Clarity

The past few weeks I have had several cases fighting over the clarity of prior court orders.  This often leads me to have to call the prior attorneys who drafted documents as a witness if the case goes to trial and also depose the opposing attorney at times if the other side was represented to get their interpretation of what was meant.  If you want to see nasty litigation, try to get former spouses to agree to a definition of any of the followings:  reasonable, needs, necessary, standard of living, college expenses, living expenses, and utilities.  These are terms that need to be clearly defined in the documents.   If not, you are just inviting future litigation. 

Hearsay

The Rules of Evidence apply to a family law matter despite some people's assertion to the contrary.  The biggest thing is hearsay.  “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Miss. R. Evid. 801(c).  Easiest way to explain this generally is as someone once put it "Don't tell me what someone else said, if you want me to believe it is true."  That being said, statements are often used for other purposes such as merely showing a party is on notice or merely that a statement is said.

"If the significance of a statement is simply that it was made and there is no issue about the truth of the matter asserted, then the statement is not hearsay.” Harris v. State, 970 So. 2d 151, 155 (¶ 12) (Miss. 2007) (quoting Mickel v. State, 602 So. 2d 1160, 1162 (Miss. 1992)). See Brown v. State, 969 So. 2d 855, 861 (¶ 16) (Miss. 2007) (“[A]n out-of-court statement is not hearsay unless the party offering the statement is attempting to prove that the statement is true.”

This area is incredibly complex and you can have a statement admissible for one purpose and not another depending on what it is being offered which often creates confusion. 

Interjurisdictional Custody

Being right on the stateline of Tennessee and Mississippi can create some interesting legal disputes on custody.  Mississippi is what I call a free for all on custody, i.e. absent a court order to the contrary either natural parent has the right to the child and whoever has them, has them.  Tennessee is a little different as there is a statute dealing with nonmarial children where absent a court order to the contrary, custody is with the natural mother.  Withholding the child can result in a charge of custodial interference in Tennessee.  The interesting issue develops when mom runs to Tennessee with no court order and the child has previously lived in Mississippi.   This inevitably leads to an interjurisdictional conflict where the courts have to confer with each other to determine jurisdiction.  These cases can get terribly complicated and expensive.  On the flip side, withholding the child may have an effect on the parenting skills of a parent in a custody analysis which I have had courts go along with in the past. 

Book Review

Over the weekend, I finished reading The Inner Jury:  Winning Trials with Strategic Psychology, Modern Trial Science, and Solutions to Common Dilemmas by Bruce B. Whitman.  A copy can be purchased from Amazon.  It is one of the better books I have read on jury issues.  It gives a nice overview to get one started on modern trial theory.  It is reasonably priced at around $35.00 too.  If one is into the Reptile Books by Ball and Keenan on trial theory, this book would be a good one to read before reading those books.  It helps to tie the Reptile theory of juries in with other issues such as polarizing the case by Rick Friedman.  The book could have been a little more in depth in some area but I still give it my highest recommendation for those interested in jury issues. 

Motion to Substitute

The Mississippi Supreme Court decided Burch v. Illinois Central Railroad located here.  This case illustrates why it is necessary to file a motion to substitute a party after one party dies.  Harold Burch worked for Illinois Central Railroad and died in 2006.  He was diagnosed with asbestosis and lung cancer.  In 2009, his widow filed a wrongful death suit against the defendant for exposure to those items.  The widow died  in 2011,  but the plaintiff’s attorneys did not file a motion to substitute within 90 days as required by Rule 25 of the Mississippi Rules of Civil Procedure.  The trial court dismissed the case without prejudice and the heirs re-filed a short time later.  The second case was dismissed based on the statute of limitations as the first case being filed did not toll the statute because it was dismissed for failure to prosecute.  The Mississippi Supreme Court affirmed the dismissal for this reason. 

Child Hearsay

Statements made by a child are hearsay unless the child is willing to get on the stand in court and testify to them.  This was illustrated today in Darnell v. Darnell located here.  The case dealt with a number of hearsay statements regarding alleged sexual abuse.  The Mississippi Supreme Court ultimately ruled that two of the statements were not hearsay and two were.  The case also has an interesting discussion of what an expert can rely on in stating their opinion.   The legal analysis in here is worth filing away for future reference. 

Supplemental Citiation on Appeal

Lots of times cases come down while an appeal is pending that directly affects the issues briefed.  So how do you supplement once the time for a reply brief has passed?  This was an issue dealt with also in Huseth v. Huseth located here.  One option is to file a motion to supplement authority which would allow you to argue the case a little more.  The second option is to supplement it under Rule 28(k) of the Mississippi Rules of Appellate Procedure. 

Rule 28(k) of the Mississippi Rules of Appellate Procedure provides that:

"(k) Citation of Supplemental Authorities. When pertinent and significant

authorities come to the attention of counsel after the party's brief has been filed, or after oral

argument or decision, the party may promptly advise the clerk of the Supreme Court, by
letter with a copy to all counsel, setting forth the citations. There shall be a reference either
to the page of the brief or to a point argued orally to which the citations pertain, but the letter
shall, without argument, state the reasons for the supplemental citations. Any response shall
be made promptly and shall be similarly limited."

The way this is typically done is to simply write a letter to the court clerk advising them of the new case, stating what are of the brief including page numbers in your brief that it applies to, and the reason for the supplemental citation.  To me the confusing part of this is where it says to state the reasons for the supplemental citation but without argument.  The best educated guess I have on how to interpret this is to simply state why the case is relevant for a particular issue without any detailed analysis regarding the particular facts of your case.  In Huseth, the Appellate had a supplemental brief struck because leave of court was not obtained.  The Appellee had filed a motion to strike it but then filed a 28(k) letter to make the court aware of the same case.