Using Documents Not Admitted Into Evidence

Learned this trick a while back which has all kinds of interesting twists.  Lots of times in discovery we get all kinds of documents that will never make it into evidence for whatever reason.  While they may not make it into evidence, the documents may be used to refresh a witnesses memory which kind of backdoors them in.  This can come in handy in items like police reports.  They can be great for cross-examining a witness who suddenly remembers nothing about being arrested. 

Pleading

I previously talked about Twombly pleading here.  Currently, Mississippi is still a notice pleading state.  However, you have to be careful.  Here is an interesting scenario where this can come up.  State court action filed with notice pleading.  Creative defendant able to remove case to federal court where Twombly pleading applies and then moves to dismiss case alleging the complaint is insufficient.  I think you can see where this could go south real quick for a Plaintiff. 

Per Diem

One of the best ways to explain pain and suffering to a jury is through a per diem argument.  (i.e. pain x number of days which is worth x amount per day).  This argument has been approved in Foradori v. Harris located here.  In some jurisdictions these type of arguments are barred but there is authority in this case that this is permissible.  The entire case is required reading for personal injury practice with a large verdict on a tragic situation being upheld.   

Punitive Damages

Mississippi Code Annotated 11-1-65 imposes certain limitations on punitive damages. However, most people do not know there are two exceptions where there are no caps under section (d) of the statute. Section (d) provides that:  "The limitation on the amount of punitive damages imposed by this subsection (3) shall not apply to actions brought for damages or an injury resulting from an act or failure to act by the defendant: (i)  If the defendant was convicted of a felony under the laws of this state or under federal law which caused the damages or injury; or (ii)  While the defendant was under the influence of alcohol or under the influence of drugs other than lawfully prescribed drugs administered in accordance with a prescription." This can be important in issues of drunk driving or criminal negligence matters.  However, the flip side of the issue is that punitive damages are outside the coverage of most insurance policies.

Little Things

There are lots of little things that matter on a case.   I was reading about a case recently where part of the injuries a person had required a few extra hours of getting ready in the morning every day of that person's life.  Reduced to present net value, it amounted to over $165,000.00 and that was just for that one minor aspect.  The lesson is that little things matter and there is lots of hidden things that can be inadvertently left on the table if you are not looking.  On the family law side, think about those credit card points and frequent flyer miles.  Lots of times those can amount to several thousand dollars and are often overlooked.  

Admitting Photograph Into Evidence

Admitting a photograph into evidence is fairly easy.  To me, any personal injury case or divorce case can be greatly enhanced with photos.  He said vs. she said does not do a lot for any fact finder when they cannot visualize the story.  All that is need to get the photograph into evidence is:

(1)  Show that the witness knows relevant facts about the scene or objects represented in the photo; and
(2)  That he or she can say that it correctly and accurately portrays those facts (or, as many of us say, “It is a true and accurate depiction …”).

Fortunately, long gone are the days of showing that the camera worked properly and such.  This is still an issue on getting voice recordings and such in though.  Biggest issue on these is normally laying the foundation of personal knowledge regarding what the pictures shows and that the witness has personal knowledge that it is accurate.

Legal Malpractice Decision

Not long ago, the Mississippi Supreme Court handed down Baker & McKenzie v. Evans.  A link to the opinion is located here.  The case is an extremely complex legal malpractice action.  The main issue seems to revolve around allegations that the Defendant had undisclosed conflicts of interest which influenced the advice given to the Plaintiff.  The advice given to the Plaintiff ultimately caused huge financial losses.  The jury awarded the Plaintiff a verdict of 103 million.  The Mississippi Supreme Court reversed for a new trial on damages but found ample evidence for liability.  The lesson of the day, keep detailed records of who your clients are and if there is any question, make a written disclosure to clients.

Separate Maintenance

Separate maintenance is an equitable remedy created in Mississippi.  I am working on a brief dealing with the issue now.  “[S]eparate maintenance is . . . court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Forthner v. Forthner, 52 So. 3d 1212, 1219 (¶13) (Miss. Ct. App. 2010).  The Mississippi Supreme Court explained that the jurisdictional basis of a separate-maintenance decree stems from equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The very power of the court to grant separate maintenance was based upon the following two requirements: (1) a separation without fault on the part of the wife, and (b) the husband’s willful abandonment.  Stated another way, the Chancery Court is deprived of jurisdiction to order separate maintenance absent proof of these two items.  To me it is interesting that the two requirements for this are stated as jurisdictional as opposed to an element of proof.  With the issue being jurisdictional, this leaves the judgment open to attack on appeal and potentially even collaterally at another proceeding. 

Accident Reports

Accident reports are a great source of evidence in pre-suit stage in dealing with insurance adjusters.  However, what happens to the report when it gets to the jury stage?  The case to read on this issue is Rhoda v. Weathers located here.  In this case the Court of Appeals affirmed the trial court excluding an accident report created as unreliable.  The officer testified outside the presence of the jury that he had no independent memory of the accident and that he did not actually reconstruct the accident.  As such, the report lacked trustworthiness and was excluded.  This was important in the case as the report noted that the Defendant failed to yield the right of way and eventually the jury returned a defense verdict.   

Rule 1006 and Learned Treatise

I previously discussed Rule 1006 of the Mississippi Rules of Evidence here.  The rules of evidence also allow for a learned treatise to be an exception to the hearsay rule pursuant to Mississippi Rules of Evidence 803(18).  I am toying with the idea of making a merger of these two rules of a trial exhibit which can be helpful in saving clients some money.  For example, do a Rule 1006 summary of the treatment of alimony as contained in Bell on Family Law which is considered the standard in family law in Mississippi or alternatively a summary of the tax code dealing with alimony treatment.  Based on the rules, the two should be admissible and can save the trouble of calling an accountant to trial.   

Amending Complaint as a Settlement Tool

Rule 15 of the Mississippi Rules of Civil Procedure allows a party to amend once as of right without leave of Court.  Sometimes this can be a nice settlement tool in a divorce where there is sufficient communication between the parties.  One can file a complaint for divorce on irreconcilable differences to see if the other party will sign off on an agreement.  If they will not, you can file an amended complaint without leave of court to assert fault based grounds.  This can be helpful with high profile parties who want to minimize public exposure of their dirty laundry. 

Interplay of Rule 32 and Hearsay

Larry Primeaux wrote an excellent article this morning dealing with the interplay of Rule 32 of the Mississippi Rules of Civil Procedure and Rule 804 of the Mississippi Rules of Evidence dealing with doctors depositions and the use of depositions of an unavailable party.  The article is here.  Usually this issue can be taken care of by stipulation.  I have in the past asked the court for permission to allow a "trial deposition" of a witness and having the court to essentially make that deposition part of the proceeding just as if court was going on then.  I have never had any problem with that and most opposing counsel do not either.  My experience has been that the testimony gets worse for the opposing party when they object to not allowing a party to offer testimony by trial deposition and they have to appear.

Motor Vehicle as College Expense

The Court of Appeals handed down Brooks v. Fields today located here.  This is an interesting case on college support.  The short version is that the Court of Appeals reversed and rendered a judgment obligating a parent to purchase a vehicle for a child in college and an award of attorney's fees.  The main issue appeared to turn on the fact that the proof was not there to support obligating Mr. Brooks to pay for the car.  However, the opinion noted that there are circumstances where this would be appropriate.  Interesting read and one to file away. 

Rule 52

Just spent a long day in trial.  Judge has ordered both parties to prepare findings of fact and conclusion of law under Rule 52.  Rule 52 requests are a good item to add to the Court file as a separate pleading.  In the long run, they help to prevent errors made by the parties and the court as it gives everyone time to process what all happened at trial. 

Minor Settlements

Larry Primeaux recently wrote an interesting article regarding minor settlements that is worth reading.  I am evaluating myself if I need to update my forms.  A link to the article is here. 

Recent Appellate Decision

On Tuesday, the Mississippi Court of Appeals handed down Cupp v. Cupp located here.  I got involved in the case post trial when Mr. Cupp appealed.  I was retained to represent Ms. Cupp.  There are two issues of interest in this case.  One deals with the martial home and the other deals with contempt.  In this case, the Court of Appeals affirmed the chancellor finding that the martial home was not separate property due to Ms. Cupp's contributions and improvements to it even though the home was purchased prior to the marriage.  The other issue is that this is one of the few cases that show a defense of contempt where it is impossible to comply with the Court order.  The Court of Appeals found that the chancellor was correct in not holding Ms. Cupp in contempt as the Court order was impossible literally to comply with.  This case is worth a read. 

Employer/Employee Liability

The Court of Appeals granted a rehearing of a prior opinion yesterday in Sykes v. Home Health Care Affiliates, Inc. located here.  This case is important as the prior opinion had held that an employer is not liable for an employee's torts unless both parties are served.  This started a frenzy in the Plaintiff's bar as employees often tend to go "missing" once litigation is discussed.  The rehearing opinion however corrected this and stated that liability is joint and several.  As such, if the employee cannot be found, the employer is still on the hook.  The opinion is worth a read.

Special Master

Rule 53 of the Mississippi Rules of Civil Procedure is one of the least used rules.  However, it is good for certain issues of complex discovery disputes or complex property issues.  Rule 53 authorizes the Court to appoint an attorney to act as a arbitrator for certain disputes in ongoing litigation with the fees to be taxed as costs.  This may be a good avenue on certain issues where the Court may not have time to deal with complex issues.  The decision of the master is appealable to the chancellor or circuit court judge.  This is something to keep in the back of your mind for the right case. 

Same-Sex Divorce Brief

My office just filed our brief regarding the same-sex divorce case we have pending.  I have attached a copy here.  Please feel free to email me any legal thoughts regarding the constitutional law issues.  In light of Windsor, myself and many other attorneys are in uncharted waters in dealing with this issue no matter which side of the issue one is on. 

Disclosure of Medical Records

Defense attorneys for some reason love to send the same form discovery.  They keep asking for all medical records essentially for the Plaintiff's entire life.  This is not permitted.  They are entitled to know about any pre-existing injury that may possibly have already been injured and was re-injured in the accident.  However,  all medical bills incurred from an accident are reasonable and necessary and no further proof is required, except that they were incurred as a proximate result of the accident and but for the accident the bills would not have been incurred and that the bills are substantially related to the injuries from the wreck.  Alfa Insurance v. Cascio, 909 So.2d 174 (Miss. Ct. App. 2005).  In Florida, there was a recent case where a Court found that requiring a Plaintiff to disclose all medical records in pre-suit stage of a medical malpractice action was a violation of HIPPA and as such the state statute was preempted by federal law. 

Constitutional Challenge

I am in the middle of a case where my office is working on a constitutional challenge to Mississippi's same-sex marriage ban.  There are several Mississippi statutes in family law and personal injury that are ripe for constitutional challenges.  One thing to look at is Rule 24 of the Mississippi Rules of Civil Procedure.  It requires that the Mississippi Attorney General be notified in the event of a constitutional challenge to give them the opportunity to intervene.  As such, they really become a necessary party almost before moving forward.

Unmarried Equitable Distribution

In today's society, cohabitation by couples without marriage is common.  Additionally, at times there are situations that arise where parties live in a bigamous marriage or potentially a void marriage.  Regardless, there is law in Mississippi to deal with this situation.  Mississippi law sanctions an equitable division of property accumulated by two persons as the result of their joint efforts. See Cotton v. Cotton, 44 So.3d 371, 374 (¶¶7-10) (Miss. Ct. App. 2010); Wooldridge v. Wooldridge, 856 So.2d 446, 452 (¶17) (Miss. Ct. App. 2003); see also Pickens v. Pickens, 490 So.2d 872, 875-76 (Miss. 1986); Taylor v. Taylor, 317 So.2d 422, 423 (Miss. 1975); Chrismond v. Chrismond, 211 Miss. 746, 757, 52 So.2d 624, 629 (1951). As the Mississippi Supreme Court stated in Pickens, "our law authorizes and sanctions an equitable division of property accumulated by two persons as a result of their joint efforts. This would be the case were a common[-]law business partnership breaking up." Pickens, 490 So.2d at 875.  This line of cases is helpful if you have parties in a long term relationship that are not married but have accumulated stuff that needs to be divided. 

Oral Arguments on Same-Sex Divorce Case

Several people have asked me about the same-sex divorce case I have on file.  Today, the Chancellor set oral arguments for December 2, 2013 at 9:00 A.M. in Hernando.