Wednesday, December 31, 2014

Dropbox Use

I have been using Dropbox a lot here lately.  They have upped the personal storage amounts to 2tb which helps in the amount of stuff I have to store.  The feature I have been using a lot is to create links to discovery documents.  You can create links to the documents with passwords and also set them to expire in a set number of days.  This increases security but also makes it where I can have a phone conference with a client to go over discovery without having to wait on them to get a CD of a thousand pages of documents to review.

Tuesday, December 30, 2014

Every Other Weekend

Last week I talked about schedule conflicts in visitation orders located here.  I have had the issue come up in another context.  I reviewed an order from a case that is currently up on appeal.  The trial counsel drafted the order to read that the noncustodial parent gets visitation every other weekend.  Two issues:  (1)  does this apply during the summer and holidays; (2) whose weekend is it after the holidays are over?  Even though the case is on appeal, we are attempting to get the court to issue a clarification on that because issues are already arising as a result.  Personally, I feel the preferred method is to have the order say every 1st, 3rd, and 5th weekend with the holiday visitation overriding the weekend visitation.  It is also helpful to say the first Friday of the month counts as the first weekend.  (i.e. some creative difficult parents will try to say it is the first full week of the month instead of the weekend).  This also makes it where if the parties ever get off schedule, it can easily be determined whose weekend it is.

Monday, December 29, 2014

Trial Notebook

I have been a fan of trial notebooks for years.  During the holidays, I found an old book I bought several years ago called Building Trial Notebooks by Leonard Bucklin.  A link to it is located here.  Frankly, I bought it several years ago and ended up putting it aside after getting a few points from it.  I rediscovered it and realized how many good ideas it had that I am planning on trying to implement. The book is geared toward personal injury litigation but is easily adaptable to any case.  

Friday, December 26, 2014

Interesting Article

I came across and interesting article on vacating guilty pleas in Mississippi located here.  This is a topic attorney's routinely get asked about so it is worth filing away. 

Thursday, December 25, 2014

Cheat Sheet

Merry Christmas to everyone!!  Yes, I am up early on Christmas morning taking care of items around the house and as usual working a little.  While doing some stuff this morning, found a Mississippi Worker's Compensation cheat sheet that looked pretty good located here.  Hope the readers find it useful.  It can be useful in calculating benefits without having to go through each statute.

Tuesday, December 23, 2014

Book Review

This morning I finished reading Changing Laws, Saving Lives by Randi McGinn.  It was an excellent read that really pulls you in.  It goes through her discussing her case against Allsup convenience stores for negligent security practices.  It also provides lots of practical tips on trial preparation and ideas that can be used.  It is fairly short at a little over 200 pages but time really flies when you are reading it.  Highly recommended.  A copy can be purchased here. 

Monday, December 22, 2014

Schedule Conflict on Visitation

Schedule conflicts on visitation orders is something that I keep seeing in orders.  I currently have an appeal issue pending on one and trial set on another.  The issue is that prior attorneys drafted orders where it is unclear if weekend visitation supersedes the holiday visitation.  As such, I am defending a contempt case where one party said weekend visitation continues into the summer along with summer visitation, while one party says the four weeks is the only visitation provided.  I have a similar issue in a case to address whether weekend visitation is part of Christmas visitation.  A lot of time, attorney's fees, and angry clients could have been saved by the simple adding of a sentence that the holiday visitation supersedes the weekend visitation.

Friday, December 19, 2014

City and Animal Liability

In light of yesterday's post regarding animal liability, I decided to add a link to an article dealing with a city's liability for failure to enforce their own animal ordinances.  The link is here.   A theme on this and several of the other cutting edge theories of liability is that if you find regulations a group is violating, liability can be established assuming you can prove causation. 

Thursday, December 18, 2014

Wild Goose Chase

Last week the Mississippi Supreme Court decided Oiler v. Bailey located here .  The only way I can describe the case is a wild goose chase literally.  The case dealt with a Plaintiff's injuries at a friend's home by a pack of pet geese.  The trial court had originally granted summary judgment since it had not been shown that the geese had a dangerous propensity.  The Mississippi Supreme Court reversed finding that the geese acting as a pack created the dangerous situation such that it was not necessary to show that the particular goose which attacked the Plaintiff had a dangerous propensity as opposed to the pack of geese.  While the facts are funny, truth be known this is an important refinement of the dangerous propensity rule with regard to animal liability. 

Wednesday, December 17, 2014

Statute of Limitations and Appeals

Is the statute of limitations tolled by the filing of an appeal?  This was the issue raised yesterday in Hudson v. Lowe's located here.  It is a rather complicated fact pattern.  The short version is that first complaint filed by Hudson was dismissed without prejudice initially by the trial court and was appealed.  The decision to dismiss was affirmed.  A second complaint was filed then after the statute of limitations ran.  The Plaintiff's attorney argued the statute of limitations was tolled by the appeal.  Lowe's argued that the statute was only tolled by the 120 time limit for service of process on the original complaint.  The trial court dismissed the second complaint finding the statute of limitations had run and this was affirmed.  As the Court of Appeals noted:  " In Watters, the supreme court addressed the question of whether the filing of a complaint tolls the statute of limitations until the 120-day window for service of process has expired or until after the case has been adjudicated. Id. at 1244. The supreme court ultimately found that filing a complaint tolls the statute of limitations only for the 120-day service period provided in Rule 4(h), and the clock begins to run again at the end of the 120  days. Id. at 1244"

Tuesday, December 16, 2014

Reversal on Appeal

Larry Primeaux had a good discussion yesterday dealing with reversals on appeal and whether a new trial should be conducted.  A link to the article is here.  I do a fair bit of appeal work. For the most part, I am a fan of a new trial as opposed to a review of the record.  It gives you a chance to clear up any issues the trial judge made have had with the prior testimony.  This is particularly true on child custody and child support.  Many times appeals will take two years or so to make their way back to the trial court.  By then, lots of things can change. 

Monday, December 15, 2014

Employer Liability for Wrongful Death

An Illinois Appellate Court recently reversed the dismissal of a wrongful death claim against an employer for failure to monitor an employee's email.  A link to the article is here.  The argument has that the failure to follow the company's own internal policy resulted in the deaths of several people to whom threats had been made from a work computer.  Pretty creative and arguably negligence per se since they violated their own policies.   

Friday, December 12, 2014

Defrauded Father

The Mississippi Supreme Court yesterday had a really confusing custody case.  From my reading of it, the in loco parentis got reformed a good bit with the opinion.  The case was In the Interest of a Minor: Victoria Denise Waites .  The issue is  whether father who raised child can be ousted from custody determination once DNA proves the child is not his.  The answer unfortunately appears to be yes although he may still get visitation.  Amy and Scott had two children. Two years after their divorce, Amy moved to have their joint custody agreement modified because she was planning to remarry and live in Iowa.  After filing the petition,  Amy contacted T.J. Sanford (“T.J.”) to let him know she believed him to be her eldest child’s biological father.  A DNA test proved T.J.’s paternity and he sought  custody. The trial court excluded Scott from the custody determination, applied Albright to Amy and TJ and awarded full physical and legal custody to Amy rather than T.J.  Scott appealed.  The Court of Appeals found that Scott’s fatherly actions  rebutted  the natural-parent presumption afforded to Amy and T.J. and held that  Scott should have been considered on equal footing with the natural parents.  The Miss.S.Ct. reverses noting that:
"This Court has stated that the grounds for rebutting the natural-parent presumption involve negative actions/dispositions of the natural parents in relation to the child (i.e., abandonment, desertion, immoral conduct detrimental to the child, unfitness). And the chancery court’s finding, which was not challenged on appeal by Scott or in the Court of Appeals decision, was that Amy and T.J. had not conducted themselves in such a manner as to rebut the natural-parent presumption. Yet, the Court of Appeals determined that Scott’s positive, “supportive[,]” “fatherly actions” operated to rebut the natural-parent presumption and placed him on “equal footing” with Amy and T.J. for purposes of an Albright analysis. J.S.W., 2013 WL 6231797, at **1, 3. This Court does not find that the Court of Appeals’ position is congruent with the present state of the law."
To me the troubling part of the opinion is that if you have no grounds for custody as a third party, how can you have a right to visitation which the Supreme Court affirmed?  Best I can tell the loco parentis doctrine acts as an equitable remedy to provide for visitation.   

Thursday, December 11, 2014

Premises Liability

Premises liability law in Mississippi and Tennessee are virtually the same.  In any kind of slip/trip and fall cases, it must be shown that the defendants had knowledge of the condition or should have known about it.  This is illustrated in Hannah v. Sherwood Forest Rentals, LLC No. E2014-00082-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2014) located here.  In this case the plaintiff alleged that she stairs gave way resulting in injuries to both feet and ankles.

The Defendants filed for summary judgment which the trial court granted since there was no genuine issue of material fact by which a reasonable jury could find that defendants had actual or constructive notice of any alleged dangerous condition. The Tennessee Court of Appeals affirmed.  The Defendants presented evidence that there had been no prior or subsequent reports of problems with the stairs; that the maintenance staff inspected the cabin at least monthly and had not seen a problem; that the housekeeping staff cleaned the cabin prior to plaintiff’s family checking in and did not see a problem with the stairs; and that the owners had not seen any problem with the stairs or received any report of such a problem during their frequent visits to the cabin.

Only question I had is what if the Plaintiff had an expert which stated that the inspections by the Defendant were not adequate and could have been discovered?  I believe that would have survived summary judgment.

Wednesday, December 10, 2014

Child Support Credit

Should a parent get credit for the time a child lives with them?  The answer is Mississippi is yes, if you provide adequate proof.  This was the issue in Wilson v. Stewart that the Mississippi Court of Appeals decided yesterday.  A link to the opinion is here.  The father apparently made an argument that he was entitled to a credit for the time the minor child lived with him.  He apparently produced no evidence of that outside of his testimony best I can tell. The Court noted that   "Further, as the noncustodial parent,  Jay was required to provide satisfactory evidence to show he was entitled to a credit for the time period Henley lived with him.  See Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009).". Since this was apparently the only proof, no credit was given by the trial court or on appeal.   I believe that testimony of the parent plus something is needed (i.e. admission of other party, child testimony, documents of some kind, etc.) in light of this case. 

Tuesday, December 9, 2014

Certified Mail Service of Process

Yesterday, I discussed how to save a few dollars on service of process.  Along the same theme, service by certified mail is possible on persons who reside outside of Mississippi.  Rule 4 of the Mississippi Rules of Civil Procedure provides as follows:

"(5)  Service by Certified Mail on Person Outside State.  In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested.  Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.”
This is one Rule where the comments are more helpful than the Rule.  The comments provide that:

"Certified mail service is authorized by Rule 4(c)(5) and is limited to persons outside the state. The plaintiff must send a copy of the summons and complaint to the person to be served by certified mail, return receipt requested [and must thereafter mail by first-class mail, postage prepaid, a copy of the summons and complaint to the person to be served at the same address. The Proof of Service must indicate the date on which the summons and complaint were mailed by first-class mail and must also include as an attachment the signed return receipt or the return envelope marked “refused.” Service upon a foreign corporation, partnership or unincorporated association is effective even if the certified mail is delivered to and signed for or refused by a person other than the addressee, if the person accepting delivery and signing or refusing delivery is an officer or employee of the defendant who is authorized to receive or who regularly receives certified mail. See Flagstar Bank, FSB v. Danos, 46 So. 3d 298 (Miss. 2010) (finding service by certified mail upon a foreign corporation effective where the plaintiff addressed the certified mail to the foreign corporation’s registered agent for service of process and the certified mail was delivered to the proper address and signed for by the mail clerk rather than the registered agent). Service of process is not effective under Rule 4(c)(5) if the mailing is returned marked “unclaimed/refused”, “unclaimed” or “undeliverable as addressed.” See Bloodgood v. Leatherwood, 25 So. 3d 1047 (Miss. 2010)."

I am aware of at least one case where the issue pending is whether certified mail service of a private party is effective if someone else signs for it?  In theory, it is marked restricted delivery so no one should be able to get it.  From a practical standpoint, using the comments I would presume an agent can get it for the person.  Will be interesting. 

Monday, December 8, 2014

Saving Money on Service of Process

The Mississippi Rules of Civil Procedure provide a few ways to save on service of process fees.  Rule 4 of the Mississippi Rules of Civil Procedure provides under Section 3 that: 

"(3)  By Mail.
(A)  A summons and complaint may be served upon a defendant of any class referred to in paragraph (1) or (4) of subdivision (d) of this rule by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 1-B and a return envelope, postage prepaid, addressed to the sender.
(B)  If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint may be made in any other manner permitted by this rule.
(C)  Unless good cause is shown for not doing so, the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing the notice and acknowledgment of receipt of summons.
(D) The notice and acknowledgment of receipt of summons and complaint shall be executed under oath or affirmation."

So if the other party does not return the acknowledgment within twenty (20) days, absent good cause, the court shall award the cost of service of process.  The language shall removes the discretion element from the court and makes it mandatory.  Due to paranoia, I am often selective on using this section unless I am confident the other party is not going to run.  I also want to make sure that I can still get process served within the 120 day window as required by Rule 4.  Still if you have a medical malpractice case with twenty-four named defendants, saving $5,000 on service of process that could be used on expert fees is certainly something to consider. 

Friday, December 5, 2014

Variances ini Walkways

Slip/trip and fall cases are often very fact sensitive.  The :Mississippi Court of Appeals dealt with the grant of summary judgment on one of these cases on Tuesday in Trull v. Riverboat Casino located here. The issue in the case was whether a variance in the height of the sidewalk could constitute a dangerous condition.  The Plaintiff had fell when the variance in the sidewalk caused her to trip.  The Court of Appeals said no.  Unfortunately, Mississippi caselaw has consistently held that the existence of slight variations in walkways or thresholds does not constitute a dangerous condition. See, e.g., McGovern, 566 So. 2d at 1226; Rowe, 248 Miss. at 415, 159 So. 2d at 283; Bond, 908 So. 2d at 88-82 (¶¶7-9).   There are a lot of facts that are not brought out in the opinions which can be found in the briefs at the Supreme Court website.  I have also heard that the injuries incurred in the case have resulted in multiple surgeries for the Plaintiff.  After reading the briefs, I hope the case goes up for the Mississippi Supreme Court to review.  There appears to be enough front the briefs to get around the cases cited above to make it a factual issue for a jury. 

Thursday, December 4, 2014

Oral Argument of Interest

Today at 10:30 A.M. CST, the Mississippi Court of Appeals will hear oral arguments in Collins v. Collins.  This could potentially have a big impact on irreconcilable differences divorce in Mississippi.  The issue in the case is that the parties did a waiver of the financial disclosures and the only one party was represented at the time of the divorce.  The husband actually filled out a financial declaration but the wife never looked at it to notice his $420,000.00 retirement account.  The issue presented is whether the waiver is sufficient under these circumstances.  The wife is currently on public assistance from my understanding.  The argument can be viewed on the Mississippi Supreme Court website.  This is a case to watch for when an opinion comes out. 

Wednesday, December 3, 2014

Bankruptcy and Divorce

Bankruptcy and divorce unfortunately seem to go hand in hand.  Many people get used to living on two incomes and then cannot get by on just one income after a divorce.  So, what affect does bankruptcy have on the items agreed to in a divorce?  The answer is very little.  This was illustrated in Mosley v. Smith decided by the Court of Appeals yesterday.  A link to the opinion is here.  The case dealt with an unpaid car note.  The divorce decree had a hold harmless provision in it regarding the debt.  The husband discharged the debt in bankruptcy and the wife was sued for the amount as a result.  The husband tried to argue the bankruptcy discharged the debt or alternatively that the seven (7) year judgment statute of limitations applied to bar her claim.  The Court of Appeals said no noting that the bankruptcy did not discharge the Husband's debt to the wife by way of the hold harmless agreement and that the seven (7) year judgment statute did not apply because the wife was only sued on the debt five (5) years ago at the time of the trial. 

Tuesday, December 2, 2014

Confusing Orders

Interpretation of prior court orders has earned me a lot of retainers in the past.  One area that can get confusing is on a visitation order whether the weekend visitation overrides the holiday visitation.  I always put a provision to deal with that in my orders.  Without that provision, frankly both parties have reasonably valid positions that the Court will have to sort out. 

Monday, December 1, 2014

Interviewing Children

Interviewing children for any kind of case is always a touchy issue.  Depending on the child's age, interviewing has to be conducted in different ways.  I recently did my yearly renewal on my guardian ad litem certification.  One of the books mentioned at the conference was Handbook on Questioning Children:  A Linguistic Approach.  A copy can be purchased on Amazon here.  I started reading this over the holiday weekend and it does an excellent job in discussing how children of different ages, backgrounds, and ethnicity can be effectively questioned.  This is particularly important in complex custody cases and in the investigation of abuse claims. 

Friday, November 28, 2014

Book of Interest

Trial Guides just released a new book I will be getting in the next few week.  Randi McGinn has written Changing Laws, Saving Lives:  How to Take on Corporate Giants and Win.  The book details one of her cases dealing with the death of a store clerk and goes through all the trial strategy with it.  A link to the book is located here.  The reviews have been good so far and it looks like an excellent read.

Thursday, November 27, 2014

End of Year Settlements

The end of a calendar year is normally a good time to resolve cases.  Insurance companies want to get cases off their books and tend to use remaining reserve funds for that purpose.  Anytime after Thanksgiving is normally when the phone calls start.

Wednesday, November 26, 2014

Affirmative Defenses in Divorce

Just like any other case, affirmative defenses must be raised into the answer to a divorce action.  This was illustrated in Lee v. Lee located here which the Mississippi Court of Appeals decided on Tuesday.  The relevant language is below.

"¶15. Condonation or antenuptial knowledge, as affirmative defenses, must be specifically
pleaded or else the defenses are waived.  Carambat v. Carambat, 72 So. 3d 505, 511 (¶27)
(Miss. 2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss.
Ct. App. 2007)).  “Affirmative defenses that are neither pled nor tried by consent are deemed
waived.”  Ashburn, 970 So. 2d at 212 (¶23) (quoting Goode v. Village of Woodgreen
Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)).
¶16. Chris did not raise condonation or antenuptial knowledge as an affirmative defense
in his pleadings.  However, parties may try an affirmative defense through implied consent.
Mississippi Rules of Civil Procedure 15(b) provides:
When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon the motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
See also Lahmann v. Hallmon, 722 So. 2d 614, 691 (¶15) (Miss. 1998)."

The Appellate Court and the trial court found that the Appellant had waived the defenses by failure to timely raise them and they were not tried by consent.  This is why I always plead this in answer to a divorce complaint just to be on the safe side. 

Tuesday, November 25, 2014

Incomplete Proof

Incomplete proof is one area I see in a lot of cases.  Parties request attorney's fees with no proof of attorney's fees, request modification of custody with no proof of the Albright factors.  This is why it is so important to have checklists on these type of cases in order to determine if you have all the proof you need.  Without this, even if you somehow win at trial, you lose on appeal. 

Monday, November 24, 2014


Mediation has its good and bad points.  In a divorce matter, mediation is normally good for both parties.  Family law is one of the gray areas of the law where no party typically gets everything they want.  In a tragic personal injury matter, many times mediation is not worth it.  Doctors and defendants many times refuse to be rational in either admitting liability or the amount of damages.  Many times insurance companies can make substantial sums of money by delaying a number of claims.  A good article discussing mediation in the personal injury context is located here. 

Friday, November 21, 2014

Natural Parent Presumption

The natural parent presumption in Mississippi provides that the natural parent is presumed to be the best custodian of a minor child unless they have abandoned the minor child or are proven unfit.  This was illustrated in Wilson v. Davis decided by the Court of Appeals last week.  The trial court and the Court of Appeals found that the sexual relationships of the father and some issues in his home made him unfit which resulted in the grandmother getting custody of the minor child.  There was a pretty strong dissent in the case.  The dissent more or less said that the Father's sexual relationships with several people was not sufficient to overcome the natural parent presumption.  Based on the limited facts in the opinion, the dissent makes a good point.  I would expect this case to go up to the Mississippi Supreme Court. 

Thursday, November 20, 2014

Loan to Pay Attorney's Fees

The Mississippi Court of Appeals decided Seale v. Seale located here on Tuesday.  One of the issues in the case was whether a loan from a parent to pay attorney's fees could be considered a martial debt.  The Court of Appeals said yes and affirmed the trial court finding as such.  To me, this is always a fact intensive issue.  Many times, spouses claim these as debts when they are in fact gifts.  I was involved in one case where the spouse claimed a loan from her parents and then listed it as a gift on a loan application.  Needless to say, the chancellor found it was a gift at that point. 

Wednesday, November 19, 2014

Pain and Suffering

Pain and suffering is something hard to measure.  This was an issue in Harper v. Norman decided yesterday by the Mississippi Court of Appeals located here.   There was only about $2,000.00 in medical bills but pain and suffering that continue through the day of trial.  The jury granted a $25,000.00 verdict and this was affirmed.  The Court of Appeals noted that this amount did not shock the conscience.  Also this case indicated that pain and suffering is not determined by the amount of medical bills which insurance companies always try to argue. 

Tuesday, November 18, 2014

Boilerplate Answer

On thing that irritates me on a personal injury case is getting boilerplate answers.  My personal favorite was recently where the at fault party ran a stop sign.  My office filed suit and one of the affirmative defense was that my client was negligent resulting in her own injuries.  At some point, a motion needs to be filed to dispose of certain affirmative defenses either as a motion to strike or potentially a partial summary judgment motion.  This disposes of some of the smoke and mirrors defendants often try to use on these type cases. 

Monday, November 17, 2014

Lecture of Interest

I found a good lecture by noted trial lawyer Rick Friedman on YouTube last night.  A link to it is located here.  If you need some inspiration as an attorney or do not feel what you are doing is making a difference, this video is a good motivational speech. 

Friday, November 14, 2014

Resisting Discovery

Rule 37 of the Mississippi Rules of Civil Procedure deals with the penalties for failure to respond to discovery.  There is a lesser known provision of the Rule under section (e) which provides as follows:

"(e) Additional Sanctions.  In addition to the application of those sanctions, specified in Rule 26(d) and other provisions of this rule, the court may impose upon any party or counsel such sanctions as may be just, including the payment of reasonable expenses and attorneys’ fees, if any party or counsel (i) fails without good cause to cooperate in the framing of an appropriate discovery plan by agreement under Rule 26(c), or (ii) otherwise abuses the discovery process in seeking, making or resisting discovery."

Section (ii) deals with resisting discovery.  This can have some far reaching consequences.  For example, suppose a party objects to a subpoena issued which delays discovery.  This can lead to an award of fees and expenses under Rule 37 (e). 

Thursday, November 13, 2014

Nine Week Divorce Trial

I was reading an article about a recent nine week divorce trial recently where the husband was ordered to pay close to one (1) billion dollars as part of a property division.  A link tot he story is here.  It is hard for me to imagine nine weeks on a divorce trial.  This was obviously a high asset divorce where there was apparently a ton of testimony regarding whether the company the husband had increased in value due to his efforts or market forces. 

Wednesday, November 12, 2014

Twombly Pleading

On Monday, the U.S. Supreme Court used a Mississippi case to flush out some issues on Twombly pleading that I previously blogged about.  The case is Johnson v. City of Shelby located here.  The case made some interesting points in that the trial court and the 5th circuit had granted summary dismissal because the specific cause of action was not stated in the complaint.  However, the U.S. Supreme Court stated that Twombly only required that sufficient facts be plead to state a cause of action and not necessarily the cause of action itself.  As such, the case was reversed. 

Tuesday, November 11, 2014

Suicide and Medical Malpractice

The Mississippi Supreme Court dealt with the issue of medical malpractice leading to suicide last week in Truddle v. Baptist Desoto located here.  This was a 5-4 case where the Court affirmed the granting of summary judgment by the trial court which found that the Defendant's suicide was not actionable under the facts presented.  The Court seemed to hang its hat on the fact that the patient had left the Defendant's care and later committed suicide.  The language below is what the Court noted. 

"Nothing in Mississippi caselaw, save the irresistible-impulse doctrine, however, abrogates the general rule that suicide constitutes “an independent, intervening and superseding event that severs the causal nexus between any wrongful action on the part of the defendant.” Shamburger, 84 F. Supp. 2d at 798 (citing Nicholson on Behalf of Gollott v. State, 672 So. 2d 744, 753 (Miss. 1996)). The Edgeworth Court specifically stated that the irresistible-impulse doctrine applied as an exception to the general rule regarding suicide because “[a] higher degree of responsibility is imposed upon a wrongdoer whose conduct was intended to cause harm than upon one whose conduct was negligent.” Edgeworth, 214 So. 2d at 586.  Furthermore, this principle extends to medical-malpractice claims.

To recover under the irresistible impulse doctrine, the plaintiff would have to “plead and prove: (1) the decedent was under an ‘irresistible impulse’ rendering him or her unable to discern the nature or consequences of suicide, and (2) the “irresistible impulse” was proximately caused by the defendant’s intentional conduct.”

Based upon this, the summary judgment was affirmed.  There was a strong dissent in the case which noted that the patient had exhibited strong side effects of the medicine and in fact had returned for care where the doctors did nothing to address the situation.  This case was very fact intensive and I see a lot of wiggle room in the opinion. 

Monday, November 10, 2014

Uninsured/Undersured Insurance at Trial

The Mississippi Supreme Court decided Heflin v. Merrill, et. al. located here last week.  The case settled an ongoing legal issue among members of the bar.  The issue was whether at trial the Plaintiff is entitled to mention that the uninsured insurance company can be mentioned as a Defendant.  The Court found that the trial court properly instructed the parties to not mention the presence of the underinsured insurance company.  To me, this is really confusing.  The insurance company has a right to participate in trial, challenge jurors for cause, but the jury has no right to know who the lawyers are there for or who they represent. 

Friday, November 7, 2014

Children and Alienation of Affection

The Mississippi Supreme Court decided Brent v. Mathis. yesterday which is located here.   This was largely a case of first impression of whether minor children had a cause of action for alienation of affection against a parent's paramour.  The Mississippi Supreme Court said no.  This resulted kind of surprised me.  As the dissent noted in the case, there are a number of earlier opinions particular from the 1800s or so that indicated family members had a cause of action.  The holding appears to indicate that the spouse has the right to file broad claims against multiple defendants but that the inverse of multiple parties having the right to file suit against the one who alienated the affections is not legally possible.  This appears to make a narrow holding that the spouse themselves is the only individual who has the right to bring the claim. 

Thursday, November 6, 2014

Apartment Liability for Roommate

The Mississippi Court of appeals decided Galanis v. CMA Management Inc. located here on Tuesday.  The issue in the case dealt with an apartment's duty to warn a roommate of the other roommate's violent nature.   This had led to one roommate murdering another roommate.  The trial court granted summary judgment to the apartment complex and the Court of Appeals affirmed.  The Court of Appeals noted that there was no issue of fact that the apartment complex was not on notice of any violent nature of the roommate.  There were several judges who dissented that summary judgment was not appropriate and there was several pieces of evidence that created an issue of fact that the complex was on notice.  I except this case to go up on cert. 

Wednesday, November 5, 2014

Adultery and Custody

In the old days, the fact that a party committed adultery almost assured that the other party obtained custody in a divorce case.  That view has softened a great deal and it is merely a factor now.  This was the issue in Holcomb v. Holcomb decided yesterday which is located here.  The husband appealed a custody award to the wife who stipulated she committed adultery at trial.  The Court of Appeals affirmed.  The big issue was there was no proof that the adultery had any affect on the child or the ability of the wife to care for the child.  This has been the general direction of most trial courts and the Court of Appeals in recent years. 

Tuesday, November 4, 2014

Competing Contempt Petitions

Many times on domestic cases, parties will have competing contempt petitions.  How these are dealt with is not uniform between chancellors.  Some chancellors take the view that each contempt is a separate issue and will adjudicate them each separately on both parties.  Other chancellors take the view that the old clean hands doctrine applies and that if either party is held in contempt then neither party is entitled to attorneys fees but each party has to get in compliance with the court's order.  Both views are fully supported by the caseload and would likely be affirmed on appeal.  This is why it is important to know how each chancellor deals with the issue. 

Monday, November 3, 2014

Injury Affects Body as a Whole

Many people do not realize that even a minor injury affects the body as a whole.  I was reminded of this myself over the weekend after hurting my back.  Anytime one part of the body is injured, the other parts of the body have to overcompensate until the injured member is healed.  For example, with a back injury, this creates walking problems which creates leg pain, which creates foot pain, which leads to tension headaches, etc.  Moe Levine wrote about this in many of his trial lawyer lectures many years ago.  It makes for a powerful jury argument when presented properly. 

Friday, October 31, 2014

Wrongful Imprisonment

The Mississippi Supreme Court decided Tipton v. State located here.  This is an interesting case dealing with compensation for wrongfully convicted individuals under Mississippi Code Annotated 11-44-7.  The Supreme Court actually reversed a decision it had made earlier in the case and on rehearing determines that house arrest is imprisonment within the meaning of the statute allowing the individual to recover for time spent on house arrest also.  This is an interesting statute section to read through.  The statute does not seem to require proof of fault by the state and allows for a set amount of compensation for an individual along with the payment of attorney's fees by the state for bringing the claim. 

Thursday, October 30, 2014

Meeting Deadlines

There are a number of litigation deadlines in cases.  The deadline to file a post trial motion is ten (10) days after entry of the judgment.  The deadline to file an appeal is thirty (30) days after entry of a judgment or thirty (30) days after entry of an order denying the motion for a new trial.  I am working on a case now where an opposing counsel keeps filing motions after missing both of these deadlines.  What many people do not realize is that those deadlines are actually jurisdictional.  Once the ten (10) days lapse, the trial court is deprived of jurisdiction to change the opinion absent a motion for Rule 60 relief which has very narrow applications.  Once the thirty (30) day deadline passes, the appellate court has no jurisdiction to modify the trial court judgment. 

Wednesday, October 29, 2014

Rules of the Road

Rules of the Road by Rick Friedman is a popular book among Plaintiff lawyers on proving liability in a case.  There are a lot of sources of rules in automobile accident cases including states statutes and local ordinances.  One easy source that is often overlooked is the Mississippi driver's handbook located here.  Using this, you can establish many of the rules that a defendant has broken with little effort.   

Tuesday, October 28, 2014

Termination of Alimony

Certain types of alimony may be terminated upon the payee cohabiting combined with the party they are living with providing support.  The case of McMinn v. McMinn  located here which was decided today illustrates the problems with proof in this area.  The key issue was that a relationship combined with sexual activity does not rise to the level of support to terminate alimony.  Absent some proof of the party they are living with providing monetary support, the alimony modification will be denied. 

Monday, October 27, 2014

Bystander Recovery

One interesting issue is whether a party can recover when they witness an accident and have emotional distress resulting from it.  This was the issue last week in Entergy v. Ace decided by the Mississippi Supreme Court located here.  The issue in the case concerned a bystander whose child  had been shocked by an Entergy power line but was not at the scene of the accident when it happened.  The mother claimed and apparently had expert testimony of emotional distress.  The trial court denied summary judgment but the Mississippi Supreme Court granted interlocutory appeal.  The Mississippi Supreme Court found that because the mother was not present when the accident happened and did not observe the accident, she could not recover as a matter of law.  There is a strong dissent by Justice Lamar joined by three other justices noting that with the mother arriving so quickly after the accident, she should be able to recover.  The language in the opinion appears to show that the matter was hotly debated among the justices with both the majority and the dissent taking shots at each other in the opinion. 

Friday, October 24, 2014

Insurance Coverage Exclusion

Many times insurance policies have various exclusions from liability.  Many times the theory of liability has to get around the exclusions.  However, the Mississippi Supreme Court had a case yesterday that considerably affirmed how narrow these theories can be in Gray v. Arch Specialty Insurance Co. located here.  The issue in the case was an individual's coverage for death resulting from medical malpractice.  There was a specific exclusion in the insurance coverage providing no coverage for losses resulting from medical malpractice.  The Plaintiff went on a theory of negligent training, negligent hiring, etc. related to the doctor.  The Mississippi Supreme Court affirmed the granting of summary judgment.  The Court stated that "Arch maintains that a plaintiff’s legal theory does not determine the applicability of exclusions; if an exclusion applies, then it applies to all theories of liability. We agree. The Court has held that, if the injury would not have resulted “but for” the excluded service, then the exclusion applies to all theories of liability.”. The English version of this is that if you have any theory of loss that was caused by medical malpractice, any theory of liability in that policy is covered by the exclusion. 

Thursday, October 23, 2014

Accident Appeal of Interest

There is currently an interesting issue being considered on interlocutory appeal in the Mississippi Appellate Court's located here.  The question presented is whether it was proper for a trial court to consolidate two separate and distant car accidents the same plaintiff was in four (4) months apart where there is no way to tell which accident caused the Plaintiff's injuries?  Best I can tell each Defendant is pointing the finger at the other.  The Defendants have filed the petition for interlocutory appeal which is still pending.  From the Plaintiff's perspective, this prevents a verdict where a jury could find the unjoined defendant in each case liable.  There is a little bit of a gamble here by the Defendant to me.  What happens if the claims are severed and the jury in each case finds the named defendant in each case 100% liable?  Plaintiff could recover twice literally.  Arguably, any verdict from another case would be inadmissible too.  Sometimes, you have to be careful what you ask for on appeal because you might actually get it and end up in a worse position.     

Wednesday, October 22, 2014

Cohabitation Agreements

A few days ago I was working on a cohabitation agreement.  I am really surprised these are not more common.  This is essentially a contractual arrangement between two individuals who plan on living together who are not married.  This can be used in the context of those who are involved in a romantic relationship or simply in the case of roommates.  It defines who is to pay what bills and what is to happen when the parties no longer wish to reside together.  I was thinking that these kind of contracts could be popular in a college town.  The only issue is that the individual would have to be twenty-one in Mississippi in order to be contractually bound to the agreement. 

Tuesday, October 21, 2014

Fair Labor Standards Act

Recently, I have been dealing with a lot of Fair Labor Standards Act issues on cases.  With the economy like it is, many employers try to get around paying their covered employees time and a half for every hour worked over forty (40) in a week.  This is often done blatantly in some instances and negligently in others by not properly classifying workers.  This is a regular speech I have to give to my small business clients.  I have started asking questions about this in my personal injury cases and family law cases too.  I have noticed that many times people have no clue they are due this additional money and believe because they are on salary this automatically exempts this.  It does not and is often an area to be explored since part of the FLSA is a mandatory award of attorney's fees if successful. 

Monday, October 20, 2014

Merger of Ideas

Medical records are expensive to get.   Under the HITECH Act, you are able to get copies of them in electronic format.  Many times doctors try to give the runaround on this.  However, one way around it is to merge language for the HITECH Act with a subpoena.  I see nothing under Rule 45 that prohibits how something is to be copied.  As such, I don't see why you cannot request the copy only be made in electronic format.  Pursuant to the HITECH Act, 42 U.S.C.A. §17935(e)(1), and its implementing regulations, 45 CFR 164.524(c)(4)(i), an electronic copy can be requested.  The HITECH Act applies to requests by third-parties, such as law firms, just the same as it applies to requests by patients: “if requested by an individual, a covered entity must transmit the copy of protected health information directly to another person designated by the individual.” Federal Register January 25, 2013 Vol 78 No. 17, Page 5634.  Just some food for thought. 

Friday, October 17, 2014

Minimum Limits Insurance

I have started telling most all of my clients to bump their liability and uninsured/underinsured policy limits on their vehicles.  Currently, individuals are only required to have $25,000 in liability insurance.  From a practical standpoint, any major accident results in the policy limit being paid.   This is all many people have.  For a few hundred dollars extra a year, an individual can get several hundred thousand in coverage.  Unfortunately, I have been dealing recently with several cases with several hundred thousand in medical bills on clients with no additional coverage to receive.  Even with health insurance, the uncovered medicals alone will put many close to bankruptcy.   This is why having uninsured/underinsured coverage is so important. 

Thursday, October 16, 2014

Medical Privilege and Divorce

The medical privilege normally prevents a party from having to disclose conditions regarding their health.  However, pursuant to Rule 503 of the rules of evidence, when a party places their condition in issue, the privilege is waived.  This gets into a complex area.  Arguably, any time a divorce or custody case is filed, the party is waiving privilege.  Health of a party is a factor in both custody cases and divorce cases for the court to consider.  The law in Mississippi has not developed too much in this area.  For some analysis on the issue in the custody context, take a look at Culbertson v. Culbertson from Tennessee located here.  This deals with the psychologist privilege under Tennessee law but can give you some ideas on how to argue both sides of the case. 

Wednesday, October 15, 2014

Entry of Orders

Fellow blogger Larry Primeaux had a good article yesterday located here dealing with the failure to enter an order.  In the case he posted about, it amounted to a $58,000 error.  I have actually noticed that as an ongoing problem in cases.  Many times I get hired on cases to come in as damage control as I call it to try and fix cases that have gotten off track.  Lots of times there are numerous motions that there were hearings on but with no orders entered.  For legal purposes, until there is an order entered nothing has actually happened.  This is why it is best to make orders nunc pro tunc ("now for then") when entered.  That way it goes back to the original time of ruling and covers the time period between then and entry of the order.  This is part of the reasons I bought a Microsoft Surface originally was to try to enter orders the same day of the hearing due to some attorneys who never return phone calls. 

Tuesday, October 14, 2014

Locating Medical Providers in Medical Malpractice

In medical malpractice cases, one of the big issues is locating and identifying all the possible liable parties in providing the required notices.  I have found that a call to the risk management of the primary medical provider can be helpful.  They are often willing to assist in making sure that the potential defendant nurses and doctors are given the required notices.  The purpose of the notice statute when it was written was to give attorneys and medical providers the opportunity to attempt to resolve cases with merit without the need for filing suit.  Obviously, some cases will have to be litigated but other cases not so much.  In the past I have been able to resolve a medical malpractice case prior to suit which was ultimately in both parties' best interest. 

Monday, October 13, 2014


I am surprised subpoenas are not used more than they are.  I guess practicing law has made more skeptical of people.  However, it has also reaffirmed my belief that a lot of people just plain lie.  In the past I have had several cases where a party grossly misstates their income.  Through subpoenas I have been able to get documentation to show their income is a lot more than they are stating.  In at least one case, $100.00 a month turned into closer to $10,000.00.  I am getting to the point I just about subpoena anything I can get from a third party to a case because I have come to the conclusion that I can never get the exact items or a least a full copy of what all I need from the opposing party. 

Friday, October 10, 2014

Notice in Medical Malpractice Cases

Mississippi Code Annotated 15-1-36 provides that prior to filing a claim for medical malpractice, a sixty (60) day notice letter must be sent to the provider.  I am always looking at what other people do on cases to develop new ideas and litigation strategies.  Recently, I got two (2) new ideas from a prominent attorney that assist in foreclosing challenges to the adequacy of the notice letter.  In the letters I do now, I make a specific reference that I believe this letter complies will all notice requirements and that the provider notify me if they believe it is inadequate in any way.  Along with that I add a statement that I presume the letter is adequate unless they notify me otherwise.  This results in a waiver to most any argument they could have on it.  The second thing I have started doing is adding a provision that states for the provider to notify any other group they are affiliated with which could be construed as their employer, agent, etc.  I almost always have some Doe Defendants named to give some wiggle room if the doctor fails to notify someone we could not identify.  I believe adding the second provision advising the provider to notify anyone additional they are affiliated with can be construed as notice to that provider as their agent. 

Thursday, October 9, 2014

Arbitration Video

I posted a few days ago about arbitration.  There is a very good YouTube video located here which discusses the issues in detail.  It is about twenty (20) minutes long but very interesting.  Once you start watching it, you really do not notice the time as it kind of pulls you in.  Once you see a few of the stories in the video of what has happened to ordinary people with arbitration, you will never see it the same again. 

Wednesday, October 8, 2014

Experts and Alimony

The Mississippi Court of Appeals decided Russell v. Russell located here yesterday.  The case had two interesting issues.  The first was that the chancellor found and the Court of Appeals affirmed a modification of alimony based on the wife receiving social security based on her former husband's earnings.  The husband who appealed wanted the alimony terminated which was denied based largely on the fact that his obligation was reduced by social security.  This is an area that lots of money can be saved for a client potentially.  In the second part of the case, the chancellor excluded an expert who was not designated sixty (60) days prior to trial.  This was also affirmed.  It appears the expert was designated in the middle of trial from some of the language in the opinion.  The relevant language stating the law in the area is below. 

"Rule 1.10(A) of the Uniform Chancery Court Rules provides that, “[a]bsent special
circumstances[,] the court will not allow testimony at trial of an expert witness who was not
designated as an expert witness to all attorneys of record at least sixty days before trial.”  In
addition, our caselaw recognizes that “[t]he purpose of the strict discovery rules is . . . to
avoid trial by ambush and to ensure that all parties involved have a reasonable time for trial
preparation.”  Poole ex rel. Poole v. Avara, 908 So. 2d 716, 725 (¶19) (Miss. 2005) (citation

The language of preventing trial by ambush has backfired on a defense attorney in one case I am aware of.  They tried to argue to exclude an expert who was not fully designated as an expert with all of his opinions in the designation.  This was after they stipulated he was an expert, participated in his deposition, got full disclosure of his opinions in the deposition, had his opinion for months, and then tried to exclude him the week before trial.  Trial judge said no way and allowed the opinion in.  The reasoning was, how can there be ambush under those circumstances?  This gives you an idea how to argue both sides of this. 

Tuesday, October 7, 2014

Same-Sex Marriage and the U.S. Supreme Court

The United States Supreme Court threw a major curve ball yesterday and summarily declined to hear seven (7) cases where the federal courts had found that a ban on same-sex marriage to be unconstitutional.  Even with this being a summary disposition, the fact they declined to hear the cases is now binding precedent.  In the same-sex divorce case I have, the state at trial and on appeal had been arguing that the summary disposition of the old Baker v. Nelson case where the United States Supreme Court declined to hear a case dealing with same sex marriage back in the 1970s precluded the state having to recognize a same-sex marriage.  With these seven (7) cases now being granted summary disposition, the argument now is that the summary disposition precludes them from arguing that the bans are constitutional.  The supplemental authority letter I filed yesterday is located here.  Everyone, including myself, thought that the United States Supreme Court would hear the cases.  I appears that the next case that may look at the issue will be coming from the 6th Circuit. 

Monday, October 6, 2014

Promissory Estoppel

Promissory estoppel works where one party has made certain representations and as such, the party making the representations is estopped from taking advantage of it when the other party acts in accordance with those representations.   Myself along with co-counsel are testing the waters in federal court on an employment case with this issue where a business does not act in accordance with their handbook policies.  I think this doctrine has some potential applications in other areas of law and will expand in the next few years. 

Friday, October 3, 2014


Arbitration is getting to be almost the default provision in many business contracts.  By signing an arbitration agreement, a party gives up their rights to have the court address their grievance and the same is submitted to an arbitrator often chosen and paid for by the opposing party.   Unfortunately, these provisions are almost always enforceable.  There is some legislation in Congress looking to limit arbitration.  The Mississippi Supreme Court decided Smith v. Express Check located here yesterday.  This case has the most one-sided arbitration contract I am aware of.  Smith was fired for reporting illegal conduct.  She had signed an arbitration agreement prior to being employed with Express Check.  The trial court and the Mississippi Supreme Court found the agreement enforceable and that all claims had to be submitted to arbitration.  There was a three judge dissent in the case who believed this contract was so one-sided that it should not be enforced.  A relevant portion of the dissent is below which shows how one-sided the contract was. 

"¶34.  The contract at issue is unquestionably a contract of adhesion.  It was a preprinted
form drafted by a business, or presumably, by its lawyers, and was presented to Smith on a
take-it-or-leave-it basis to sign if she wanted a job.   Furthermore, unemployment rates were
high, Smith’s testimony was that the highest level of education she completed was high
school, and the evidence indicates that she is not a worker with any specialized skills.  It is
certainly reasonable to assume that a disparity in bargaining power exists between the parties,
with Express Check holding the advantage.  It is also reasonable to assume that market
factors, i.e., difficulty finding another job, prevented Smith from contracting with another
party or employer.  See Entergy Miss., 726 So. 2d at 1207 (where no evidence was put forth
regarding the comparative business savvy of the contracting parties, “it is reasonable to
assume that a large company such as Entergy holds the advantage in that respect”).  While
the trial court found that Smith “was not obligated to sign the contract as she could have
refused and sought employment elsewhere,” this finding has utterly no basis in the record.
While she could have ostensibly “sought employment elsewhere,” there is no evidence as to
how difficult obtaining such employment might have been or how much such employment
might have paid, as compared to Express Check.  Such considerations are certainly relevant
to a determination of unconscionability, and the trial court clearly did not consider them, but
rather made an unsupported finding. 

¶35. In addition to being a contract of adhesion, the contract at issue allows Express Check
to pursue judicial remedies in the form of injunctive relief for Smith’s breach of the contract
and further mandates that she pay attorneys’ fees and costs if Express Check has to enforce
any of the provisions of the agreement.  Smith is entirely relegated to arbitration for any and
all breaches of the contract, and nothing provides that she may recover attorneys’ fees and
costs for her attempts to enforce the contract.  A similar provision was deemed substantively
unconscionable in Pitts v. Watkins, 905 So. 2d 553, 555-56 (Miss. 2005).  In that case, an
inspection agreement allowed the inspector to go to court, but only to recover fee payment,
while other claims were relegated to arbitration.  Pitts, 905 So. 2d at 556.  It also allowed him
to recover administration costs, attorneys’ fees, and costs of litigation, while the other party
was relegated solely to arbitration for any breach of the contract.  Id.  The Court found that,
because the arbitration provision allowed the inspector limited judicial remedies while
relegating the other party entirely to arbitration, the arbitration clause was “clearly one-sided,
oppressive, and therefore, substantively unconscionable.”  Id."

This is why arbitration needs to be limited.

Thursday, October 2, 2014

Causation in Medical Malpractice

Causation in medical malpractice seems to be where most litigation is occurring.  This was illustrated in Williams v. Manhattan Nursing and Rehabilitation which was decided by the Mississippi Court of Appeals on Tuesday.  A copy of the opinion is located here.  The trial court granted a directed verdict to the Defendant and the Court of Appeals affirmed it.  The issue was whether the patient died as a result of the alleged malpractice.  While there was lots of testimony on malpractice that warranted sending it to a jury, there was not sufficient testimony that linked the malpractice with the death of the patient. 

The relevant section of the law in the area is below. 

"The Mississippi Supreme has found:
 In order to establish a prima facie case of medical malpractice, a plaintiff must prove (1) the    
 existence of a duty by the defendant to conform to a specific standard of conduct for the   
 protection of others against an unreasonable risk of injury; (2) a failure to conform to the         
 required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.

Cleveland v. Hamil, 119 So. 3d 1020, 1023 (¶10) (Miss. 2013) (citations omitted).  In a case
for medical negligence, expert testimony must be provided to establish the second and third
prongs.  Id. at (¶11).  “Nurses cannot testify as to medical causation.”  Vaughn v. Miss.
Baptist Med. Ctr., 20 So. 3d 645, 652 (¶20) (Miss. 2009). (emphasis added).".  (emphasis added).

The issue was that the doctor who established causation specifically stated that he did not use the breach of the standard of care testified by the nurse with regard to nursing care.  As such, there was no link between the two. 

Wednesday, October 1, 2014

Expungement Law Change

Effective today, Mississippi Code Annotated 63-11-39 overhauls Mississippi DUI law and provides for the possibility of an expungement.  A quick summary of the changes is that when a person is convicted of their first offense DUI, the court will order them to complete an alcohol safety education program within a year and the Department of Public Safety must suspend their license if they have not already done so.  To become eligible to continue driving, the offender must get an interlock restricted license and must have an ignition interlock device installed in all vehicles to be driven.

Other changes in the law include the possibility of having the first DUI expunged or having it non-adjudicated, which means that after the case is resolved through a trial or through a guilty plea, the judge can withhold a judgment of guilt.  This is a one-time opportunity, as is the possibility of having a driver’s record cleared by expungement. In order to expunge, the driver must have a clear record of DUIs for at least five years after he completes all conditions of his sentence.

The ability to get an expungement should help a lot of people who have a DUI on their record. 

Tuesday, September 30, 2014

Amicus Brief in Same-Sex Divorce

A few weeks ago, the Mississippi governor filed an amicus brief in the same-sex divorce case I am handling located here.  Yesterday I filed a reply brief to the amicus brief located here.  The American Civil Liberties Union has filed asking for permission to file an Amicus Brief of their own which is still pending.  It appears the United States Supreme Court will decide the issue by next June most likely.   The United States Supreme Court met yesterday ironically to begin the process of selecting among the several pending cases in order to resolve the issue.  A article related to that is located here. 

Monday, September 29, 2014

Medicare Set Asides

Medicare set asides are a tricky issue with all sorts of technical requirements.  The easiest way to know if one is needed is if the settlement is $250,000 or more, the Plaintiff is on social security, and/or the Plaintiff is on Medicare.  The attached checklist is from the Georgia bar on the link here which is helpful in sorting through the issue.  From prior experiences, if Medicare is involved in a case, it is better to start getting information sooner than later due to the amount of time required to get a lien amount. 

Friday, September 26, 2014

Premises Liability Case of Interest

The Mississippi Supreme Court decided Cheeks v. AutoZone yesterday located here.  The trial court had originally set aside a substantial jury verdict against AutoZone related to a car driving through the front glass of a store.  In a 5-4 decision, the Mississippi Supreme Court reinstated the verdict.  The main problem for AutoZone in the case was that there was an ongoing problem with people driving through the front glass of the store to the extent $2,000 a week was being spent fixing the problem.  The Plaintiff's theory was that buffers should be in place in the store.  The Mississippi Supreme Court agreed to the extent that the Defendant was on notice of the foreseeability of the injury due to the prior incidents.  As a result, they instated a verdict of 45% fault to AutoZone on a 2.5 million dollar verdict. 

Thursday, September 25, 2014

Speculation and Daubert

The Mississippi Court of Appeals decided Newell v. State on Tuesday.  A copy of the opinion is located here.  This was a criminal case that goes through discussing a Daubert challenge to expert testimony which I have previously discussed.  The Court of Appeals ultimately reverses the criminal conviction for a new trial because the expert's opinion goes through a lot of speculation and does not rule out other causes of an injury.   

The relevant language of the opinion to me is below which I have bolded. 

"¶8. “[T]he admission of expert testimony is within the sound discretion of the trial judge.
Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4) (Miss. 2003) (citing Puckett v.
State, 737 So. 2d 322, 342 (¶57) (Miss. 1999)).  The trial judge’s discretion must comply
with the Mississippi Rules of Evidence.  Ross v. State, 954 So. 2d 968, 996 (¶56) (Miss.
“Reversal is proper only where such discretion has been abused and a substantial
right of a party has been affected.  The trial court’s discretion must also [e]nsure the
constitutional right of the accused to present a full defense in his or her case.”  Id. (internal
citations omitted).

¶9. Under Mississippi Rule of Evidence 702, (1) the expert’s testimony must be “based
upon sufficient facts or data,” (2) it must be “the product of reliable principles and methods,”
and (3) the witness must have “applied the principles and methods reliably to the facts of the
case.”  The supreme court noted in Parvin v. State, 113 So. 3d 1243, 1247 (¶14) (Miss.
2013), that expert opinions must rise above mere speculation.  Indefinite expert opinions, or those expressed in terms of mere possibilities, are not admissible.  For example, we have held that an expert’s offering a reasonable hypothesis was insufficient, explaining that expert testimony should be made of sterner stuff.".   (emphasis added).

Wednesday, September 24, 2014

Minor's Contract

The Mississippi Court of Appeals decided  Foster v. Kotsakos yesterday.  A copy of the opinion is located here.  The issue in the case is the ability of a minor to contract in a personal injury case.  The attorney did not get his contract approved by the Court and later the minor obtained a different attorney to settle the case.  The court affirmed the trial court's ruling that the prior attorney was only entitled to the reasonable value of his services for work actually performed.  Had the prior attorney obtained the chancery court approval, I believe under the caselaw as long as he was not terminated for cause that he would have been able to obtain the reasonable value of his services or contract amount, whichever is higher. 

On a side-note, this also is a good reason to have an employment contract signed by the parent instead of the child for an hourly billing arrangement on family law cases with it being spelled out that you represent the minor, but that the parent is contractually liable for the legal bill. 

Tuesday, September 23, 2014

Value of Fringe Benefits

I had an interesting issue on a case recently.  The issue was the value of fringe benefits an employee received from his work and the calculation of child support.  The chancellor ruled that the court is allowed to consider these in setting child support which is the law.  However, the court stated that there needs to be some testimony as to the value of these items.  The court ultimately stated that these items were considered in setting child support based on what it determined the value was despite the fact that no value of these amounts was offered in evidence.  The issue gets more complex on deciding whose burden this is and furthermore how do you prove what these items are worth when the other party honestly has no clue either?  The best solution I can come up with is to do a Rule 1006 summary of the value of the items (i.e. gas, food, etc.) based on the information you have and put the burden on the other side to prove otherwise.  From doing some thinking on this issue, I think at that point the burden is on the other side to prove otherwise at that point. 

Monday, September 22, 2014

Default Judgment

Default judgments make me a little bit paranoid.  Under Rule 55, you have  to file an affidavit that you have received no response from the Defendant along with requesting the clerk to enter a default.  I have been adding a little extra step in there and checking email accounts prior to doing the affidavits and also filing copies of any emails received from the Defendant.  To me, an email is an "answer" and a true default judgment cannot be taken without notice.   The best bet in this situations is a properly supported motion for summary judgment.  Alternatively, a Rule 12 (c) motion for judgment on the pleadings may also be appropriate.  It amazes me in some of the emails that Defendants admit to liability and then somehow want to argue about it to the court. 

Friday, September 19, 2014

Parking Lot Liability

The Mississippi Supreme Court handed down Jones v. Imperial Palace of Mississippi yesterday located here.  The Supreme Court ultimately reinstated the trial court's decision to grant summary judgment in favor of the casino concerning a patron tripping over a misaligned parking bumper.  There was a two justice dissent which is pretty compelling and has a good list of information to look for in these kind of cases.  Ironically, I had one of these cases a few years back with slightly better facts.  In the case I had there were multiple witnesses that there had been an ongoing problem with the same particular parking bumper which my client ultimately tripped over.  With this information, we were able to work out a favorable resolution.  This seems to be what the court was hinting was lacking in the Jones case. 

Thursday, September 18, 2014

Paternity Statute of Limitations

Mississippi has a statute of limitations on paternity.  A child or someone acting on their behalf must seek an adjudication of paternity within three (3) years of the child reaching age twenty-one (21).  Miss. Code Annotated 15-1-49 and Knight v. Moore, 396 So.2d 31, 34-35 (Miss. 1981).  However, this is where it gets strange, under Mississippi Code Annotated 91-1-15(3)  an illegitimate may seek a declaration of paternity for inheritance purposes within one year of the date of death of the putative father or within ninety days of the date of the first publication of the notice to creditors, whichever comes first.  This appears to be a good reason to advise clients where there are possible unknown children with no prior adjudication of paternity to wait until one year from date of death to cut off any claims.

Same-Sex Divorce Update

Several people have asked me the status of the same-sex divorce appeal that I have.  The governor  filed an amicus brief a few days ago and the Mississippi Supreme Court has retained the case for review.  We are currently waiting to see if oral arguments will be granted or if the case will be decided just on the briefs.  It appears with several of the pending federal cases that the United States Supreme Court will probably decide the issue next summer in one of those cases. 

Wednesday, September 17, 2014

School Liability for Property Maintenance

The Mississippi Court of Appeals decided Calonkey v. Amory School District located here.  The issue in the case was concerning a school's liability for failing to maintain its property in a safe condition.  The case involves an independent contractor who fell through a trap door setting up a school play for Phantom of the Opera.  The door was apparently concealed and Mr. Calonkey fell through the door.  Additionally, there were apparently sharp spikes on the edges too as he fell through.  The trial court had granted summary judgment under the Mississippi Tort Claims Act.  The Court of Appeals reversed finding that a number of the immunity exceptions applied and that genuine issues of fact existed with regard to a number of area.  This case has a lot of useful law in it if someone is hurt on Mississippi government property. 

Tuesday, September 16, 2014

Anchoring Verdict vs. Itemization of Damages

There is an ongoing dispute in legal theory regarding placing medical bills in evidence.  Some attorneys believe that placing the medical bills into evidence "anchors" the verdict to these amounts potentially driving a verdict down.  Other jurors believe that placing the medicals in the record is a way to set a baseline of minimum damages with the remaining damages to be itemized in a verdict form.  Both approaches have their good points.  To me, the best approach depends on the facts of the case.  A case where there are future medical bills and lost wages with good size medical bills, an itemization is better.  If the medical bills are low with mostly just pain and suffering, disclaiming the medical bills is probably the way to go.  An example of an itemized verdict is located here which can give you some ideas on how the argue the case either way.    

Monday, September 15, 2014

Twitter Account

I now have a Twitter account.  You can look for the Twitter logo on the right of the page about half-way down for a link to my account to start following me. 

Friday, September 12, 2014

Fact Witness v. Expert Witness

Personal injury and domestic cases both have a common issue with regard to treating doctors and expert witnesses.  In both cases, many times doctors will treat a someone for an injury (mental or physical).  The issue then arises is this person an expert witness or merely a fact witness?  This is an extremely fact intensive area.  This is important as expert witnesses require extremely detailed disclosures under Rule 26 of the Mississippi Rules of Civil Procedure and under both the Uniform Circuit and Chancery Court Rules.  The best advice I have been able to get in this area is that if the doctor is going to testify to anything beyond simply what they did, an expert disclosure needs to be done.  Many times treatment requires a differential diagnosis along with analysis of the situation which gets into expert testimony.  I have had the court order the opposing parties' witnesses struck under this scenario in the past.

Thursday, September 11, 2014

Guardianships and Settlements

Guardianship for personal injury settlements tend to be where domestic and personal injury law meet.  I was dealing with this issue last week on a case and noticed the following.  Mississippi Code Annotated 93-13-281 provides in part as follows:

"In cases where a ward has been adopted by decree of court, the adoptive parent or parents, or the next of kin of the adoptive parent or parents, as the case may be, shall be joined as defendants in lieu of the natural parents or the next of kin of the natural parents, as herein provided.  Where the custody and control of a ward has been by decree of court awarded to one of the natural parents, it shall be sufficient herein to join as defendant only the parent to whom the custody and control has been awarded."

I know several attorneys who still join both parents in the petition which is not necessarily a bad idea.  However, you actually only need to join the parent who has custody.  This can save a lot of time especially when the other parent may wish to block a settlement that is in the best interest of the minor child solely for the purpose of harassing the other parent. 

Wednesday, September 10, 2014

PERS Retirement

The Mississippi Court of Appeals decided Aaron v. Aaron yesterday located here.  The issue in the case dealt with Mississippi state retirement (PERS) which is exempt from a qualified domestic relations order (QDRO) by statute.  In this case, the chancellor ordered that the a party pay a portion of his PERS as alimony upon receipt of his check.  This was affirmed by the Court of Appeals.  This case is helpful in dealing with this issue and also tell mathematically how to calculate what portion of the retirement was accrued during the marriage when a party had the account prior to and after the marriage of the parties. 

Tuesday, September 9, 2014

Offers of Settlement

Rule 408 of the Rules of Evidence generally prohibits the use of offers of settlements from being admissible in trial.  This is particularly true in domestic cases where offers of any kind involving custody, support, etc. must be reduced to writing and approved by the court to be enforceable.  As with all rules, there are exceptions.  The rule only deals with this evidence being used to prove the validity of a claim.  Evidence obtained in the course of settlement negotiations or mediation may still be used however to show bias, fraud, etc.  As such, one cannot get too relaxed in settlement negotiations. 

Monday, September 8, 2014

Working Both Sides

The more I practice, the more I have learned that a case cannot be prepared properly without working up both sides of the case (i.e figure out what you would argue if you were the opposing party).  Any case that does not settle that goes to either the judge or jury has warts on both sides.  If you figure out what the warts are on your side, witnesses can be prepared for it and evidence can be used to minimize it. 

Friday, September 5, 2014

Book of Interest

I received a good book in the mail yesterday from Amazon called The Trial Masters:  A Handbook of Strategies and Tactics That Win Cases.  It is an older book with lots of good practical advice from what I have read so far.  You can get a copy on Amazon for only a few dollars and the book itself is close to 600 pages.  It is a large collection of articles by some of the best historical trial lawyers in the country.  From just skimming through the parts I have not read yet, this may be one of the most practical books in my library. 

Thursday, September 4, 2014

Arguing in Reverse

Arguing in reverse is a concept that I have picked up on from several older attorneys which is very effective.  Essentially, you take you opponents position in a case and starting arguing what is wrong with their position first and then argue why yours is correct.  This is very effective in motion practice I have noticed. 

Wednesday, September 3, 2014

Notice of Documents and Hearsay Exceptions

I tend to pick up random items of helpful litigation information from a variety of sources.  Litigation is largely a battle of competing ideas.  An attorney I am litigating a case against now developed some useful ideas on hearsay and documents that are hearsay exceptions.  I did not have any objection to the documents he presented but it did give me some ideas.  The idea is to provide notice in the ligation file of certain documents that will be offered as evidence subject to various hearsay exceptions (i.e. learned treatises, market reports, etc.).  After that, a timely motion can be made to get a preliminary ruling on their admissibility after reasonable notice.  This is a great idea which can prevent later objections that could not be cleared up at the spur of the moment in trial. 

Tuesday, September 2, 2014

Virtual Tour

Visualizing a home or an accident scene is often the key to a case.  With Google Earth, it is pretty easy to take a virtual look at an accident scene.  It is not that hard to also do one with a home using virtual tour programs similar to that realtors use.  This could be a good option to help explain how something happened and potentially a way to show that one home is more fit than another in a custody case.

Monday, September 1, 2014

Blog of Interest

Before trial, I often set up a "war room" to prepare, go through exhibits, etc.  Here is a helpful blog I located with lots of good ideas. 

Saturday, August 30, 2014


I never cease to be amazed at some of the sloppy responses in discovery requests.  What most people do not realize is that those are sworn statements under oath.  As such, they can become admissions in the right context. 

Thursday, August 28, 2014

Change of Venue

 A party may request a change of venue under certain circumstances.  Mississippi Code Annotated § 11-11-51 (2013) provides as follows:

"When either party to any civil action in the circuit court shall desire to change the venue, he shall present to the court, or the judge of the district, a petition setting forth under oath that he has good reason to believe, and does believe that, from the undue influence of the adverse party, prejudice existing in the public mind, or for some other sufficient cause to be stated in the petition, he cannot obtain a fair and impartial trial in the county where the action is pending, and that the application is made as soon as convenient after being advised of such undue influence, prejudice, or other cause, and not to delay the trial or to vex or harass the adverse party. On reasonable notice in writing to the adverse party of the time and place of making the application, if made in vacation, the court, if in term time, or the judge in vacation, shall hear the parties and examine the evidence which either may adduce, and may award a change of venue to some convenient county where an impartial trial may be had, and, if practicable, in which the circuit court may next be held. If made in vacation, the order shall be indorsed on the petition and directed to the clerk, who shall file the same with the papers in the suit."

The rule sets forth some pretty strict requirements of the motion being filed under oath and furthermore that said motion be timely made and not to harass a party.  The purpose of it being made timely is to prevent gamesmanship.  There are a few cases out there floating around that seem to say that any failure to comply with the statute results in waiver of the issue. 

Wednesday, August 27, 2014

Jury Questionnaire

I have been working on a jury questionnaire for an upcoming case.  I have found that jurors are more comfortable giving an answer on paper than in open court.  Additionally, you can often tell a few things about a person by their handwriting style.  Judges are getting more receptive to these because it ultimately saves the court a lot of time. 

Tuesday, August 26, 2014

State Response in Same-Sex Divorce Case

I received the State's brief yesterday in the same-sex divorce case I am working on.  A copy is located here.  From reading it, looks like I hit all the arguments I expected them to make.  Time to wait on either oral arguments or a ruling.  I have been contacted by at least one group wanting to file an amicus brief and I suspect several state officials will want to file one also.

Monday, August 25, 2014

Telephone Testimony

Lots of times witnesses may have travel issues which makes it hard for them to get to court.  The question is:  Can they testify by phone?  Like many things in the law, the answer appears to be maybe.  This was the issue in Byrd v. Nix 548 So.2d 1317 (Miss. 1989).  In this case, the trial judge refused to allow a witness to testify via telephone and was affirmed on appeal.  Here is the relevant language:

"In the absence of exigency or consent, telephonic testimony generally has not been allowed. See e.g., Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp., 551 A.2d 195, 200, 229 N.J.Super. 264 (1988) (remanded for a new trial because the lower court allowed telephonic testimony in the absence of special circumstances); Rose v. State, 294 Ark. 279, 742 S.W.2d 901, 905 (1988) (the court excluded the testimony of an out-of-state police officer in a Miranda hearing); Sherman v. Com. Unemp. Compensation Bd. of Review, 114 Pa.Cmwlth. 424, 539 A.2d 23, 25 (1988) (the court held that absent regulations governing telephonic hearings, it could not uphold evidence adduced therein over proper and timely objection of a claimant); State ex rel. Juvenile. Dept. of Multnomah County v. Gates, 86 Or.App. 631, 740 P.2d 217, 218 (1987) (the court reversed a trial court order allowing the telephonic testimony of out-of-state caseworkers and a psychologist in an action brought to terminate parental rights, reasoning that testimony by telephone was not authorized by statute or procedural rule, and denial of an opportunity to observe the witnesses was manifestly prejudicial).        

In recognizing the different positions taken on the matter, we hold that the admissibility of telephonic testimony is within the sound discretion of the trial judge and is not reversible unless such discretion is abused. In the instant case the facts do not evince that the trial judge abused his discretion in not allowing Dr. Selby to testify by telephone. The judgment of the lower court, therefore, is affirmed. We find no merit to the remaining statements of issue."

From reading the above, it is largely within the discretion of the judge to allow this type of testimony but is to be discouraged since there is no opportunity to observe the witness.  Best advice I can give is file a motion and getting a ruling if at all possible before hand.  The witness better have an emergency and be of necessity to your case if this is not possible.  This is one area the Rules Committee needs to add a rule to address.    

Friday, August 22, 2014

Changes in Condition

My office was able to successfully resolve an ongoing case yesterday dealing with the difference in an individual's condition post-accident.  We were able to resolve it by getting the medical records of the individual prior to the accident and then show the post-accident records.  The client had some pre-existing conditions which were greatly enhanced by the accident.  However, in comparing the records it was very easy to see a huge spike in new conditions related to the accident with additional reasonable and necessary treatment. 

Thursday, August 21, 2014


As of right now, I do not have a Twitter account.  I am seriously thinking of experimenting with it in the next few weeks.  There are several good books on Amazon regarding using Twitter for marketing purposes.  I have several trials scheduled to start in the next few weeks.  Depending on scheduling and such, I may give it a shot in a few weeks after doing a little more research. 

Unrelated, it is also a good place to go discovery on cases of any kind.  For some reason, I have noticed that people tend to tweet stuff they would never put on Facebook.

Wednesday, August 20, 2014

Health Insurance

Mississippi Code Annotated §43-19-101 provides as follows:  “If the court requires the custodial parent to obtain the coverage then its cost shall be taken into account in establishing the child support award.”  The language included as shall removes the discretion element of the Court and means the Court must take it into account.   I have a case where this is an issue on reconsideration right now.  

Tuesday, August 19, 2014

Dog Liability

For some reason, I have been having a lot of cases here lately dealing with liability of dog owners.  Mississippi and Tennessee have a number of statutes dealing with liability if a dog kills livestock.  The statutes are pretty much strict liability (i.e. you own the dog, they hurt the animal, you have to pay).  There are also a number of county ordinances and even subdivision restrictions dealing with dogs running at large that are largely similar.  The old myth that a dog gets one free bite before the owner is liable is not entirely accurate. 

Monday, August 18, 2014

Consent to Divorce and Later Agreements

Myself and opposing counsel had an interesting conversation in chambers last week at a divorce trial.  Originally, the parties agreed to virtually nothing.  The parties finally entered  into a written consent to grounds for divorce with the court to decide all other issues.  By the time of trial, the parties had narrowed the issues down dramatically to a few very narrow issues that could almost have been decided with little or no testimony.  The chancellor was happy with that but called us into chambers to discuss one issue.  Mississippi Code Annotated 93-5-2 requires the consent to divorce to be in writing with what other issues for the court to decide to be laid out.  The chancellor asked us to reduce our stipulations to writing and have the parties to sign an amended consent prior to ruling on the case.  The chancellor was worried about a Reno v. Reno problem where a consent on the other issues might be reversed on appeal if it was not in writing also.  It was easy to do and offered both parties some protection in the event of an appeal.  I suspect this issue will go be addressed by the Court of Appeals at some point in the future. 

Friday, August 15, 2014


Reputation is an interesting area to litigate.  It is subject to the limits of Rule 405 of the Rules of Evidence.  I did some thinking this morning and under Rule 803 (21), a specific exception to the hearsay rule is reputation of a person in the community or among his associates.  This might be an interesting way to get some otherwise inadmissible items in with a proper foundation being laid. 

Thursday, August 14, 2014


The Mississippi Court of Appeals decided McLeod v. McLeod on Tuesday.  A copy of the opinion is located here.  The main issue in the case was whether a prenup was valid.  The trial court had found it was not.  The Court of Appeals reversed finding that a prenup that is freely negotiated is enforceable.  The trial court was reversed.  This opinion seems to lower the standards a little on prenups.  The language in the opinion indicates to me that as long as there is no actual fraud, failure to follow all the technical requirements is not necessarily fatal.

Wednesday, August 13, 2014


Remittur allows the trial court to reduce a jury verdict in certain circumstances.  Much like addittur, it is a pretty hard road.  Here is the quick rundown of the law from an appeal standpoint. 
Pursuant to Mississippi Code Annotated section 11-1-55 (Rev.2002), a trial court has the authority to order a remittitur if it finds “that the damages are excessive for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence.”  “Such matters are reviewed on appeal for abuse of discretion.”  Cade v. Walker, 771 So.2d 403, 407(¶ 11) (Miss.Ct.App.2000). Whether a jury award is excessive is determined on a case-by-case basis, and the appellate court will not disturb a jury award unless the amount, in comparison to the actual damages, “shocks the conscience” of the court.   Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1058(¶ 20) (Miss.2003).   In other words, the question is whether the verdict is “so excessive or inadequate as to indicate bias, passion and prejudice on the part of the jury, or [did] the jury fail[ ] to respond to reason.”  Walker v. Gann, 955 So.2d 920, 931(¶ 38) Miss.Ct.App.2007) (citation omitted).  “Due to the uncertainty of the monetary value placed on pain and suffering and future damages, [this Court] ha[s] affirmed damages up to fifty-one times the actual damages shown.”  Kroger Co., 809 So.2d at 684(¶ 11) (citations omitted).   Although we recognize that “the sky is not the limit with regard to jury verdicts,” we afford a jury “broad leeway” when it comes to an award of damages.  Cade, 771 So.2d at 410(¶ 20).
So as it is pretty hard to get a trial judge to raise a verdict, it is equally hard to get them to lower a verdict.