Learned Treatises

Mississippi Rule of Evidence 803(18) provides that: 

"(18) Learned Treatises.  To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. Treatises used in direct examination must be disclosed to opposing party without charge pursuant to discovery.". (emphasis added)

There are a couple of minor points on the last part.  If a treatise is used in direct examination, it must be disclosed.  However, if one is used in cross, it need not be disclosed.  However, it may be hard to lay a foundation that the item is in fact a learned treatise if no foundation is laid.  The second point is that the item may not be entered into evidence.  However, there is some authority from other jurisdictions that indicate if the item is published to the jury, it can go into evidence.  There is no authority one way or the other on this in Mississippi that I have been able to find. 

Bar Economic Survey

This week the Mississippi Bar released the results from the 2014 Mississippi Bar Economic Survey. Here it is. The last survey was for 2011. To me, the results look pretty skewed.  There are obviously attorneys who make a lot, that brings the median up a lot.  On the bright side, there are some areas regarding quality of life that appear to be better. 

Oral Argument of Interest

The Court of Appeals is set to hear oral argument today in Carlson v. Brabham.   The case deals with the rights of an unmarried long term partner.  This is probably going to be the next hot issue in family law.  Less and less people are getting married today.  The Court will hopefully give some guidance on this issue once an opinion comes out.

Advising on Appeals

I still do a lot of appeal work.  In criminal cases, there is what is called a Lindsey brief.  This is a brief that says there were no appealable issues found and gives the individual defendant a chance to file his or her own brief.  In civil appeals, there can be a similar issue.  Many times, I have to go over the case in detail with potential clients in order to get an idea of the potential appealable issues.  If you are still in the ten (10) day window for post trial motions, I don't see anything that prohibits additional testimony either.  Unfortunately, until you actually have a full transcript of the trial, there is no way to fully advise a client one way or the other unless you are the trial attorney.  As such, many times a client is advised that they cannot be fully advised.

Blog of Interest

An evidence blog located here has several good articles of interest.  Several of them address issues which are still unresolved and on the cutting edge of legal theory. 

Cert Grant of Interest

The Mississippi Supreme Court granted cert in Perriece Collins v. Toikus Westbrook, M.D.  yesterday.   The link is to the Court of Appeals opinion.  From reading the opinion and the cert request, it looks like an extension should have been granted to me.  This was the case where the father Dr. Westbrook was served instead of the son Dr. Westbrook.  The trial court originally granted a motion to dismiss finding that the defendant had not been served and there was not good cause to extend the time for service. The Miss. Court of Appeals affirmed. In doing so, the Court stated, “While this Court may not have made the same decision as the trial court, we cannot say the trial court abused its discretion.”   The Court of Appeals opinion was split.  I would predict a reversal. 

Trial Course

Trial Theater offers one of the better trial courses.  A link to it is here.  For the money, this is the best one I have found.