Learned Treatises

Mississippi Rule of Evidence 803(18) provides that: 

"(18) Learned Treatises.  To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. Treatises used in direct examination must be disclosed to opposing party without charge pursuant to discovery.". (emphasis added)

There are a couple of minor points on the last part.  If a treatise is used in direct examination, it must be disclosed.  However, if one is used in cross, it need not be disclosed.  However, it may be hard to lay a foundation that the item is in fact a learned treatise if no foundation is laid.  The second point is that the item may not be entered into evidence.  However, there is some authority from other jurisdictions that indicate if the item is published to the jury, it can go into evidence.  There is no authority one way or the other on this in Mississippi that I have been able to find. 

Bar Economic Survey

This week the Mississippi Bar released the results from the 2014 Mississippi Bar Economic Survey. Here it is. The last survey was for 2011. To me, the results look pretty skewed.  There are obviously attorneys who make a lot, that brings the median up a lot.  On the bright side, there are some areas regarding quality of life that appear to be better. 

Oral Argument of Interest

The Court of Appeals is set to hear oral argument today in Carlson v. Brabham.   The case deals with the rights of an unmarried long term partner.  This is probably going to be the next hot issue in family law.  Less and less people are getting married today.  The Court will hopefully give some guidance on this issue once an opinion comes out.

Advising on Appeals

I still do a lot of appeal work.  In criminal cases, there is what is called a Lindsey brief.  This is a brief that says there were no appealable issues found and gives the individual defendant a chance to file his or her own brief.  In civil appeals, there can be a similar issue.  Many times, I have to go over the case in detail with potential clients in order to get an idea of the potential appealable issues.  If you are still in the ten (10) day window for post trial motions, I don't see anything that prohibits additional testimony either.  Unfortunately, until you actually have a full transcript of the trial, there is no way to fully advise a client one way or the other unless you are the trial attorney.  As such, many times a client is advised that they cannot be fully advised.

Blog of Interest

An evidence blog located here has several good articles of interest.  Several of them address issues which are still unresolved and on the cutting edge of legal theory. 

Cert Grant of Interest

The Mississippi Supreme Court granted cert in Perriece Collins v. Toikus Westbrook, M.D.  yesterday.   The link is to the Court of Appeals opinion.  From reading the opinion and the cert request, it looks like an extension should have been granted to me.  This was the case where the father Dr. Westbrook was served instead of the son Dr. Westbrook.  The trial court originally granted a motion to dismiss finding that the defendant had not been served and there was not good cause to extend the time for service. The Miss. Court of Appeals affirmed. In doing so, the Court stated, “While this Court may not have made the same decision as the trial court, we cannot say the trial court abused its discretion.”   The Court of Appeals opinion was split.  I would predict a reversal. 

Trial Course

Trial Theater offers one of the better trial courses.  A link to it is here.  For the money, this is the best one I have found.

Amendment of Pleadings

In amending pleadings, the Mississippi Rules of Civil Procedure difference slightly from the Federal Rules.  The Federal Rules permit one (1) amendment as a matter of right before any responsive pleading is filed.  However, the Mississippi Rules place no such limitations according to the comments.  As such, if no responsive pleading has been filed, in theory you could file as many amendments as you want. 

Irreconcilable Differences

Parties can always divorce by irreconcilable differences in Mississippi.  I am always amazed at people who want a divorce, insisting it be granted to them on fault based grounds.  All an irreconcilable differences divorce does is guarantee the parties a divorce.    I heard about a case yesterday where both parties pleadings were dismissed with no award (including custody) of any kind to either party since one party insisted on a fault divorce. 

Engagement Ring

The Mississippi Court of Appeals decided Lomax v. Lomax last week located here.  The issue in the case was whether an engagement ring was martial property.  The court ultimately found it was separate property given before the marriage.  It had all the criteria of a gift.  This was despite the fact that the husband claimed it was a family heirloom that the wife was only to keep temporarily. 

Discovery Issue in Divorce

The Mississippi Supreme Court granted cert yesterday in Moseley v. Smith which presents an interesting issue regarding whether there is a discovery rule (tolling the statute of limitations ) for violations of a divorce agreement.  The Court of Appeals founds that there is a discovery rule.  Here’s the COA opinion.  Here’s the cert. petition.

Same-Sex Adoption Ban Challenged

Mississippi currently still bans same-sex adoption.  Suit has been filed to challenge this.  A newspaper article discussing the challenge is located here.  According to the article, Mississippi is the only state in the country left with this ban still in place.  In light of recent United States Supreme Court rulings, I doubt the law stands. 

Free CLE

The Desoto County Bar is hosting a free CLE on August 14, 2015 at the Hernando public library from 10:00 A.M. until 1:00 P.M.  If anyone is interested in going, email me and will put you on the registration list.  The topics will be circuit and chancery court practice. 

Personal Injury Awards and Divorce

Divorce and personal injury awards often overlap for some strange reason. This was the issue in  Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). The issue then arises whether a particular spouse’s personal injury award, settlement money, or any remainder thereof constitutes marital property subject to equitable distribution.   Following the trend in Georgia and North Carolina courts, in 1999, the Mississippi Supreme Court adopted a specific approach–called the “analytic approach”–in assessing whether a personal injury award, or whatever sum remains outstanding at the time of divorce, constitutes separate or marital property. Tramel v. Tramel, 740 So. 2d 286, 290 (Miss. 1999). Under the analytic approach, Mississippi courts must delineate between certain “detailed portions” that make-up a given personal injury award or settlement when classifying property. Id. As the Tramel court declared:

(1) that portion of the proceeds award allocable to compensation to the initially injured spouse for pain, suffering, and disfigurement should be awarded in its entirety to the injured spouse;
(2) that portion of the proceeds allocable to lost wages, lost earnings capacity, and medical and hospital expenses, to the extent those apply to the time period of the marriage, are marital assets and are to be divided according to equitable distribution principles; and (3) that portion of the proceeds allocable to loss of consortium should be awarded in its entirety to the spouse who suffered that loss.

Id. at 291. Thus, the amount of a given personal injury award designated to account for pain, suffering, or disfigurement incurred by the injured spouse and any award for post-divorce wages and medical expenses exclusively constitute separate property of the injured spouse that is not subject to property division. Id. Likewise, any award for loss of consortium (loss of companionship and loss of love and affection) constitutes the separate property of the non-injured spouse, which is not subject to property division; while on the other hand, an awarded amount for lost wages and medical expenses during the marriage constitutes marital property subject to property division. Id.

It is important to note that the analytic approach is not so easy to apply in practice because some personal injury awards, and especially many financial settlements, may allocate a given amount for some other reason that does not fit into one of the “detailed portions” or categories outlined in Tramel. Thus, a personal injury award or settlement will not always neatly fit into one of the Tramel categories. In these events, the chancery courts will rely on their broad discretion in dividing the marital estate on a case-by-case basis.

Discovery of Attorney's Fees

I have been looking at the issue on the discovery of attorney's fees in cases for a while.  From prior experiences and review of the caselaw, if an individual pleads a request for recovery of attorney's fees, this makes the hourly rate, amount of time, and various other things discoverable.  However, I think there is still a pretty good argument that portions of the itemized bill may not be discoverable depending on how detailed it is.  If the bill deals with strategy sessions and goes into it specifically, probably not discoverable.  If the bill does not, probably is.  This is one area where less detail may be better for discovery issues. 

Chancery Approval

Yesterday, the Mississippi Supreme Court decided In the Matter of the Guardianship of O.D. located here.  The case dealt with the chancery court approving a minor's settlement.  An insurer removed a case to federal court and later the case was remanded once it was determined there was no basis for removal.  The chancery court then awarded $18,000.00 in sanctions for the removal.  This was ultimately affirmed.  The court reasoned that two decades of caseload required chancery approval and that the removal was for the purpose of delay. 

Moneyball

I was reading an article yesterday dealing with attorneys wanting to create a "Moneyball" type database to record wins, losses, and judge tendencies in cases.  Frankly, I think a lot of attorneys would love access to that type information and be willing to pay for it.  I have used similar data before to craft arguments based on a judge's prior decisions. 

Proximate Cause

On July 23, 2015 Circuit Court Judge David Strong entered a $635,325 judgment in McCrory v. Lincoln County School District. The accident happened in 2011. The decedent, Tammy Jo Brown was traveling on a road in Wesson when she collided with a Lincoln County school bus traveling in the opposite direction. The school bus was two feet over the center line at the time of the collision. Brown died at the scene.  Brown was speeding: 68 mph in a 20 mph zone before the collision and 52 mph at the time of the collision. The school bus was also speeding: 35 mph. The bus driver saw the car approaching from two hills away, yet didn’t get into her own lane.   The Court apportioned 90% fault to the bus driver and 10% fault to Brown. The Court assessed damages as $205,917 in economic damages and $500,000 in loss of society and companionship.  Due to Brown’s 10% fault, the damages were reduced and judgment entered in the amount of $635,325.  This case illustrates why proximate cause is so important in a case.  The trial court found that the acts of the bus driver were the reason the accident occurred.  The order on the case is located here. 

Peer Review of Expert Testimony

The Mississippi Supreme Court decided Memorial Hospital at Gulfport v. White last Thursday located here.  The trial court had returned a Plaintiff verdict which the Defendant attacked on appeal by arguing the expert testimony of the Plaintiff was inadmissible since it was not supported by medical literature.  The following quote is the analysis of that issue which is worth filing away:   

“…under our precedent, medical experts are not required to support their opinions with medical literature.  We did state in Hill v. Mills that “when an expert (no matter how qualified) renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance in the scientific community.”  But we made it clear that we were not creating a requirement that an expert’s opinion be supported by peer-reviewed literature.  Indeed, we stated that we were not retreating from our ruling in Poole, where we held that peer-reviewed literature and publications are not absolutely required, and their absence does not constitute automatic inadmissibility. Here, Memorial did not challenge the opinions of White’s experts as contrary to the scientific community.  And it did not present medical literature that contradicted the opinions of White’s experts.  Rather, this case presents nothing more than a classic example of a  “battle of the experts.”  White presented experts who supported a reasonable probability of a substantially better outcome, whereas Memorial offered expert testimony that supported only a potential chance of a substantially better outcome.  And as we consistently have held, the fact-finder—in this case, the trial judge—determines the winner of a battle of experts.”