Weight Given to Albright Factors

In custody cases in Mississippi, the trial court is guided by the Albright factors for custody.  The factors are not the equivalent of a mathematical formula.  (i.e. who gets the most factors is not supposed to obtain custody).  However, this is how it is often applied.   In a lot of cases, each parent will be favored on some factors.  In these cases, I think the next area the caseload will be going is how much weight the court assigns to each factor.  This is one thing I have seen very few chancellors do and may be worth a post-trial motion.  In cases, there are often situations where one Albright factor may be given so much weight that it can override the others.  (i.e. mental health, parenting skills).   This is particularly important where the case is close. 

Same-Sex Divorce Brief

Several people have asked me how the same-sex divorce case is going.  It is currently up on appeal and the Court has issued a briefing schedule.  I will probably file the brief later this week.  I have the brief done except for the Table of Authorities which is taking a great deal of time.  There is almost literally a new opinion from other jurisdictions dealing with this issue about once a month.  Once I finalize the brief, I will upload a copy to this blog. 

Advancing New Arguments

Lots of times, we all get stuck in the trap of not expanding on the law.  In many instances, existing caselaw can be taken and you can look at the next logical step from a case to make new arguments.  A few years ago, myself and co-counsel did this is in Cuccia v. Cuccia located here dealing with having the court to set a line of demarcation in valuation determinations.  The lesson is that the law as it exists can be expounded upon to create equitable results in the right circumstances. 

Shifting Standard of Care

I have been working on several medical malpractice cases as of late.  One issue that has been coming up is the shifting standard of care.  As time goes by, what was the standard of care a few years ago, may not be the standard of care now.  This can be important where malpractice is discovered years later and testimony will be needed on what the standard of care was at the time of the procedure. 

Book Review

I finished reading The Power of a System:  How to Build the Injury Law Practice of Your Dreams by John H. Fisher this morning.  The book was excellent and gave me several new ideas on things.  The list of services at the back is worth the price of the book alone.  It gives some ways to cut some overhead on receptionists and various other things that can be helpful in getting a practice off the ground.  Much of the advise is relevant to any practice.  Other portions, especially on dealing with clients calling is more applicable to injury cases as opposed to family law matters where issues tend to me a little more time sensitive.  Overall, good book and very reasonably priced. 

Settling Case in Part

For some reason, many people are opposed to settling a divorce case in parts.  I have never been of that view.  On issues that can be agree to, get that part reduced to writing and approved by the court.  This is often helpful on cases where custody can be settled but not property or vice versa.  The may be done as part of an agreement to consent on irreconcilable differences. 

Audit Trail

Almost every medical provider and many businesses keep records in electronic format now.  By keeping records this way, there often also exists an "audit trail" on the records.  The audit trail is a record of any recorded changes to records.  In the right circumstances, this can be valuable.  At times, records get changed years after the fact once the possibility of litigation arises.  This is why it is important to put a spoliation letter to the holder of the records so they are not erased as part of a normal business practice.