Friday, November 28, 2014

Book of Interest

Trial Guides just released a new book I will be getting in the next few week.  Randi McGinn has written Changing Laws, Saving Lives:  How to Take on Corporate Giants and Win.  The book details one of her cases dealing with the death of a store clerk and goes through all the trial strategy with it.  A link to the book is located here.  The reviews have been good so far and it looks like an excellent read.

Thursday, November 27, 2014

End of Year Settlements

The end of a calendar year is normally a good time to resolve cases.  Insurance companies want to get cases off their books and tend to use remaining reserve funds for that purpose.  Anytime after Thanksgiving is normally when the phone calls start.

Wednesday, November 26, 2014

Affirmative Defenses in Divorce

Just like any other case, affirmative defenses must be raised into the answer to a divorce action.  This was illustrated in Lee v. Lee located here which the Mississippi Court of Appeals decided on Tuesday.  The relevant language is below.

"¶15. Condonation or antenuptial knowledge, as affirmative defenses, must be specifically
pleaded or else the defenses are waived.  Carambat v. Carambat, 72 So. 3d 505, 511 (¶27)
(Miss. 2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss.
Ct. App. 2007)).  “Affirmative defenses that are neither pled nor tried by consent are deemed
waived.”  Ashburn, 970 So. 2d at 212 (¶23) (quoting Goode v. Village of Woodgreen
Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)).
¶16. Chris did not raise condonation or antenuptial knowledge as an affirmative defense
in his pleadings.  However, parties may try an affirmative defense through implied consent.
Mississippi Rules of Civil Procedure 15(b) provides:
When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon the motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
See also Lahmann v. Hallmon, 722 So. 2d 614, 691 (¶15) (Miss. 1998)."

The Appellate Court and the trial court found that the Appellant had waived the defenses by failure to timely raise them and they were not tried by consent.  This is why I always plead this in answer to a divorce complaint just to be on the safe side. 

Tuesday, November 25, 2014

Incomplete Proof

Incomplete proof is one area I see in a lot of cases.  Parties request attorney's fees with no proof of attorney's fees, request modification of custody with no proof of the Albright factors.  This is why it is so important to have checklists on these type of cases in order to determine if you have all the proof you need.  Without this, even if you somehow win at trial, you lose on appeal. 

Monday, November 24, 2014


Mediation has its good and bad points.  In a divorce matter, mediation is normally good for both parties.  Family law is one of the gray areas of the law where no party typically gets everything they want.  In a tragic personal injury matter, many times mediation is not worth it.  Doctors and defendants many times refuse to be rational in either admitting liability or the amount of damages.  Many times insurance companies can make substantial sums of money by delaying a number of claims.  A good article discussing mediation in the personal injury context is located here. 

Friday, November 21, 2014

Natural Parent Presumption

The natural parent presumption in Mississippi provides that the natural parent is presumed to be the best custodian of a minor child unless they have abandoned the minor child or are proven unfit.  This was illustrated in Wilson v. Davis decided by the Court of Appeals last week.  The trial court and the Court of Appeals found that the sexual relationships of the father and some issues in his home made him unfit which resulted in the grandmother getting custody of the minor child.  There was a pretty strong dissent in the case.  The dissent more or less said that the Father's sexual relationships with several people was not sufficient to overcome the natural parent presumption.  Based on the limited facts in the opinion, the dissent makes a good point.  I would expect this case to go up to the Mississippi Supreme Court. 

Thursday, November 20, 2014

Loan to Pay Attorney's Fees

The Mississippi Court of Appeals decided Seale v. Seale located here on Tuesday.  One of the issues in the case was whether a loan from a parent to pay attorney's fees could be considered a martial debt.  The Court of Appeals said yes and affirmed the trial court finding as such.  To me, this is always a fact intensive issue.  Many times, spouses claim these as debts when they are in fact gifts.  I was involved in one case where the spouse claimed a loan from her parents and then listed it as a gift on a loan application.  Needless to say, the chancellor found it was a gift at that point. 

Wednesday, November 19, 2014

Pain and Suffering

Pain and suffering is something hard to measure.  This was an issue in Harper v. Norman decided yesterday by the Mississippi Court of Appeals located here.   There was only about $2,000.00 in medical bills but pain and suffering that continue through the day of trial.  The jury granted a $25,000.00 verdict and this was affirmed.  The Court of Appeals noted that this amount did not shock the conscience.  Also this case indicated that pain and suffering is not determined by the amount of medical bills which insurance companies always try to argue. 

Tuesday, November 18, 2014

Boilerplate Answer

On thing that irritates me on a personal injury case is getting boilerplate answers.  My personal favorite was recently where the at fault party ran a stop sign.  My office filed suit and one of the affirmative defense was that my client was negligent resulting in her own injuries.  At some point, a motion needs to be filed to dispose of certain affirmative defenses either as a motion to strike or potentially a partial summary judgment motion.  This disposes of some of the smoke and mirrors defendants often try to use on these type cases. 

Monday, November 17, 2014

Lecture of Interest

I found a good lecture by noted trial lawyer Rick Friedman on YouTube last night.  A link to it is located here.  If you need some inspiration as an attorney or do not feel what you are doing is making a difference, this video is a good motivational speech. 

Friday, November 14, 2014

Resisting Discovery

Rule 37 of the Mississippi Rules of Civil Procedure deals with the penalties for failure to respond to discovery.  There is a lesser known provision of the Rule under section (e) which provides as follows:

"(e) Additional Sanctions.  In addition to the application of those sanctions, specified in Rule 26(d) and other provisions of this rule, the court may impose upon any party or counsel such sanctions as may be just, including the payment of reasonable expenses and attorneys’ fees, if any party or counsel (i) fails without good cause to cooperate in the framing of an appropriate discovery plan by agreement under Rule 26(c), or (ii) otherwise abuses the discovery process in seeking, making or resisting discovery."

Section (ii) deals with resisting discovery.  This can have some far reaching consequences.  For example, suppose a party objects to a subpoena issued which delays discovery.  This can lead to an award of fees and expenses under Rule 37 (e). 

Thursday, November 13, 2014

Nine Week Divorce Trial

I was reading an article about a recent nine week divorce trial recently where the husband was ordered to pay close to one (1) billion dollars as part of a property division.  A link tot he story is here.  It is hard for me to imagine nine weeks on a divorce trial.  This was obviously a high asset divorce where there was apparently a ton of testimony regarding whether the company the husband had increased in value due to his efforts or market forces. 

Wednesday, November 12, 2014

Twombly Pleading

On Monday, the U.S. Supreme Court used a Mississippi case to flush out some issues on Twombly pleading that I previously blogged about.  The case is Johnson v. City of Shelby located here.  The case made some interesting points in that the trial court and the 5th circuit had granted summary dismissal because the specific cause of action was not stated in the complaint.  However, the U.S. Supreme Court stated that Twombly only required that sufficient facts be plead to state a cause of action and not necessarily the cause of action itself.  As such, the case was reversed. 

Tuesday, November 11, 2014

Suicide and Medical Malpractice

The Mississippi Supreme Court dealt with the issue of medical malpractice leading to suicide last week in Truddle v. Baptist Desoto located here.  This was a 5-4 case where the Court affirmed the granting of summary judgment by the trial court which found that the Defendant's suicide was not actionable under the facts presented.  The Court seemed to hang its hat on the fact that the patient had left the Defendant's care and later committed suicide.  The language below is what the Court noted. 

"Nothing in Mississippi caselaw, save the irresistible-impulse doctrine, however, abrogates the general rule that suicide constitutes “an independent, intervening and superseding event that severs the causal nexus between any wrongful action on the part of the defendant.” Shamburger, 84 F. Supp. 2d at 798 (citing Nicholson on Behalf of Gollott v. State, 672 So. 2d 744, 753 (Miss. 1996)). The Edgeworth Court specifically stated that the irresistible-impulse doctrine applied as an exception to the general rule regarding suicide because “[a] higher degree of responsibility is imposed upon a wrongdoer whose conduct was intended to cause harm than upon one whose conduct was negligent.” Edgeworth, 214 So. 2d at 586.  Furthermore, this principle extends to medical-malpractice claims.

To recover under the irresistible impulse doctrine, the plaintiff would have to “plead and prove: (1) the decedent was under an ‘irresistible impulse’ rendering him or her unable to discern the nature or consequences of suicide, and (2) the “irresistible impulse” was proximately caused by the defendant’s intentional conduct.”

Based upon this, the summary judgment was affirmed.  There was a strong dissent in the case which noted that the patient had exhibited strong side effects of the medicine and in fact had returned for care where the doctors did nothing to address the situation.  This case was very fact intensive and I see a lot of wiggle room in the opinion. 

Monday, November 10, 2014

Uninsured/Undersured Insurance at Trial

The Mississippi Supreme Court decided Heflin v. Merrill, et. al. located here last week.  The case settled an ongoing legal issue among members of the bar.  The issue was whether at trial the Plaintiff is entitled to mention that the uninsured insurance company can be mentioned as a Defendant.  The Court found that the trial court properly instructed the parties to not mention the presence of the underinsured insurance company.  To me, this is really confusing.  The insurance company has a right to participate in trial, challenge jurors for cause, but the jury has no right to know who the lawyers are there for or who they represent. 

Friday, November 7, 2014

Children and Alienation of Affection

The Mississippi Supreme Court decided Brent v. Mathis. yesterday which is located here.   This was largely a case of first impression of whether minor children had a cause of action for alienation of affection against a parent's paramour.  The Mississippi Supreme Court said no.  This resulted kind of surprised me.  As the dissent noted in the case, there are a number of earlier opinions particular from the 1800s or so that indicated family members had a cause of action.  The holding appears to indicate that the spouse has the right to file broad claims against multiple defendants but that the inverse of multiple parties having the right to file suit against the one who alienated the affections is not legally possible.  This appears to make a narrow holding that the spouse themselves is the only individual who has the right to bring the claim. 

Thursday, November 6, 2014

Apartment Liability for Roommate

The Mississippi Court of appeals decided Galanis v. CMA Management Inc. located here on Tuesday.  The issue in the case dealt with an apartment's duty to warn a roommate of the other roommate's violent nature.   This had led to one roommate murdering another roommate.  The trial court granted summary judgment to the apartment complex and the Court of Appeals affirmed.  The Court of Appeals noted that there was no issue of fact that the apartment complex was not on notice of any violent nature of the roommate.  There were several judges who dissented that summary judgment was not appropriate and there was several pieces of evidence that created an issue of fact that the complex was on notice.  I except this case to go up on cert. 

Wednesday, November 5, 2014

Adultery and Custody

In the old days, the fact that a party committed adultery almost assured that the other party obtained custody in a divorce case.  That view has softened a great deal and it is merely a factor now.  This was the issue in Holcomb v. Holcomb decided yesterday which is located here.  The husband appealed a custody award to the wife who stipulated she committed adultery at trial.  The Court of Appeals affirmed.  The big issue was there was no proof that the adultery had any affect on the child or the ability of the wife to care for the child.  This has been the general direction of most trial courts and the Court of Appeals in recent years. 

Tuesday, November 4, 2014

Competing Contempt Petitions

Many times on domestic cases, parties will have competing contempt petitions.  How these are dealt with is not uniform between chancellors.  Some chancellors take the view that each contempt is a separate issue and will adjudicate them each separately on both parties.  Other chancellors take the view that the old clean hands doctrine applies and that if either party is held in contempt then neither party is entitled to attorneys fees but each party has to get in compliance with the court's order.  Both views are fully supported by the caseload and would likely be affirmed on appeal.  This is why it is important to know how each chancellor deals with the issue. 

Monday, November 3, 2014

Injury Affects Body as a Whole

Many people do not realize that even a minor injury affects the body as a whole.  I was reminded of this myself over the weekend after hurting my back.  Anytime one part of the body is injured, the other parts of the body have to overcompensate until the injured member is healed.  For example, with a back injury, this creates walking problems which creates leg pain, which creates foot pain, which leads to tension headaches, etc.  Moe Levine wrote about this in many of his trial lawyer lectures many years ago.  It makes for a powerful jury argument when presented properly.