YET MORE SIGNS OF THE …
… impending — you know.
12th CHANCERY COURT DISTRICT OF MISSISSIPPI
News and helpful information about practice in Lauderdale and Clarke Counties, Place 2.
CLEARLY CONVINCING
Several chancery matters require proof by clear and convincing evidence.
- Every ground for divorce but habitual cruel and inhuman treatment requires clear and convincing evidence. See, Bell on Mississippi Family Law, 2nd Ed., §4.02[1][b].
- Proof of the elements of adverse posession requires clear and convincing evidence.
- Proof of undue influence in inter vivos gifts between spouses requires clear and convincing evidence.
- Undue influence and confidential relationship in a will contest requires clear and convincing evidence.
- Lack of mental capacity to make a deed or will must be proven by the challenger’s clear and convincing evidence, although the proponenet of a will needs to prove capacity only by a preponderance.
There are others, I am sure, but you get the point. Muster the necessary quality of proof or fail.
So, what exactly does constititute clear and convincing evidence, anyway? The COA in Hill v. Harper, 18 So.3d 310, 318 (Miss. App. 2005), defined clear and convincing evidence as:
“That weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidnce so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. Moran v. Fairley, 919 So.2d 969, 975 ¶24 (Miss. Ct. App. 2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir. 1995)). ‘Clear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.’ Id. (Citing In re C.B., 574 So.2d 1369, 1375 (Miss. 1990).”
30 Am.Jur.2d, Evidence, §1167, provides this:
“The requirement of “clear and convincing” … evidence does not call for “unanswerable” or “conclusive” evidence. The quality of proof, to be clear and convincing has … been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure – that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term “clear and convincing” evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, so as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the weighing, comparing , testing, and judging its worth when considered in connection with all the facts and circumstances in evidence.
WHEN YOU’RE ANGRY, STEP AWAY FROM YOUR WORD PROCESSOR, COUNT TO 10 SLOWLY, TAKE A DEEP BREATH AND EXHALE SLOWLY
Sometimes you get so boiling mad when you’re served with outrageous pleadings, or you get an exorbitant discovery dump, or opposing counsel is a jackass, or the judge rules against you and you know — just know it deep down in your aching heart that the ignorant so-and-so did not even look at the cases you gave him and had his mind made up and etc. — or the whole injustice and inequity of it all is so overwhelming, that you sit down at your computer and dash off a rabid response accusing that lawyer and/or the judge of all manner of immoral, unethical, unhealthy, unsavory and illegal misfeasance, malfeasance and faux pas.
Admit it. You’ve done it. Or at the very least dreamed about it. All of us have.
The thing is, most of us then hit the “delete” button, or tear up the paper and wait until reason returns, or smile at the mental imagery and shrug it off.
What happens, though, when you get carried away and don’t find a way to stop yourself from doing something over the top?
The latest example is in Berryman v. Lannom, decided by the COA on May 22, 2012. In that case, the chancellor ruled that the Berrymans had let the statute of limitations expire before filing their wrongful death claim, so she denied their claim to a portion of wrongful death proceeds that had been interpled in chancery court. Then she ruled that their version of the court proceedings offered pursuant to MRAP 10 — because the case was tried without a verbatim record — was not accurate, and accepted the other party’s version of the facts. To cap things off, the Lannoms’ attorneys presented the clerk with the court’s order the very day it was entered and got their interpled funds, all that was there.
Obviously perturbed at the way things had gone, the Berrymans appealed. Although the COA decision does not recite exactly what the appellants charged in their briefs, it does say this:
“¶9. The Berrymans argue the chancellor erred both by denying them any portion of the interpleaded funds and by denying their motion to stay disbursement of the funds to [the Lannoms] pending appeal. They also argue [the Lannom’s] attorneys violated the ten-day automatic stay of judgment by presenting the order of disbursement to the chancery clerk the same day as the hearing.
“¶10. The Berrymans further assert the attorneys’ actions violated ethical rules, meriting sanctions. We find this allegation to be wholly baseless and focus our opinion solely on whether a reversible procedural error was committed. The Berrymans also describe the chancellor’s decision to deny their motion to stay as “a perversion of the administration of justice” and request we appoint a new chancellor on remand because Chancellor Vicki Cobb abdicated her role as “officer of a court of law and equity.” Because this last argument—which has no support in the record—shows disrespect for the chancellor, we sua sponte strike this argument and its contemptuous language from the Berrymans’ brief. M.R.A.P. 28(k). We focus solely on whether the chancellor erroneously applied the law or was manifestly wrong. See McNeil, 753 So. 2d at 1063 (¶21).” [Emphasis added]
Contemptuous language, indeed. Charging a lawyer with ethical violations and a chancellor with abdication of her role as officer of a court of law and equity are serious allegations that you’d better be prepared to back up with evidence, and I mean strong evidence. It’s like pointing a gun at someone who you think is out to do you harm; you’d better be right, and you’d better be sure sure the gun is loaded, and you’d better be prepared to pull the trigger, or you will be the one who gets it. The courts do not consider charges like those to be trivial, and you should never toss them around without a firm basis in fact. If you do, you will be the one who comes off looking unethical and outside the bounds of law and equity. Why would you think that your clients would want their interests to be represented by someone that out of control?
MRAP 28(k) allows the appellate courts to strike any disrespectful language from briefs and even empowers the court to “take such further action as it may deem proper.”
MRCP 12 (f) permits the trial court on motion of any party or on the court’s own initiative, to strike any and all “immaterial, impertinent, or scandalous matter.”
MRCP 11(b) provides that the trial court can sanction an attorney for filing papers that include scandalous or indecent matter, or are filed for the purpose of harassment or delay. The sanctions include reasonable attorney’s fees.
UCCR 1.01 specifically states that “The dignity and respect of the court shall be preserved at all times.”
Rule of Professional Conduct (RPC) 3.5 prohibits a lawyer from engaging in conduct intended to disrupt a tribunal.
RPC 8.2 (a) says that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge … “
The preamble to the RPC includes this language: “A lawyer should use the law’s procedures only for legitimate purposes, and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”
Lawyers make a living on controversy and conflict. But you are there to help your client find a way through it to a better place, not to make it worse. Don’t hit the print button until reason returns. And if you just can’t help yourself, print it and trash it. You owe it to yourself and your client.
CONSTITUTIONAL: MARTIN FACTORS AND GRANDPARENT VISITATION
Ever since grandparent visitation was enacted by our legislature in 1983, I have heard grumblings from some members of the bar that the statute is unconstitutional. The complaint chiefly is that it intrudes the state into the parent-child relationship and invades the province of parents’ decison-making, which should be beyond the state’s reach when the parents have not violated any laws or hurt their children.
The first test came in the case of Martin v. Coop, 693 So.2d 912 (Miss. 1997), in which the MSSC upheld the constitutionality of the statutes and established factors that trial courts were required to consider in adjudicating whether there should be grandparent visitation in a given case, and its terms.
The matter appeared to be settled until the US Supreme Court’s decision in Troxel v. Granville, 530 US 57 (2000), which held a visitation statute of the State of Washington to be unconstitutional. In Troxel the opponents saw another avenue of attack, and it was only a matter of time before the issue would percolate up from a trial court.
The first case in the aftermath of Troxel was Zeman v. Stanford, 789 So.2d 798 (Miss. 2001), in which the appellants questioned the constitutionality of MCA 93-16-3(1), which affords grandparental visitation when the parents are divorced and one parent has been awarded custody. The court in Zeman held that the constitutionality of that very statute had already been addressed and found constitutional in Martin v. Coop, and that Troxel added nothing new to the conversation.
The most recent iteration on the subject came in the case of Smith v. Wilson, an appeal from Chancellor Jim Davidson’s ruling in Lowndes County Chancery Court. In this case, the grandparents had sought visitation on the basis that their daughter, the child’s mother, had died. The judge granted the visitation in favor of the Wilsons, and the Smiths appealed, questioning the constitutionality of both MCA 93-16-3 and 93-16-5 in light of Troxel.
In its May 3, 2010, opinion authored by Justice King, the court first distinguished the statute deemed unconstitutional in Troxel. That Washington law provided:
Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.
The statute was too broad in scope, since it did not define any specific class of persons who would have standing to petition for visitation, and it did not protect the parent’s right to make decisions about rearing her children. As for other non-parental visitation statutes, the Supreme Court declined to go further, stating:
Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific non-parental visitation statutes violate the Due Process Clause as a per se matter.
Justice King pointed out that the Mississippi statute is not overly broad as was the statute in Troxel, and that both Martin and Zeman correctly dispose of the constitutionality argument through the application of the Martin factors, which protect the parents’ substantive due process rights. The court held that neither of the statutes nor the Martin factors violate the Constitution.
A couple of other points from the decision:
- The Smiths’ argument that the burden of proof should be by clear and convincing evidence, was rejected by the court, which found no authority for the proposition (¶¶ 26-27).
- The court found (¶30) no merit to the argument that chancellors should be required to defer to parents’ wishes. The court stated that “While a chancellor should accord special weight to a parent’s wishes, there is no automatic right to deference.
- Also rejected was the Smith’s argument that a parent must be found unfit before awarding grandparent visitation (¶¶31-32).
- The court held (¶¶33-35) that there is no requirement in the statute providing for visitation by the parents of a dead parent that there have been an unreasonable denial of visitation as a prerequisite.
The decision, joined in by all nine justices, affirmed Judge Davidson’s award of grandparent visitation.
So it would appear that the constitutionality of Mississippi’s grandparent visitation is laid to rest, at least for now. I do not know whether a petition for rehearing has been filed, but that would likely be a futile gesture considering the unanimity of the court. Maybe the appellants are maneuvering for a run at the US Supreme Court. We’ll see.
DICTA
- Preservation in Mississippi is a wonderful blog that highlights Mississippi history as reflected in its architecture and artifacts. This post features First Presbyterian Church in Water Valley, a Romanesque Revival structure built in 1896.
- Gail Falk was a COFO worker in Meridian during the Freedom Summer of 1964. Her blog, Freedom Songs, has several posts about her experiences, with photos.
- The anthropological record shows that fully 85% of all societies in history have been polygamous. An interesting paper published by The Royal Society explores the societal benefits of monogamy, and discusses how monogamous societies were able to advance more rapidly than polygamous ones because of their greater stability, ease of commerce and lack of internal conflict. There are implications for our culture’s practice of what amounts to serial polygamy via divorce and remarriage.
- 101 Really Good Ideas for You and Your Law Practice.
- “Judges should avoid even the appearance of impartiality.” Some legal exam malapropisms from Legal Ethics Blog.
- The über-creatif Marshall Ramsey crafts a clever storylet about a high-powered Mississippi lawyer who is in too much of a hurry and finds himself in hot water in the crossroads of Possum Lick. Or is he?
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #8
This is the third in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #8 …
Know the law and have it handy.
Know the law that applies in your case. It’s never a bad idea to check on what the appellate courts have said most recently about whatever it is you are getting ready for trial. Even if you are an experienced, battle-scarred litigator, you can get blindsided by a rank, newly-minted lawyer if you don’t keep up. Complacency is stupidity in the guise of arrogance; it is intentional ignorance that often proves embarrasing, or worse.
Read the COA decisions every Tuesday afternoon and Supreme Court decisions every Thursday afternoon. When you run across something pertinent to a pending case, print out the decision, highlight the language you need, and stick the decision in your file. That way you’ll have it handy when you need it at trial. If you are too lazy to make time to read the decisions, subscribe to either the Ole Miss or MC law school briefing service and receive summaries via email after each handdown.
Even if you are convinced that you know what the law is, re-read your cases before going to trial. Sometimes you will spot a fatal distinction or even a point in your favor you had overlooked or forgotten.
Often when you are researching one point in a givn case, you will stumble on something that will help in another case. Stop right then and copy the material you found, or make a note of the case citation, and insert it into the appropriate client file.
If you know that your case will involve an issue that is out of the ordinary, have your authorities copied and ready to give the judge. Don’t just read off a few case cites; have copies of the decisions to hand the judge. Some judges require you to give a copy to opposing counsel. When you have authorities at hand, it not only aids the judge in making the right decision, it also communicates to the judge in not-so-subtle fashion that you know you are on sound ground and have confidence that the law supports your position. Contrast that with the lawyer who, when asked what authority supports his position, replies “Well, I know there’s a case out there on point, judge, and if you give me about 10 days, I might be able to find it.”
Have your trial factors printed out and handy, with case cites. Use them as checklists to question your witnesses.
Don’t ever misquote a case or argue that a case says something that it does not. I have heard lawyers make arguments citing cases that I know for certain do not support their position. Those lawyers may have impressed the client with their apparent erudition, but it likely won’t get past the judge, because most of us tend to read the cases before we cite them.
Read the statutes every now and then, even statutes that you think you’re familiar with. You’ll be amazed at what you find there. If a statute applies in your case, have a copy of it to hand the judge. Most court rooms do not include a code, and if you don’t have your statute(s) handy, you will have to wait until the judge can get back to chambers or, worse, back to her office in a neighboring county, before the judge can decide the point.
Get a copy of Deborah Bell’s book and use it.
SHORTCUT TO FAILURE
Sanford v. Sanford, decided May 8, 2012, by the COA is the latest in a line of cases that mandate a written agreement settling all issues between the parties before the trial court may grant an irreconcilable differences divorce.
I will spare you a recitation of the convoluted procedural history that led to the appeal. You can read it for yourself. In essence, what happened is a fairly familiar script:
- Parties and attorneys assemble for some proceeding, perhaps a temporary hearing;
- In the course of negotiations, the attorneys sense that the whole case can be settled. It may be that one or both parties have been intransigent up to this point and the lawyers sense that if they push ahead, maybe they can get the case resolved;
- The lawyers shuttle back and forth cajoling and wheedling, cobbling together a rough product, doing their best to smooth the edges, with uneven success;
- Finally, in hopes that the “settlement” can be held together against the stresses, they recite it into the record, get the parties to mumble their assent numbly, have the court approve it, and get the court reporter to transcribe it as the “written agreement.”
In Sanford, however, Samantha reconsidered and filed a withdrawal of her “consent.” The chancellor denied it, she appealed, and the COA reversed, reiterating its rule that the consent must be in writing, and that it is not sufficient to have the court reporter take the dictated agreement and treat it as an enforceable consent to divorce and/or PSA. In making its decision, the court distinguished a couple of cases that have upheld announced agreements.
Judge Fair dissented, joined by Judges Carlton and Barnes. They would have held that the procedure satisfied the written agreement requirement of the statute. I think most practitioners who have been in that hot-box situation would join in the dissent. But the majority of the court is more comfortable with the formality of a separate, written, signed agreement.
Many lawyers come to court toting along a laptop or at least a zip-drive (i.e., thumb-drive, or USB-drive) or other storage device with form files so that they can hammer out a PSA or agreed judgment or consent while the judge waits. Those of you who are handicapped by being chained to 19th-century technology (pen and paper or quill and parchment) will either have to drag along a secretary with the necessary skills, or upgrade your skills into the 21st century, or tell your client a settlement will just have to wait until some less opportune time.
In any event, the message Sanford sends is pretty clear: get a written agreement signed by the parties if you expect it to pass appellate muster. Shortcuts will not be tolerated.
I used to tell my clients,” We can do it quick or we can do it right.” Translation: “We can cut corners, or we can take a tad longer and make sure we do it in such a way that it can’t be undone.”
A FEW THOUGHTS ON A LEGACY OF PROFESSIONALISM
Attorney Thomas Henry Freeland, III, of Oxford, died last Saturday. His daughter Lee’s brief, but touching, obit is posted on son Tom’s blog. You can read it here.
Mr. Freeland’s friends knew him as Hal. I did not know him, but from what I read about him he was one of those lawyers who set high standards for himself and demanded the same from those who worked with him. The respect he earned is clear in the comments on Tom’s blog.
One of those comments, by attorney Danny Lampley of Tupelo, brought me up short, and I hope he and Tom will forgive me for copying a part of it so you can read it here:
Small things I would overlook as an ignorant clerk were revealed to be important. I recall Hal crossing out incorrect phrasing in an acknowledgment and telling me the correct words to use; and he took the time to tell me why those words were better and explained how doing it one way would have an effect different from doing it the other way. I learned that just because everybody says “the law” is thus and such and “the cases say so” does not mean that is really “the law” nor is it necessarily what the cases said. I learned you gotta read ‘em and you have to understand what it is exactly that they say. I learned to always independently research an issue and to never assume that a rule is today what you thought it was yesterday. I learned how to be a lawyer; I only wish I could more often put it into actual practice.
Mr. Lampley learned how to be a lawyer from one who took professionalism seriously and who understood the care, devotion and attention that the law demands. Beyond learning the craft of lawyering, though, he learned the meaning of professionalism. And — this is important — there is a distiction between ethics and professionalism. Ethics requires that you practice in a way that conforms to both the letter and the spirit of rules of conduct. Professionalism is the style in which you approach and carry out those ethical requirements. Professionalism demands more than mere observance of the standards, Or, as Justice Mike Randoph told a gathering of chancery judges a few months ago: “The rules are the basic minimum. We expect much more than that.”
If you are a young lawyer, I encourage you to seek out a battle-scarred old warhorse who would be willing to be your mentor. If you are as fortunate as attorney Lampley, you will learn that mastery of the legal profession lies not in discovering the shortcuts, but rather in learning to love the hard work, devotion, attention to detail, study, creativity and long hours that it takes to achieve excellence.
Mr. Freeland left his family his own personal legacy, including two children who are, themselves, members of our profession. But far more than that, as those blog comments reveal, he left the legal profession richer by inculcating professionalism in those whom he mentored. I hope that someone will be able to write that about all of us when our days reach their end.
JUDICIAL ELECTIONS 2012
Friday, May 11, was the qualifying deadline for 2012 judicial elections. Although this is not a general judicial election year, some appellate posts are up in their rotation, and there are three special elections. Here are the qualifiers:
- Chief Justice William Waller, Jr., will face Earle S. Banks for Supreme Court Justice District One, Position One.
- Justice Leslie D. King is unopposed for Supreme Court Justice District One, Position Two.
- Justice Mike Randolph will face Talmadge Braddock for Supreme Court Justice District Two, Position Three.
- Josiah Dennis Coleman and Richard (Flip) Phillips are running for Supreme Court Justice District Three, Position Three, which is the position being vacated by retiring Justice George C. Carlson, Jr.
- Judge Ermea Russell is opposed by Ceola James and Latrice Westbrooks in the special election for Court of Appeals District Two, Position Two.
- Judge Gene Fair is unopposed in the special election for Court of Appeals District Five, Position One.
- Chancellor M. Ronald Doleac is unopposed in the special election for Chancery Court Judge District Ten, Place Four.
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