Mississippi Court Videos

The Mississippi Supreme Court and Court of Appeals now have videos available online at YouTube located here.  The videos are of the oral arguments of cases pending along with several other videos on how to use the electronic court filing system.  There is also a feature where you can set reminders in order to view oral arguments as they are happening and watch them live. 

Impossibility as a Defense to Contempt

On Tuesday, the Mississippi Court of Appeals decided Miles v. Miles located here.  The issue in the case involved an ex-husband who failed to put his ex-wife as a joint beneficiary of an IRA as required by a property settlement.  The trial court found him in contempt for failure to do so.  The Court of Appeals reversed and rendered the judgment.  Due to the type of account it was, it was in fact a legal impossibly to list her on the account.  It should be noted that the former spouse additionally tried to enforce some agreement they had which was not in the property settlement.  The Court of Appeals also summarily dismissed this as well since the property settlement stated that it contained the exclusive agreement of the parties.  Those are two points to keep in mind in these type of cases and should also serve as a warning. 

Evidence to Support Modification

Yesterday, the Mississippi Court of Appeals decided Mize v. Mize located here.  The issue on appeal was whether the burden of proof had been met to modify custody.  The Court of Appeals ruled that the burden was not met in the case and reversed and rendered the judgment.  The focus of the opinion was on whether there was any adverse affect on the child or a change in the custodial parent's home.  The Court of Appeals ruled that the record essentially showed neither.  The important point of the case from reading between the lines is there has to be some foundation laid of an adverse affect in the home.  Unfortunately, the noncustodial parent rarely has this information which necessitates the child or some third party providing it.  The other option is a psychologist testifying as an expert regarding their opinion under Rule 702 after meeting with the child.   

Global Support Orders

I am in the process of preparing for a trial dealing with the effect of a global child support order and emancipation.  A global support order is one where there are multiple children but no specified amount per child.  There is caseload that says the judge has the discretion to reduce child support retro to the emancipation of the child that is part of the order but there is also caseload on the other side of the issue.  In this situation, the safest course is to apply for modification and get a new support order.  Otherwise, you may very well be liable for the full amount of the support amount particularly if your income has gone up. 

Retirement Case of Interest

There is currently a case on appeal of interest for those who deal with retirement issues in divorce in Mississippi.  The case is Darby v. Darby located here.  The case deals with the anti-assignment clause under Mississippi Code Annotated 25-14-5.  The trial court found that a divorce does not run afoul of the anti-assignment clause for constitutional reasons and also due to other code sections.  This could be extremely helpful in resolving a number of divorce cases because I can tell you from practical experience the anti-assignment statute creates a number of issues in property division. 

Current Conflicts in the Case

Below is a list of a few current conflicts in Mississippi caselaw in the area of family law.  Without listing all the cases that say such, as one judge has jokingly said (although also quite seriously), there is caselaw to support most any position in family law in Mississippi:

(1) McKee analysis of attorney's fees in contempt required or not required?
(2) reliance on third party advice as defense to contempt or not?
(3) full factor analysis of factor tests required on the record or not?

I potentially have a case that may give some clarification on the first two that is pending.  Best advice I have is that if you are trying one of those issues, there is a great deal of deference to the chancellor so work on finding out their positions. 

Oral Arguments in Same-Sex Divorce

The Mississippi Supreme Court had oral arguments in a same-sex divorce yesterday.  A link to the arguments is located here.  I was the trial attorney in the case and wrote the brief in the matter.  Carey Varnado did the oral arguments.  The Court asked for very pointed questions to the attorneys on both sides.  It will be interesting to see how this pans out. 

Know When You are Wasting Your Time

The more I practice, the more I realize that sometimes you are wasting your time trying to negotiate.  With insurance companies, if the first offer is the medicals plus a $1,000.00, it is better to just file suit.  If the first offer on a divorce case involves no visitation with the kids and paying 70% of income to soon to be former spouse, time to get a scheduling order and set for trial.  Typically, most cases do settle.  However, sometimes the best way to resolve a case in a favorable manner is to get it moving toward a trial date which gets both parties more reasonable. 

Covering Everything

Larry Primeaux had the following photo on his blog this morning.  It is extremely accurate of family law practice.  This is why I always have my clients send me a narrative of everything that has happened.  Additionally, I normally go through several items in detail with clients prior to trial.  After a good interrogation, I almost always uncover some additional facts that are helpful to the case.  I also occasionally find facts I need to prepare for that opposing counsel may or may not know about.  

 

 

 

 

 

 

 

 

 

 

 

 

 

Documents at Trial

I received an old book a few days back which looks really interesting.  The book is Tangible Evidence:  How To Use Exhibits at Trial.  A copy can be purchased on Amazon.  To me, this is one of the things I don't see many lawyers do very well.  All this time is spent getting documents in discovery and then I have seen attorneys with no clue what to do with them after that.  The book also goes through creating documents for trial (i.e. charts, graphs, summaries, etc.).  I have a trial in a few week where there is literally close to 2300 documents from various sources that have to be introduced as exhibits.  As such, we are looking at various ways to introduce the documents into a workable format. 

Book of Interest

I have been reading McCarthy on Cross-Examination in the past few days.  It is a relatively short book which is now considered a classic on cross-examination. The book goes over several psychological issues on structuring cross-examination.  It is well worth the time to read.  A copy can be obtained on Amazon. 

Newsletter

I am toying with the idea of doing an email newsletter on personal injury, divorce, etc.  I have to get caught up on some work before I can seriously look into it.  Some of you readers email me if there is an interest.  My intent would be to have it go out once a month via email. 

Working with Experts

Expert witnesses are typically just as busy as lawyers.  They have their own practices normally and review cases. I have found it helpful to give the experts a working theory of the case along with tabbing medical records in a medical malpractice case.  This shows the expert where you believe the smoking gun is which cuts down on the expense of review.  I have found this is generally appreciated as opposed to just dumping a stack of records on an expert and saying tell me where the problem is. 

Violation of Joint Legal Custody

Joint legal custody requires parents to meet, confer, and discuss items regarding the minor child or children of the parties.  Many times this is not done and one party of another just tells the other party what they did.  From a practical standpoint, it is hard to show willful contempt in this area because normally the parties get where neither one communicates well with the other.  However, this can be an area to probe into in other proceedings, (i.e. modification, increase in child support, etc.) to undermine the credibility of a witness. 

Magic Words and Medical Malpractice

John Day wrote a good blog post recently dealing with the language experts use in medical malpractice cases.  The post is located here.  To me, this is good reasoning in both Tennessee and Mississippi.  The issue of the article was whether an expert testifying has to use perfect legal language in order to survive a directed verdict.  Ultimately, the article discusses that this is not required based on a recent Tennessee Court of Appeals case.  The only thing required is that their be enough evidence that a reasonable juror could infer negligence. 

Termination of Parental Rights

Termination of parental rights in Mississippi just became a lot harder.  Larry Primeax wrote an interesting blog post on the matter yesterday located here.  The article goes through the Chasm v. Bright case decided by the Mississippi Supreme Court a few weeks ago.  He makes about the same observations I did when I first read the opinion which is that termination of parental rights is almost impossible now if the parent has any involvement with the child. 

Abuse and Denial of Visitation

Yesterday, I discussed the Mississippi Court of Appeals opinion from Tuesday Strait v.Lorenz.   The opinion is located here.  There was one other interesting issue in the opinion.  If you believe abuse is going on, do you deny visitation?  In that case, the father had gotten an order of protection in another state but never applied for assistance in Mississippi.   The father was ultimately held in contempt for this.  The best course of action in these situations is to get court assistance immediately along with getting DHS involved if there is genuine proof of child abuse.  If you immediately seek assistance from the court with proper jurisdiction, the chances of a contempt finding go down dramatically. 

Visitation Interference as Grounds to Modify Custody

Yesterday, the Mississippi Court of Appeals decided Strait v.Lorenz.   The opinion is located here.  The issue in the case dealt with when extreme visitation interference justifies modifying custody.  There was expert testimony that the child was adversely affected by unsubstantiated abuse allegations along with the Father's interference and outright denial of visitation.  The Court of Appeals found that the trial court properly modified custody.  Couple of points to look at.  To me, if you are making this claim there needs to be an expert witness involved.  The best bet in this situation may be to get a court-appointed expert.  Be aware, insurance will normally not cover this.  The other item is that a number of the Albright factors were found to be neural or favoring the mother because of the abuse allegations which were unfounded.  This along with the cases cited in the opinion to me stand for the proposition that equity can negate Albright factors where a parent is clearly favored.  Also, you may want to look at continuity of care on this case.  I have been noticing a trend that the Appellate courts are getting more receptive to the argument that continuity of care consists more of what you do for a child as opposed to just having them more of the time. 

Discovery Dispute Round Two

Yesterday I talked about a discovery dispute in the Mississippi Rules of Civil Procedure.  This is a kind of part two of that.  Rule 26 also provides that:

(A) (i)  A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Now, that can seem pretty straight forward.  However, there are two views on it.  Defense attorneys often take the position that the only way to conduct discovery on an expert is through interrogatories without leave of court.  Plaintiff attorneys like myself take the position that you can use subpoenas and other means to obtain discovery of an expert and that the rule only applies to their opinions in the case.  To me, the defense position in this is just wrong.  The best way I have found to get around the problem is to ask any information you need on bias and such in the interrogatory.  If it is not provided in the interrogatory, file a motion to allow other means to get the information.  I don't think it is necessary but it completely kills any argument the defendant has.  Also, judges hate dealing with discovery disputes. 

Disclosure Dispute in the Rules

The Mississippi Rules of Civil Procedure has an interesting issue concerning disclosure of witnesses.  Rule 26(b)(1) provides as follows: 

"(1) In General.  Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party.  The discovery may include the existence, description, nature, custody, condition and location of any books, documents, electronic or magnetic data, or other tangible things; and the identity and location of persons (i) having knowledge of any discoverable matter or (ii) who may be called as witnesses at the trial.  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears  reasonably calculated to lead to the discovery of admissible evidence."
On the above, some attorneys take the position that the Rules only require the disclosure of names and contact information of witnesses.  Other attorneys, myself included, take the position that you can require the substance of their testimony to be produced also.  The purpose of the Rules is to prevent trial by ambush.  I know several judges who have granted motions to compel on the substance of the testimony of witnesses if it was specifically asked for in discovery. The case that addresses this issue is McKnight v. Jenkins located here.  The Court of Appeals found that the failure fully identify the substance of testimony in discovery was a proper basis to exclude the witness testimony at trial.  I was involved in the case post-trial handling the appeal.  Both arguments were presented and the Court of Appeals went with disclosure being required. 

Difficulty in Finding Expert Witnesses

Both Plaintiff and Defendant often have a hard time finding expert witnesses for a medical malpractice case.  In Tennessee, the Health Care Liability Act requires that health care professionals testifying as experts, in addition to other requirements, be licensed to practice in Tennessee or a bordering state. Tenn. Code Ann. § 29-26-115.

Recently, a Defendant (which is rare) had their expert struck for failure to follow the above.  In Gilbert v. Wessels, No. E2013-00255-SC-R11-CV (Tenn. Dec. 18, 2014), plaintiff filed a health care liability action against an ophthalmologist who had performed YAG laser surgery on him. Less than a month before trial, the defendant doctor filed a motion to waive the contiguous state requirement. Defendant sought to have a doctor from Florida testify who was alleged to be one of the three doctors in the country with the most experience with this procedure. Defendant supported his motion with an affidavit saying that defense counsel had spent 35 hours attempting to identify an expert in Tennessee or a contiguous state, an affidavit from a Tennessee ophthalmologist stating that testimony should be provided by someone who had performed the procedure, and a portion of plaintiff’s expert’s deposition acknowledging that the Florida doctor was one of the most experienced in the county at the relevant procedure.

The Plaintiff opposed defendant’s motion, and the trial court declined to waive the contiguous state requirement, finding that defendant “had not established that appropriate witnesses would otherwise be unavailable.”  Ultimately the Tennessee Supreme Court found this was proper.  This shows how much discretion the trial court has over expert witness testimony. 

New Year

Happy New Year's to everyone.  It is a good time to go through and update computers.  I recommend Norton Internet Security, Malwarebytes, and a round of Combofix to clean up everything.