Monday, June 30, 2014


Collusion is still one of those old terms floating around in Mississippi divorce law from the times before irreconcilable differences. Divorce is still a creature of statute and issues still come up with it some. Mississippi Code Annotated 93-5-7 provides that "... in all cases, except complaints seeking a divorce on the ground of irreconcilable differences, the complaint must be accompanied with an affidavit of plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated."  A colleague of mine had an issue on this come up last week.  Opposing party was in contempt for the nonpayment of alimony in a rather large amount.  Turns out original divorce on fault grounds did not have collusion affidavit.  Result, divorce void for failure to comply with statute.

Friday, June 27, 2014

Objections to Guardian Ad Litem Report

I was doing some reading on guardian ad litems a few days ago and started doing some thinking.  When is the time to objection to a guardian ad litem report?  After doing some thinking, I think formal objections need to be made in written form prior to trial and then those objections need to be renewed at trial.  By making the objections early, any deficiencies may be remedied which could change the opinion on the case. This is similar to me in making a Daubert challenge.  I am aware of at least one appeals case pending concerning when these should be made and whether waiting until post trial to make the objections is sufficient or counts as a waiver.  

Thursday, June 26, 2014

Scheduling Orders

Many times a court will issue a scheduling order in a case. Normally, I like them. It fits in with my OCD to some degree. Sometimes things come up which necessitate modifying the scheduling order due to uncooperative opposing counsel or emergencies of some kind. What is the standard to modify a scheduling order? There is not a ton of authority in Mississippi on it. However, there is 5th circuit caselaw on it which I suspect most Mississippi Courts would follow.  Below is some language that should be helpful authority.

Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order may only be modified "for good cause and with the judge's consent." The Fifth Circuit has explained that "[t]he good cause standard requires the `party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'" S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir.2003) (quoting 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1522.1 (2d ed.1990)). In other words, the party who seeks to modify a scheduling order deadline must show that, despite acting diligently, it will still be unable to meet that deadline. Rivera v. County of Willacy, *493 2007 U.S. Dist. LEXIS 41401, at *2, 2007 WL 1655303, *1 (S.D.Tex. June 6, 2007). Mere stipulations by the parties do not constitute good cause. Id. at *1, 2007 U.S. Dist. LEXIS 41401 at *3 (citing Chiropractic Alliance of N.J. v. Parisi, 164 F.R.D. 618, 621 (D.N.J.1996)). "Neither the parties nor their counsel have the authority to stipulate or otherwise agree to changes in the Court's orders regarding discovery or any other scheduling matter unless expressly authorized to do so by Rule or by Court order." Olgyay v. Society for Environmental Graphic Design, 169 F.R.D. 219, 219 (D.D.C.1996).

In the context of an untimely motion to submit expert reports, designate experts, or amend the pleadings, the Fifth Circuit Court of Appeals applies a four-factor balancing test to determine whether good cause exists: (1) the explanation for the failure to adhere to the deadline at issue; (2) the importance of the proposed modification to the scheduling order; (3) potential prejudice; and (4) the availability of a continuance to cure such prejudice. See Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.1997) (submit expert reports); see Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (designate expert witnesses); see S & W Enters., LLC, 315 F.3d at 536 (amend the pleadings). At least one district court in the Southern District of Texas has also utilized this test in the context of a motion to reopen discovery. See United States v. McFerrin, 2007 U.S. Dist. LEXIS 91022, at *2, 2007 WL 4353709, *1 (S.D.Tex. Dec. 11, 2007) (citing Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir.2003)); see also Carmona v. Carmona, 2006 U.S. Dist. LEXIS 88868, at *6-7, 2006 WL 3839851, *3-4 (S.D.Tex. Dec. 8, 2006) (citing Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 227 (5th Cir.2005)).

Notwithstanding this four-factor test, the court still has the "inherent power to control its own docket to ensure that cases proceed before it in a timely and orderly fashion." U.S. v. Waldman, 579 F.2d 649, 653 (1st Cir.1978) (citing United States v. Correia, 531 F.2d 1095, 1098 (1st Cir.1976)). The purpose of a scheduling order is to allow the district court to control and expedite pretrial discovery matters. Geiserman, 893 F.2d at 790. Scheduling orders and their enforcement are regarded as essential in ensuring that cases proceed to trial in a just, efficient, and certain manner. Rouse v. Farmers State Bank of Jewell, Iowa, 866 F.Supp. 1191, 1198 (N.D.Iowa 1994) (citations omitted). To achieve this end, the Court is given broad discretion so that the integrity and purpose of the pretrial order may be preserved. See Bilbe v. Belsom, 530 F.3d 314, 317 (5th Cir.2008) (stating that the district court's decision regarding whether to modify a scheduling order is afforded great deference, especially where the facts of the case suggest a lack of diligence on the part of the movant); S & W Enters., LLC, 315 F.3d at 535; Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.1979).

Wednesday, June 25, 2014

Expert Affidavits

Here is an expert affidavit form I have been working on based upon reading a number of federal and state court cases regarding medical malpractice in Mississippi.  I have been trying to make something that covers most of the areas that summary judgment seems to keep being granted on cases.  I am sure it is not perfect, but I thought it might help somebody in responding to summary judgment motions.  No one size fits all, but think is a good start to make sure everything is covered.  Any input is appreciated.  Summary judgment and Daubert challenges regarding testifying experts seems to be the number one reason medical malpractice cases are being dismissed no matter how bad the injuries are or obvious the malpractice seems.  

Tuesday, June 24, 2014

Tennessee Book of Interest

John Day is publishing a new book on Tennessee trial practice called Tennessee Law of Civil Trial.  A copy can be ordered here.   It is set to be released July 1, 2014 and I pre-ordered a copy yesterday.  The law in Tennessee and Mississippi while different, is substantially similar in many respects.  I believe this book will be helpful in trying cases in general.  

Monday, June 23, 2014

Twombly/Iqbal Standards

I have written several articles in the past dealing with Twombly/Iqbal issues on pleadings.  I was at at excellent CLE last week and received a nice list of several Mississippi federal cases regarding this issue listed below.  I have not had a chance to read them but here they are if the issue comes up.

(1)  Berry v. Auto Ins. Co., 2014 U.S. Dist. LEXIS 58622 (S.D. Miss. April 28, 2014)
(2)  Hopson v. Chase Home Fin., LLC, 2014 U.S. Dist. LEXIS 50353 (S.D. Miss. April 11, 2014)
(3)  Cecil v. Smith, 2014 U.S. Dist. LEXIS 49034 (N.D. Miss. April 9, 2014)
(4)  M Street Investments, Inc. v. Zurich American Ins. Co., 2014 U.S. Dist. LEXIS 42096
       (S.D. Miss. March 28, 2014)
(5)  Nationwide Mut. Ins. Co. v. Evanston Ins. Co. , 2014 U.S. Dist. LEXIS (S.D. Miss. March 26, 2014)

Friday, June 20, 2014

Modification of Property Division

In Mississippi, property division is generally nonmodifiable.  East v. East, 493 So. 2d. 927 (Miss. 1986). On some very rare occasions, the Court can fashion some form of remedy when the property is destroyed in very limited circumstances.  Furthermore, pursuant to Houck v. Houck, 861 So.2d 1000, 1002 (Miss. 2003) and Gregg v. Montgomery, 587 So.2d 928, 933 (Miss. 1991), a party cannot agree to alter a Chancery Court order without court approval.  What all of this amounts to is that you are generally stuck with property division which you cannot agree to modify.

Thursday, June 19, 2014

Witness Fee Statute Issues

I previously posted about the changes in the witness fee statute.  One issue that is come up is what happens if the subpoenas are issued before the effective date of July 1 and served but the trial date is after July 1?  My interpretation is that the new witness fee amounts apply because the witness' appearance is required after July 1.  I expect this to catch a few people off guard.

Wednesday, June 18, 2014

Employer Liability

The Mississippi Court of Appeals decided Thompson v. A& Z, Inc. yesterday located here.  The issue in the case was whether a release of a tortfeasor also released the tortfeasor's employer.  The Mississippi Court of Appeals affirmed the trial court granting summary judgment.  The main language from the case of interest is that:

"This Court has plainly held: “A plaintiff may not release either an employee or employer from any claim, and then pursue the same claim against the unreleased employee or employer.” Sykes v. Home Health Care Affiliates Inc., 125 So. 3d 107, 109-10 (¶8) (Miss. Ct. App. 2013) (citing J&J Timber Co. v. Broome, 932 So. 2d 1, 6 (¶20) (Miss. 2006))."

Moral of the story, if you release one, you are done.

Tuesday, June 17, 2014

New Pleading Requirements

On Thursday of last week, the Mississippi Supreme Court amended many of the comments to the Rules of Civil Procedure and deleted entirely many of the others.  A copy of the order and the amendments is located here.  One of the more interesting twists regards Rule 9 now.  Here is what the comments to Rule 9 say
now in part:

"Rule 9(g) requires a detailed pleading of special damages and only a general pleading of
general damages. General damages are damages that are typically caused by, and flow
naturally from, the injuries alleged. Special damages are damages that are unusual or
atypical for the type of claim asserted. Special damages are required to be pled with
specificity so as to give the defendant notice of the nature of the alleged damages. Special
damages include, but are not limited to, consequential damages, damages for lost
business profit, and punitive damages. See Puckett Machinery Co. v. Edwards, 641 So.
2d 29, 37-38 (Miss. 1994) (consequential damages must be plead with specificity); Lynn
v. Soterra, Inc., 802 So. 2d 162, 169 (Miss. Ct. App. 2001) (damages for lost business
profit caused by defendant’s blocking of a road are likely special damages). If claimant
fails to plead special damages with specificity, an award for such damages may be
reversed. The requirement that special damages must be stated with specificity will be
waived if special damages are tried by the express or implied consent of the parties
pursuant to Rule 15(b)."

To me, the part that is interesting is that punitive damages are now included in the Rule 9 requirements  to be plead with specificity.  To me, this appears to now require Twombly pleading on punitive damages or the claim may be dismissed.  I previously discussed Twombly here.    This Rule is set to take effect July 1, 2014.  This seems to confirm the paranoia of pleading more is now the better practice.


Monday, June 16, 2014

Guardian Ad Litem Duties

Guardian ad litems have a number of duties they are required to do in order to properly investigate a case.  I normally monitor cases on appeal.  One I am following contained the following chart which is helpful of the duties a guardian ad litem is required to do in Mississippi.

 • Provide a written report. Gainey v. Edington, 24 So. 3d 333, 339 (Miss.
Ct. App. 2009); D.J.L. v. Bolivar Cnty. Dep't of Human Servs. ex rel. McDaniel,
824 So. 2d 617 (Miss. 2002); P.K.C.G. v. M.K.G., 793 So. 2d 669 (Miss. Ct. App.
2001). (GAL properly provided report).

• Conduct a home study. In re Guardianship of J.N.T., 910 So. 2d 631
(Miss. Ct. App. 2005). (GAL properly conducted a home study).

• Interview the parties with the children. D.J.L. v. Bolivar Cnty. Dep't of
Human Servs. ex rel. McDaniel, 824 So. 2d 617 (Miss. 2002); M.J.S.H.S. v.
Yalobusha County Dep’t of Human Servs. ex rel. McDaniel, 782 So. 2d 737, 740-
42 (Miss. 2001); In re D.K.L., 652 So.2d at 191.

• Interview the parties personally. In re Guardianship of J.N.T., 910 So. 2d
631 (Miss. Ct. App. 2005). (GAL properly conducted a home study).

• Interview witnesses provided by a party. S.G. v. D.C., 13 So. 3d
269 (Miss. 2009).

• Investigate claims by the parties.  S.G. v. D.C., 13 So. 3d 269 (Miss. 2009). 

The issue on appeal in the case that a colleague of mine is doing consists of how much weight, if any, should the trial court give to a guardian ad litem's opinion when some or none of the above are done?  It is sort of like a Daubert on guardian ad litem opinions.  I expect the case to set some new standards when it comes down sometime either late this year or early in the spring.  

Friday, June 13, 2014

Witness Fees Waiver

I talked in an earlier post about the waiver of witness fees.  I designed a form for a case recently for witnesses who are favorable who wish to waive the statutory witness fees.  It is here.  Hope it helps.

Thursday, June 12, 2014


Here is some interesting language I came across a few days back.  It might be helpful in certain cases.  

No one questions that cross-examination to show the bias of a witness or his interest in a case is entirely proper. Impeachment of witnesses through a showing of bias or interest aids the jury in its difficult task of determining facts when it is faced with contradictory assertions by witnesses on both sides of the case. See generally McCormick on Evidence § 33 (1972). A pecuniary interest in the outcome of a case may, of course, bias a witness. Id. A showing of a pattern of compensation in past cases raises an inference of the possibility that the witness has slanted his testimony in those cases so he would be hired to testify in future cases. Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980).

Wednesday, June 11, 2014

Little Known Statute of Interest

I was doing some research on an issue this morning and came across this statute. Mississippi Code Ann. Sec. 13-1-13 (1972) provides that: "Any witness may be examined touching his interest in the cause or his conviction of any crime, and his answers may be contradicted, and his interest or his conviction of a crime established by other evidence. A witness shall not be excused from answering any material and relevant question, unless the answer would expose him to criminal prosecution or penalty."  From my reading of this statute, this pretty much makes discovery on anything regarding witness credibility fair game and subject to discovery particularly with the phrase by other evidence being added.  

Tuesday, June 10, 2014

Final Adjudication

On May 13, 2014 the Mississippi Court of Appeals decided Newsome v. Newsome located here.  The Court ended up dismissing the appeal because there was not a final adjudication of all issues.  The chancellor at the trial court had left the record open to set attorney's fees on a contempt issue so it was not a final judgment.  If you read the opinion, the case reminds me of situations where the Court orders a report back on a case.  With that in mind, it appears from this case that a matter with a report back date is not a final judgment for appeal purposes.

Monday, June 9, 2014

Attorney's Fees

On Thursday of last week, the Mississippi Supreme Court decided Union Carbide Corporation v. Nix.  A copy of the opinion is located here.   This was a large scale personal injury claim.  The Mississippi Supreme Court ended up affirming the award of compensatory damages but reversed for a new trial on punitive damages and reversed the award of attorney's fees which was tied to the punitive damages award.  In Paragraph 50 of the opinion, the Court specifically stated though that on an award of attorney's fees, finding had to be made on the record to support it.  This to me is clarification regarding a whole string of cases that required no findings on the record.  As such, I believe the trial court has to do a little more now than rubber stamp a party's request on fees.   

Friday, June 6, 2014

Recovery of Deleted Items

With today's technology, except for setting something on fire, almost any data can be recovered.  (sometimes even if burned).  A colleague of mine has advised me that a company called Tenorshare has programs available to pull complete data from I-phones included deleted items at reasonable prices.  The website is located here.  This might be helpful in recovering deleted items in the course of a divorce case.

Thursday, June 5, 2014

LLC Citizenship

I am working on a case to possibly file in federal court.  There is an interesting issue with LLCs and citizenship for diversity jurisdiction purposes I thought I would share.  In Harvey v. Grey Wolf Drilling Co., --- F.3d ----, 2008 WL 4194538 (5th Cir. Sept. 15, 2008), the 5th circuit joined the other circuits in ruling that the individual members of an LLC must be considered for diversity jurisdiction purposes.  Short version of this is that you need to know the home residence of each member in order to see if you have complete diversity of citizenship.  I have heard of at least one case in another circuit where no one caught this until the case was up on appeal.  Result, everything from trial court vacated due to lack of jurisdiction and sent to state court.  Did not hear if the statute of limitations had run.  That would not be a pleasant conversation with either the Plaintiff or the insurance adjuster dealing with the defense attorney.  

Wednesday, June 4, 2014

Recent Award

I found out recently I have received one of the Top Forty Under Forty awards from The National Trial Lawyers Association.  A link to the profile is on the left side of the page.  Thanks to the attorneys and clients who nominated me.

Tuesday, June 3, 2014

Alimony Labels

Labels can be very important in alimony.  The main reason is for modification purposes.  Lump sum alimony is not modifiable in Mississippi while periodic and rehabilitative may be under the right circumstances.  A party can spend a lot of money defending a claim to increase alimony when they allege some new change in their health.  However, if the alimony is nonmodifiable, it runs both ways for the payor and payee.  I was able have a claim summarily dismissed under these circumstances a while back.  This is something to think about when the property settlements are being drafted.

Monday, June 2, 2014

Witness Fee Statute Change Part II

I previously talked about the witness fee statute changes here.   As I promised, I went to talk with the Circuit Court Clerk's office in DeSoto County for any of the local attorneys who read this.  The clerk's office told me the daily rate for jurors is $40.00.  This is going to create a lot more cost for getting witnesses unless the witness is willing to sign a waiver of their fee.