-finder (Chancellor) in the case. 

Monday, September 23, 2013

Beware Bankrutpcy

In representing an injured party, you have to be careful of bankruptcy issues.  I have noticed lots of time that either from lack of knowledge or some other reason an injured parties’ bankruptcy attorney will fail to ask them about possible pending suits or claims they may have.  This may lead to the claim being judicially stopped.  The Fifth Circuit has identified three requirements that must be met for judicial estoppel to apply: (1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the non-disclosure must not have been inadvertent.  In re Superior Crewboats, Inc., 374 F.3d 330, 334-335 (5th Cir. 2004) (emphasis added). A debtor’s non-disclosure is “inadvertent” when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.  Kirk v. Pope, 973 So.2d 981 (Miss. 2007).  In any personal injury case, it is extremely important to find out about prior bankruptcy filings and to advise clients to contact you if they find it necessary to file for bankruptcy.  Unfortunately, many times an injured party has to file bankruptcy due to the pending medical bills when they do not have health insurance. 

Friday, September 20, 2013


I have changed the name of my blog to add Personal Injury to the title to change things up a little.  On the legal front the New Jersey appellate courts put out an interesting opinion located here.  The case is Kubert v. Best, 2013 WL 4512313 (N.J. Super. App. Div. August 27, 2013). 

The main issue of the case is whether the sender of a text message is liable if the reader crashes.  The New Jersey Court held that the sender may be liable for the injuries incurred if the sender knew the person was driving and "that the sender also knew or had special reason to know that the driver would read the message while driving and thus would be distracted from attending to the road."  It is important to note that it is illegal to text and drive in New Jersey from my understanding.  This is an interesting area where I see the law developing in the next few years. 

Thursday, September 19, 2013

Summary Judgment, Experts, and Admissions

I have previously talked about requests for admissions, expert issues and summary judgment here, here,  and here.  If you want to see how all three interplay, take a look at a case I was reading this morning called Byrd v. Bowie,  933 So.2d 899 (Miss. 2006) located here.   The case sounds like a law school exam question for the most part.  Here is the short version.  Attorneys file medical malpractice case,  Attorneys fail to file expert designation timely.  Summary judgment granted to defendant.  Attorneys get sued by client for legal malpractice.   Attorneys fail to respond to requests for admissions in legal malpractice case and summary judgment is granted on liability to the Plaintiff based on the admissions.  Attorneys legal malpractice provider files for bankruptcy protection.  Interlocutory appeal is filed.  The Mississippi Supreme Court affirmed the trial court decision on all issues.  This is a case that shows where summary judgment goes both ways for the Plaintiff and the Defendant.  I have been using partial summary judgment motions on liability or stipulation of liability for a while with great success.  When the only issue remaining is how big the check is, lots of cases resolve quickly.        

Wednesday, September 18, 2013

Worker's Compensation Bar

People come to see me most everyday about some kind of tort issue.  Many of them are in Mississippi regarding claims dealing with negligence of their employer.  Most of the time the injuries are exclusively dealt with in the scope of worker's compensation.  It is well established that the Act is the exclusive remedy for an employee injured while acting in the scope and course of his employment.” Hurdle v. Holloway, 848 So.2d 183, 185(¶ 5) (Miss.2003) (citing Miss.Code Ann. § 71–3–9 (Rev.2000)). Our workers' compensation statute states:

“The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action of law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.” Miss. Code Ann. § 71–3–9 (Rev.2011) (emphasis added).

“The exclusivity provision of the Act is not applicable to an employee's claim if: (1) the injury is caused by the willful act of the employer or another employee acting in the course and scope of employment and in the furtherance of the employer's business; and (2) the injury [is] one that is not compensable under the Act.” Hurdle, 848 So.2d at 185(¶ 5) (citing Newell v. S. Jitney Jungle Co., 830 So.2d 621, 624(¶ 13) (Miss.2002)). Further, “[i]f the injuries were caused by an intentional tort, the exclusivity provision would not apply.” Id . at n. 4.

As such, I have had a few cases where certain intentional acts by an employer were not covered by worker's compensation allowing the case to move forward.  This is an area that must be plead carefully. 

Tuesday, September 17, 2013

Business Records

Family Law is extremely document intensive.  When dividing up assets and other items, it is often necessary to get large volumes of documents from banks, loan companies, etc.  Instead of having to call the records custodian for each entity for trial purposes, Rule 901 (11)(A) and (C) provides a cost effective way to get them in.  Simply get a records custodian affidavit, send opposing counsel a complete copy of the records with a records custodian affidavit, and then after fifteen days or so, get a hearing to have the records admitted as the business records exception to the hearsay rule.  Sometimes, items in the records will need to be fitted into an exception to the hearsay rule also.  However, the only time this is normally an issue is with doctor's records.

Monday, September 16, 2013


Getting information for any case is not enough.  You have to know how to get it into evidence.  It is better to not have to reinvent the wheel when getting this stuff in.  A good book to assist on these issue is Evidentiary Foundations by Edward J. Imwinkelried.  The book is available through Lexis and Amazon.  It is really good at dealing with issue regarding admission of cutting edge issues like Facebook, text messages, and other electronic media. 

Friday, September 13, 2013

Wayback Machine

Stuff tends to disappear from the internet in litigation.  It always amazes me how a company can advertise a product as the latest, greatest, and safest thing until suit is filed.  Suddenly the website changes.  Regardless you can use the internet Wayback machine which is free and archives the web from 1996 to just a few months ago.  Hope you find the link helpful. 


Thursday, September 12, 2013

Indian Child Welfare Act

The Mississippi Legislature amended Mississippi Code Section 93-17-3 to add a subsection 8 to address issues with the Indian Child Welfare Act.  The statute provides that the Indian Child Welfare Act (ICWA) must be complied with, if applicable. If the ICWA is not applicable, the petition must state that it is not applicable, or an affidavit to that effect must be on file before finalization. MCA 93-17-3(8), a newly added provision.  The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian children with American Indian families. Congress passed ICWA in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.  As such, in any adoption petition in Mississippi reference must be made to the applicability or non-applicability of the federal statute. 

Wednesday, September 11, 2013

New Frontier

I previously talked about here that the United States Supreme Court declared portions of the Defense of Marriage Act Unconstitutional.  This afternoon my office has filed of record one of the first if not the first homosexual divorce action in the State of Mississippi since this ruling.  The New Frontier of law has arrived and we will have to wait to see how the Court handles it. 

Tuesday, September 10, 2013

Liability for all Injuries Flowing From Negligence

To show negligence, a plaintiff has to present evidence of duty, breach of duty, causation, and damages. Huynh v. Phillips, 95 So.3d 1259, 1262 (¶9) (Miss. 2012).  An issue comes up at times of what injuries is the Defendant liable for?   The answer seems to be all injuries that are foreseeable.  An issue I am currently working on involves the negligence of a defendant and potential medical malpractice resulting from treatment of the injuries.  There is very limited law in Mississippi on this issue.  Other jurisdictions have held that the original defendant may be liable for the third party malpractice since the injuries are foreseeable but the defendant may have the ability to file a claim for offset against the third party defendant. 

Monday, September 9, 2013

Different Standard to Modify Joint Custody

In Mississippi, the traditional test for child custody modification is well established. Ferguson v. Ferguson, 782 So.2d 181, 183 (¶ 5) (Miss. Ct. App. 2001). In order to modify a child custody decree, the party seeking modification must first show that, since entry of the decree sought to be modified, there has been a material change in circumstances which adversely affect the welfare of the child. Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 15) (Miss. Ct. App. 2002) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss. 1995)). Second, the party must show that the best interest of the child requires a custody modification. Id.   Not every change in circumstances is so adverse that it warrants a custody modification; the chancellor must consider the totality of the circumstances. Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993). "In all custody cases, the polestar consideration is the best interest of the child." Id.(quoting Sellers v. Sellers, 638 So.2d 481, 485 (Miss. 1994)).   "[A] material change in circumstances . . . requires proof of a serious material change in the home of the custodial parent." Deborah H. Bell, Bell on Mississippi Family Law § 12.11(5)(a) (2d ed. 2011) (emphasis added).

Traditionally, Mississippi law has held that, "a change in the circumstances of the non-custodial parent does not, by itself, merit a modification of custody." Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996). In Riley, the supreme court created a narrow exception to this principle. Id. This exception applies if the custodial parent's home environment is found to be contrary to the child's best interest and the non-custodial parent's home environment has improved and surpassed that of the custodial parent, so that it is now in the child's best interest to live with the non-custodial parent. Id.

I was reading through Mississippi Code Annotated 93-5-24 for a case and noticed section 6 of the statute which provides that "(6)  Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred."   I started thinking about this and realized that on joint custody under this statute all that has to be shown is a change in circumstances which creates a lower burden of proof (i.e. no effect on child needed).  The Court will still have to apply the Albright factors it still seems to be an easier burden. 

Friday, September 6, 2013

Abuse and Neglect

Abuse and neglect in a custody proceeding is something to take serious.  However, what constitutes abuse and/or neglect?   It may sound simple, but it is really not.  On a case a few days ago, myself, opposing counsel, and the chancellor were having a discussion regarding this very issue.  Technically, an child support or custody case could be an abuse or neglect issue because in contested proceeding the main issue is normally that one parent does not take as good of care of the child as another parent.  In Johnson v. Johnson, 872 So.2d 92 (Miss. Ct. App. 2004), the Court of Appeals held that the chancellor has some discretion to determine if abuse and/or neglect is a legitimate issue even when raised in the pleadings.  I started looking for a definition of abuse and/or neglect as defined in Mississippi Code Annotated 93-5-23 and it referenced me back to Section 43 of the Mississippi Code. 

Mississippi Code 43-21-105 defines an abused or neglected child as follows:

(l) "Neglected child" means a child:  (i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; provided, however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or (ii) Who is otherwise without proper care, custody, supervision or support; or (iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether said mental condition be mentally retarded or mentally ill; or (iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.  (m) "Abused child" means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused upon said child sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment. Provided, however, that physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.
(n) "Sexual abuse" means obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened.

The definition do not help a ton in my opinion as they are rather vague.  However, I do believe there needs to be some balancing act over what constitutes a true situation or abuse and/or neglect as opposed to just bad parenting.  This is especially true in light of Mississippi Code Annotated Section 93-5-23 which requires the other side to pay attorney's fees with the accusations are found to be "without foundation".  I previously talked about the problems of the definition of "without foundation" here.

Thursday, September 5, 2013

Dismissal for Failure to Prosecute

I previously talked about dismissal as a sanction here.  On Tuesday, the Court of Appeals addressed this same issue in the context of failing to prosecute a suit after if was filed in Cornelius v. Benefield, et. al. located here.  The main issue of the case was whether the delay of the Plaintiff in prosecuting the case prejudiced the defendant to the extent that dismissal was appropriate.  The trial court said yes and the Court of Appeals affirmed.  However, four (4) judges dissented saying that the sanction was too harsh under the circumstances as the issue appeared to be problems with the Plaintiff's attorney as opposed to the Plaintiff.  Cases like this are why I hate for cases to sit too long.  This only further adds to the attorney paranoia. 

Wednesday, September 4, 2013


Arbitration is typically used by a large number of companies to circumvent trial by jury.  It has its good points and its not so good points in the event the other party has the choice on determining the arbitrator.  Contrary to popular belief, there are ways around arbitration clauses.  Among them is unconscionability.  "Unconscionability has been defined as 'an absence of meaningful choice on the part of one of the parties, together with contract terms which are unreasonably favorable to the other party.'" Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207 (¶11) (Miss. 1998) (quoting Bank of Ind., Nat'l Ass'n v. Holyfield, 476 F.Supp. 104, 109 (S.D.Miss. 1979)). There are two recognized types of unconscionability— "procedural and substantive." Taylor, 826 So.2d at 714 (¶13) (quoting Pridgen v. Green Tree Fin. Servicing Corp., 88 F.Supp.2d 655, 657 (S.D.Miss. 2000)).  Additionally, I have seen issues where there was legitimate provable fraud in inducement of the agreement where terms were filled in after a party signed.  This often happens in nursing home litigation for some reason.  Never think that you are stuck with arbitration, just because there is a contract for it.  The underlying facts may render the whole thing void which additionally can play well in resolving a case. 

Monday, September 2, 2013


There are lots of industries governed by various regulations.  Prime examples of both of them are the trucking industry, construction industry, and nursing homes.  Lots of times, a violation of these regulations can be a goldmine in establishing a negligence claim.  If you have one of these cases, look a little deeper than just the statutes.  You will often be rewarded.

Friday, August 30, 2013


Yesterday I talked about sanctions including dismissal for providing misleading answers.  If you want to see how fast things can go south for failing to answer discovery correctly, see City of Jackson v. Rhaly, et. al. located here.  Here, the Court of Appeals affirmed the granting of a default judgment against the City of Jackson for failing to answer an interrogatory correctly.  Something to think about when a client wants to be sloppy in answering interrogatories. 

Thursday, August 29, 2013

Dismissal as a Sanction

Dismissal of a case is a harsh sanction for a case.  It is provided for by the Rules and the caselaw.  Rule 37(b)(2)(C) states, in pertinent part: If a party . . . fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this rule, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

". . . . an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]" (Emphasis added).
The Mississippi Supreme Court has established the following factors for evaluating the appropriateness of dismissal as a sanction for discovery violations.  First, dismissal is authorized only when the failure to comply with the court's order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situation[s] where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party's preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party's simple negligence is grounded in confusion or sincere misunderstanding of the court's orders.  Pierce, 688 So.2d at 1389; see M.R.C.P. 37(b)(2)(C). The Pierce court explained that these factors are considerations and not four absolute requirements. Pierce, 688 So.2d at 1389. The supreme court has further held that willfulness or bad faith may be so clearly evidenced that the four Pierce factors will be irrelevant to the upholding of dismissal. White v. White, 509 So.2d 205, 207 (Miss. 1987).  Additionally, "[a] finding of willfulness may be based upon either a willful, intentional, and bad faith attempt to conceal evidence or a gross indifference to discovery obligations." Pierce, 688 So.2d at 1390.   Rule 37(e) provides for additional sanctions where a party abuses the discovery process in seeking or resisting discovery.   If a party is untruthful as to her discovery, Rule 37(e) also supports a trial court's dismissal. See also William Pyle, Luther Ott & Clark Rumfelt, Mississippi Rules of Discovery, 46 Miss. L.J. 681, 764-83 (1975).

However,"[d]ismissal with prejudice is a sanction that should be imposed only in those rare instances where the conduct of a party is so egregious that no other sanction will meet the demands of justice." Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 997 (¶36) (Miss. 1999). Further, where "a party has frustrated the orderly judicial process by false or erroneous responses to interrogatories, that party should not be able to argue that its own conduct has removed it beyond the reach of sanctions." Pierce, 688 So.2d at 1390; Smith v. Tougaloo Coll., 805 So.2d 633, 642 (¶33) (Miss. Ct. App. 2002).

On at least once occasion, I have been able to have a party's pending claims dismissed with prejudice on the eve of trial for failure to provide discovery responses along with extremely misleading information in discovery.   This is something to keep in the back of your mind as an attorney and additionally as a party. 

Wednesday, August 28, 2013


For some reason, lots of people think that once a child gets a certain age they can choose not to visit the other parent.  The answer like most things is a definite maybe.  The central issue seems to resolve around whether the other parent is withholding visitation or interfering with visitation as opposed to the child will just not go.  Take  a look at Bowen v. Bowen, 107 So.3d 166 (Miss. App. 2012).  A copy is located here.  From my reading of the opinion, it is not contempt as long as the parent is playing no part in not allowing the child to go while not discouraging the child from going.  This is a tricky area and extremely fact specific.  Lots of time an expert may be helpful to determine if there is a parental alienation issue or if the child just really does not like the other parent for whatever reason justified or not.    

Tuesday, August 27, 2013

Guardian Ad Litem

In Mississippi, there are two situations when the Court can appoint a guardian ad litem.  Where there are sworn accusations abuse and/or neglect, the appointment of a Guardian Ad Litem is mandatory pursuant to Mississippi Code Annotated §93-11-65 and which the failure to appoint a guardian ad litem under the circumstances constitutes reversible error.  See In re Adoption of E.M.C., 695 So.2d 576, 581 (Miss. 1997).  ( The failure to appoint a guardian ad litem under a mandatory statute requires reversal.)  Chancellors are the “superior guardians” of minor children in the State of Mississippi. See In the Matter of the Adoption of D.N.T., 843 So. 2d 690, 713 (Miss. 2003). Additionally, “The chancery courts are guardians ‘ of all minor children’ in their districts and may appoint guardians ad litem as needed.” Adams v. Adams, 467 So. 2d 211, 216 (Miss. 1985). 

As seen above, there are situations where the Court has no discretion on whether to appoint a guardian ad litem and situations where the Court may appoint a guardian ad litem.  I have and continue to serve as a guardian ad litem on a number of cases which allows me to look at a case from multiple viewpoints.

Here is your deep legal thought of the day based on the caselaw above.  Say the Court fails to appoint a guardian ad litem on a case where the appointment is mandatory and the appeal period runs.  Does the failure to appoint the guardian ad litem render the prior judgment void?  There appears to be no caselaw on point but appears to be an argument that the appointment of a guardian ad litem is a substantive right in these cases which is typically not waivable.  Some food for thought. 

Monday, August 26, 2013

Alternative Visitation

Lots of times, people get stuck in the idea that visitation has to be set up certain ways.  The law is pretty clear in Mississippi.  "Visitation is a matter within the chancellor's sound discretion." Brooks v. Brooks, 76 So.3d 215, 222 (¶31) (Miss. Ct. App. 2011). "The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children, and the chancellor's visitation decision is afforded great deference by this Court." Id. Our supreme court has emphasized the importance of a non-custodial parent's visitation rights:

Certainly the rights and responsibilities of the parent having custody following a divorce are paramount with respect to matters of schooling, discipline[,] and the like. We are afraid that by labeling the rights of the non-custodial parent "visitation" we imply an inordinate subordination of those rights in quality. That there will be no misunderstanding in the future[,] the chancellor should approach the fixing of visitation rights with the thought in mind that, absent extraordinary circumstances militating to the contrary, the non-custodial parent will[,] during the periods of visitation[,] have broad authority and discretion with respect to the place and manner of the exercise of same, subject only to the time constrictions found reasonable and placed in the decree. Overnight visitation with the non-custodial parent is the rule, not the exception; indeed, a non-custodial parent is presumptively entitled during reasonable times to overnight visitation with the children. The approach we mandate is based upon the premise of our law in this area: that children of divorced parents should be encouraged to have a close, affectionate and, under the circumstances, as normal as possible a parent-child relationship. To be sure, this ideal is seldom achieved. This, however, is no reason for the law to impose obstacles to that achievement.

Cox v. Moulds, 490 So.2d 866, 870 (Miss. 1986) (internal citation omitted).

The Mississippi Court of Appeals has held that "liberal visitation, at a minimum, means two weekends a month and five weeks during the summer." Messer v. Messer, 850 So.2d 161, 167 (¶22) (Miss. Ct. App. 2003) (citing Chalk v. Lentz, 744 So.2d 789, 792 (¶9) (Miss. Ct. App. 1999)). 
From reading the cases, there is no truly standard visitation.  Visitation is what the chancellor says within certain parameters.   Sometimes you have to think outside the box.  I have been looking at what is called 5-2-2-5 visitation from several states out west.  This parenting schedule is where the child is with Parent A every Monday and Tuesday (2 days) and Parent B every Wednesday and Thursday (2 days). The weekends from Friday through Sunday would be alternated (3 days) between the parents. The child will be with the parent whose weekend it is for 5 days and the other parent 2 days. Because the weekend time alternates from week to week, the child would end up spending 50% time with both parents.  Thus it gets the name 5-2-2-5.  I may start experimenting some with this schedule as it has been successful in a number of states even in high conflict cases.  In several states, the law is starting to change and the automatic presumption is that joint custody is in the child's best interest and the burden is on the other party to show that it is not.  At some point, I expect this to be the law in Mississippi.