Guardianship as a Necessary Party

The law protects minors on a variety of issues.  The law in Tennessee and Mississippi is essentially that a minor can do nothing without Court approval.  Many times minors are the beneficiaries of estates or personal injury settlements.  In order to compromise these claims, Court approval is necessary and this normally means filing for a guardianship where the Court can monitor any funds received by a minor.  Many of the judges I practice in front of and I tend to agree with them that a guardianship becomes a necessary party to any action to compromise these claims involving minors. As such, without a guardianship either being set up first or in the order compromising a claim, this may render any release void legally. 

Failure to Designate Expert

On Tuesday, the Mississippi Court of Appeals decided Cates v. Woods located here.  The Plaintiff failed to designate an expert after a scheduling order was entered.  The Defendant obtained summary judgment as the Plaintiff could not prove their case without an expert.  The Plaintiff tried to argue on appeal that this was simple negligence and no expert testimony was required.  This was rejected.  What this case stands for is that anything rooted in professional malpractice requires an expert.  This can be a wide variety of issues.  For example, nurse spills something on floor and someone falls.  Arguably, this is rooted in professional malpractice since it was committed by a professional.  This shows how a case of negligence can quickly become professional malpractice. 

Possible Federal Rule Changes

There are a number of possible changes coming to the Federal Rules of Civil Procedure.  This could significantly impact multiple state courts as the states most often adopt the Federal Rules.  Some of the changes are: 

·         Changing the scope of discovery in Rule 26(b) from a relevancy standard to a proportionality standard that takes into account five specific factors - (1) amount in controversy, (2) importance of the issues, (3) parties' resources, (4) importance of the discovery in resolving the issue, and (5) whether the burden or expense of the proposed discovery outweighs its likely benefit.

·         Reducing the presumptive limit of Rule 30 oral depositions from 10 to 5 and limiting the presumptive number of hours for those depositions from seven to six.

·         Reducing the presumptive limit of Rule 33 interrogatories from 25 to 15, including all discrete subparts.

·         Imposing a presumptive limit for the first time on Rule 36 requests for admissions to 25, including all discrete subparts.

·         Changing the Rule 37(e) "safe harbor" provision for preservation of electronically stored information to a set of presumptive standards for when a court may cure or sanction failure to preserve any evidence, not just electronically stored information.

These proposed changes would be a nightmare.  Any amount of normal litigation that is remotely complex requires more than this.  Even many of the defense attorneys I know are opposed to these changes.  The lack of discovery cuts both ways for Plaintiffs and Defendants in assisting in preparing a meaningful case or defense. 

Any Comments to these changes can be submitted electronically at http://www.regulations.gov/#!docketDetail;D=USC-RULES-CV-2013-0002 but addressed to:

Committee on Rules of Practice and Procedure

Administrative Office of the United States Court
One Columbus Circle, NE
Washington, D.C. 20544  

8.05 Financials

It never ceases to amaze me how sloppy some people are on financial declarations under Rule 8.05 of the Uniform Chancery Court Rules.  They use amounts that cannot be justified or are easily cross-examined.  I have started interrogating my clients hard on financials issues much as opposing attorneys will in order to show a client the importance of this.  Additionally, one thing that can be helpful is to use Zillow, Kelly Blue Book, and other internet sources as attachments to the declarations to give weight to the values.  This can save a lot of time and make a witness much more credible. 

Granting of a New Trial

When I ask for reconsideration of a case in chancery, I always ask for a new trial normally due to cumulative factors which warrant a new look at everything.  A trial court's grant or denial of a motion for new trial is judged under an abuse of discretion. Redhead v. Entergy Mississippi, Inc., 828 So.2d 801, 806 (¶ 11) (Miss.Ct.App.2001).  New trials are rarely granted in chancery.  However, they may be appropriate where new evidence is discovered post trial that was unknown to the parties.  I have had a new trial granted in a case before where evidence surfaced of ongoing child abuse post-trial.  As such, a new trial is something to look at under the right facts or in the event of multiple errors where at least an evidentiary hearing may be appropriate to make a proffer of the proof. 

Bate-stamping Documents

Adobe Acrobat is a pretty good Bate-stamping program for documents.  Under Rule 34, in responding to discovery requests, the documents are to be divided and you have to label what documents correspond with what question.  That being said, I still respond to some questions with see documents attached because the request is written so broad, I have no clue how to respond otherwise.  (i.e. Please produce all documents you contend are relevant.)  Bate-stamping documents saves a lot of time in trial when any question develops on whether a document was turned over in discovery.    It helps prevent the "I never got that" and you having to prove they did.

Child Support Case of Interest

The Mississippi Court of Appeals decided O'Brien v. O'Brien located here yesterday.  There is one interesting issue in the case dealing with child support.  The Court here held that under Mississippi Code Annotated Section 43–19-101(4) the chancellor is required to making a finding on the record  in writing why or why not the support guidelines are reasonable if the payer's income is greater than $50,000.00.  The case was reversed for failure to make this finding.  Based on my reading of this, I don't know that just a finding in an oral opinion is sufficient.  I would additionally point out that to me the court needs to say why the amount is reasonable or not, instead of just making a finding that it is reasonable.  We will probably see more litigation on this issue in the future.