Caps Avoided

The Mississippi Court of Appeals decided Brooks et. al.  v. Glover et. al located here.  The issue of the constitutionality of the tort caps in Mississippi was avoided since the appellate court found reversible errors and remanded the case for a new trial.  The main reversible error was the trial court's failure to give an independent medical exam (IME) to the defense.  We had virtually no law on this area until now.  The language in the opinion is so broad though that it almost goes to the extreme of if the defense wants an IME, they are entitled to one.  I really hope this case goes up on certiorari. 

Deaf Interpreter

Under Mississippi Code Annotated 13-1-301, an individual who is deaf may have an interpreter appointed for them at the cost of the state.  This may ultimately be taxed as a litigation cost to one of the parties.  The statute is worth a review if you have this issue appear in litigation.    

Youth Court and Evidence

The Mississippi Supreme Court decided In the Interest of J.T. et. al. decided yesterday located here.  The case made it abundantly clear that the Mississippi Rules of Evidence apply in an adjudication hearing in Youth Court but do not apply in a disposition hearing. 

Mississippi Termination of Parental Rights Statute

Governor Bryant signed the amendments to Mississippi Code Annotated 93-15-101 to make certain amendments to the Mississippi Termination of Parental Rights statute yesterday.  The bill is located here.  This is to solve the Chism v. Bright problem located here. 

Parole Case of Interest

On April 12, 2016, the Mississippi Court of Appeals decided Nathan Sinko v. State.  This case dealt with parole eligibility for persons convicted of possession charges. As the opinion recounts, sometime in 2014, MDOC informed inmates convicted of possession charges that it had erroneously assigned them parole dates but this was a mistake based on the Court of Appeals’ decision in McGovern v. MDOC, 89 So.3d 69 (Miss. 2011).  Under this decision, persons convicted of possession of substances other than marijuana were not eligible for parole.

Sinko filed for post conviction relief alleging he would not have pleaded guilty had he been told his sentence was without parole. The trial court denied any relief.   On appeal, he argues that he is eligible for parole as a result of statutory amendments that went into effect on July 1, 2014.  The Court of Appeals found that the legislation enacted in 2014  allows for parole for “‘amounts specified under Section 41-29-139(b)’ for controlled substances other than marijuana, including methamphetamine.”

As such, the Court of Appeals reversed for the determination of parole eligibility. 

Impeachment Photos

In Garvin v. Malone, No. M2015-00856-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2016), plaintiffs sued defendant after defendant’s van ran into the rear of plaintiffs’ car. After a jury found for defendant, the issue on appeal was whether photographs showing damage to the vehicles should have been admitted since plaintiffs had not made a claim for property damage.  The photos showed little damage while the plaintiff testified to great impact.  The Tennessee Court of Appeals affirmed the trial court verdict since the photos were for impeachment of the plaintiff's testimony.  This is a good lesson to see if the client's story matches the evidence. 

CLE

I will be speaking at an evidence CLE on June 23, 2016 in Tupelo.  A link to the seminar is here.  A similar seminar will be in Olive Branch on July 28 that I will also be speaking at located here. 

Federal Service of Process Change

The Federal Rules of Civil Procedure recently changed the time limits on service of process under Rule 4 to ninety (90) days.  The revision reads as follows:

"(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A)."

It was 120 days for the longest.  Be mindful of this change.

Youth Court and the Rules of Evidence

The Mississippi Court of Appeals decided In the Interest of E.G. on Tuesday located here.  The most interesting issue is in the footnotes.  The Court of Appeals noted that the Rules of Evidence apply in Youth Court until the Supreme Court says otherwise.  That issue is being briefed currently.  This has been an ongoing conflict in various venues. 

Expert Checklist of Interest

Located here is an expert checklist of interest.

Subpoena Guide

Located here is a link to the subpoena compliance department of most of the major cell phone providers and social media accounts.

Digital Assets

Mississippi nor Tennessee Courts have addressed digital assets in a divorce.  A digital asset can be anything from a social media account, to a blog, to an iTunes account.  It can even include Bitcoin and digital storage. Does a Facebook page have a value? Does a series of YouTube teaching videos? What about domain names?

Some of these “properties” can be divided using the models used when a court divides intellectual property.  Others cannot be divided at all, but one spouse can buy-out the other, or the income stream can be divided with post-separation efforts factored into a decrease of the shared income stream over time.

Many sites like Facebook prohibit their customers from transferring or allowing access to an individual’s page, but this should not bar a court from coming up with an equitable remedy to divide, allocate, or value these assets.  The arguments of preemption in the fields of patents, copyrights, and trademarks have not prevented courts from dividing these assets in a divorce.

This is an area ripe for litigation and largely unexplored.  I think some expert valuation testimony would be needed though to make much of this.