Thursday, January 28, 2016

Criminal Case of Interest

My intent is to start adding criminal cases of interest to this blog.  Family law and personal injury often overlap into criminal cases.  Additionally, it is not uncommon to be defending a criminal case for a client when a divorce is filed as a result.

On Tuesday, the Mississippi Court of Appeals decided Land v. State located here.  Land was charged with convicted of armed robbery, aggravated assault,  and possession of a firearm by a felon for robbing a man he and his friend saw leaving  Walmart.  They saw the man counting his money as he walked so Land got out and shot him in the leg.   A security camera was able to tell law enforcement that shooter’s tag number.  On appeal Land argued that the trial court erred in allowing a police officer  to provide a narration of the surveillance videos shown to the jury and that the  trial court erred in allowing into evidence the shoes of Land’s friend, Sedrick Miles, when the shoes had not been  produced during discovery.

As far as the narration, the COA holds that “Lieutenant Jackson did not possess firsthand knowledge of the events recorded on the Walmart surveillance video. As a result, Lieutenant Jackson should not have been allowed under Rule 701 to offer opinion testimony regarding the actions in the video. However, in considering the totality of the evidence before the trial court, the error was, at best, harmless.” As for the discovery issue, Land waived it “because he failed to request a continuance or a mistrial, which is a requirement under Rule 9.04.”

To me, looks like the best evidence rule would have been a better objection on the video.  It is good to note though what is required when the prosecution pulls out surprise evidence. 

Tuesday, January 26, 2016

Affidavit Requirement

MCA § 91-7-145(2) provides that:

“The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail … to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have same probated and registered by the cleerk of the court granting the letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim … ” [Emphasis added]
** Been seeing this issue a lot lately with attorneys not filing the affidavit at all or filing it after the publication.  Not a problem unless a creditor appears.  If one does, no real argument to defend estate. 

Monday, January 25, 2016

Briefing of Interest

On Thursday of last week,  the Mississippi Supreme Court asked for additional briefing on In the Interest of: J.T., a Minor, D. T. and M. T. v. Hinds County Youth Court, a Hinds Youth Court case.  The Court  stated:  “The Court has determined that supplemental briefing is necessary to resolve this case. The Court hereby orders Judge Skinner on his own behalf or through counsel, and invites all parties and the Mississippi Attorney General’s Office, to brief whether the Mississippi Rules of Evidence apply in youth court sexual abuse adjudication hearings.”

Friday, January 22, 2016

Statute of Interest

Mississippi Code Annotated 93-5-23 provides as follows:  "The court may, in its discretion, exclude all persons from the court room during the trial except the officers of the court, attorneys engaged in the case, parties to the suit and the witness being examined."  The statute would be not be applicable to the extent it conflicts with the Rules of Evidence concerning when a party may be excluded in an abuse situation.   

Thursday, January 21, 2016

Save the Date

I am going to be one of the speakers at a CLE in Tupelo, Mississippi on June 23, 2016 concerning social media evidence.  The plan is discuss authentication and other issues concerning Facebook, Twitter, email, etc. 

Tuesday, January 19, 2016

Changes in Federal Rules from December 1, 2015

Numerous amendments to the Federal Rules of Civil Procedure came into effect on December 1, 2015. The amendments are to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84. These amendments have a variety of effects on the preparation of cases and the handling of potential claims. The following is a summary of the more significant changes.

Rule 4: The new rule reduces the time for service of process after the filing of a complaint from 120 days to 90 days. It also appends a new waiver of service form to the rule.

Rule 16: The changes to Rule 16 relate to scheduling and discovery orders, and include:
  • A judge may only issue a scheduling order after receiving the Rule 26(f) report of the parties or after consulting with the parties at a scheduling conference, but not after conferring with the parties by mail or telephone only.
  • Scheduling orders must be issued within 90 (formerly 120) days after service on any defendant, or after 60 (was 90) days after the appearance of any defendant.
  • In addition to the disclosure and discovery of electronic evidence, a scheduling order may now provide
    for the preservation of electronic evidence.
  • Before moving for an order relating to discovery, the moving party must first request a conference with the court.
Rule 26: The amendments include major changes to this rule, including:
  • Significantly, the Rule 26(b) scope of discovery has been redefined:
    • Discovery must now be relevant to any parties’ claim or defense, as opposed to being reasonably calculated to lead to the discovery of admissible evidence.
    • A proportionality requirement has been added, saying that discovery may now only be obtained if it is nonprivileged, relevant, “and proportional to the needs of the case.”
  • Rule 34 requests may now be delivered to another party after 21 days from service of that party, and are considered served at the time of first Rule 26(f) conference (the responding party has 30 days from the conference in which to serve responses).
  • A discovery plan must now include the parties’ views about preservation of electronically stored information.
Rule 34: The amendment requires that a party may produce copies of documents or electronically stored information in lieu of permitting an inspection. It also requires that any objection to a request must state whether, on the basis of its objection, the party is withholding any materials that are responsive to the request.

Rule 37: The amendments include a significant addition to this rule regarding the failure to preserve electronically
stored information. Now, where electronically stored information that should have been preserved is lost and cannot be recovered, the court may do one of two things:
  • Upon a finding of prejudice to another party, order measures to cure that prejudice, or
  • Upon a finding that the spoliating party acted with the intent to deprive another party of the information, presume the information was unfavorable to the spoliating party; instruct the jury that it may or must make the same presumption; or dismiss the action or enter a default judgment.

Monday, January 18, 2016

Divorce Form of Interset

Here is the general information needed in a divorce case.  Hopefully the form will be useful. 

Friday, January 15, 2016

Apps of Interest

In some recent litigation, I have been using TrialPad and TranscriptPad from Apple.  The TrialPad worked beautifully in a medical malpractice trial and worked much better than the high priced software the defense attorney was using.  TranscriptPad has been helpful in reviewing depositions late at night.  Additionally, the issue codes make for deposition summaries immediately at the end if you need them which saves a lot of time. 

Wednesday, January 13, 2016

Alienation of Affection - Statute of Limitations

The Mississippi Court of Appeals decided Anderson v. Lander on Tuesday located here.  The interesting issue in the case was whether the 3 year statute of limitation ran from the date the divorce was filed or the date the parties stopped having a relationship.  Apparently, the parties got back together after the divorce was filed.  The Court of Appeals found that the statute started to run the date they finally separated.  This makes sense as how can the affection be alienated if you keep coming back?

Tuesday, January 12, 2016

The Unsold House

I have had a rash of cases in the past few months where the parties agree to sell the marital home and then they cannot find a buyer.  What happens when it is not sold?  A property settlement agreement really needs to address this.  The best solution I have come up with is to add a provision to allow the trial court to retain jurisdiction if it is not sold in a particular time frame to determine how one parties equity may be obtained.  Without this provision, there is still some cases that say this is property division and may not be modifiable. 

Monday, January 11, 2016

Natural Parent Case

Last Thursday, the Mississippi Supreme Court decided Wilson v. Davis located here.  The case came to the Court on cert from the Court of Appeals.  The factual history can be located from the opinion.  The most interesting part of the opinion is that the Court seems to indicate that "exceptional circumstances" are needed as opposed to a basis to overcome the natural parent presumption plus best interest analysis.

Friday, January 8, 2016

MVLP Income Guidelines

I still do a good bit of pro bono work through the Mississippi Volunteer Lawyer's Project.  Below is their income guidelines in the event a client may qualify. 

Family Size

200% of Poverty

1: $23,540.00

2: $31,860.00

3: $40,180.00

4: $48,500.00

5: $56,820.00

6: $65,140.00

7: $73,460.00

8: $81,780.00


For family units of more than 8 members, add $4,160 for each additional member.

Wednesday, January 6, 2016

Extension of Time on Service of Process

On Tuesday, the Mississippi Court of Appeals decided Darville v. Mejia located here.  The case did an in depth discussion of what is necessary in order to get an extension of time for service of process.  In this case, the defendant moved around a lot and detailed information was given to show what attempts were made for service of process.  This is a good place to start any research on this issue. 

Monday, January 4, 2016

Tennessee Accident Case

In Hall v. Owens, No. W2014-02214-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2015), the Tennessee Court of Appeals affirmed summary judgment for defendant where plaintiff ran a red light and turned in front of defendant’s truck. As plaintiff approached an intersection, he had a red arrow for turning left. Defendant was approaching the same intersection driving a tractor-trailer truck, and defendant had a green light. Despite the red arrow, plaintiff proceeded into the intersection and turned left, at which time he was hit by defendant’s truck and severely injured.

The trial court and the Tennessee Court of Appeals found that this conduct amounted to 50% fault as a matter of law.  In Tennessee since the Plaintiff was at least 50% at fault, there could be no recovery.