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. 

Tuesday, August 12, 2014


Dropbox is starting to become a valuable resource to me more and more.  Yesterday, myself and a defense attorney were having an issue on exchanging exhibits.  In order to speed up our review, he sent me a link from Dropbox with all of his proposed exhibits for an upcoming trial attached so I can review them this morning.  This helps a lot in assisting everyone in not wasting the time of the court and opposing counsel. 

Monday, August 11, 2014

Pretrial Order

I spent most of Friday doing to final workup on a pretrial order for a jury trial I have in a few weeks on a medical malpractice case.  While I was going through it, I started thinking that this would be a much better way to handle complex divorces cases too.  In the order typically used, all witness including experts have to be listed along with all evidence and any objections.  This way, the court can go ahead and clear up any evidentiary issues before the trial gets going.  It also assists in that if you get an adverse ruling on some critical evidence, you have time to figure out how to get the evidence in another way or can tweak the strategy as needed. 

Friday, August 8, 2014

Rule 615 Experts

Rule 615 of the Rules of Evidence, often called "the Rule" authorizes upon request for prospective witnesses to be excluded from the court while other witnesses are testifying.  However, there is an important exception to this.  Experts are allowed to stay if their presence is is essential to the presentation of the cause.  This is contained in the comments to the Rule and often overlooked.  The theory is that the expert often has to base his or her testimony on information received from various witnesses.  As a result, their opinion can change based upon the information received.

Thursday, August 7, 2014


Additur is virtually impossible to get from a trial court.  This is where the court awards more than the jury did finding the verdict given is inadequate.  I have seen a case sometime back where a party was able to get a new trial on damages where there was no question on liability and the jury awarded zero in damages.  In case you need it, here is the rundown on the law of additur.

An additur may be awarded when (1) " the damages are ... inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion," or (2) " the damages awarded were contrary to the overwhelming weight of credible evidence." Miss.Code Ann. § 11-1-55 (Rev.2002). In determining whether the jury was influenced by bias, passion, or prejudice, the appellate review focuses on whether the verdict is so " inadequate as to shock the conscience...." Walker v. Gann, 955 So.2d 920, 931-32 (¶ 38) (Miss.Ct.App.2007) (quoting Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 392 (¶ 27) (Miss.2001)).  The standard of review for a denial of an additur is abuse of discretion. Thompson, 86 So.3d at 237 (¶ 18).

The evidence is viewed in the light most favorable to the nonmoving party, giving " him or her the benefit of all favorable inferences reasonably drawn therefrom." Id. " If that evidence is contradicted, we will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial." Scott Prather Trucking, Inc. v. Clay, 821 So.2d 819, 821-22 (¶ 10) (Miss.2002) (internal quotation omitted). The jury's award of damages will be taken as conclusive if it is " not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible, or unreasonable...." A & F Props., LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1282 (¶ 17) (Miss.Ct.App.2000) (quoting Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 635, 53 So.2d 69, 75 (1951)).

Of course, the flip side of this, remittitur (jury awarded too much) is largely judged by the same standard.  I will discuss it briefly tomorrow most likely.  

Wednesday, August 6, 2014

Undivided Verdict

An undivided jury verdict is an argument waiting to happen for both defense and plaintiff attorneys due to Mississippi's damages caps.  Not to go too far off track, I still find it hard to justify that all pain in suffering is equal with a maximum value of $500,000.00.  Where it gets tricky is when there is an undivided jury verdict.  Plaintiff argues it is lost wages, future medicals, etc.  Defense argues it is not and largely pain and suffering with a request for a new trial.  On the flip side, if have an divided verdict (i.e. each one laid out), it can make the damages low on actual out of pocket expenses if there is not much in medical bills with the jury thinking they are doing you a favor when they give you two million in pain and suffering and giving you just the value of the medical bills.  Both have advantages and disadvantages.    I think experts to quantify certain values gives it a better chance to hold up on appeal.  If the medicals are relatively low, it is probably better to disclaim the medicals as advocated in the Reptile series books. 

Tuesday, August 5, 2014

Limited Power of Attorney

On personal injury cases, many times there are releases and checks that need to be taken care of in a fairly quick manner in order to keep the case moving.  My general philosophy has always been to try to keep a case moving on track toward trial.  A limited power of attorney can be of help on that.  A sample is attached here.

Monday, August 4, 2014

Pre-trial Conference

Pre-trial conferences are starting to catch on in state court in Mississippi.  This is routinely done in federal court but has only recently began to be more common in circuit court.  I have found that it greatly assists the parties and the court in a case.  Many of the judges are likewise requiring the parties to do a pretrial order containing witness lists and any stipulations that the parties have.  This helps to cut down on some of the defense attorney gamesmanship I have seen parties attempt in the past.  Unfortunately, I have seen situations where a defense attorney who does not contest liability will start contesting it at trial because no stipulation was entered.  My personal favorite is where a defense attorney had his client not come to court and then tried to say that the Plaintiff could not prove it was his client driving.  The Plaintiff could not identify the Defendant since she was not present and the officer was not subpoenaed because no one was contesting liability.  Issues like this are what make me paranoid.  I have started doing stipulations even on contested cases many times that are often as simple as the stating the parties were in a accident in which each one was the driver along with where the accident occurred.  This establishes the parties identify, jurisdiction, and venue at the start. 

Friday, August 1, 2014

Psychologist Privilege

The psychological privilege for minor children is a sensitive topic.  Many times children have issues with one or both parents following a  divorce.  Many times unfortunately, one parent tries to use the child against the other parent.  In these situations, it is important to get a court order waiving the psychological privilege for the minor child in the course of litigation.  Unfortunately, I have seen situations where the custodial parent will withhold privilege to the noncustodial parent making it impossible to see the results of treatment and confirm that the treating psychologist is getting the full picture on a case.  I recently had a case where the entire opinion of the psychologist changed once full disclosure of certain facts were made to him.  Treatment of this type is very fact sensitive, so without the waiver of privilege it is impossible to tell if the opinion given is correct or goes into the junk science category.