Few Cases on Witness Testimony and Appeals

Here are a few cases dealing with witness testimony on appeal.  They can also be helpful in making arguments to a trial court in summation:

               (1)  Regarding witnesses “[u]ndisputed testimony, which is not so unreasonable
as to be unbelievable, must be taken as truth.” Reeves Royalty Co., Ltd. v. ANB Pump Truck Service, 513 So.2d 595, 599 (Miss. 1987). 

              (2) For “in the absence of contradictory evidence, courts are bound to accept the
only credible evidence offered in a proceeding and apply the correct law.” MSU v. PETA, 992 So.2d 595, 607 (Miss. 2008).  

               (3)  “Juries cannot arbitrarily and capriciously disregard testimony of witnesses, not
only unimpeached in any of the usual modes known to the law, but supported by all the circumstances in the case.” Mobile, J. & K.C.R. Co. v. Jackson, 92 Miss. 517, 46 So. 142, 143 (Miss. 1908). For “we must accept the testimony of [a witness] as true,” when such a witness “is not contradicted either by direct evidence or by circumstances.” Stewart v. Coleman & Co., 120 Miss. 28,  81 So. 653, 655 (Miss. 1919).

               (4). Furthermore, the law in Mississippi is that a jury is to weigh expert testimony, and
“judging the expert’s testimony and weight to be accorded thereto is the province of the jury.”
Fleming v. Floyd, 969 So.2d 868, 878 (Miss. 2007) (internal quotations and citations omitted). For “the jury may consider the expert testimony for what they feel that it is worth, and may discard it entirely.” Id. (internal quotations, citations, and alterations omitted).
        
                (5). “This Court, of course, is not the jury . . . The weight and credibility of the \
witnesses, primarily experts, was for the jury, who were free to accept or reject whatever part of their testimony they chose.” Id. (internal quotations and citations omitted); Robinson, 51 So.3d at 950 n.5 (internal quotations and citations omitted) (“The credibility of a witness is a question of fact for the jury to resolve”).   In Robinson, the case was fully fleshed out at trial—and the Court ruled it would not second guess the jury.  Id. at 950.

New Rules of Criminal Procedure

Yesterday, the Mississippi Supreme Court adopted new rules of criminal procedure that will be effective as of July 1, 2017.

Paternity

Last Tuesday, the Mississippi Court of Appeals decided Danny P. Hicks, II v. Department of Human Services, State of Mississippi .   The Appellant signed a court order of paternity without getting DNA done.   In 2015, a DNA test revealed that Hicks was not the biological father. Hicks filed a Petition to Disestablish Paternity and Terminate Child Support and asked to be  reimbursed for the payments made before the DNA test ($1,800). The trial court denied relief and this was affirmed on appeal.  The Court noted:

In Jones v. Mallett, 125 So. 3d 650, 651 (¶¶5-7) (Miss. 2013), the chancery court similarly relied on section 93-9-10(3)(c) to deny the plaintiff’s petition to disestablish paternity. Our supreme court affirmed the chancellor because the plaintiff had signed a stipulated agreement of paternity that was approved by the chancery court over a decade prior to the father’s filing for disestablishment. Id. at (¶10). Thus, here we find the chancellor did not err by denying Hicks’s petition.

Here is the question I have.  Are you entitled to the natural parent presumption if you cannot be disestablished as the parent?  I have a similar issue up on rehearing at the Court of Appeals.  The law on that issue is not clear and I can make a pretty good sales-pitch either way on this issue. 

Ability to Pay

A few weeks ago, the Mississippi Court of Appeals decided Ewing v. Ewing located here.  One of the issues in the case was the failure to consider the ability to pay by the payor.  This is one area that is ripe for more appellate law in.  The case seems to hint around that some finding of ability to pay along with analysis of current expenses is necessary in order to arrive at a reasonable award of alimony and other financial obligations. 

Tennessee Issue of Interest

Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional.    Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered  ex parte communications with the plaintiff’s non-party health care providers.   The opinion goes into detail about the unconstitutionality of the statute because of various issues.

Book of Interest

I found another good book over the holiday.  IPad in One Hour for Litigators by Tom Mighell is excellent on finding the apps and technology that work in court.  I have used a number of apps suggested in there and it helps make since of how to adapt the Ipad to law practice.  A link on Amazon to the book is here. 

New Fair Labor Reg Blocked

On Tuesday, a federal judge blocked the implementation of changes to the Fair Labor Standards Act.  A link to an article about it is here.  A lawsuit challenging the rule was filed by 21 states and a variety of employer groups. The rule was set to increase the exemption threshold to $47,476, more than doubling the current threshold.