Tuesday, June 30, 2015

Made Whole Doctrine and Medicaid

The Mississippi Court of Appeals issued Medicaid v. Pittman Tuesday located here.  The issue in the case was whether the made whole doctrine prevented Medicaid from asserting a lien for damages in a minor settlement.  The trial court applied the made whole doctrine and ruled that Medicaid could not assert a lien.  The Court of Appeals reversed and remanded stating that Medicaid was statutory and as such, the made whole doctrine did not apply.  The case ruled that contractual liens are the only ones subject to the made whole doctrine.  The opinion is worth a read and can make a big difference on the bottom line in settlements. 

Monday, June 29, 2015

Possible Issues Related to Same-Sex Marriage Ruling

I predict there will be two legal issues in Mississippi as a result of last week's same-sex marriage ruling by the U.S. Supreme Court. 

(1)  The statute forbidding adoptions by same-sex couples is and/or will be held unconstitutional.  
(2)  A custody issue will develop over whether Albright should be used in a custody case between divorcing same-sex partners or whether it is to be treated as a third party custody case where one (1) parent is the biological parent. 

Friday, June 26, 2015

Same-Sex Marriage

The U.S. Supreme Court just ruled that states have to issue same-sex marriage licenses and also recognize same-sex marriages from other states.  The decision is located here.

Thursday, June 25, 2015

Rebutting Child Support Guidelines

Mississippi code 43-19-101 sets the standard percentages for child support.  However, these may be deviated from if the criteria in 43-19-103 is met.  The factors the Court can look at are:
(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents' incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent's homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Daycare expenses are a big issue and extreme medical expenses.  Both of these are things to look at to obtain a greater child support award.  However, the same items may also be used to get a lower award in the right case. 

Wednesday, June 24, 2015

Social Security Hearing

I have getting ready for a social security hearing this morning.  A good place to find information on specific listings is www.severe.net.  A former opinion writer actually told me he used this site a good bit in formulating opinions for the administration. 

Tuesday, June 23, 2015


Rule 41 of the Mississippi Rules of Civil Procedure allows the parties to dismiss a case without getting an order signed by the Court.  I normally prefer to do an order, but the Rule does not require it.  The Rule provides as follows:

(a) VoluntaryDismissal Effect Thereof.
(1)  By  Plaintiff  By  Stipulation.    Subject  to  the  provisions  of  Rule 66,  or  of  any  statute
of  the  State  of  Mississippi, and  upon  the  payment  of  all  costs,  an  action  may  be  dismissed  by
the plaintiff without order ofcourt:
(i) by filing a notice of dismissal at any time before service by the adverse partyof
an answer or ofa motion for summary judgment, whichever first occurs; or
(ii)  by  filing  a  stipulation  of  dismissal  signed  by  all  parties  who have  appeared  in  the

Unless  otherwise  stated  in  the  notice  of  dismissal  or  stipulation,  the  dismissal is
without prejudice

This can be a good option when parties want a case to end immediately upon the reaching of an agreed upon settlement once the money exchanges hands. 

Monday, June 22, 2015

Settlement Offers

Settlement offers are not admissible in court.  However, I am many times shocked how often they are not communicated in domestic cases.  I have seen this happen in several cases in the past after deposing a party or pinning them down in a hearing on an issue.  Anytime a settlement offer is sent, correspondence needs to be sent to the client regarding what it is.  I remember one case where it was determined after the fact that the opposing attorney was milking time to get more money along with trying to restrict visitation.  (no restricted visitation was being sought by the parent).  The case literally settled in its entirety within forty-five (45) minutes after this was discovered. 

Friday, June 19, 2015

Videos of Interest

Trial Guides has put out a new line of videos regarding the Rules of the Road book series.  Here is a link to the deposition set.  This is the set I am probably going to invest in soon.  It is harder to get cases to trial.  Ultimately, depositions are what can make or break a case. 

Thursday, June 18, 2015

Joint Custody

The Mississippi Court of Appeals decided White v. White on Tuesday located here.  The issue in the case that I found interesting was that the court rejected an argument that the court was required to consider joint custody prior to awarding primary custody to one party.  There had been some cases that seemed to hint at this. 

Wednesday, June 17, 2015

Heighten Standard on Proposed Findings

The Mississippi Court of Appeals decided Burnham v. Burnham yesterday located here.  This was where a rehearing was granted from a prior opinion.  The interesting part of the opinion is that it noted that there is no longer heightened review when a chancellor adopts the proposed findings of one party.  The dissent argued that some form of heightened review does or should still exist.  From a practical standpoint, the biggest issue I see with adopting one parties proposed findings is that it is hard to tell if one party actually reached the same decision as the chancellor, or if the trial court had to pick one parties' version due to time constraints or other factors. 

Tuesday, June 16, 2015

Form Discovery

Any who has had a case with me knows I pretty well have everything formed up as far as pleadings.  However, those also have to be tweaked to the particular merits of the case.  I am working on a case now where I am pretty sure the attorney did not read what was sent.  The discovery responses keep asking about the basis for an accident, when there was no accident of any kind that is the subject of the litigation.  The problem with that is that it counts against the number of interrogatories you have and also the response not applicable is a perfectly valid response.  However, I normally try to give opposing counsel the benefit of the doubt on these and supply some kind of answer to redefine their terms a little (i.e. made accident, incident).

Monday, June 15, 2015


The ABA had an interesting article recently on sanctions for violating a pretrial order located here.  In the case, a defense attorney apparently deliberately violated a pretrial order in a medical malpractice case to not discuss the plaintiff's history of smoking.  As a result, the trial judge ordered a new trial and sanctioned the attorney for 1 million dollars.  I am not sure what the amount was based on.  Considering how complex and expensive medical malpractice cases are, this may have been the expected cost to get the experts back for trial along with a few weeks of lost income to the attorneys for having to do a retrial. 

Friday, June 12, 2015

Rule 5.1 Amendments Suspended

The Mississippi Supreme Court suspended the proposed amended Rule 5.1 to the Mississippi Rules of Civil Procedure yesterday.  The order is located here.   This is a good result.  Most every chancellor and attorney I have discussed the issue with had a lot of concerns over the application of the proposed rule change.

Thursday, June 11, 2015

First Appointment with Family Law Attorney

Many times people ask what they need to bring to their first appointment in discussing a divorce.  In the first appointment, the attorney attempts to assess the following things:
  • What are the reasons for the divorce?
  • Whether there is provable fault by either party
  • What the child rearing has been and what are likely custody outcomes
  • What the finances are: how would assets be divided, how would each person survive in the event of a divorce
  • What the client is hoping to achieve in the long term
As a part of this process, the attorney will advise the clients on the basics of the laws on how to divorce, custody, division of property, and child and spousal support. At the conclusion of the assessment, the attorney can provide options and perhaps make a recommendation.  What can the client do to facilitate the best possible first appointment?
  • Court Documents: If there has been a court filing, the client must bring previously filed documents. The last order entered by a court is an absolute must if the client is seeking post divorce advice. Certainly, if a client has recently been sued, the client must bring the suit and the summons served upon them and be prepared to say exactly when the papers were handed to them.
  • Financial documents: (Note: the idea is to provide a basic understanding of the finances. Detail will be developed later)
    • Financial statements given by either party to lenders if you have them
    • basic financial statements prepared by either party
    • the latest pay stub for both parties if you have them
    • the latest statements for savings, stock and pension accounts if you have them (Note: the attorney will be interested in a basic idea of what was acquired during the marriage versus what was acquired before the marriage and what was received by gift during the marriage.)
    • Tax returns for the last three years if you have them
    • a social security earnings history if you have one
  • Basic Timeline of Events: (Too much detail would not be useful in an initial assessment)
  • Proof of Fault: such as telephone records, copies from Facebook, letters, recordings, pictures, cards, etc, pictures of bruises, doctor bills from abuse, etc.
  • Payment: Oftentimes it is important to protect against the other party knowing about the appointment, so make arrangements to pay by a method the other spouse will not be able to detect, such as cash or cashiers check or checking account to which the other spouse does not have access.  Additionally, the ability to pay some retainer is a most.  Coming to a consultation with the ability to pay nothing is not economical for most any attorney. 

Wednesday, June 10, 2015

Discretionary Functions and Traffic Accident

The Court of Appeals decided Timothy Mixon v. MDOT  yesterday with dealing with the immunity of MDOT for a traffic accident.   Mixon collided with an MDOT vehicle that was parked partly in the lane and as he went around the vehicle, it pulled out and the two vehicles collided.    The trial court granted summary judgment for MDOT on the grounds that it was immune from suit under the discretionary function exemption of the Mississippi Tort Claims Act.  The Court of Appeals reversed.  The following language is the key portion:
"Notwithstanding the provisions of sections 63-3-303, the act giving rise to the injuries  here is not the placement or maintenance of a traffic-control device—but rather Robert’s alleged negligent operation of the pickup. And although Robert may have been performing a discretionary function on the day of the collision, Mississippi law does not authorize governmental employees to violate traffic regulations en route to and from the site at which a discretionary function is performed."

Tuesday, June 9, 2015

Arbitration and Power of Attorney

There is an ongoing dispute as to whether a power of attorney is binding to require principal to be bound to arbitration.  I am aware of at least one (1) case in Tennessee that is pending concerning this issue.  Due to this, it is worth looking into having a power of attorney that expressly forbids the agent from signing up for forced arbitration. 

Monday, June 8, 2015

Death and Facebook

What happens to your Facebook account upon your death? Have you thought about it? Well, Facebook has.  Go to “Settings,” then “Security,” and look at “Legacy Contact.” Facebook walks you through the process of designating a person to handle your Facebook account in the event of disability or death. It explains everything. In addition, it explains how you can leave a Facebook account open for memorials after your death.  There is also an option to permanently delete your account, if you do not want an account after you pass away.

For more details, look here.

Saturday, June 6, 2015

Weight of Guardian Ad Litem Report

I am working on a brief dealing with the changing of a guardian ad litem report in the middle of trial.  This is rare and I think prejudicial.  However, after Gateley v. Gateley located here, the biggest question is what defects, if any, will justify reversal.   This is what makes me wonder if it is not time for the chancery court to consider court-appointed experts in complex custody cases to minimize potential problems and defects in GAL cases.   

Thursday, June 4, 2015

Alternate Payment

Drafting QDROs for domestic cases is painful to put it mildly.  There are potential issues regarding payments and one is almost never accepted the first time it is submitted for approval.  I am toying with the idea of drafting a clause ordering the payment from alternate sources if for some reason it is determined that the amounts cannot be paid from the retirement plan.  I keep seeing cases from the Court of Appeals where this is an issue because of federal law considerations on certain kinds of plans.  Think that at least allows some protection to the party getting the money. 

Wednesday, June 3, 2015

Out of Court Agreement

The Mississippi Court of Appeals decided Deckard v. Deckard yesterday which is located here.  The issue in the case was contempt for nonpayment of child support.  Mr. Deckard said the parties had an out of court agreement.  Ms. Deckard denied it.  Ultimately, with no proof, the court held him in contempt for over $100,000.00.  Any modification in Mississippi should be done by court order, otherwise this can happen. 

Tuesday, June 2, 2015

5.1 Waiver Language

Rule 5.1 of the Mississippi Rules of Civil Procedure went info effect April 30, 2015.  The new rule is below:

(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only:
(1) the last four digits of the social-security number and taxpayer-identification number;
(2) the year of the individual’s birth;
(3) the minor’s initials; and
(4) the last four digits of the financial-account number.
(b) Exemptions from the Redaction Requirement. The redaction requirement does not apply to the following:
(1) a financial-account number that identifies the property allegedly subject to forfeiture in a forfeiture proceeding;
(2) the record of an administrative or agency proceeding; and
(3) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed.
(c) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.
(d) Protective Orders. For good cause, the court may by order in a case:
(1) require redaction of additional information; or
(2) limit or prohibit a nonparty’s remote electronic access to a document filed with the court.
(e) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.
(f) Option for Filing a Reference List. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.
(g) Waiver of Protection of Identifiers. A person waives the protection of Rule 5.1(a) as to the person’s own information by filing it without redaction and not under seal.
It should be noted that the provisions are not mandatory as noted by the language in paragraph (a).  (Rule says may not shall).  I think the following language can be added to an order which may give attorneys some security as there has been some discussion about the practicality of this. 
"The Court finds that for good cause the redaction provisions of Rule 5.1 of the Mississippi Rules of Civil Procedure shall not apply to this order so that the parties and/or any third party can effectuate this order."

Monday, June 1, 2015

Movie of Interest

I was thumbing through Amazon Prime over the weekend and found a good documentary called Kids for Cash.  The documentary goes through a scandal in Pennsylvania where a juvenile judge was getting kickbacks for sending kids to jail.  The video also has a lot of interesting comments on how juvenile justice changed after the Columbian shootings.  It is a very thought provoking movie.