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.