Friday, June 28, 2013

Rule 34 Inspection

Rule 34 of the Mississippi Rules of Civil Procedure allows a party to request that certain documents be produced by an opposing party.  Lots of people overlook the second part of the Rule in section (a) which provides that which allows a party “(2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26 (b).”    

As a practice tip, it is often a good idea to personally do a property inspection on the opposing parties' property during a divorce action.  It is amazing how much stuff is routinely left off their financial declaration that is in plain view upon inspection.  Additionally, this is extremely helpful in a custody case to help to understand how the opposing party lives and can potentially shed lots of light on various Albright factors on custody. 


Thursday, June 27, 2013


Rule 45 of the Mississippi Rules of Civil Procedure authorizes the Court clerk to issue subpoenas to a party for the production of documents, for a witness to appear at a hearing, etc.  The subpoenas then have to be served in accordance with Rule 4 of the Mississippi Rules of Civil Procedure.  I have always subpoenaed my own witnesses when it is time for  a hearing.  The problem is that if you do not, you have no basis to get a continuance and the judges are not very understanding unless a subpoena has been issued.  Failure to respond to a subpoena is considered contempt of court which gives you a great argument for a continuance when a party does not appear or documents are not produced in the time frame set. 

One area I continually see attorneys overlook is the mileage fee for a witness required by Mississippi Code Annotated §25-7-47.  With the subpoena, you must also attach a check or cash for the mileage rate for five cents per mile to and from court along with a $1.50 per day.  On my subpoenas I always attach a separate certificate showing that the showing the process server gave the statutory fees in addition to proof of service.  If you do not tender the check, the witness has no duty to appear.  Attaching a separate certificate also provides proof that the statute has been complied with in tendering the fees.    

Wednesday, June 26, 2013

Special Post

Had to throw in one more special post for the day.  As most everyone knows, the U.S. Supreme Court ruled that portions of the Defense of Marriage Act (DOMA) was unconstitutional.   I actually currently have one case that we have been waiting on this ruling prior to proceeding.  It will be interesting to see how judges will deal with the law as it develops in this area. 

Discovery Conference

To me, the most neglected part of Rule 26 of the Mississippi Rules of Civil Procedure is the use of a discovery conference.  I have successfully used it in a number of cases where the case has gotten stonewalled by an opposing party not wanting to turn over documents.  Rule 26 (c) provides that:

“(c) Discovery Conference. At any time after the commencement of the action, the court may hold a conference on the subject of discovery, and shall do so if requested by any party. The request for discovery conference shall certify that counsel has conferred, or made reasonable effort to confer, with opposing counsel concerning the matters set forth in the request, and shall include:

1. a statement of the issues to be tried;

2. a plan and schedule of discovery;

                         3. limitations to be placed on discovery, if any; and

4. other proposed orders with respect to discovery.

            Any objections or additions to the items contained in the request shall be served and filed no later  than ten days after service of the request.  Following the discovery conference, the court shall enter an order fixing the issues; establishing a plan and schedule of discovery; setting limitations upon discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the case. Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by Rule 16. The court may impose sanctions for the failure of a party or counsel without good cause to have cooperated in the framing of an appropriate discovery plan by agreement. Upon a showing of good cause, any order entered pursuant to this subdivision may be altered or amended.”

Notice the part of the Rule that says shall which removes the discretion element from the Court.  If you combine a discovery conference and later do a pretrial conference as allowed by Rule 16, you can essentially turn a state court action into a federal court action procedurally which can make it run a lot smoother and get justice for your client a lot quicker. 

Tuesday, June 25, 2013

Scope of Discovery

The scope of discovery is generally wide open.  Rule 26(b) of the Mississippi Rules of Civil Procedure provides that "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party."  In family law, this pretty much puts everything on the table including medical history and confidential employer information which may be relevant to earning capacity.  On the personal injury side, look at issues of net worth for punitive damages calculations and prior claims against a Defendant as a pattern of conduct.   All of this is permitted from my reading of the rules and has generally been allowed in a number of cases I have been involved in after a lot of unnecessary objections by opposing counsel and a trip to visit the judge.  This is where some long hard thinking on what you are seeking to prove can be useful and lead to some admissible evidence that you might not normally think about. 

Monday, June 24, 2013

Witness Disclosures

I am about to start a series of articles on various aspects of discovery. Some of it is to refresh myself on various things, some of it is to serve as a warning. A few years ago, I got involved in a case post trial.  One of the issues was the exclusion of several witnesses at trial.  The attorney’s had complied with Rule 26 of the Mississippi Rules of Civil Procedure and had disclosed the name, address, telephone number, and had even went further and disclosed generally what the witnesses were expected to testify at trial about.  At trial, the chancellor took the position that anything not disclosed in the witness disclosures, the witnesses would not be allowed to testify about.  This happened in the middle of trial apparently after one witness started testifying about the opposing party making death threats.  The party offering the witness took the position they had complied with everything Rule 26 required and the opposing party should have talked to the witness before trial.  The party opposing the witness stated they had asked for the sum and substance of the witness testimony and that it was “trial by ambush” not to provide it.  Ultimately, the chancellor’s ruling was affirmed on appeal as not an abuse of discretion.  To me and several other attorney’s who looked at the issue, the party offering the witness seemed to do everything required of them and I know several attorneys who still adopt this position in disclosure of witnesses.  To be safe, I now threat lay witnesses almost the same as expert witnesses that I previously discussed here.  I tend to disclose everything I intend to have the witness testify about.  The thing to remember is that a witness has never been excluded when too much information regarding their testimony has been disclosed to the opposing party.

Friday, June 21, 2013

Waiver of Financial Declarations

Mississippi family law caselaw is confusing as ever.  As someone has opined, you can find a position to support about anything.  A few years ago the Mississippi Supreme Court decided Trim v. Trim which can be looked at here.  The case held that the filing of a false 8.05 financial statement constituted a fraud on the court justifying a party to reopen a divorce. Based upon this and several other cases, some chancellors started requiring 8.05s to be prepared in every case.  Most chancellors took the middle of the road approach and asked that attorney's put a waiver of 8.05s in their property settlement agreements if the divorce was uncontested. 

Question:   Mississippi Code Annotated 93-5-2 requires the Court to make a finding that the parties agreement is adequate and sufficient to the property rights of the parties and the children of the parties if applicable.  On what basis can such a finding be made with no financial declarations?  Counter-argument seems to be that the parties sworn statements in a PSA may be enough absent fraud or overreaching.  You could be safe and argue both sides of this issue and have a whole line of cases to support both positions. 

Thursday, June 20, 2013

Value Drivers

Most insurance companies use evaluation software to adjust claims.  The most popular is a program called Colossus.  There are certain things that drives the value of a personal injury claim up including some things you would not think about.  The force of impact for example and the actual property damage drives a personal injury value up.  You can have two identical claims with the same injuries where one claim is only worth $5,000.00 but the other is worth $25,000.00 because of the amount of force and damage done to the vehicle.  Pictures of the vehicle prior to repair are extremely important including getting photos of the brackets under the vehicle that were bent as a result of the accident.  Detailed injury and property documentation is the key to adding value to claims which can be the difference between a few thousand dollar settlement and a policy limits claim. 

Wednesday, June 19, 2013

Joint Legal Custody

§ 93-5-24 provides that the joint legal custodians shall “share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child,” and “An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with each other in the exercise of the decision-making rights, responsibilities and authority.”

I have been thinking a lot about legal custody as of late.  Similar to blog articles by Judge Primeaux, I am becoming more of a fan of adding a tie-break provision to my settlement agreements.  The problem is that the statute does not say what is to happen when the parties cannot agree.  There is some authority that says the party with primary physical custody can on certain necessities but the language is not very clear cut.  One of the nastiest cases I had dealt with a situation where the parties could not agree on anything and both of them kept doing what they felt was best which included multiple school changes and daycare changes.  The case is a reported opinion and there is a lot of background that is in the trial transcript that did not make it into the appellate opinion.  

Connecticut has found this tie-breaker provision to still be consistent with an award of joint custody.  This tie break provision does not prevent either party from meaningfully participating in the major decisions relating to the child, but rather, provides the parties with a solution for the occasion when, despite good faith and multiple attempts to reach a decision, the parties cannot agree.  Something to consider. 

Tuesday, June 18, 2013

Mississippi Medical Malpractice Caps

On Friday of last week in federal court, the Southern District of Mississippi addressed the constitutionality of Mississippi’s caps on non-economic damages in medical malpractice cases in Clemons v. United States of America, Cause No. 4:10-CV-209-CWR-FKB (S.D. Miss. June 13, 2013).  The  damages are currently capped at $500,000.00.  The facts of the case are tear-jerking to say the least as a mother and unborn child died from as the judge called it “staggering incompetence” as the mother died screaming in pain and the minor child suffocated.  The court ultimately held the caps were constitutional but made the following quote which is quickly circulating in the legal community and my fellow bloggers: 

“All grief is not equal. All pain cannot be reduced to a one-size-fits-all sum. One cannot imagine what it is like to know that the doctor right in front of you, the one who is refusing to insert a chest tube into your body even as nurses beg her to provide that treatment, is causing you to die and killing your unborn baby as you are helpless to stop her. In Mississippi, though, one’s suffering at the hands of a health care provider is worth no more than half a million dollars, no matter how egregious, and no matter if your suffering leads to your death, your unborn child’s death, and leaves your children orphans. This is offensive.”

In the case at hand, the government stipulated to liability.  Any person who had to live through would never support capping liability.  The often overlooked argument with tort reform is that if the legislature can set caps damages at $500,000.00 what is to keep them from setting the damages at $0.  This bothers my conscience and should any citizen of this state. 

Monday, June 17, 2013

New Cord Collection Law

Beginning July 1, 2013, Mississippi has a new statute that is the first of its kind in the country.  A link to the news article is below.  The new statute requires doctors without the consent of the mother who are age sixteen (16) or under to save and store umbilical cord blood in cases where the father is 21 or older or when the baby's paternity is in question. 

I would predict a constitutional challenge to this at some point.  Question I have is why would a standard DNA test not be enough if there is a warrant to test a suspect?  Looks to be a possible Fourth Amendment issue along with a privacy issue as it relates to the mother.

Friday, June 14, 2013

Expert Disclosures

For some reason, I keep seeing answers to discovery responses and expert disclosures in Mississippi by a number of attorneys getting pretty sloppy.  Expert disclosures are governed by four things in Mississippi:  (1)  Rule 26 of the Rules of Civil Procedure; (2)  Rule 1.10 of the Uniform Chancery Court Rules if you are in Chancery Court; (3)  Rule 4.04 of the Uniform Circuit and County Court; and the often overlooked (4)  what the opposing attorney has asked for in discovery.  I have had several cases where I have disqualified an expert or the opposing party has decided to not use the expert they originally wanted to because they could not provide the information as required by the Rules. 

Here is the high points to watch out for:

(1)  Must designate sixty (60) days before trial:

Both Rule 1.10 of the Uniform Chancery Court Rules and Rule 4.04 of the Uniform Circuit and County Court Rules require an expert to be designated sixty (60) days before trial.    In Hammers v. Hammers, 890 So.2d 944 (Miss. 2002), the Supreme Court affirmed the chancellor after he prohibited an expert witness who was designated after the sixty day requirement of Chancery Rule 1.10.  The expert was to testify as to the valuation of a family business in a divorce case that had been ongoing for approximately two years.

(2)  Must supplement discovery response if opinion changes:

Mississippi Rule of Civil Procedure 26(f)(1) provides that "a party is under a duty seasonably to supplement his response with respect to any question directly addressed to ... (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony."  The purpose of discovery rules is to "avoid trial by ambush" and have "a reasonable time to prepare for trial." Congleton v. Shellfish Culture, Inc., 807 So. 2d 492, 496 (Miss. Ct. App. 2002).  This is particularly true "where the interrogatory asks for disclosure of expert witnesses." Harris v. Gen. Host Corp., 503 So. 2d 795, 797 (Miss. 1986). The supreme court has deemed it "inherently unfair and a violation of our rules of civil procedure for a plaintiff" who has violated the discovery rules "to appear at trial with experts whose opinions have not been properly disclosed to the defendants." Banks v. Hill, 978 So. 2d 663, 666 (Miss. 2008).  The trial court must determine whether a response is "seasonable" on a case‑by‑case basis by "looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit." Buchanan v. Ameristar Casino Vicksburg, Inc., 957 So. 2d 969, 973  (Miss. 2007).  “If the expert witness plans to testify on complex matters or on an issue that may be the turning factor in a case, then it is important that the necessary time be allotted prior to trial to depose said expert, transcribe the deposition, meticulously study the testimony and, if necessary, solicit a rebuttal expert witness to refute the former expert's planned testimony.”  Motorola Commc'ns & Elecs., Inc. v. Wilkerson, 555 So. 2d 713, 717 (Miss. 1989).

(3)  Must have actually asked for disclosure of the other sides expert: 

This is an issue that lots of attorneys don't know about.  Mississippi Rule of Civil Procedure 26 is to be strictly interpreted and should be rigidly enforced. Hudson v. Parvin, 582 So.2d 403, 412‑13 (Miss.1991).   M.R.C.P.  26(b)(4)(A)(i) states, “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial.”  When requested, parties must disclose the opinions of expert witnesses and the underlying grounds of opinions.” Peterson v. Ladner,785 So.2d 290 (Miss. Ct.App. 2000).  (Emphasis added).    

The 60 day notice mandated in Uniform Chancery Rule 1.10  does not apply unless opposing counsel makes a discovery request to designate experts.   Jackson v. Perry, 764 So.2d 373, 384 (Miss. 2000).  Logically, this should also apply in Circuit and County Court since the rule is largely identical. 

If you don't ask, other side has no duty to disclose.

(4)  Make sure designation provides everything required by Rule 26:

This is one of my complaining points especially by defense attorneys.  I have seen designations that simply say, will testify that Plaintiff has not hurt.  Needless to say, that is not enough.  I try to go down through Rule 26 and have list each thing the rule requires and disclose all information.  Truth be known, if the other side discloses what all if required by the Rules, it is normally a waste of time to depose them unless you are strategically planning a Daubert motion I previously discussed some here. 

Here is a list of the items generally that should be in the disclosure:
         (a)  Name, address, telephone number, and field of expertise
         (b)  Reserve right to supplement opinion in disclosure
         (c)  CV of qualifications of expert
         (d)  Opinion in a great of detail as possible and the items relied on in making opinion - can rely  on hearsay per Rule 702 of the Rules of Evidence (another issue commonly overlooked).  I normally try to list out specifically any documents or records relied on.
         (e)   Opinion must be dates with a "reasonable degree of certainty" - this is where 90% of Daubert challenges occur because party will say this "could" be happening as opposing to this "is" happening with a reasonable degree of certainty. 

Hope this information helps in both selecting an expert and making sure they can actually make it to the stand.  Needless to say, the look on opposing counsel's face when their expert is struck often means the case is over. 


Thursday, June 13, 2013

Attorney's Fees Affidavit

In light of some recent developments in Mississippi caselaw, I have had to redo my affidavits of attorney's fees.   I previously discussed here  that the court is required to make certain factual findings on the record.  Several cases have recently come out which seem to suggest that you need to portion up what part of your fee is done for what purpose.  I am attaching a form here that I hope will help some of my fellow attorney's and help make a better record on appeal.  You may want to make a separate affidavit for each portion of a case you work on (i.e. divorce, defending abuse allegations, contempt issues). 

Hope this form helps. 

Wednesday, June 12, 2013

Mississippi Supreme Court and Electronic Filing

Starting July 1, 2013, the Mississippi Supreme Court and the Court of Appeals will allow electronic filing of motions and briefs.  Starting January 1, 2014, electronic filing will be mandatory.  This should speed up the appeals process a great deal and potentially save clients a great deal of money.  From an article in the newspaper I read, the public will be able to view the documents filed on a case for free as part of the court docket online.  This is of course after I just finished making a chart showing what color your cover along with other requirements are necessary when filing a paper brief for the form book I am working on. 

Tuesday, June 11, 2013

Trial Presentation

I am starting to experiment with some alternative methods of trial presentation.  Yesterday in the mail I got a fairly inexpensive used book which looks wonderful.  It is Trial Presentation for Litigators.  A used copy on Amazon will cost you less than $10.00.  It has some good ideas on graphs and designing relatively inexpensive trial exhibits that you can have enlarged at OfficeMax.  You can also see how to make some good timelines to assist in explaining events in Microsoft Word on Youtube.  Both judges in family law cases and juries and family law cases are like the rest of us, they need visual aids to assist them in making a fair decision.  Preparing these aids also makes you think about your case more while also making sure you understand the details.

Monday, June 10, 2013

Social Security Disability

I am preparing for a social security hearing this afternoon and thought I would share the following.  This is one of those areas where my family law and personal injury practices often merge.  I have been on both sides of a party seeking child support and the party paying child support where their only income is social security disability.  Mississippi Code Annotated Section 93-11-71(6) was amended a few years ago that allows someone who receives disability to use the lump sum payments due to a child to satisfy outstanding arrearages.  Attorneys for some reason often forget that when a parent is receiving social security disability, the minor child of the parties also receives a check each month.  The check the child receives each month allows a noncustodial parent to be entitled to a credit up to the amount of his support obligation for money paid to the child.  Mooneyham v. Mooneyham, 420 So.2d 1072, 1074 (Miss. 1982).  From a practical standpoint, with the amount the child receives the noncustodial parents usually ends up paying no child support due to the amount the child receives each month.

The following website is helpful too if you are representing claimants.  I have been told it is often used by social security employees in making disability determinations.  It has all the regulations in one place, a copy of the infamous grid for making disability determinations, and a whole host of answers to social security questions.

Friday, June 7, 2013

Disabled Adult Children

The Mississippi Supreme Court decided the case of Hays v. Alexander yesterday.  The case laid to rest a lot of speculation in the family law community over whether the chancery court has the authority to order a parent to provide for post-majority support of a disabled child.  The Court stated that the chancery court does not absent an express agreement of the parties to or statute passed by the legislature.  There is a long line of cases that say the parties can agree and the trial court will enforce an agreement approved by the chancery court to do more than the law requires.  However, absent that agreement, the chancery court has no authority to order a parent to do this unless the legislature gives it to them.  If you really want to get confused, read Mississippi Code Annotated 43-19-33 which provides that post majority support for a disabled child can be ordered in a DHS case involving a putative father.  Looks to me like there could be a constitutional challenge to the statute as singling out unmarried fathers only in light of this ruling.   

Thursday, June 6, 2013

Guardian Ad Litem and Hearsay

I finished up a trial today where I was the guardian ad litem.  I went back and looked at McDonald v. McDonald, 39 So.3d 868 (Miss. 2010) before the hearing.  From doing guardian ad litem work, this case is still hard to grasp.  Prior to this case, the common practice was to for a guardian ad litem to investigate issues of child custody, abuse, neglect, etc.,  file a report, and testify to the results and findings of the investigation, including hearsay, and make a recommendation.  McDonald however held that the statements made in a guardian ad litem report still have to qualify as an exception to the hearsay rule for that portion to come in.  As others have suggested, this essentially makes it where the guardian ad litem needs to be qualified as an expert by the Court pursuant to Rule 702 of the Mississippi Rules of Evidence in order to get a lot of these hearsay issues in since an expert can state the basis of their opinion which can rely on hearsay.  There is potentially one other avenue to look at that I did one a case last year.  The parties did an agreed order signed by all parties that allowed the guardian ad litem to testify about the results of her investigation and specifically stated that there would be no hearsay objection to it.  These are some issues to think about for your next trial. 

Wednesday, June 5, 2013

Equitable Offset

Lots of times people forget that Chancery Court in Mississippi is a court of equity.  All that really means from a practical standpoint is to do what is fair.  I have seen several cases where one party claims another party is in contempt but the other party counters back and says that the contempt is not intentional due to the fact that the other side agreed to it.  To me, this is a situation where the party may not be a in contempt but could still owe the money.  In Varner v. Varner, 588 So.2d 428, 434 (Miss. 1991), the Mississippi Supreme Court instructed:
"Without doubt or hesitation, we encourage post-divorce detente that parents may cooperate in rearing their children. It follows that, from time to time, adjustments can and should be made without burdening the courts. The law remains firm that court-ordered child[-]support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. But this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made."
With the current state of the economy, I have been able to assist several people in avoiding contempt claims due to the conduct of the opposing party and through other amounts that one parent gave the other parent when they were on speaking terms.  Lesson for the day: if the law is not on your side, equity can be a lifesaver.

Tuesday, June 4, 2013

Amending Pleadings

During the course of litigation, lots of times there are new claims or issues that arise in both family law and personal injury claims.  A problem I see a lot is that people try to file "amended" pleadings without getting permission from the Court.  Rule 15 of the Mississippi Rules of Civil Procedure provides that permission of the Court must be obtained to file amended pleadings.  From a practical standpoint, my experience has been that most chancellors and judges will not even entertain not allowing a party to amend their pleadings unless the matter is set for trial.  If no one is going to object, you really need to look at Rule 15(b) of the Mississippi Rules of Civil Procedure which allows a party to request that the pleadings be made to conform to the evidence presented on issues tried by the express agreement or consent of the parties.  From a practical standpoint, it is often a good idea to make this as an oral motion at the end of trial to make sure that all the issues everyone has been arguing about for several days is covered by the pleadings.  It takes virtually no time and may save you a reversal on appeal.   

Monday, June 3, 2013

Mississippi Waiting Period for I.D. Divorce

In Mississippi, a party can obtain a divorce on the grounds of irreconcilable differences after the complaint has been on file for 60 days.  What happens if it is not?  " Divorce in Mississippi is a creature of statute." Gardner v. Gardner, 618 So.2d 108, 111 (Miss.1993). " A divorce based on irreconcilable differences has certain statutory requirements that must be met." Perkins v. Perkins, 787 So.2d 1256, 1261(11 11) (Miss.2001). Strict compliance with the statute is required. Id. at 1264(1124). One such requirement is that " [c]omplaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard." Miss.Code Ann. § 93-5-2(4) (Supp.2008) (emphasis added). The Mississippi Legislature, in using the word " must," did not give chancellors any discretion to waive the sixty-day requirement. 

I have seen one case where an opposing attorney miscalculated the number of days and entered the decree on day fifty-nine (59) and the other party remarried a few years later.  Post divorce issues arose and the new attorney moved to set the divorce aside which was granted as the divorce was void which made the second marriage void also.    That is one case I was glad I did not represent either party. 

Here is an issue to think about though.  Is the sixty (60) days really from the time the complaint is filed or the time of both parties being before the Court?

Shelton Hand in his excellent treatise Mississippi Divorce, Alimony, and Child Custody with Forms specifically discussed this situation. In §4.14 of his book he states that:
"The irreconcilable differences statute demands a 60-day waiting period before any divorce is granted. It is essential, however, that the 60 days be calculated from the day that both parties are before the court. The statute only requires that the bill of complaint be on file for 60 days, but the Supreme Court, approving the Uniform Chancery Court Rules, dictated that the 60 days be counted from the date when both parties are fully before the court. This could be by joint bill, the defendant must have been served with personal process, or entered his  personal appearance by waiver of process before the 60-day period may begin to run."  (emphasis added).

I have had one chancellor take this position and I have had another chancellor say that it is merely the complaint being on file for sixty (60) days.  I took this issue on interlocutory appeal a few years back and did not get a ruling.  The case settled in the meantime with language to address this issue.  Here is my two cents.  Jurisdiction of the court does not attach until a party is served, joint complaint filed, or a waiver of process done.  How can you waive a statutory right if you are not even legally before the Court?  Anyway, since reading this I now take the extra time and wait sixty (60) days from the waiver or service or process.