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.