Book of Interest

Trial Guides just released a new book I will be getting in the next few week.  Randi McGinn has written Changing Laws, Saving Lives:  How to Take on Corporate Giants and Win.  The book details one of her cases dealing with the death of a store clerk and goes through all the trial strategy with it.  A link to the book is located here.  The reviews have been good so far and it looks like an excellent read.

End of Year Settlements

The end of a calendar year is normally a good time to resolve cases.  Insurance companies want to get cases off their books and tend to use remaining reserve funds for that purpose.  Anytime after Thanksgiving is normally when the phone calls start.

Affirmative Defenses in Divorce

Just like any other case, affirmative defenses must be raised into the answer to a divorce action.  This was illustrated in Lee v. Lee located here which the Mississippi Court of Appeals decided on Tuesday.  The relevant language is below.

"¶15. Condonation or antenuptial knowledge, as affirmative defenses, must be specifically
pleaded or else the defenses are waived.  Carambat v. Carambat, 72 So. 3d 505, 511 (¶27)
(Miss. 2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss.
Ct. App. 2007)).  “Affirmative defenses that are neither pled nor tried by consent are deemed
waived.”  Ashburn, 970 So. 2d at 212 (¶23) (quoting Goode v. Village of Woodgreen
Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)).
¶16. Chris did not raise condonation or antenuptial knowledge as an affirmative defense
in his pleadings.  However, parties may try an affirmative defense through implied consent.
Mississippi Rules of Civil Procedure 15(b) provides:
When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon the motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
  
See also Lahmann v. Hallmon, 722 So. 2d 614, 691 (¶15) (Miss. 1998)."

The Appellate Court and the trial court found that the Appellant had waived the defenses by failure to timely raise them and they were not tried by consent.  This is why I always plead this in answer to a divorce complaint just to be on the safe side. 

Incomplete Proof

Incomplete proof is one area I see in a lot of cases.  Parties request attorney's fees with no proof of attorney's fees, request modification of custody with no proof of the Albright factors.  This is why it is so important to have checklists on these type of cases in order to determine if you have all the proof you need.  Without this, even if you somehow win at trial, you lose on appeal. 

Mediation

Mediation has its good and bad points.  In a divorce matter, mediation is normally good for both parties.  Family law is one of the gray areas of the law where no party typically gets everything they want.  In a tragic personal injury matter, many times mediation is not worth it.  Doctors and defendants many times refuse to be rational in either admitting liability or the amount of damages.  Many times insurance companies can make substantial sums of money by delaying a number of claims.  A good article discussing mediation in the personal injury context is located here. 

Natural Parent Presumption

The natural parent presumption in Mississippi provides that the natural parent is presumed to be the best custodian of a minor child unless they have abandoned the minor child or are proven unfit.  This was illustrated in Wilson v. Davis decided by the Court of Appeals last week.  The trial court and the Court of Appeals found that the sexual relationships of the father and some issues in his home made him unfit which resulted in the grandmother getting custody of the minor child.  There was a pretty strong dissent in the case.  The dissent more or less said that the Father's sexual relationships with several people was not sufficient to overcome the natural parent presumption.  Based on the limited facts in the opinion, the dissent makes a good point.  I would expect this case to go up to the Mississippi Supreme Court. 

Loan to Pay Attorney's Fees

The Mississippi Court of Appeals decided Seale v. Seale located here on Tuesday.  One of the issues in the case was whether a loan from a parent to pay attorney's fees could be considered a martial debt.  The Court of Appeals said yes and affirmed the trial court finding as such.  To me, this is always a fact intensive issue.  Many times, spouses claim these as debts when they are in fact gifts.  I was involved in one case where the spouse claimed a loan from her parents and then listed it as a gift on a loan application.  Needless to say, the chancellor found it was a gift at that point.