Friday, February 28, 2014

Intersection of Family Law and Personal Injury

Family Law and Personal Injury law overlap a lot.  Many times in a family law matter, you end up representing the party as a Plaintiff or sometimes as a Defendant on a variety of related suits (i.e. intentional tort suit, wiretapping suit, alienation of affection.)  The Mississippi Supreme Court handed down Watkins v. DHS yesterday located here.  The facts of the case are horrible.  Short version is that mother had her children taken away and placed in DHS custody.  DHS placed the kids in a foster home.  The child was later taken to the hospital grossly underweight.  The hospital reported the abuse and DHS did nothing was the Plaintiffs contention.  DHS stated it never got the report.  The child later died and the foster parents pled guilty to capital murder.  The mother through the child's estate sued DHS for wrongful death and the trial court granted summary judge based on the tort claims act and supposed lack of notice to DHS.  The Mississippi Supreme Court in a unanimous decision reversed the case finding there are genuine issues of material fact on the notice given to DHS and also that the Tort Claims Act was not applicable as DHS had an affirmative duty to investigate with no discretion in the statute once an accusation is reported to them.  This is a waiver of sovereign immunity under the Tort Claims Act.  

Thursday, February 27, 2014

Guardianships and Substance Abuse

I was reading an interesting article this morning located here.  The article discusses a case in Minnesota regarding whether a guardianship was appropriate for an alcoholic.  The trial court found that it was and so did the appellate court.  I have not seen much on this issue, but this may be an option also in Mississippi where a person cannot manage their affairs by opening a conservatorship or a guardianship.  The chancery court regularly does involuntary commitments for drug use and I see no reason why a conservatorship or a guardianship would not be appropriate to prevent someone from completely dissipating their assets due to substance or alcohol abuse. 

Wednesday, February 26, 2014

Magic and Law

I was reading yesterday of someone who was offering to perform spells prior to Court cases.  While some may not give merit to it, from a psychological standpoint this may be helpful to some clients who have strong beliefs in this, particularly those of the Caribbean community. 

Tuesday, February 25, 2014

Guardian Ad Litem

Chancellors in Mississippi are not bound to follow the recommendations of a guardian ad
litem. However, the chancellor "shall include at least a summary review of the qualifications and recommendations of the guardian ad litem in his findings of fact and conclusions of law" when the appointment of a guardian ad litem is statutorily required. J.P. v. S.V.B., 987 So. 2d 975, 982 (¶20) (Miss. 2008) (citing S.N.C., 755 So. 2d at 1082 (¶18)). Further, "if the court rejects the recommendations of the guardian, the court's findings must include its reasons for rejecting the guardian's recommendations." Id. (citing Floyd v. Floyd, 949 So. 2d 26, 29 (¶8) (Miss. 2007)).  This issue came up in Borden v. Borden located here which was decided by the Court of Appeals on January 21, 2014.  I tend to agree with the dissent more in this case.  The chancellor rejected the recommendations of the guardian ad litem in the custody determination.  The only thing the chancellor said about the guardian ad litem's opinion was the following:
           "I've also considered the . . . guardian ad litem's recommendations here. To some extent,
          I disagree with those, and to some extent, I've agreed. But I find under the circumstances
          and based on these factors under Albright that the primary physical care, custody and control of
          these two minor children will be and the same is hereby awarded to the father."

The majority of the Court of Appeals said this was enough under the limited standard of review.  The dissent stated this is inadequate as no specific reason was given for rejecting the guardian ad litem report.  Rehearing has been filed on this case.  If I were to make an educated guess, I believe there is a good chance this case will go up on certiorari.  A copy of the rehearing motion is located here.

Monday, February 24, 2014

Reservation of Jurisdiction

To me, the reservation of jurisdiction on an issue is not used enough.  This can be important on issues of alimony in particular.  In almost every jurisdiction in the country, if no alimony is awarded in the initial divorce, one cannot obtain it later.  This may be an important issue if a spouse has significant health issues.  A reservation of jurisdiction or an award of a nominal amount will reserve the issue if there are changes in circumstances. 

Friday, February 21, 2014

Domestic Violence

Unfortunately, many spouses claim "domestic violence" in an attempt to gain an advantage in a divorce case.  Many times, I end up in cases where the husband is accused of it after he finds out his wife is having an affair.  A conviction prohibits the person from owing a firearm under federal law.  This is in addition to the other punishments for misdemeanor domestic violence (first offense) in Mississippi, which include a fine of up to $500.00 and imprisonment in the county jail for up to six months.  See Miss. Code Ann. § 97-3-7(3).  Additionally, the legislature is looking to increase the sentence to up to one (1) year.  If that happens, this may require justice court to have jury trials if the prosecution seeks a sentence of longer than six (6) months.  Many times solutions can be reached short of trial to avoid this.  Other times, this issue needs to be litigated heavily. 

Thursday, February 20, 2014

Guardianship as a Necessary Party

The law protects minors on a variety of issues.  The law in Tennessee and Mississippi is essentially that a minor can do nothing without Court approval.  Many times minors are the beneficiaries of estates or personal injury settlements.  In order to compromise these claims, Court approval is necessary and this normally means filing for a guardianship where the Court can monitor any funds received by a minor.  Many of the judges I practice in front of and I tend to agree with them that a guardianship becomes a necessary party to any action to compromise these claims involving minors. As such, without a guardianship either being set up first or in the order compromising a claim, this may render any release void legally. 

Wednesday, February 19, 2014

Failure to Designate Expert

On Tuesday, the Mississippi Court of Appeals decided Cates v. Woods located here.  The Plaintiff failed to designate an expert after a scheduling order was entered.  The Defendant obtained summary judgment as the Plaintiff could not prove their case without an expert.  The Plaintiff tried to argue on appeal that this was simple negligence and no expert testimony was required.  This was rejected.  What this case stands for is that anything rooted in professional malpractice requires an expert.  This can be a wide variety of issues.  For example, nurse spills something on floor and someone falls.  Arguably, this is rooted in professional malpractice since it was committed by a professional.  This shows how a case of negligence can quickly become professional malpractice. 

Tuesday, February 18, 2014

Possible Federal Rule Changes

There are a number of possible changes coming to the Federal Rules of Civil Procedure.  This could significantly impact multiple state courts as the states most often adopt the Federal Rules.  Some of the changes are: 

·         Changing the scope of discovery in Rule 26(b) from a relevancy standard to a proportionality standard that takes into account five specific factors - (1) amount in controversy, (2) importance of the issues, (3) parties' resources, (4) importance of the discovery in resolving the issue, and (5) whether the burden or expense of the proposed discovery outweighs its likely benefit.

·         Reducing the presumptive limit of Rule 30 oral depositions from 10 to 5 and limiting the presumptive number of hours for those depositions from seven to six.

·         Reducing the presumptive limit of Rule 33 interrogatories from 25 to 15, including all discrete subparts.

·         Imposing a presumptive limit for the first time on Rule 36 requests for admissions to 25, including all discrete subparts.

·         Changing the Rule 37(e) "safe harbor" provision for preservation of electronically stored information to a set of presumptive standards for when a court may cure or sanction failure to preserve any evidence, not just electronically stored information.

These proposed changes would be a nightmare.  Any amount of normal litigation that is remotely complex requires more than this.  Even many of the defense attorneys I know are opposed to these changes.  The lack of discovery cuts both ways for Plaintiffs and Defendants in assisting in preparing a meaningful case or defense. 

Any Comments to these changes can be submitted electronically at!docketDetail;D=USC-RULES-CV-2013-0002 but addressed to:

Committee on Rules of Practice and Procedure
Administrative Office of the United States Court
One Columbus Circle, NE
Washington, D.C. 20544  

Monday, February 17, 2014

8.05 Financials

It never ceases to amaze me how sloppy some people are on financial declarations under Rule 8.05 of the Uniform Chancery Court Rules.  They use amounts that cannot be justified or are easily cross-examined.  I have started interrogating my clients hard on financials issues much as opposing attorneys will in order to show a client the importance of this.  Additionally, one thing that can be helpful is to use Zillow, Kelly Blue Book, and other internet sources as attachments to the declarations to give weight to the values.  This can save a lot of time and make a witness much more credible. 

Friday, February 14, 2014

Granting of a New Trial

When I ask for reconsideration of a case in chancery, I always ask for a new trial normally due to cumulative factors which warrant a new look at everything.  A trial court's grant or denial of a motion for new trial is judged under an abuse of discretion. Redhead v. Entergy Mississippi, Inc., 828 So.2d 801, 806 (¶ 11) (Miss.Ct.App.2001).  New trials are rarely granted in chancery.  However, they may be appropriate where new evidence is discovered post trial that was unknown to the parties.  I have had a new trial granted in a case before where evidence surfaced of ongoing child abuse post-trial.  As such, a new trial is something to look at under the right facts or in the event of multiple errors where at least an evidentiary hearing may be appropriate to make a proffer of the proof. 

Thursday, February 13, 2014

Bate-stamping Documents

Adobe Acrobat is a pretty good Bate-stamping program for documents.  Under Rule 34, in responding to discovery requests, the documents are to be divided and you have to label what documents correspond with what question.  That being said, I still respond to some questions with see documents attached because the request is written so broad, I have no clue how to respond otherwise.  (i.e. Please produce all documents you contend are relevant.)  Bate-stamping documents saves a lot of time in trial when any question develops on whether a document was turned over in discovery.    It helps prevent the "I never got that" and you having to prove they did.

Wednesday, February 12, 2014

Child Support Case of Interest

The Mississippi Court of Appeals decided O'Brien v. O'Brien located here yesterday.  There is one interesting issue in the case dealing with child support.  The Court here held that under Mississippi Code Annotated Section 43–19-101(4) the chancellor is required to making a finding on the record  in writing why or why not the support guidelines are reasonable if the payer's income is greater than $50,000.00.  The case was reversed for failure to make this finding.  Based on my reading of this, I don't know that just a finding in an oral opinion is sufficient.  I would additionally point out that to me the court needs to say why the amount is reasonable or not, instead of just making a finding that it is reasonable.  We will probably see more litigation on this issue in the future. 

Tuesday, February 11, 2014

Court Approval of Prenuptial and Postnuptial Agreements

I started thinking about this issue of prenuptial and postnuptial agreements this morning.   I have argued both sides before of setting them aside and seeking to uphold them.  Another issue on these is that custody cannot be contracted for in them.  This would particularly be the case where a child is not even born yet.  One idea I think that needs to be investigated is whether a joint petition for declaratory judgment signed off by both parties at the time of the agreement may be helpful with the same being approved by the Chancery Court.  This way you would have court approval that the agreement is valid and binding.  In theory, you might be able to address custody in the agreement if the child is already born.  For policy reasons, I see an uphill battle if the child is not born yet.  This could also, if drafted correctly, subject the agreement to modification standard as opposed to an initial custody or property division standard.

Monday, February 10, 2014

Modification of Escalation Clauses

The Mississippi Supreme Court decided Short v. Short located here last week.  The main issue was whether the trial court had erred by failing to determine a material change in circumstances had occurred since the original agreement of the parties had been entered.  Mr. Short had originally entered into a child support agreement that contained an escalation clause.  The clause provided a floor of $3,000 per month in child support.  Mr. Short's income dropped significantly and he filed for modification of the support order.  The trial court denied it since there was a minimum support amount in the agreement.  The Court of Appeals affirmed.  The Mississippi Supreme Court reversed finding that sufficient proof was presented of a change in circumstances to review the order.  As such, even though the parties originally agreed to the high amounts, circumstances had changed warranting a review of it.  The ruling also clarified what is essential in escalation clauses.  The Supreme Court overruled Bruce v. Bruce, 687 So. 2d 1199, 1202 (Miss. 1996) located here and stated that escalation clauses no longer have to be tied to all the factors set forth in Tedford v. Dempsey, 437 So.2d 410 (Miss. 1983)but only that they should be.  To me, this opens the door to trial courts attempting to craft escalation clauses in contested proceedings. 

Friday, February 7, 2014

Taxation of Confidentiality Agreement

Many times a defendant in a case wants a confidentiality agreement.  A value needs to be set or this may create a taxable event for a client.  The U.S. Tax Court has made it clear that a confidentiality clause must be supported by sufficient and clearly stated consideration or the Internal Revenue Service (IRS) can assign any “just or fair amount” as the amount of the consideration involved, and that, in any event, all consideration for confidentiality is taxable income to the recipient. See, for example, Amos v. Commissioner, T.C. Memo. Docket No. 13391-01, 2003-329, December 1, 2003 (  The easiest thing is probably to set the value of the confidentiality agreement at $10.00 or so. 

Thursday, February 6, 2014

Need to Object Again?

Motions in limine are a good practice on personal injury cases.  What happens when it is denied and the issue comes up in trial?  Do you have to object again?  Mississippi does not seemed to have addressed the issue.  A court in Wyoming has said yes that another objection needs to be made  in Hicks v. Zondag, 2014 WY 16 (Jan. 28, 2014) in order to preserve the issue for appeal.  If the second objection is not made, it is waived on appeal according to this case.  Tennessee has a case with similar language in it.  I would expect Mississippi Courts to make a similar ruling. 

Wednesday, February 5, 2014


I am about to start experimenting with launching a Youtube channel for marketing purposes.  It can be a fairly cost effective way to communicate with clients.  We will see how it goes after I work out the kinks. 

Tuesday, February 4, 2014

Privilege Log

In  a number of prior posts I have talked about the benefit of using Rule 1006 summaries.   In my opinion, these summaries could also be used to argue your case to make detailed factor charts on the Albright factors for custody or any of the other factor tests used in Mississippi.  The question then becomes, must they be disclosed in discovery.  I say no as they are attorney-work product.  The best way to handle the situation is to make a privilege log to disclose in discovery of what all you are claiming as attorney work product to provide in discovery.  If there is any question, the judge can sort it out. 

Monday, February 3, 2014

Adultery Clause

For religious reasons, many parties want to obtain a divorce on the grounds of adultery.   One way to accommodate this which may speed a case along is to either stipulate to it if the case is going to trial anyway.  Another way, if the parties are agreeable to everything else is to agree the parties will be divorced on irreconcilable difference but put an religious and/or adultery clause in the property settlement which states the other party is certifying they committed adultery in order for the other party to have the right to remarry for religious reasons.  This may help speed a case along at times.