Monday, March 30, 2015


In Mississippi, there are certain timeframes to file a cross-appeal in a case.  Mississippi Rule of Appellate Procedure 2(a)(1) provides that “An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.”  Rule 4(c) of the Mississippi Rules of Appellate Procedure states that a party seeking to cross-appeal must "file a notice within 14 days after the date on which the first notice of appeal was filed." M.R.A.P. 4(c).  This means that you have the option of the thirty (30) days from the entry of the final order on a case or 14 days from the filing of a notice of appeal by the other party whichever is longer.  As such, no need to worry if you want to wait to see if the other party appeals to see if you want to cross-appeal.

Friday, March 27, 2015

Memphis Bar

The Memphis Bar Association just launched their new website yesterday.  It is located here.  It looks great and has a lot of useful resources for both attorney's and the public.  It also has a link to several useful court forms.

Thursday, March 26, 2015

Attorney's Fees for Contempt

The Mississippi Court of Appeals decided Bowen v. Bowen on Tuesday.  A copy is located here.  The case had already been on appeal once as the issue was the amount of attorney's fees for a contempt.  The attorney at trial for Ms. Bowen put on detailed proof of the amount of the fee and why the fee was higher than a normal contempt.  As a result, the fee was upheld.  This case is good to file away on how to prove Attorney's fees.

Wednesday, March 25, 2015

Violation of Court Order and Moral Fitness

Violation of a court order is a violation of the law.  This can have a bearing in a custody matter regarding moral fitness.  See In the Interest of N.B. and J.B. located here.  In this case, the chancellor held that the party who violated a court order is not favored on moral fitness. 

Tuesday, March 24, 2015

Another Caps Challenge

There is another challenge to the caps on noneconomic damages pending in Mississippi.  The case is Glover v. MBMC, et. al. which was a medical malpractice case from Hinds County.  The Plaintiff was a 15 year old treated at the emergency room for a rash. The ER doctor prescribed medication that caused second degree chemical burns all over the boy’s body. The Plaintiff is permanently scarred. 

The medication is supposed to be applied only by a doctor. The pharmacy settled before trial.  At trial, the doctor admitted that be breached the standard of care by failing to inform plaintiff and his mother about the dangers of the medication and how to safely apply it.  The doctor pointed the finger at the pharmacy.  The jury awarded $1.5 million in economic damages and $2.0 million in non-economic damages.  The jury apportioned 75% fault to the defendant doctor.  The doctor has appealed the amount of damages essentially and a cross-appeal has occurred for the caps issue. 

Here is the appellant’s brief.
Here is the appellees’ brief.

Monday, March 23, 2015

Guardian Ad Litem and Chancellor Findings

For some reason, many people feel that if a guardian ad litem finds for one party or the other, there is a burden to rebut the guardian ad litem.  That is simply not the case.  See S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (Miss. 2000) ("The guardian ad litem's presence .. . in no way detracts from the chancellor's duty to hear the evidence and make a decision on all of the evidence, not just on the testimony of the guardian ad litem."); S.G., 13 So. 3d at 282 ("Recommendations of a guardian ad litem must never substitute for the duty of a chancellor.").  As such, there is no burden shift and the guardian ad litem testimony is essentially treated as that of any other witness.  The only difference is that if the recommendation is not followed, the court has to state why. 

Friday, March 20, 2015

Divorce Taxes

Here is a link to some useful tax info on divorce that may be helpful. 

Thursday, March 19, 2015

Time Limits For Objections

I am at Larry Rice's CLE in Memphis for the next two (2) days.  It has been wonderful so far.  One issue that was discussed is adding contractual objections to billing.  What this does is to require a client to object in writing to any billing within thirty (30) days of receipt.  If there is no objection in that time frame, it is waived.  In a few recent guardian ad litem cases, we have included in the order that any objections to the report must be stated within a set time frame or they are waived.  This gets into issues of hearsay, legal arguments, etc.  Many times on those case, you have to make a judgment call of letting some things in that hurt your case so that your opponent cannot object to certain things coming in that likewise help your case.  I like the general concept and will be experimenting with it more. 

Wednesday, March 18, 2015

Discovery Violations

The Mississippi court of Appeals decided Agnes Lockhart v. Stirling Properties yesterday.  The case dealt with discovery violations.  The plaintiff did not disclose a number of pre-existing health issues. As a result, the trial court dismissed the case which was affirmed with dissenting opinions.  This is becoming an extremely popular defense tool in cases which is why it is so important to stress the importance of answering discovery fully and truthfully. 

Tuesday, March 17, 2015

Violation of Court Order and Moral Fitness

I was looking over some old cases last night and noted something in an opinion from last year.  The Mississippi Court of Appeals decided Beard v. Berryman located here in March of last year.  It was an adoption case between two third parties. The chancellor was affirmed in finding the Berrymans more morally fit because the Beards violated the court's orders.  To me, this is an interesting argument that I am surprised is not seen more often. 

Monday, March 16, 2015

Rooted in Malpractice v. Simple Negligence

Medical malpractice and simple negligence have different sets of rules.  On medical malpractice, there are certain notice requirements, needs for expert testimony, and various other things.  With simple negligence, no pre-suit notice is normally needed.  However, the safest course is that anything potentially rooted in medical malpractice, pre-suit notice is needed.  Think about this, nurse mops floor in patient room causing patient to fall.  Simple negligence or malpractice?  Malpractice is the safest course.  There are essentially regulations for everything in the medical context.  There are also potential issues in this scenario of whether restraints were proper and whether further precautions were potentially necessary such as proper monitoring. 

Friday, March 13, 2015

Discovery Violations

The Mississippi Supreme Court decided Kinzie v. Belk located here yesterday.  The trial judge had dismissed with prejudice a personal injury claim where the plaintiff allegedly made false statements in discovery.  The Court of Appeals had originally reversed the case.  The Supreme Court granted cert and also reversed the trial court.  It found that yes it was a discovery violation, but it was better to let the jury determine the credibility of the plaintiff on the issue.  The Supreme Court distinguished the case and indicated that only a pattern of misrepresentations in discovery can justify dismissal.  This case shows why it is best to be careful in responding to discovery and add qualifiers to any statements.   

Thursday, March 12, 2015

Confrontation Clause and Child Abuse

The United States Supreme Court is in the process of hearing a case dealing with the Confrontation Clause and child abuse dealing with a case from Ohio.  The Mississippi Supreme Court has held that the Confrontation Clause also applies in a civil context also with child abuse.  A link to an article about it is here.  This case could have some far-reaching implications in how abuse cases are litigated both civilly and criminally. 

Wednesday, March 11, 2015

Attorney's Fees on Motion to Reconsider

Yesterday, the Mississippi Court of Appeals decided Vincent v. Rickman located here.  To me, the interesting part of the case was that the chancellor was affirmed on awarding attorney's fees on a motion to reconsider.  Mr. Vincent was pro se so it is hard to gauge whether all of the proper legal arguments were raised at the hearing.  This opinion could be construed as allowing attorney's fees on the motion to reconsider where a party is found in contempt.  To me, the legal issue that I have not seen addressed which was also in the opinion is whether the party is entitled to the attorney's fees for the entire proceeding or just up until the contempt is purged?  In this case the entire fee was awarded and affirmed.  I have been able to argue in the past though that the party was only entitled to the payment of attorney's fees up to the purging of contempt.  What I have done to address this in the past is send the full payment and ask for an itemization of attorney's fees up until that date.  To me, that legally should cut off the bleeding but largely depends on the chancellor. 

Tuesday, March 10, 2015

Trial Prep

I was watching The Good Wife on DVR last night and it kind of gave me a flashback.  The main character was sitting preparing arguments on a  case and in her head she was making the arguments and then had a dialogue going on with what the other side was going to argue.  Trial prep is ultimately what takes so long on a case because you have to prepare everything you are going to do and then prep against everything opposing counsel is going to do.  Sometimes this leads to overkill on a case, other times, no amount of preparation can combat some random fact that comes out that is given more weight than normal.  There is no shame in losing if you have a bad set of facts.  That is beyond your control.  However, preparation is controllable. 

Monday, March 9, 2015

Attacking a GAL Report

I was reading an article by Larry Primeaux this morning dealing with the guardian ad litem report in Gateley v. Gateley.  A copy of the article is located here.  This lead me to do some thinking.  How is a guardian ad litem report attacked?  After some thought, I decided a learned treatise attacking under 803(18) of the Mississippi Rules of Evidence is one avenue.  As one chancellor has put it, there is caseload for most any position, and most of it is in Bell on Family Law.  I believe this book could be used as a learned treatise to attack an Albright analysis by a GAL. 

Friday, March 6, 2015

The Neverending Conflict

It seems that attorneys are always in conflict with someone whether it be other attorney, clients, or someone else.  I was thinking about this in preparing a few cases for trial.  Oftentimes, I seem to get brought in after a case is already gotten way off track. Someone tried to save some money on an attorney, and then either completely lost at trial or alternatively the case got so sidetracked that nothing is happening on the case with a bad temporary order in place.   One of the neverending conflicts is clients trying to save money vs. getting results.  As someone I know once said, some of life's most expensive lessons are caused by trying to save money on an attorney. 

Thursday, March 5, 2015

Snow Day Work

I am doing some work at the house today.  I am working on another constitutional issue dealing with the right of a party to be present in a civil case.  There is some old caselaw dealing with this which should be favorable to allowing the party to be present.  Will see how it turns out. 

Wednesday, March 4, 2015

Family Scheduling Tools

There are a number of family scheduling tools for divorcing couples online.  One of those is  A number of these sites make it where parents can post the kids schedules, exchange messages, and send bills to each other while reducing conflict.  Additionally, this makes it where there is a record of anything done or not done.  I am beginning to be a fan of such ideas as unfortunately many of these cases turn into glorified swearing contests when the issues are litigated. 

Tuesday, March 3, 2015

Reverse Engineering Custody Modification

The law in Mississippi regarding custody modification is clear.  The party seeking a modification must prove by the preponderance of the evidence a substantial and material change in circumstances, adversely affecting the minor child which is likely to continue, and that the best interest of the minor child will be served by modifying custody.  The best interest is determined by addressing the Albright factors.  One does not get to the Albright factors unless the other two prongs are shown first.  However, I think one can reverse engineer a custody modification to some degree.  If you can show the Abright factors are so heavily weighed in the favor of one party, the facts that show these often will produce enough proof to meet the first two prongs.  As such, the best way to start these cases sometimes is with an Albright analysis and then use the things found in the Albright analysis to show a change in circumstances.  The change in circumstances does not have to be something big, but a lot of little things can add up. 

Monday, March 2, 2015


I tend to do a lot of appellate work.  Recently, I finished reading a good book on appellate advocacy dealing with beefing up the facts section of the brief.  The theory is that everyone likes a good story.  Part of that is that with the right set of facts, many times cases which are close are decided based upon the facts and who the judges identify with more.  This has some truth in trial work also.  Many times I see cases which are legally light on evidence decided based upon who is liked the most.