Wednesday, October 8, 2014

Experts and Alimony

The Mississippi Court of Appeals decided Russell v. Russell located here yesterday.  The case had two interesting issues.  The first was that the chancellor found and the Court of Appeals affirmed a modification of alimony based on the wife receiving social security based on her former husband's earnings.  The husband who appealed wanted the alimony terminated which was denied based largely on the fact that his obligation was reduced by social security.  This is an area that lots of money can be saved for a client potentially.  In the second part of the case, the chancellor excluded an expert who was not designated sixty (60) days prior to trial.  This was also affirmed.  It appears the expert was designated in the middle of trial from some of the language in the opinion.  The relevant language stating the law in the area is below. 

"Rule 1.10(A) of the Uniform Chancery Court Rules provides that, “[a]bsent special
circumstances[,] the court will not allow testimony at trial of an expert witness who was not
designated as an expert witness to all attorneys of record at least sixty days before trial.”  In
addition, our caselaw recognizes that “[t]he purpose of the strict discovery rules is . . . to
avoid trial by ambush and to ensure that all parties involved have a reasonable time for trial
preparation.”  Poole ex rel. Poole v. Avara, 908 So. 2d 716, 725 (¶19) (Miss. 2005) (citation

The language of preventing trial by ambush has backfired on a defense attorney in one case I am aware of.  They tried to argue to exclude an expert who was not fully designated as an expert with all of his opinions in the designation.  This was after they stipulated he was an expert, participated in his deposition, got full disclosure of his opinions in the deposition, had his opinion for months, and then tried to exclude him the week before trial.  Trial judge said no way and allowed the opinion in.  The reasoning was, how can there be ambush under those circumstances?  This gives you an idea how to argue both sides of this. 

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