Monday, March 31, 2014

Scorched Earth

It still amazes me the number of attorneys who litigate cases in the "scorched earth" mentality (i.e be as absolutely disagreeable as possible for no reason).  The business of law is hard enough as it is.  As attorneys, especially in family law, the truth of almost all cases lies somewhere in the middle.  Once this is realized, practicing family law becomes much easier.  This has even lead to some of the opposing counsel on the nastiest cases I have ever had, to become some of my close friends. 

Unfortunately, I see many cases where the attorneys get so wrapped up in proving they are "right", that the outer limits of the ethics rules are pushed in my opinion.  Civil cases are meant to be handled in a civil manner.  Once more people start doing this, only then will the public opinion of attorneys change.  In court as the saying goes, strive mightily, but eat and drink as friends.

Friday, March 28, 2014

Medical Malpractice Expert

Mississippi Code Annotated Section 11-1-58 provides that an attorney has to file a certificate regarding consultation with an expert prior to filing suit.  However, there is an exception to this that many people do not know about is under section 6 of the same statute.  There is no requirement of an expert consultation if the party is pro se.  This got me to thinking if a party files a pro se complaint and then an attorney enters an appearance.  You would still need an expert at some point but not with the complaint.  The case of Manning v. King's Daughters Medical Center decided yesterday located here has some language that hints at this which is worth filing away. 

Thursday, March 27, 2014

Employment Litigation

I am starting to do more employment litigation.  I did a reasonable amount when I first started practicing and have had some things happen which renewed my interest.  With the economy like it is, there are a ton of employers violating the Fair Labor Standards Act in regards to wages, overtime, and various other issues such as the standard discrimination suits.  I would be happy to review these cases for any attorneys or other readers who have these issues.  We are doing some fee sharing arrangements with other attorneys who may have these cases after talking with the bar association in accordance with Rule 1.5 of the Mississippi Rules of Professional Conduct. 

Wednesday, March 26, 2014

Custody Modification

The Mississippi Court of Appeals decided Hall v. Hall yesterday located here.  The Court of Appeals affirmed a modification of custody from the Mother to the Father.  The trial court had found that modification of custody was justified based on dental neglect and the failure to treat a dog bite.  This case is a prime example of the higher standard to modify custody.  Something approaching neglect is necessary to justify changing custody for the most part.  The record showed plenty of evidence of this and affirmed the trial court judgment. 

Tuesday, March 25, 2014

Attorney's Fees

In Rigsby v. State Farm, the U.S. Federal Judge approved 2.9 million in attorney's fees under the False Claims Act dealing with certain actions of State Farm after the jury verdict returned a Plaintiff's verdict.  The opinion is located here.  The language in the opinion is good in arguing for attorney's fees in a case and provides a good form argument and itemization for presenting them. 

Monday, March 24, 2014

Appellate Record

Many times a party who wins at the trial level tries to drive up the costs of the opposing party by designating the entire record as necessary to an appeal.  The Rules provide that only the amount necessary to the issues on appeal are to be designated.  If the opposing party insists on using the entire record, that a look at Rule 10 of the Mississippi Rules of Appellate Procedure.  Appellate Rule 10(b)(4) states that the appellant has to pay for any additional portions of the record designated by the defense unless the appellant obtains from the trial court an order requiring the appellant to pay the expense.   The opposing party having to explain why certain parts of a record are necessary when they are not often stops this. 

Friday, March 21, 2014

Medical Records Cost

The cost of medical records in a case can be enormous.  It is nothing for a medical malpractice case or other large personal injury case to cost $3,000.00 to $4,000.00 in just the initial records.  Here is a link to an excellent article discussing how to reduce these costs.  It goes through the federal statute and tells how to ask for electronic copies of the records which is considerably cheaper.  I will definitely be experimenting with this. 

Thursday, March 20, 2014


Perjury is a serious problem in cases.  Mississippi Code Annotated Section 97-9-59 provides as follows:

"Every person who shall wilfully and corruptly swear, testify, or affirm falsely to any material matter under any oath, affirmation, or declaration legally administered in any matter, cause, or proceeding pending in any court of law or equity, or before any officer thereof, or in any case where an oath or affirmation is required by law or is necessary for the prosecution or defense of any private right or for the ends of public justice, or in any matter or proceeding before any tribunal or officer created by the Constitution or by law, or where any oath may be lawfully required by any judicial, executive, or administrative officer, shall be guilty of perjury, and shall not thereafter be received as a witness to be sworn in any matter or cause whatever, until the judgment against him be reversed."

Defendant's sometimes try to say a client is lying to get a dismissal under Rule 37 of the Mississippi Rules of Civil Procedure.  This is why it is important to make sure a client quantifies many answers with to the best of their memory.  Additionally, I noticed something in the above statute.  If a person is convicted, they are incapable of being sworn for testimony purposes.  This is an interesting tidbit to know in the rare event the issue presents itself.

Wednesday, March 19, 2014

Florida Tort Caps

Last week, the Florida Supreme Court ruled their statutory caps on noneconomic damages unconstitutional.   A copy of the 96 page opinion is located here.  Mississippi has not directly addressed the constitutionality of the Mississippi caps yet.  Previously, the Mississippi Supreme Court did not decide the issue when certified to them by the 5th Circuit because the verdict was a general verdict and did not state what portion was for noneconomic damages.  That case is located here.  I suspect a case either from federal court or a good set of facts from state court will make it to the Mississippi Supreme Court in the next few years.  The Florida case adds additional law on why the caps are not constitutional.     

Tuesday, March 18, 2014

Case of Interest

The Mississippi Court of Appeals decided Beard v. Berryman located here today.  It was an adoption case between two third parties.  The trial court applied the Albright factors and awarded custody to the Berrymans over the guardian ad litem recommendation.  The Court of Appeals affirmed finding that everything was done right and that the trial court is not bound to follow the guardian ad litem recommendation as long as the chancellor explains why it is being rejected.  The lesson from the case is to put on sufficient proof of why the guardian ad litem is incorrect.  If there is no challenge to their recommendation, there is nothing for the chancellor to hang their hat on. 

Monday, March 17, 2014

Software of Interest

Last week, I bought my paralegal software for the office called Foxit.  The website is here.  We have been extremely happy with it so far.  The price is reasonable and it has Bate-stamping software that works faster and better than our copier.  The Phantom Business version is the one we got.  I have no financial stake in the company and highly recommend it.  Many of the features are extremely helpful.  We have also had many of our documents fillable and savable as PDFs which is helping us to cut client costs. 

Friday, March 14, 2014

Appeal on Discovery Issue of Interest

The Mississippi Supreme Court granted an interlocutory appeal in Johnson v. Johnson yesterday located here.  The trial court in the case had granted a motion to compel via an email request for production of documents to an opposing parties paralegal.  The Mississippi Supreme Court reversed and rendered finding that this did not count as valid service under Rule 5 of the Mississippi Rules of Civil Procedure and that a request in an email did not count as a request for production under Rule 34 of the Mississippi Rules of Civil Procedure from my reading of the opinion.  As such, the case was reversed for entry of an order denying the motion to compel.  This might be an interesting case to file away as it seems to hint that email service alone of anything may not be sufficient.   

Thursday, March 13, 2014

Grounds as a Bargaining Chip

Mississippi is still a fault based state.  Unless the parties agree to be divorced on irreconcilable differences, the parties have to prove grounds for divorce.  Many times, this is a bargaining chip when one party really wants a divorce and they cannot prove grounds.  This has often been called the divorce blackmail.  There has been some talk of amending this in the legislature to make a true no-fault divorce ground in Mississippi (i.e. a party simply has to say they want a divorce and the other parties' consent is not needed).   

Wednesday, March 12, 2014

Grandparent Visitation

The Mississippi Court of Appeals decided Lott v. Alexander located here.  This was a case of first impression.  The issue before the court was whether a great-grandparent met the definition of a grandparent within the meaning of Mississippi's grandparent visitation statute.  The trial court said they did.  The Court of Appeals examined the constitutional law issues and determined that the statute was to be strictly construed.  As such, a great-grandparent was not a grandparent within the meaning of the statute.  This resulted in the Court of Appeals reversing and rendering the award of grandparent visitation to the great-grandparents.  I would suspect the legislature to take a stab at amending this statute in light of this case. 

Tuesday, March 11, 2014

Supersedeas Bond

Supersedeas bond is authorized under Rule 8 of the Mississippi Rules of Appellate Procedure.  The rules specifically require normally that you first ask the trial court to grant you relief in the setting of the bond.  In the event the trial court refuses to do so, a party can ask the appellate court to.  I am surprised that more people do not apply for a bond on property division cases or on cases where there are large attorney's fees awarded.  If a person has good credit, many insurance companies are willing to issue a bond.  In the right circumstances, this might give a party some good leverage while an appeal is pending to resolve a case. 

Monday, March 10, 2014

Appellate Mediation

The Mississippi Bar is looking at starting an appellate mediation group.  It would be completely voluntary.  This could be beneficial if both parties are willing to talk.  I would expect this to be helpful on personal injury cases where there is the possibility of a new trial being ordered.  On most domestic cases, the party who got the better deal at trial rarely wants to discuss changing anything has been my experience.    A little more information on it is below which the bar sent out today. 

On January 19, 2012, the Alternative Dispute Resolution (ADR) Section of The Mississippi Bar filed a Petition for Order Authorizing Program for Appellate Mediation. On August 2, 2012, the ADR Section filed an amendment to its petition. The Rules Committee on Civil Practice and Procedure referred the ADR Section’s proposal to the Supreme Court’s Advisory Committee on Rules. After due consideration, the Advisory Committee on Rules has proposed a voluntary appellate mediation pilot program. Follow this link for the Advisory Committee on Rules’ proposal along with the ADR Section’s petition and amendment. Comments must be filed with the Clerk of the Supreme Court, Gartin Justice Building Post Office Box 249, Jackson MS 39205-0249 by May 2, 2104

Friday, March 7, 2014

Affidavit of Support - Immigration

As part of an immigration proceeding, a sponsor (often a future spouse) signs an affidavit of support.  This can have all sorts of ramifications in divorce.  The Form I-864 Affidavit of Support is a legally enforceable contract, meaning that either the government or the sponsored immigrant can take the sponsor to court if the sponsor fails to provide adequate support to the immigrant. In fact, the law places more obligations on the sponsor than on the immigrant -- the immigrant could decide to quit a job and sue the sponsor for support. There appears to be no law on this in Mississippi.  Many courts have interpreted this as a support provision enforceable by the state court and may be a factor in equitable distribution. 

Thursday, March 6, 2014

Setting Aside Default Judgment

The Mississippi Court of Appeals decided Ice Plant v. Grace located here on Tuesday.  The Plaintiff in the case was involved in an 18 wheeler accident.  The Plaintiff sued the driver and his employer.  Are both defendants were served, neither ever responded and a judgment was entered for $350,000.00. The Defendants later moved to set aside the judgments under Rule 60.  The driver was successful because it was shown that he was not personally served and the trial court had no choice but to set aside the judgment.  The employer was not successful and appealed.  The Court of Appeals affirmed the refusal to set aside the judgment.  I think this was largely as the original damages hearing was transcribed so there was a basis to show the damages were not reasonable.  As such, there was no abuse of discretion.  That is a good practice pointer on the default judgments.  If a record is made, it is a lot harder for the defendant to set it aside. 

Wednesday, March 5, 2014

Arena Liability

Trial Magazine had a good article this month in it on area liability under a dram shop theory.  Under a dram shop claim, a bar or other seller of alcohol may be liable for injuries caused by someone they sell alcohol to who is visibly impaired.  I am surprised this is not litigated more.  However, there is an interesting defense here.  Lots of times the people get drinks from their friends instead of buying the drinks directly.  This will normally relieve the bar or other institution of liability.  For an example of this see Heather Widner, Administratrix of the Estate of Glenn Edward Smith v. Chattanooga Entertainment, Inc. d/b/a Electric Cowboy

Tuesday, March 4, 2014

Law of the Case Doctrine

The Mississippi Supreme Court decided Lee v. Thompson located here last week.  The case involved fees incurred in a class action suit dealing with diet drugs.  This was the second appeal and dealt with whether certain fees should be refunded to the Plaintiff that was overcharged.  The trial court found that certain amounts should be and this was appealed.  This was affirmed.  The appellant tried to reargue a few points from the prior appeal.  However, the Court noted the law of the case doctrine applied. According to the law of the case doctrine, a court’s mandate is binding on the trial court on remand, unless an exception applies. Simpson v. State Farm Fire & Cas. Co., 564 So. 2d 1374, 1376 (Miss. 1990) (overruled in part on other grounds). This Court has stated that: The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure. Id. at 1377 (quoting Mississippi College v. May, 241 Miss. 359, 366, 128 So. 2d 557, 558 (1961)). The doctrine has its basis in the principles of res judicata. Cont’l Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 479, 142 So. 2d 200, 206 (1962).

There are a few exceptions to this, but none of them applied to the facts as presented.  The moral of the story is that you need to get everything in on the first appeal or you will not be able to argue it on the second one. 

Monday, March 3, 2014

School Suit

The Mississippi Supreme Court decided Moss Point School District v. Stennis located here last Thursday.  There is a rise in school districts being sued for various things.  In this case, a student sued for injuries sustained in an off-campus school fight.  There had apparently been an incident on campus earlier in the day.  The trial court denied summary judgment to the school district which filed for interlocutory appeal.  The Mississippi Supreme Court reversed but in an unusual twist reversed for more fact finding and consideration of the school handbook.  The issue the Court latched onto was that while the fight was not on campus, the school had adopted a policy in its handbook of calling the police if a fight happens on campus which was arguably violated.  This arguably lead to the incident off campus.  This is an issue of first impression and may be something that creates a lot more litigation against school districts in the future.