Tuesday, September 30, 2014

Amicus Brief in Same-Sex Divorce

A few weeks ago, the Mississippi governor filed an amicus brief in the same-sex divorce case I am handling located here.  Yesterday I filed a reply brief to the amicus brief located here.  The American Civil Liberties Union has filed asking for permission to file an Amicus Brief of their own which is still pending.  It appears the United States Supreme Court will decide the issue by next June most likely.   The United States Supreme Court met yesterday ironically to begin the process of selecting among the several pending cases in order to resolve the issue.  A article related to that is located here. 

Monday, September 29, 2014

Medicare Set Asides

Medicare set asides are a tricky issue with all sorts of technical requirements.  The easiest way to know if one is needed is if the settlement is $250,000 or more, the Plaintiff is on social security, and/or the Plaintiff is on Medicare.  The attached checklist is from the Georgia bar on the link here which is helpful in sorting through the issue.  From prior experiences, if Medicare is involved in a case, it is better to start getting information sooner than later due to the amount of time required to get a lien amount. 

Friday, September 26, 2014

Premises Liability Case of Interest

The Mississippi Supreme Court decided Cheeks v. AutoZone yesterday located here.  The trial court had originally set aside a substantial jury verdict against AutoZone related to a car driving through the front glass of a store.  In a 5-4 decision, the Mississippi Supreme Court reinstated the verdict.  The main problem for AutoZone in the case was that there was an ongoing problem with people driving through the front glass of the store to the extent $2,000 a week was being spent fixing the problem.  The Plaintiff's theory was that buffers should be in place in the store.  The Mississippi Supreme Court agreed to the extent that the Defendant was on notice of the foreseeability of the injury due to the prior incidents.  As a result, they instated a verdict of 45% fault to AutoZone on a 2.5 million dollar verdict. 

Thursday, September 25, 2014

Speculation and Daubert

The Mississippi Court of Appeals decided Newell v. State on Tuesday.  A copy of the opinion is located here.  This was a criminal case that goes through discussing a Daubert challenge to expert testimony which I have previously discussed.  The Court of Appeals ultimately reverses the criminal conviction for a new trial because the expert's opinion goes through a lot of speculation and does not rule out other causes of an injury.   

The relevant language of the opinion to me is below which I have bolded. 

"¶8. “[T]he admission of expert testimony is within the sound discretion of the trial judge.
Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4) (Miss. 2003) (citing Puckett v.
State, 737 So. 2d 322, 342 (¶57) (Miss. 1999)).  The trial judge’s discretion must comply
with the Mississippi Rules of Evidence.  Ross v. State, 954 So. 2d 968, 996 (¶56) (Miss.
“Reversal is proper only where such discretion has been abused and a substantial
right of a party has been affected.  The trial court’s discretion must also [e]nsure the
constitutional right of the accused to present a full defense in his or her case.”  Id. (internal
citations omitted).

¶9. Under Mississippi Rule of Evidence 702, (1) the expert’s testimony must be “based
upon sufficient facts or data,” (2) it must be “the product of reliable principles and methods,”
and (3) the witness must have “applied the principles and methods reliably to the facts of the
case.”  The supreme court noted in Parvin v. State, 113 So. 3d 1243, 1247 (¶14) (Miss.
2013), that expert opinions must rise above mere speculation.  Indefinite expert opinions, or those expressed in terms of mere possibilities, are not admissible.  For example, we have held that an expert’s offering a reasonable hypothesis was insufficient, explaining that expert testimony should be made of sterner stuff.".   (emphasis added).

Wednesday, September 24, 2014

Minor's Contract

The Mississippi Court of Appeals decided  Foster v. Kotsakos yesterday.  A copy of the opinion is located here.  The issue in the case is the ability of a minor to contract in a personal injury case.  The attorney did not get his contract approved by the Court and later the minor obtained a different attorney to settle the case.  The court affirmed the trial court's ruling that the prior attorney was only entitled to the reasonable value of his services for work actually performed.  Had the prior attorney obtained the chancery court approval, I believe under the caselaw as long as he was not terminated for cause that he would have been able to obtain the reasonable value of his services or contract amount, whichever is higher. 

On a side-note, this also is a good reason to have an employment contract signed by the parent instead of the child for an hourly billing arrangement on family law cases with it being spelled out that you represent the minor, but that the parent is contractually liable for the legal bill. 

Tuesday, September 23, 2014

Value of Fringe Benefits

I had an interesting issue on a case recently.  The issue was the value of fringe benefits an employee received from his work and the calculation of child support.  The chancellor ruled that the court is allowed to consider these in setting child support which is the law.  However, the court stated that there needs to be some testimony as to the value of these items.  The court ultimately stated that these items were considered in setting child support based on what it determined the value was despite the fact that no value of these amounts was offered in evidence.  The issue gets more complex on deciding whose burden this is and furthermore how do you prove what these items are worth when the other party honestly has no clue either?  The best solution I can come up with is to do a Rule 1006 summary of the value of the items (i.e. gas, food, etc.) based on the information you have and put the burden on the other side to prove otherwise.  From doing some thinking on this issue, I think at that point the burden is on the other side to prove otherwise at that point. 

Monday, September 22, 2014

Default Judgment

Default judgments make me a little bit paranoid.  Under Rule 55, you have  to file an affidavit that you have received no response from the Defendant along with requesting the clerk to enter a default.  I have been adding a little extra step in there and checking email accounts prior to doing the affidavits and also filing copies of any emails received from the Defendant.  To me, an email is an "answer" and a true default judgment cannot be taken without notice.   The best bet in this situations is a properly supported motion for summary judgment.  Alternatively, a Rule 12 (c) motion for judgment on the pleadings may also be appropriate.  It amazes me in some of the emails that Defendants admit to liability and then somehow want to argue about it to the court. 

Friday, September 19, 2014

Parking Lot Liability

The Mississippi Supreme Court handed down Jones v. Imperial Palace of Mississippi yesterday located here.  The Supreme Court ultimately reinstated the trial court's decision to grant summary judgment in favor of the casino concerning a patron tripping over a misaligned parking bumper.  There was a two justice dissent which is pretty compelling and has a good list of information to look for in these kind of cases.  Ironically, I had one of these cases a few years back with slightly better facts.  In the case I had there were multiple witnesses that there had been an ongoing problem with the same particular parking bumper which my client ultimately tripped over.  With this information, we were able to work out a favorable resolution.  This seems to be what the court was hinting was lacking in the Jones case. 

Thursday, September 18, 2014

Paternity Statute of Limitations

Mississippi has a statute of limitations on paternity.  A child or someone acting on their behalf must seek an adjudication of paternity within three (3) years of the child reaching age twenty-one (21).  Miss. Code Annotated 15-1-49 and Knight v. Moore, 396 So.2d 31, 34-35 (Miss. 1981).  However, this is where it gets strange, under Mississippi Code Annotated 91-1-15(3)  an illegitimate may seek a declaration of paternity for inheritance purposes within one year of the date of death of the putative father or within ninety days of the date of the first publication of the notice to creditors, whichever comes first.  This appears to be a good reason to advise clients where there are possible unknown children with no prior adjudication of paternity to wait until one year from date of death to cut off any claims.

Same-Sex Divorce Update

Several people have asked me the status of the same-sex divorce appeal that I have.  The governor  filed an amicus brief a few days ago and the Mississippi Supreme Court has retained the case for review.  We are currently waiting to see if oral arguments will be granted or if the case will be decided just on the briefs.  It appears with several of the pending federal cases that the United States Supreme Court will probably decide the issue next summer in one of those cases. 

Wednesday, September 17, 2014

School Liability for Property Maintenance

The Mississippi Court of Appeals decided Calonkey v. Amory School District located here.  The issue in the case was concerning a school's liability for failing to maintain its property in a safe condition.  The case involves an independent contractor who fell through a trap door setting up a school play for Phantom of the Opera.  The door was apparently concealed and Mr. Calonkey fell through the door.  Additionally, there were apparently sharp spikes on the edges too as he fell through.  The trial court had granted summary judgment under the Mississippi Tort Claims Act.  The Court of Appeals reversed finding that a number of the immunity exceptions applied and that genuine issues of fact existed with regard to a number of area.  This case has a lot of useful law in it if someone is hurt on Mississippi government property. 

Tuesday, September 16, 2014

Anchoring Verdict vs. Itemization of Damages

There is an ongoing dispute in legal theory regarding placing medical bills in evidence.  Some attorneys believe that placing the medical bills into evidence "anchors" the verdict to these amounts potentially driving a verdict down.  Other jurors believe that placing the medicals in the record is a way to set a baseline of minimum damages with the remaining damages to be itemized in a verdict form.  Both approaches have their good points.  To me, the best approach depends on the facts of the case.  A case where there are future medical bills and lost wages with good size medical bills, an itemization is better.  If the medical bills are low with mostly just pain and suffering, disclaiming the medical bills is probably the way to go.  An example of an itemized verdict is located here which can give you some ideas on how the argue the case either way.    

Monday, September 15, 2014

Twitter Account

I now have a Twitter account.  You can look for the Twitter logo on the right of the page about half-way down for a link to my account to start following me. 

Friday, September 12, 2014

Fact Witness v. Expert Witness

Personal injury and domestic cases both have a common issue with regard to treating doctors and expert witnesses.  In both cases, many times doctors will treat a someone for an injury (mental or physical).  The issue then arises is this person an expert witness or merely a fact witness?  This is an extremely fact intensive area.  This is important as expert witnesses require extremely detailed disclosures under Rule 26 of the Mississippi Rules of Civil Procedure and under both the Uniform Circuit and Chancery Court Rules.  The best advice I have been able to get in this area is that if the doctor is going to testify to anything beyond simply what they did, an expert disclosure needs to be done.  Many times treatment requires a differential diagnosis along with analysis of the situation which gets into expert testimony.  I have had the court order the opposing parties' witnesses struck under this scenario in the past.

Thursday, September 11, 2014

Guardianships and Settlements

Guardianship for personal injury settlements tend to be where domestic and personal injury law meet.  I was dealing with this issue last week on a case and noticed the following.  Mississippi Code Annotated 93-13-281 provides in part as follows:

"In cases where a ward has been adopted by decree of court, the adoptive parent or parents, or the next of kin of the adoptive parent or parents, as the case may be, shall be joined as defendants in lieu of the natural parents or the next of kin of the natural parents, as herein provided.  Where the custody and control of a ward has been by decree of court awarded to one of the natural parents, it shall be sufficient herein to join as defendant only the parent to whom the custody and control has been awarded."

I know several attorneys who still join both parents in the petition which is not necessarily a bad idea.  However, you actually only need to join the parent who has custody.  This can save a lot of time especially when the other parent may wish to block a settlement that is in the best interest of the minor child solely for the purpose of harassing the other parent. 

Wednesday, September 10, 2014

PERS Retirement

The Mississippi Court of Appeals decided Aaron v. Aaron yesterday located here.  The issue in the case dealt with Mississippi state retirement (PERS) which is exempt from a qualified domestic relations order (QDRO) by statute.  In this case, the chancellor ordered that the a party pay a portion of his PERS as alimony upon receipt of his check.  This was affirmed by the Court of Appeals.  This case is helpful in dealing with this issue and also tell mathematically how to calculate what portion of the retirement was accrued during the marriage when a party had the account prior to and after the marriage of the parties. 

Tuesday, September 9, 2014

Offers of Settlement

Rule 408 of the Rules of Evidence generally prohibits the use of offers of settlements from being admissible in trial.  This is particularly true in domestic cases where offers of any kind involving custody, support, etc. must be reduced to writing and approved by the court to be enforceable.  As with all rules, there are exceptions.  The rule only deals with this evidence being used to prove the validity of a claim.  Evidence obtained in the course of settlement negotiations or mediation may still be used however to show bias, fraud, etc.  As such, one cannot get too relaxed in settlement negotiations. 

Monday, September 8, 2014

Working Both Sides

The more I practice, the more I have learned that a case cannot be prepared properly without working up both sides of the case (i.e figure out what you would argue if you were the opposing party).  Any case that does not settle that goes to either the judge or jury has warts on both sides.  If you figure out what the warts are on your side, witnesses can be prepared for it and evidence can be used to minimize it. 

Friday, September 5, 2014

Book of Interest

I received a good book in the mail yesterday from Amazon called The Trial Masters:  A Handbook of Strategies and Tactics That Win Cases.  It is an older book with lots of good practical advice from what I have read so far.  You can get a copy on Amazon for only a few dollars and the book itself is close to 600 pages.  It is a large collection of articles by some of the best historical trial lawyers in the country.  From just skimming through the parts I have not read yet, this may be one of the most practical books in my library. 

Thursday, September 4, 2014

Arguing in Reverse

Arguing in reverse is a concept that I have picked up on from several older attorneys which is very effective.  Essentially, you take you opponents position in a case and starting arguing what is wrong with their position first and then argue why yours is correct.  This is very effective in motion practice I have noticed. 

Wednesday, September 3, 2014

Notice of Documents and Hearsay Exceptions

I tend to pick up random items of helpful litigation information from a variety of sources.  Litigation is largely a battle of competing ideas.  An attorney I am litigating a case against now developed some useful ideas on hearsay and documents that are hearsay exceptions.  I did not have any objection to the documents he presented but it did give me some ideas.  The idea is to provide notice in the ligation file of certain documents that will be offered as evidence subject to various hearsay exceptions (i.e. learned treatises, market reports, etc.).  After that, a timely motion can be made to get a preliminary ruling on their admissibility after reasonable notice.  This is a great idea which can prevent later objections that could not be cleared up at the spur of the moment in trial. 

Tuesday, September 2, 2014

Virtual Tour

Visualizing a home or an accident scene is often the key to a case.  With Google Earth, it is pretty easy to take a virtual look at an accident scene.  It is not that hard to also do one with a home using virtual tour programs similar to that realtors use.  This could be a good option to help explain how something happened and potentially a way to show that one home is more fit than another in a custody case.

Monday, September 1, 2014

Blog of Interest

Before trial, I often set up a "war room" to prepare, go through exhibits, etc.  Here is a helpful blog I located with lots of good ideas.