Reply Briefs

I still do a good bit of appellate work.  The article located here has some good has some good advice on writing reply briefs.

Good Online Trial Material

Some really good online trial material is located here.  The articles are in the context of criminal trials but the same principals apply to any trial. 

College Support

“A chancery court may adjudge that one or both parents provide the means for a college education for their children." Baier v. Baier, 897 So.2d 202, 205 (¶ 16) (Miss. Ct. App. 2005) (citing Pass v. Pass, 238 Miss. 449, 458, 118 So.2d 769, 773 (1960)). "When the father's financial ability is ample to provide a college education and the child shows an aptitude for such, the court may in its discretion, after hearing, require the father to provide such education." Id. "The parental duty to send a child to college is not absolute, however, but is dependent upon the proof and the circumstances of each case." Id. (citing Hambrick v. Prestwood, 382 So.2d 474, 477 (Miss. 1980)).          

 Should this support be set on a young child?  In Harmon v. Yarbrough, 767 So.2d 1069, 1071 (¶ 6) (Miss. Ct. App. 2000), the Court of Appeals addressed a somewhat similar issue. In reaching its decision, the Harmon court noted that, according to the Mississippi Supreme Court, it is improper to impose an obligation to pay college expenses on a parent in a divorce proceeding until the following showing is made: 

The duty of a father to send a child to college, under the circumstances of this case, is not absolute. It is dependent, not only on the child's aptitude and qualifications for college, but on whether the child's behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him. Sending children to college is expensive and can cause much sacrifice on the part of parents. It cannot ordinarily be demanded, but must be earned by children through  967 So.2d  85  respect for their parents, love, affection and appreciation of parental efforts, none of which are present in this instance.   Id. (quoting Hambrick, 382 So.2d at 477).          

The Harmon court then found that "Since the duty is dependent upon several factors, including the child's suitability for college and his or her relationship with the supporting parent at the time of the expenditures, it would normally be improper to impose that obligation when the child is only three years old." Id.   What is a little strange is that there is some caselaw that appears to indicate this same showing is not needed in the context of a paternity case.  As such, it appears to be easier to get college support for a nonmartial child and during a divorce proceeding. 

Article on Damages Caps

Here is an excellent law review article dealing with damages caps in Mississippi and why they are wrong.

Beware of Throwing Too Many Grenades

Many times in family law cases, both sides get carried away with throwing too many grenades at the other side.  The problem is that this can sometimes create the Cold War issue of mutually assured destruction.  No matter how bad the parties dislike each other, on some level they will have to work together.  Additionally, throwing too many grenades can sometimes result in a finding that both of the parents are not fit for custody resulting in the Department of Human Services obtaining custody. 

MRCP 81 vs. MRCP 40

I was reading on some cases last night while working on a number of briefs I have due.  In reviewing a case a notice there appears to be some conflict with Mississippi Rule of Civil Procedure 81 and Mississippi Rule of Civil Procedure 40.  Rule 81 provides that certain matters have to be tried on a day certain or continued to another date.  However, Rule 40 provides that trials may be set by agreement.  The question then comes does Rule 81 override Rule 40 or does Rule 40 override Rule 81?  This normally comes up after both parties get an attorney and agree to set the matter for a trial later once discovery is complete.  My gut says that a trial set by agreement acts as a waiver.  However, there is an argument that Rule 81 is jurisdictional which can be attacked whenever. 

Legal Malpractice Claims

I am one of the few people who handle legal malpractice claims for Plaintiffs regularly.  There are a few quirky areas where claims are starting to arise that attorneys need to be aware of in order to prevent a claim.  The following are a few of those areas to evaluate:  (1) failure to conduct discovery; (2) negligent supervision of employees of firm; (3)  failure to communicate settlement offers;  (4) failure to respond to requests for admissions within thirty (30) days; (5) failure to communicate deadlines to client and trial dates; (6) failing to properly finalize settlements.