Felons and Firearms

A convicted felon cannot own a firearm.  Likewise, some convicted of misdemeanor domestic violence cannot either.  One quirky issue in this is whether a felon can hunt even using a crossbow or bow and arrow.  The Mississippi Attorney General issued an opinion in 2004 expressly allowing convicted felons to possess bows and crossbows.  See 2004 WL 555121 (Miss.A.G.) Opinion No. 2004-0043, dated February 13, 2004.  The opinion states:

It is the opinion of this office that a muzzle loading rifle or a muzzle loading shotgun is within the meaning of the term “firearm” as used in Mississippi Code Annotated Section 97-37-5. However, the statute does not include weapons such as a traditional bow and arrow or crossbow. Therefore, a convicted felon may possess (and consequently hunt with) a traditional bow and arrow or crossbow.

If you have been convicted of a felony and want to hunt with a firearm rather than a bow or crossbow, check with an attorney in your area to see if your conviction can be expunged.  Some things can be expunged, some cannot.  My office handles these on a pretty regular basis. 

Website of Interest

I came across a website of interested called Legal Office Guru located here.  It has some good notes on formatting of legal documents and also has several online courses in how to use Microsoft Word for formatting legal documents.

Consent Confusion

The Mississippi Court of Appeals decided Myrick v. Myrick yesterday located here.  The issue in the was that the chancellor awarded alimony although the consent to divorce did not provide for it.  The Court of Appeals reversed and remanded the alimony award finding that the chancellor could not award it since it went beyond the consent. However, the dissent argued as I have in another case that when you submit property division to the trial court, alimony is on the table also.  This case is confusing.  However, the lesson is that if you do not put the relief in the consent on irreconcilable differences for the court to determine, you may not be entitled to it. 

Alienation of Affection Unconstitutional?

In light of several U.S. Supreme Court decisions recently, there is an ongoing debate as to whether the tort of alienation of affection is constitutional.  Here is a link to a memorandum I filed on a case recently regarding this issue. 

Chain of Custody

The Mississippi Supreme Court decided Thomas Tubbs v. State yesterday.  Tubbs was accused of having molested a three-year- old girl that he and his wife were babysitting in December  2009.  One of the issues raised on appeal was that it was error to admit evidence of dna testing when there was a break in the chain of custody in the handling of the evidence taken from the child’s underpants. The Court affirms finding that  “The test of whether there has been a break in the chain of custody is ‘whether there is an indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.’”. The Court found this was not present.  In a footnote, it was also noted that [G]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.’” Deeds v. State, 27 So. 3d 1135, 1143 (Miss. 2009) (quoting U.S. v. Lott, 854 F. 2d 244, 250 (7th Cir. 1988).

Tennessee Debt Collection

In Tennessee, many of the statute of limitations run after one (1) year.  The claim for breach of contract runs in six (6) years.  The is why most debt collection cases in Tennessee wait until one (1) year has passed.  As a result, the statute of limitations runs on any claim of negligence but the contract claims (typically nonpayment) survive. 

Legal Malpractice Insurance

I have been investigating several legal malpractice claims for Plaintiffs in the past few months.  The biggest issue that keeps reoccurring is the lack of malpractice insurance.  In many cases, there is no question on liability, only damages. The problem is that there is no insurance coverage and the attorneys have only nominal amounts of liquid assets.  Malpractice insurance is designed to protect both the client and the attorney.  On several cases I have looked at, the issue has been the attorney's staff messing up.  (Note:  attorney ultimately liable in this scenario).  To me, the debate on this issue is whether a bill needs to be introduced to require malpractice insurance for attorneys in the legislature.  In many cases, I am seeing some attorneys playing fast and loose since they feel they have no risk if something happens.   

Extension of Time for Service of Process

On Thursday, the Mississippi Supreme Court reversed the Court of Appeals in Perriece Collins v. Toikus Westbrook, M.D. –  This was a med mal case where summons was not issued until the day before the 120 days ran.  Just prior to the expiration of the 120 days, the lawyer hired a  professional process-serving company in Hattiesburg and told them that process needed to be served by Saturday, April 14. The company  ended up serving a person they believed was Toikus Westbrook in Memphis Tennessee on April 13.  It turned out, though, that the man served was Toikus’ father and Toikus filed a motion to dismiss for failure to serve process.  The trial court granted the motion finding that the defendant had not been served and there was not good cause to extend the time for service.  The Court of Appeals affirmed. The Mississippi Supreme Court reversed finding that “[t]his Court has held that ‘good cause is likely (but not always) to be found when the plaintiff’s failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server."

Collective Action vs. Class Action in FLSA

Collective actions share some characteristics with class actions, but are not the same. In FLSA cases, an employee must opt in, meaning that they must affirmatively sign a document stating that they wish to be a part of the lawsuit. In class actions, under Rule 23(b) of the Federal Rules of Civil Procedure, employees are presumed to be a part of the class and any employee who doesn't want to participate in the lawsuit must opt out. Class actions cannot be used to assert wage and hour claims brought under the FLSA but employees may bring an "opt in" or "collective action" under FLSA Section 216(b). One or more employees may maintain an action, on behalf of themselves and other employees who are similarly situated, to recover damages on any of the grounds available for individual FLSA relief. Employees who do not file a written consent are not bound by the outcome of the collective action and may file a subsequent private action. The FLSA collective action may be brought in either state or federal court.

Verdict of Interest

On January 27, 2016 a Lee County jury (County Court) returned a plaintiff verdict of $85,891 in Nguyen v. Dao.  The plaintiff worked for Dao at the Ichiban Japanese Grill in Tupelo.  The case arose where the plaintiff alleged that she was fired for reporting illegal activity and that she was not paid properly under the Fair Labor Standards Act. The jury agreed and rendered a verdict for $1,943 for lost income because of discharge for reporting illegal activity, $50,000 for mental anxiety, and $33,948 for violations of Fair Labor Standards Act.  Here is the final judgment.

Offer of Judgment

Rule 68 is an effective settlement tool. It provides that if the judgment that an offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs included after the offer was made. For example, if a plaintiff rejects a defendant's offer and then recovers less than that offer at trial, the plaintiff must pay all of the defendant's costs that were incurred after the date the offer was made.

Courts have held that "costs" include attorney fees when the underlying statute provides for the recovery of attorney fees as costs. Accordingly, attorney fees are recoverable costs in civil rights, employment discrimination, unfair and deceptive trade practice and consumer protection cases. Moreover, breach of contract cases may also provide a basis for attorney fees if the contract at issue contains a fee-shifting provision.

The Third Circuit addressed this issue in Lima v. Newark Police Dep't , 658 F.3d 324 (3d Cir. 2011), a civil rights case. The Third Circuit held that a defendants' Rule 68 offer that "allow[ed] judgment to be entered against defendants in the amount of $55,000, including all of plaintiff's claims for relief against all defendants" did not preclude the plaintiff from subsequently seeking attorney fees. The court reasoned that the claim for attorney fees survived because the agreement did not expressly stipulate was (1) inadmissible extrinsic evidence and that (2) defendants' "expectations and intentions" were not terms to the Rule 68 offer.

The Third Circuit stated that when the costs are included in the offer of judgment, the offeror is not subject to any additional liability. When, however, the offer of judgment is silent as to fees and costs, they must be fixed by the court after the offer of judgment is accepted. Moreover, extrinsic evidence of the parties' subjective intent is not admissible to determine whether a Rule 68 offer of judgment includes costs and attorney fees.

Book Review

I recently finished Don’t Eat the Bruises by Keith Mitnik.  He is an attorney with Morgan and Morgan who mainly just handles the trial for various attorney.   It’s also not a book that offers a system.  The book suggests approaches to incorporate into the practitioner’s existing trial system. The first third of the book covers voir dire. Mitnik devotes other sections to opening, the evidence phase (direct and cross), closing and dealing with the burden of proof.   The book's voir dire issues alone are well worth the read.  This is one of the better law books I have read and it does not get boring. 

Intoxication as a Defense

On Thursday, the Mississippi Supreme Court decided Hale v. State located here.  The Defendant in the case alleged that his drink was spiked such that he did not have the specific intent to purchase certain narcotics.  The conviction was ultimately affirmed.  However, this case has one of the most detailed discussions of when intoxication is and is not a defense to a crime.  It also discusses automatism which the court hints is a potentially viable defense in Mississippi.  I am surprised this defense is not used more. 

Medical Malpractice Affidavit

On Tuesday, the Mississippi Court of Appeals decided Gray v. Graham located here.  The issue in the case was the sufficiency of an expert affidavit.  The opinion does a detailed discussion of what is required in the affidavit and hints that when the expert deposition differs from the designation, it may be seen as conclusory.  That was not the case here and the decision to dismiss the case was reversed. 

Brief of Interest

The Mississippi Court of Appeals is hearing oral arguments in Strickland v. State today.  The brief of the Appellant is located here.  There are several good arguments in the brief concerning text messages and the Rules of Evidence which are worth reviewing.

Finding More Damages

A good place to find damages is with the health insurance explanation of benefits.  Many times, there are additional charges on there for which there may not be records.  This is often where a patient is treated at a hospital and a third party does the testing of various items or reads records.