Compelling Mediation

The Mississippi Court Annexed Mediation Rules provide that the court may order any case to mediation.  Some judges and parties do not realize that the court has the authority to order mediation.  This may be appropriate on some cases and worth filing a motion to do such.  The Rules also allow a party to file to refer a case to mediation which many people are not aware of.  If you can get the court to order the parties to split the fee, this may help on some unreasonable clients. 

Post Trial Motions in Chancery

Well, after Tuesday of this week I am utterly confused about post-trial motions in chancery court in Mississippi.  The Mississippi Court of Appeals decided Ainsworth v. Ainsworth on Tuesday which is located here.  In that case, the Court of Appeals ruled that because Mr. Ainsworth did not raise certain issues in a post-trial motion, he waived them for appeal purposes.  This seems to directly contradict, Forbes v. St. Martin, et. al, located here which specifically held that no post-trial motion was necessary to perfect an appeal from chancery.  The Ainsworth cases means one of the following and I am not sure which:
(1)  You must file a post-trial motion in chancery to preserve your issues for appeal; or (2)  You don't have to file a post-trial motion, but if you do you better raise everything.  

Metadata

Metadata is certain items that are contained in word documents and other word processing software.  Lots of time, parties will exchange documents in the original Microsoft Word format to keep another party from having to retype something.  In some circumstances, this can cause the inadvertent disclosure of some information regarding revisions to the documents and other items that one may not want the other side to know about.  The metadata can be removed and still shared with another party in word format if the proper steps are follow.  Here  is a link on how the remove the metadata from a word document.

Pretrial Conference

Rule 16 of the Mississippi Rules of Civil Procedure provides a process where parties can narrow a number of issues by virtue of a pretrial conference.  The interesting part of the Rule to me is that the Rule provides that that the Court "shall" conduct one if requested by any party.  In a complex case either in tort or family law, this may be the best way to get the issues narrowed down along with getting evidentiary issues resolved.  Where judges limit the amount of time to present a case, this can be invaluable in making sure all the evidence and vital witnesses are presented at trial as opposed to spending an hour arguing over i.e. hearsay or Daubert motions.

Witness Fee Statute Changes

Mississippi has amended its witness fee statute effective July 1, 2014.  A link to the amended bill is located here.  Essentially, a party subpoenaing a witness will be required to tender the mileage rate under Mississippi Code Annotated 25-3-41which is based on the federal rate plus the amount a party would receive if they were a juror as set forth in Mississippi Code Annotated 25-7-61.  I suspect this change will catch a few people off guard.  This is going to drive the cost of litigation up to some degree.  I suspect there will be a lot less subpoenas issued for witnesses.  I normally subpoena my witnesses for trial even the favorable ones.    The reason is pretty simple, if no subpoena issued, no basis for a continuance if they do not appear.  I believe a witness may waive their fee just as they may waive process.  I am going to look at tweaking one of my waiver forms to try to reduce costs for clients and get around the statutory change. 

Sometime after the holiday, I am going to try to find out the rate for a juror in Desoto County.  Once I find out, I will post it. 

Same Sex Divorce Brief

I filed my appellate brief regarding same-sex divorce with the Appellate Court this morning.  A link to the brief is located here.  Someone asked me to make a prediction regarding the results.  Truthfully, I except the U.S. Supreme Court to issue a ruling sometime either late this year or early next year that will be dispositive one way or the other.   

Rule 35 Exam

Rule 35 of the Mississippi Rules of Civil Procedure is often underutilized in custody cases.  One of the leading causes of divorce is serious mental illness along with addiction issues.  Perhaps the main reason it is not used is cost.  A trained psychologist or counselor can easily run a few thousand dollars.  Additionally, many insurances will not cover any form of counseling or examination that is ordered by the court.  As such, you may inadvertently void coverage if the insurance company sees it is in a court order.  This may be a situation where agreement of both counsel to do an evaluation without a court order can be helpful. 

Prenupt and Homestead

Lots of couples today are executing a prenuptial agreements prior to marriage.  One issue is can you contract away your homestead rights in a prenuptial agreement?  The answer seems to be no.    In Estate of Jones: Dixon v. Jones, decided  by the Mississippi Court of Appeals on April 29, 2014, the Court found that a quit claim deed was void by failure of the wife to join in the conveyance despite the fact there was a prenuptial agreement.   The Court cited to Ward v. Ward, 517 So.2d 571, 573 (Miss. 1987):

"Our legislature has chosen to place a restriction on the transfer or encumbrance of homesteads[,] and therefore, homesteads in Mississippi may not be alienated except in compliance with those restrictions. There can be no operative conveyance or effectual release of the exemption unless the method pointed out by the statute is pursued with strictness[,] and no requirement of the statute may be waived by the husband and wife or by either of them. Chancery will not interfere to give relief where by express law there is a limitation on the power of alienation of the homestead[,] and the final relief sought is merely to relieve that limitation." (emphasis added)

The language in here stands for the proposition that a statutory right cannot be contractually waived.  There is some other helpful language in the opinion that deals with when a will acts as a revocation of a prenuptial agreement which was another issue in the case.  

Weight Given to Albright Factors

In custody cases in Mississippi, the trial court is guided by the Albright factors for custody.  The factors are not the equivalent of a mathematical formula.  (i.e. who gets the most factors is not supposed to obtain custody).  However, this is how it is often applied.   In a lot of cases, each parent will be favored on some factors.  In these cases, I think the next area the caseload will be going is how much weight the court assigns to each factor.  This is one thing I have seen very few chancellors do and may be worth a post-trial motion.  In cases, there are often situations where one Albright factor may be given so much weight that it can override the others.  (i.e. mental health, parenting skills).   This is particularly important where the case is close. 

Same-Sex Divorce Brief

Several people have asked me how the same-sex divorce case is going.  It is currently up on appeal and the Court has issued a briefing schedule.  I will probably file the brief later this week.  I have the brief done except for the Table of Authorities which is taking a great deal of time.  There is almost literally a new opinion from other jurisdictions dealing with this issue about once a month.  Once I finalize the brief, I will upload a copy to this blog. 

Advancing New Arguments

Lots of times, we all get stuck in the trap of not expanding on the law.  In many instances, existing caselaw can be taken and you can look at the next logical step from a case to make new arguments.  A few years ago, myself and co-counsel did this is in Cuccia v. Cuccia located here dealing with having the court to set a line of demarcation in valuation determinations.  The lesson is that the law as it exists can be expounded upon to create equitable results in the right circumstances. 

Shifting Standard of Care

I have been working on several medical malpractice cases as of late.  One issue that has been coming up is the shifting standard of care.  As time goes by, what was the standard of care a few years ago, may not be the standard of care now.  This can be important where malpractice is discovered years later and testimony will be needed on what the standard of care was at the time of the procedure. 

Book Review

I finished reading The Power of a System:  How to Build the Injury Law Practice of Your Dreams by John H. Fisher this morning.  The book was excellent and gave me several new ideas on things.  The list of services at the back is worth the price of the book alone.  It gives some ways to cut some overhead on receptionists and various other things that can be helpful in getting a practice off the ground.  Much of the advise is relevant to any practice.  Other portions, especially on dealing with clients calling is more applicable to injury cases as opposed to family law matters where issues tend to me a little more time sensitive.  Overall, good book and very reasonably priced. 

Settling Case in Part

For some reason, many people are opposed to settling a divorce case in parts.  I have never been of that view.  On issues that can be agree to, get that part reduced to writing and approved by the court.  This is often helpful on cases where custody can be settled but not property or vice versa.  The may be done as part of an agreement to consent on irreconcilable differences. 

Audit Trail

Almost every medical provider and many businesses keep records in electronic format now.  By keeping records this way, there often also exists an "audit trail" on the records.  The audit trail is a record of any recorded changes to records.  In the right circumstances, this can be valuable.  At times, records get changed years after the fact once the possibility of litigation arises.  This is why it is important to put a spoliation letter to the holder of the records so they are not erased as part of a normal business practice. 

Causation

Causation is what almost every personal injury case is defended on now.  This in simple terms is just that you cannot show that the injuries were directly caused by the negligence of the Defendant.  Most defense attorneys will take the position that even if their client is liable for the injuries, the injuries were either pre-existing or alternatively aggravated by something that occurred after the negligence.  This is one area that the need for experts is incredibly important as without proving causation, a claim for negligence fails. 

Open and Obvious

In slip and fall cases, both Mississippi and Tennessee recognize that if a danger is open and obvious, there is no liability just because an accident happened.  This is illustrated in Goumas v. Mayse located here that by decided by the Tennessee Court of Appeals on April 29.  The Plaintiff apparently slipped on a large rock that he had previously been stepping on and fell.  The trial court granted summary judgment finding the rock was open and obvious danger such that the landowner had no liability.  Just because something happens does not equal legal liability. 

Trial Briefs

Fellow blogger Larry Primeaux had a good article on trial briefs this morning located here. I agree with a lot of his concerns.  I have had parties give the judge a trial brief before with all this detailed legal analysis which if looked at closely did not even resemble what the law actually is, but it sure sounded good.  Trial briefs do have their purpose.  They can be extremely helpful in making sure that you prove all of your elements of a case.  Additionally, they can give you a good head start if the Court asks for findings of fact and conclusions of law under Rule 52 of the Rules of Civil Procedure.   

Enforcing a Divorce From Another State

Mississippi requires both parties to consent to a divorce in order to obtain one or otherwise prove grounds for divorce.  In many states it is easier to get a divorce.  On February 20, 2014, the Mississippi Supreme Court decided Pierce v. Pierce located here.  The issue in this case was that the parities were divorced in Washington state and then came back to Mississippi for property division.  The Mississippi Supreme Court ruled that this was proper and not barred by the prior action.  There are some deep legal issues in this opinion which require a close read.  However, this case can be important as the standard for inappropriate marital conduct in Tennessee is pretty low so that if a party is close to Tennessee and willing to meet the residency requirements, this may be an option. 

Public Records

Public records and social media have become a treasure trove of information in just about every kind of case.   It has become standard practice in my office to begin every case with a search of all social media on both my client and the opposing party.  Items such as Facebook have features where items can be saved for later which is helpful.  Sometimes, things that seem minor at first may become important later.

Drug Suits to be Aware of

There are a number of class actions starting in other states regarding Lipitor, Abilify, and testosterone replacement therapy.  I am starting to review these cases.   Mississippi does not have a class action statute but suits are starting in a number of states that do and steering committees have already been set up in them.  Any claims here can be joined into those class actions potentially. 

Clarity

The past few weeks I have had several cases fighting over the clarity of prior court orders.  This often leads me to have to call the prior attorneys who drafted documents as a witness if the case goes to trial and also depose the opposing attorney at times if the other side was represented to get their interpretation of what was meant.  If you want to see nasty litigation, try to get former spouses to agree to a definition of any of the followings:  reasonable, needs, necessary, standard of living, college expenses, living expenses, and utilities.  These are terms that need to be clearly defined in the documents.   If not, you are just inviting future litigation.