March 11, 2014 § 5 Comments
SOL is a vernacular phrase that means, essentially, that one has run out luck, or words to that effect. SOL is also an acronym for Statute of Limitations. Both mean the same thing.
Statutes of limitation (SOL) are, by definition, statutory creatures of the legislature. In our state, there is a general three-year SOL for most actions, including those based on fraud. And, there is a ten-year SOL to recover land.
So, which SOL applies to an action to cancel a deed procured by fraud?
That was the question before the MSSC in the case of Lott and Saulters v. Saulters, decided January 23, 2014, in which Ralph Saulters filed suit to cancel Brenda Lott’s deed from their mother, Frances, based on fraud, and Brenda and her mother sought a dismissal based on SOL. Here is how Justice Chandler addressed the issue for the majority:
¶7. Brenda and Frances argue that Ralph’s claim for cancellation of Brenda’s deed falls under the general, three-year statute of limitations because it alleges fraud. This requires us to address the question of whether an action to cancel a deed that was fraudulently conveyed falls under the three-year statute of limitations governing actions based on fraud, or if it falls under the ten-year statute of limitations governing actions to recover land. We hold that, where a plaintiff alleging a possessory interest in the land brings an action to clear title or to recover land obtained by fraudulent conveyance, that action is governed by the ten-year statute of limitations.
¶8. Actions to recover land are subject to the ten-year statute of limitations found in Mississippi Code Sections 15-1-7 and 15-1-9. In relevant part, Section 15-1-7 provides:
A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.
Miss. Code Ann. § 15-1-7 (Rev. 2012) (emphasis added). Similarly, Section 15-1-9 provides:
A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity.
Miss. Code Ann. § 15-1-9 (Rev. 2012). A suit to remove a cloud on title is considered an action to recover land. O’Neal Steel, Inc. v. Millette, 797 So. 2d 869, 873 (Miss. 2001).
¶9. Unlike the legislatures of most states, our Legislature has not created a statute setting a shorter limitations period on actions to recover land obtained by fraud; in fact, Section 15-1-9 states that actions to recover land based on fraud will have a ten-year statute of limitations:
A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity. However, in every case of a concealed fraud, the right of any person to bring suit in equity for the recovery of land, of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which the fraud shall, or, with reasonable diligence might, have been first known or discovered.
Miss. Code Ann. § 15-1-9 (Rev. 2012) (emphasis added).
¶10. We have twice applied the ten-year statute of limitations in cases where fraud was alleged in an action to recover possession of real estate. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 748 (1905), overruled on other grounds by Kennedy v. Sanders, 90 Miss. 524, 539-40, 43 So. 913, 915 (1907); Aultman v. Kelly, 109 So. 2d 344, 349 (Miss. 1959). In Jones, we explained–in the context of an action to recover land–that to take advantage of the concealed-fraud provision of Section 15-1-9 quoted above, plaintiffs must allege “that complainants did not discover or know of this fraud over 10 years before instituting their suit.” Jones, 85 Miss. 802, 38 So. 742, 748 (1905) (emphasis added). Likewise, in Aultman, where heirs sought to cancel a mineral deed they alleged was procured from their father by fraud, we stated that the heirs “were required to institute a suit within ten years from the accrual of their right.” Aultman, 109 So. 2d 344, 349 (Miss. 1959).
¶11. We disagree with the Fifth Circuit’s interpretation of Mississippi law on this issue in Suthoff v. Yazoo County Industrial Development Corporation, 722 F. 2d 133 (5th Cir. 1983). [Footnote omitted] In it, the Fifth Circuit applied a three-year statute of limitations to an action where the plaintiffs alleged that they were fraudulently induced to sell land under the auspices that their property would be condemned. Suthoff, 722 F. 2d 134-35 (5th Cir. 1983). The court acknowledged that “the ten-year period for the recovery of land has been applied in two actions in Mississippi to set aside conveyances allegedly procured by fraud,” but noted that no Mississippi court had decided “the precise issue [of] whether such an action is governed by the statute relating to actions for fraud or the statute relating to actions to recover land.” Id. at 137.
¶12. In applying the shorter statute of limitations, the Fifth Circuit followed the rule used by the majority of states. We decline to follow this majority rule, because, as mentioned above, the Mississippi Legislature, unlike the majority of states, has not created a statute setting a shorter period of limitation on actions to recover land on the grounds of fraudulent conveyance. A case from Utah, cited in Suthoff as support for this majority rule, explains the majority rule and illustrates why it should not be the rule in Mississippi given our current statutory scheme:
The legislature of this state, as in nearly all other states, has seen fit to fix a shorter period of limitation upon actions for relief upon the ground of fraud or mistake than for recovery of possession of real estate. This is for the very cogent reason that a person claiming to have been defrauded or to have been induced to enter into a contract by mistake should not be permitted to allow a great length of time to elapse after discovery of the fraud or mistake before instituting his suit . . . .
Davidsen v. Salt Lake City, 95 Utah 347, 81 P.2d 374, 376-77 (1938) (emphasis added).
¶13. Because our Legislature has not created a law shortening the time to bring an action to recover a fraudulent conveyance, and because our current statutory law imposes a ten-year statute of limitations for actions to recover land based on fraud, we decline to adopt the majority rule. We hold that, where a plaintiff alleging a possessory interest is seeking to regain title to land lost by a fraudulent conveyance, or to clarify his own title clouded by fraudulent conveyance, the action still falls under the ten-year statutes applying to actions to recover land, despite the presence of allegations of fraud. [Fn 3]
[Fn 3] We note that an action to cancel a fraudulent conveyance can fall under the three-year statute of limitations where the plaintiff does not allege a possessory interest in the land. See O’Neal Steel, Inc. v. Millette, 797 So. 2d 869 (Miss. 2001), holding that the three-year statute applied where a plaintiff-creditor sought to cancel a deed the defendant-debtor conveyed to a third party in order to avoid a judgment lien. We further note that today’s decision overrules McWilliams v. McWilliams, 970 So. 2d 200 (Miss. Ct. App. 2007), in which the Court of Appeals erroneously applied the reasoning of Millette, incorrectly applying the three-year statute where a plaintiff sought to recover land he allegedly was fraudulently induced to convey.
All of the language quoted above is important, but Footnote 3 is extremely important to understanding how the two SOL’s apply in different situations involving cancellation of a deed. I also found it interesting that a COA decision was overruled in a footnote. Just goes to show that if you don’t read every word, you might miss something crucial.
March 10, 2014 § Leave a comment
As a general proposition, I think most family lawyers would agree that it’s out of the ordinary for there to be an award of attorney’s fees in a modification case absent a companion claim for contempt.
But it’s not unheard of, and it does happen.
Take, for instance, the recent COA decision in Collins v. Collins, handed down February 25, 2014. In that case, the chancellor had awarded Myra Collins $4,234.74 in attorney’s fees after she prevailed in her quest to obtain an upward modification of separate maintenance. Her ex, Arthur, appealed, arguing that it was erroneous for the chancellor to award attorney’s fees in a modification case when there was no allegation of contempt, and there was no finding of her inability to pay.
Judge Griffis addressed the issue for the court:
¶16. In Labella v. Labella, 722 So. 2d 472, 475 (¶12) (Miss. 1998), the supreme court found that one of the parties “clearly established an inability to pay because she was unemployed at the time of trial and her only income was in the form of unemployment benefits.” The court noted that “[t]he general rule is that if a party is financially able to pay his attorney’[s] fees[,] he should do so, though this is a matter which is entrusted to chancellor’s sound discretion.” Id. at (¶13) (quoting Anderson v. Anderson, 692 So. 2d 65, 74 (Miss. 1997)). Also, in Hammett v. Woods, 602 So. 2d 825, 830 (Miss. 1992), the supreme court ruled that “[w]here the record shows an inability to pay and a disparity in the relative financial positions of the parties, we find no error” in awarding attorney fees. Here, the lower court found that “[Myra] has proven that she has an inability to pay and that [Arthur] has the much, much greater ability to pay attorney’s fees, and therefore an award of fees is appropriate in this modification proceeding.”
Does this open the door to an attorney’s fee award in every modification case? Probably not, for a couple of reasons. First, this is a separate maintenance case, and, if you think about it, separate maintenance is in effect an ongoing temporary divorce order. Since its purpose is to provide the wife with as close as possible to her reasonable standard of living without rendering the husband destitute, it stands to reason that her standard of living should not be further reduced by having to pay attorney’s fees to mantain that standard of living. To deny her attorney’s fees wouold defeat the purpose. Second, it has always been the law that, although an award of attorney’s fees is not favored in a modification case, it is appropriate where it would impose an unfair burden on the prevailing party, as where there is a clear inability to pay, or the lack of an award would impoverish children, etc.
This case is not an outlier. Rather, it demonstrates that the chancellor has considerable discretion both as to whether to award a fee, and as to its amount.
March 7, 2014 § Leave a comment
March 6, 2014 § 1 Comment
If you are going to do any wrongful death practice at all, you must familiarize yourself with the MSSC’s decision in the seminal case of Long v. McKinney, 897 So.2d 160 (Miss. 2004), reh den. April 7, 2005.
The decision clarifies many important concepts involved in wrongful death claims, including priority of jurisdiction, the distinction between heirs and wrongful death beneficiaries, allocation of attorneys fees, costs and expenses, representation, conflicts of interest, and control of litigation.
What is important in this case to the chancery practitioner, however, is Justice Dickinson’s exposition on the role of chancery court.
There is much confusion in the bar, and perhaps the bench as well, about exactly what is the proper role of chancery court in wrongful death. Justice Dickinson expounds:
¶59. Perhaps no aspect of wrongful death litigation is more misunderstood and misapplied than the role of the chancery court.[Fn 13] With respect to a wrongful death suit to be pursued in circuit court, chancery jurisdiction should be invoked for the following purposes:
Fn 13. The misunderstanding can be partly attributed to the Uniform Chancery Court Rules, which address petitions for authority to compromise, and petitions for allowance of attorney fees, in wrongful death suits. U.C.C.R. 6.10, 6.12. These rules apply only to wrongful death suits which require chancery jurisdiction. See discussion infra.
¶60. In the event the litigants wish to pursue a claim on behalf of the estate of the deceased, [Fn 14] such estate must, of course, be opened and administered through the chancery court. As is true in all estates administered through the chancery court, chancery approval is required for the appointment of the personal representative of the estate, whether executor, executrix, administrator or administratrix.
Fn 14. We recognize that, because of the limited recovery available to the estate in many cases, litigants may choose, with advice of counsel, to proceed without including a claim on behalf of the personal representative or the estate. As discussed infra, such decision should be made only after full disclosure to all who might benefit from the estate.
¶61. There is no general requirement under law that the personal representative obtain chancery approval to pursue the claims of the estate in the litigation. Nor is there a general requirement that counsel representing the personal representative and the estate in the litigation obtain prior chancery approval of such representation or the agreement for compensation of counsel. However, obtaining such prior approval is a widely accepted and wise practice.[Fn15] Such prior approval will, in most instances, avoid difficulty when the chancellor is approached for an order approving the accountings and the final distribution of estate proceeds, where such payments include compensation to counsel.
Fn 15. This is especially true where counsel representing the estate in the wrongful death litigation has not agreed, and does not intend, to represent the estate generally.
¶62. Where a recovery is had by the estate in the litigation, the proceeds must be administered and distributed though the chancery court in the same manner as other assets of the estate, and counsel for the estate must be paid from estate proceeds or assets, upon approval of the chancery court in the same manner as other debts and obligations of the estate. * * *
¶66. Frequently, wrongful death litigation will involve a minor, either as an heir of the estate, a wrongful death beneficiary, or both. In such cases, the representation of the minor’s interests, and any agreement for the payment of attorney fees from the minor’s share of proceeds, must be approved by a chancellor, as in other cases. [BCP Note: settlement of the minor's claim must also be approved by the chncellor, in the same manner as any other minor's settlement.]
Determination of wrongful death beneficiaries.
¶67. Section 11-7-13 provides that wrongful death litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. Miss. Code Ann § 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a decedent; that is, those who inherit in the absence of a will. Although our statutes mandate no specific procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings. [Fn 16]
Fn 16. Recognizing that the lack of a specific procedural framework for determining wrongful death beneficiaries is a handicap for practitioners, this Court – in its continuing review of procedural rules – will address this need.
One of the biggest sources of confusion, in my experience, is the disconnect between the status of persons as heirs and as wrongful death beneficiaries. The categories overlap, but they are not the same. A person may be a wrongful death beneficiary, and yet not be an heir. You need to read and stidy the statutes to learn the difference and to be able to identify all of the individuals who must be included. Merely filing an action to determine and discover unknown heirs at law will not identify all the wrongful death beneficiaries.
From a chancellor’s perspective, I think the most important aspect of all is that of the minor’s settlement. You can make any agreement in circuit court about how to settle the wrongful death action, but you can not tie the hands of the chancellor as to whether the settlement is reasonable or adequate for the child(ren), or as the amount of fees to which it is subject, or to its amount.
March 5, 2014 § Leave a comment
The official policy of The Better Chancery Practice Blog is to encourage comments. But there are some limitations, and that’s because this is a blog that intends to be a resource for lawyers and judges. It’s not a legal advice blog for laypeople, and it’s not a place to vent about the injustices of the world; there are plenty of web sites and blogs for that sort of thing. Not here, though.
With that in mind, here are some pointers:
- Your comment can be published anonymously, but only if I know who you are. That requires a valid email address and your identity. Two reasons for that: (1) I feel responsible for the content here; and (2) if you feel strongly enough about something to put words on the page, you should have the integrity to stand behind your words.
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March 4, 2014 § Leave a comment
We talked in a post here last week about how to cope with the forgetful witness. That post focused on refreshing the present recollection of a witness with a writing or other object per MRE 612. Once the witness’s ability to recall has been restored, the witness may then go forward with his testimony.
But how does one handle the case where the witness simply has no present recollection whatsoever, even after your best effort under MRE 612?
Well, if the witness has no recollection whatsoever, the witness should be excused, because he does not meet at least one of the most basic criteria of a competent witness, which are the ability to recall and relate truthfully. MRE 601, 602, 603; See, e.g., Goforth v. State, 70 Miss.3d 174 (Miss. 2011).
If, however, the witness once did have personal knowledge, but now has insufficient recollection, and there is a record made or adopted by the witness while the matter was fresh on his mind, MRE 803(5) gives you a way to get those matters before the court.
Here are the steps:
- Establish that the witness once had personal knowledge of the matter, but now has insufficient recollection to testify independently, fully and accurately.
- Establish that there is a written or recorded record of the matter that was made by or adopted by the witness while it was within his memory and was within his knowledge.
- Have the witness confirm that it correctly reflects the witness’s knowledge at the time.
- Ask that the statement be admitted. If the court deems it admissible, then MRE 803(5) provides that it “may be read into evidence,” but it is not itself received as an exhibit unless offered by an adverse party. This is a somewhat curious procedure, and I have never seen it done this way, but that is what the rule dictates.
An example of MRE 803(5) in action is where a physician is called as a witness to testify about a person’s physical and medical condition when the doctor examined him. She has no independent recollection on the day of trial of this particular patient’s condition as it existed at the time in question, but she has her patient record, either dictated by her at the time or recorded by a nurse or aid and adopted by the doctor as an accurate reflection of the facts while they were fresh in her memory. See, e.g., Harness v. State, 58 So.3d 612 (Miss. 2009).
MRE 803(5) and 612 are two excellent tools at your disposal to overcome the dilemma of the witness stranded alone on the witness stand devoid of memory.
When a document is admitted into evidence, or the court overrules an objection allowing a witness to testify as to a particular point, all that means is that the information gets to the judge either in the form of something that the judge can look at and study, or verbally. Either way, when it is in evidence, it is fair game for the court to weigh and take it into account in its ruling. It’s your job to get those key items into the judge’s hands to look at, or into the judge’s ear.
When you quit thinking about the MRE as a collection of obstacles to the admission of evidence, and begin seeing them in terms of how they offer you many portals to the court’s consideration, you will find your trials a whole lot easier and more successful.
March 3, 2014 § Leave a comment
There is legislation wending its way through the halls of the Capital that might end up making some changes in your chancery court district.
HB 1026 has passed the House and is before the Senate. If it would pass in its current form here are some of the changes you could expect in chancery:
- Third District (DeSoto, Grenada, Montgomery, Panola, Tate, Yalobusha). Adds one additional chancellor to bring the total to four. Two chancellors would be elected from DeSoto, and two would be elected from the remaining counties. Current chancellors are Lynchard, Lundy, and Cobb.
- Fourth District (Amite, Franklin, Pike, Walthall). Adds one chancellor. Current lone chancellor is Halford. This district is now one of only four one-judge chancery districts in the state. If this change goes through, that would leave the following one-judge districts: Second (Newton, Scott and Jasper) Clark; Fifteenth (Copiah and Lincoln), Patten; Nineteenth (Jones and Wayne), McKenzie.
- Ninth District (Washington, Sunflower, Humphreys, Sharkey, Issaquena, and Warren). Would surrender Humphries to a newly-created Twenty-First District, leaving Washington, Sunflower, Sharkey, Issaquena, and Warren . Current chancellors are Barnes, Weathersby and Wilson.
- Eleventh District (Madison, Yazoo, Holmes, Leake). Would surrender Yazoo and Holmes to a newly-created Twenty-First District, leaving Madison and Leake in the eleventh. Current chancellors are Goree and Brewer.
- Twentieth District (Rankin). Would add one chancellor. Current chancellors are Grant and Fairly.
- Twenty-First District (Humphries, Holmes and Yazoo). Would create this district. Number of chancellors is not specified in the bill, as far as I can tell.
- There are numerous changes to arrangement of precincts within subdistricts. If your district has subdistricts, you might want to check the bill to see whether any changes are being made.
There are also changes made in circuit court districts and judgeships.
Of course, this legislation still has to make it through the Senate, and then through conference, and then get the Governor’s signature before it becomes law, and it may see some substantial revisions in the process. If it does survive to become law, however, it will make some of the most visible changes in the chancery landscape that most of us have seen in many years.
February 28, 2014 § Leave a comment
Anyone who knows me can tell you that I am an epic history nerd.
So, when Circuit Judge Ashley Hines recently told me about a remarkable memoir of Mississippi Delta life in the 1880′s, I made it my business that very day to find and buy a copy at Square Books in Oxford.
The book is Trials of the Earth, by Mary Hamilton, who lived from 1866 to 1937. How her papers came to be published is a story in itself.
In 1931, Delta writer Helen Dick Davis and her husband, Reuben, moved to a home that Mr. Davis had built in Phillip, Mississippi, north of Greenwood. Reuben’s younger half-brother married Mary Hamilton’s daughter, Edris, and it was through this family connection that Helen Davis came to know and befriend Mary Hamilton, who lived nearby at the time.
As they whiled away time together, Helen was enthralled by Mary’s tales of a Delta altogether unknown and foreign to Helen’s experiences. The Delta that Helen knew was rich farmland under cultivation, civilized towns, culture and agriculture. The Delta that Mary painted in vivid hues was a nearly impenetrable wilderness of virgin timber and flood-prone bottomlands where people lived in isolation, in peril from sudden floods, storms, panthers, wolves, bears, snakes, and disease. It was a land where one’s very existence had to be wrested from the earth every day. Mere survival came at the cost of bone-wrecking toil.
Helen urged Mary to reduce her memories to writing, but the elderly woman, then in her mid-sixties, at first declined. It was only after she fell ill and had a feverish dream which she interpreted to mean that she should commit her story to paper that she began writing. And write she did. In 1933, she turned over a 150,000-word handwritten manuscript to Helen, who edited it and wrote a preface. She submitted it to Little Brown publishing house, which rejected it.
Before she could submit it to another publisher, however, she got word from Mary not to try any more to publish it. Mary said that her dead husband, Frank, had come to her in a dream and told her that the stories were their “private Valentine,” not for others to read. Helen put the manuscript away.
Helen’s daughter, Carolyn, discovered the manuscript in 1991, and submitted it to the University of Mississippi Press, where JoAnne Morris, wife of Willie Morris, was Senior Editor. Before she married Willie Morris, she had been JoAnne Prichard of Yazoo City, a co-worker of Helen Davis. The book was accepted for publication. It was released in 1992, only a few months after Helen died, and it included a foreword by Mississippian Ellen Douglas.
Mary Hamilton’s heirs filed suit to stop publication and to establish their claim to the rights, and they succeeded on both counts. The book sold out the run published by University Press, and lay un-republished until January, 2013, when it was self-published including the Davis and Douglas additions, and an introduction by Morgan Freeman. The 2013 edition is in paperback, and is available through Nautilus Publishing of Oxford.
As Ellen Douglas points out in her foreword, we have many portrayals of Delta life in the form of slave narratives and tales of upper-class plantation life, but memoirs depicting the everyday struggles of poor whites in the lowlands along the Mississippi River before the land was cleared and put into cultivation are practically non-existent. The story of the poor white settler of that era is what Mary Hamilton gives us.
In eloquent, simple language, Mary’s book tells how she was forced into a marriage to a secretive, mysterious Englishman when she was only 17 years old, and how they embarked on a hard life full of struggles, minor successes, gargantuan failures, births and deaths, dangers, joys and heartaches. They were among the first white people to enter the Mississippi Delta to clear it and make it habitable. Remarkably, all this occurred in only the twenty years or so before the dawn of the twentieth century. The following passage will give you a sense of what they were up against:
… Cane, undergrowth, blackberry briars, grape and poison oak and muscadine vines, all growing to enormous size out of that rich Delta ground, interlaced through that fallen timber so that it was one tangled mat. Not a trail or path through it.
But the whole country was almost as bad. A man couldn’t get through any of the woods without a compass in one hand and a cane axe in the other to blaze every foot of the way. In throwing the timber the men had to cut a path to their tree every morning. then they would estimate the direction they would throw the tree, and each man cut a path to get away in when the tree started to fall, and God help them if they couldn’t outrun the falling tree.
At the end of the book is a holographic transcription of Mary’s writing, demonstrating at once her command of imagery and description, as well as her inadequate spelling, grammar and lack of understanding of punctuation and paragraphing. The editors took care to preserve her plain language, correcting only as needed to render a readable product. Fair warning: the editors also left intact her language describing those of other races, which reflect the attitudes of her day, and not those appropriate to the 21st century.
You don’t have to be a history nerd to be fascinated by this book. It’s a story that oscillates between vibrant adventure and humdrum existence, pretty much like most people’s lives, which is a key reason why it is so approachable and entertaining.
February 27, 2014 § 2 Comments
The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and – when those ploys don’t work – yelling, at witnesses whose memories somehow have escaped them altogether.
To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.
It doesn’t have to be so complicated, however.
Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.
Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.
Here are the proper steps:
- Establish that the witness is unable to recall a particular thing.
- Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
- If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
- Now the lawyer asks again if the witness now remembers after looking at the writing.
- If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
- If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.
MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.
The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).
The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.
In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.
An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.
February 26, 2014 § Leave a comment
I’ve whined here more times than I can count about how the record is almost always bereft of any testimony from either party in a divorce about what valuation date should be used by the court in assessing values. The date that the chancellor uses can take away or add thousands of dollars to your client’s slice of the marital pie, so it’s a subject that you should approach with some interest.
The valuation date (or demarcation date) is entirely within the discretion of the court, and if you do not put evidence in the record as to which date should be used and why, then you are leaving it strictly up to the chancellor to go with any reasonable date. One of several previous posts where I spelled this out is here.
If I were trying a case with valuations, I would always ask my client what valuation date should be used and why. And remember, that different assets can have different valuation dates. Why? Well, for one thing, it gives you something in the record to argue, as opposed to raising the argument in a vacuum on appeal with nothing in the record to support it. For another, it just might be all the chancellor needs to select the very date that your client designates. And, for yet another, if you don’t put that evidence under the judge’s nose, how in the world do you expect the judge to guess correctly what your client wants?
So how do you pick the best valuation date for your client? Look at how values are fluctuating, if they are, and pick the most advantageous date, then have your client explain to the court why and how that date will produce the most equitable result. If you want inspiration on how to do this, I suggest you study the various appeals where the court has upheld the chancellor’s arbitrary decision on valuation dating. How the chancellor picked a date is one indicator you can use. You can also draw inspiration from the after-the-fact arguments of counsel who left it up to the trial judge. The COA decision in McDevitt v. Smith, handed down November 26, 2013, is a recent example.