Chancellor Primeaux on the GAP Act

All lawyers that handle guardianships and conservatorships in Mississippi need to follow Chancellor Primeaux’s blog.  Beginning next month, he will start a series on the Mississippi Guardianship and Conservatorship Act that takes effect January 1, 2020.  The Act consists of 144 pages and as stated in Section 1, will “replace those statutes in Title 93, Chapter 13, Mississippi Code of 1972, which are repealed in Sections 11 through 19 of this act.”  The title alone is over two pages long.  Make no mistake, this is not a simple name change.  As recommended by Chancellor Primeaux, it would be a good idea to print a copy to make notes and highlight.  I killed a highlighter and used almost a full pad of post-it notes on my first pass reading of the Act.  GAP act

Be careful when you select your insurance company

Some insurance companies go out of their way to avoid coverage once a loss occurs.  Post claim underwriting, unreasonable delays, multiple examinations under oath, and onerous document requests are common.  Or, in the case of Cincinnati Insurance Company, an absurd interpretation of policy language.

Often, these claim delays and denials go unanswered because policyholders simply fail to hold their insurance company accountable.  Unfortunately for Cincinnati Insurance, Mr. Frederking didn’t let the denial of his claim go unanswered.  Also unfortunate for Cincinnati, it didn’t find any sympathetic ears at the Fifth Circuit Court of Appeals.

Only an insurance company could come up with the policy interpretation
advanced here. Cincinnati Insurance Company theorizes that its automobile
policies do not cover injuries caused by drunk driving collisions, because such
collisions are not “accidents.” Its logic is this: intentional acts are not accidents, and drunk drivers make the intentional choice to drink and then drive. This theory of interpretation conflicts with the plain meaning and common usage of the word “accident”—and defies the understanding and expectation of everyone who drives a car. Not surprisingly, no court has, to our knowledge, endorsed the policy interpretation advanced here, and Cincinnati cites none…

Frederking v. Cincinnati Insurance Company.

When you purchase insurance for yourself or your business, research the companies.  Do they have a history of denying claims?  Don’t let bottom line price dictate your purchase.  That cheap insurance isn’t so cheap if the company routinely denies legitimate claims.

When faced with the denial of any insurance claim, speak to a lawyer that is well versed in insurance law.  If you have a large loss, particularly a large fire loss, speak to an attorney as soon as possible to help prevent a denial.  Your attorney can assist you with assembling documents, completing your proof of loss, the inevitable recorded statement(s) and examination under oath.

Your Facebook page reveals otherwise

A few moons ago, I blogged about use of Facebook in civil litigation.  In the following years, the use of Facebook in litigation has grown exponentially with the dynamic growth of active Facebook users now exceeding  2.19 billion.  According to Statistica, 240 million of those users are in the United States as of April 2018.

People post every conceivable thing to social media.  Some good, some bad.   It comes as no surprise that social media posts by parties in civil litigation contradicting the claims made in their lawsuits make fertile grounds for impeachment.  Plaintiff claims in litigation that he can no longer lift anything over 25 pounds, but his Facebook page has posts showing him engaging in a power lifting competition.  Defendant driver claims perfect eyesight, but has Facebook posts asking for prayers as he is going to the eye doctor for a surgery to correct his vision.  Plaintiff wife files a loss of consortium claim alleging her husband’s injury damaged their marriage, but she has Facebook posts for two years leading up to the injury discussing her husband’s infidelity.  Defendant claims his dog that bit someone isn’t vicious, but has Facebook posts referencing having to pay vet bills because his dog killed a neighbor’s cat—-again.  The possibilities are endless.

A recent case from the Mississippi Court of Appeals highlights just how damning this evidence can be.    David McLaughlin contended that while making a left turn he was struck by an 18-wheeler that was attempting to pass him from behind.  McLaughlin claimed he suffered damages in the amount of $591,000, including medical expenses, lost wages, and pain and suffering.  Placing the claims of contributory negligence aside, Mr. McLaughlin had some serious evidentiary issues.

First, the trial court allowed the jury to hear evidence of Mr. McLaughlin’s alcohol use.  McLaughlin v. North Drew Freight, Inc.  NO. 2016-CA-01335-COA (Miss. Ct. App. 2018).  The Court of Appeals found no error given that “evidence of possible alcohol consumption just prior to the accident was highly relevant and probative” on the issue of his credibility, recollection and contributory negligence.  Id. (citing Abrams v. Marlin Firearms Company, 838 So. 2d 975 (Miss. 2003).

Next, McLaughlin claimed “that the admission of a Facebook video, which shows him
doing jumping jacks for his daughter, was irrelevant and damaged his credibility with the jury.”  McLaughlin, at paragraph 27.  Again the Court of Appeals disagreed:

The video showed McLaughlin being physically active contrary to his testimony
describing his alleged injuries. This certainly had the tendency to make the existence of this claim more probable or less probable than it would be absent the video. A reasonable juror could conclude that the Facebook video casts doubt on the severity of McLaughlin’s injuries.

Id. at paragraph 29.  The admission of alcohol use, impeachment by Facebook posts, and the comparative fault of the parties resulted in a jury verdict of $1,400.00 which the Court of Appeals affirmed.  As Mr. McLaughlin is now well aware, parties to litigation must be very careful in what they post to social media.

Car wrecks involving public employees engaged in police or fire protection

Negligence actions based on the acts or omissions of state governmental employees are generally subject to the Mississippi Tort Claims Act.  Government employees include those employed by the State of Mississippi and its political subdivisions.  Miss. Code 11-46-1, et seq provides a limited waiver the government’s immunity and also provides specific circumstances under which the government’s immunity is not waived.  Miss. Code 11-46-9 (1)(c) contains what has been referred to as the police and fire exception.

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;

Therefore, the government and its employees engaged in police and fire protection activities are not liable for simple negligence.  To establish liability under the Tort Claims Act against the government and its employees engaged in police or fire protection a plaintiff must establish the employee acted in reckless disregard for the safety and well-being of the plaintiff and the plaintiff wasn’t engaged in criminal activity at the time of the injury.

For many years the government’s immunity left injured parties with no recourse for their losses from car wrecks where the injured party couldn’t establish the high standard of reckless disregard.  In response, some injured parties attempted to obtain uninsured motorist benefits, but were turned away by the language of the uninsured motorist statute which provides in part:

 No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle . . . .
Miss. Code. 83-11-101(1)

The basis for no coverage under 83-11-101(1) is that the injured party was not “legally entitled to recover” from the government so there was no uninsured motorist claim.

In 2009, the Mississippi Legislature amended the definition of “uninsured motor vehicle” to include: “[a] motor vehicle owned or operated by a person protected by immunity under the Mississippi Tort Claims Act, Title 11, Chapter 46, Mississippi Code of 1972, if the insured has exhausted all administrative remedies under that chapter.” Miss. Code 83-11-103(c)(vi).  At first glance, this amendment appears to allow a person injured in a car wreck to collect damages from their own uninsured motorist carrier if a government employee engaged in police or fire protection injured the person through acts of negligence that did not rise to the level of reckless disregard.

However, at least one trial court found the Legislature’s amendment of 83-11-103 futile.  In Williams v. State Farm Ms. Williams was injured in a car wreck caused by an employee of the Mississippi Bureau of Narcotics (MBN).  It was stipulated that the MBN employee was within the course and scope of her employment, engaged in police protection duties at the time of the collision and that her acts did not amount to reckless disregard for the rights of Williams.  Relying on 83-11-103(c)(vi), Williams asserted an uninsured motorist claim against State Farm for her damages. The Circuit Court Judge, in a short two page opinion, found that Williams was not “legally entitled” to recover against the MBN pursuant to 83-11-101(1) and that State Farm was allowed to use all defenses available to MBN.  As a result, the Court granted State Farm’s motion for summary judgment denying uninsured motorist benefits to Williams.

Subsequent to Williams, the same issue surfaced in the case of McGlothin v. State Farm before U.S. District Judge Guirola.  McGlothin’s vehicle was rear ended by a fireman employed by the Biloxi Fire Department.  State Farm again argued  that the claim for uninsured motorist benefits was barred by the “legally entitled to recover” language of
Miss. Code 83-11-101(1). Like Williams, McGlothin argued that she was entitled to coverage, because the Mississippi Legislature amended the definition of “uninsured motor vehicle” in 2009 to include: “[a] motor vehicle owned or operated by a person protected by immunity under the Mississippi Tort Claims Act, Title 11, Chapter 46, Mississippi Code of 1972, if the insured has exhausted all administrative remedies under that chapter.” Miss. Code § 83-11-103(c)(vi).

Judge Guirola analyzed the conflict between Miss. Code § 83-11-103(c)(vi) and Miss. Code § 83-11-101(1) looking to the legislative intent behind each statute.  His analysis concluded:

the two statutes are repugnant, and the only way to carry out the Mississippi Legislature’s intent in enacting Miss. Code Ann. § 83-11-103(c)(vi) is to view it as an exception to Miss. Code. Ann. § 83-11-101(1). Furthermore, Miss. Code Ann. § 83-11-103(c)(vi) should control in this circumstance, because it is a more specific statute than Miss. Code. Ann. § 83-11-101(1).  As a result, McGlothin is entitled to uninsured motorist coverage under the State Farm policy.

There are tens of thousands of police officers and firemen on the roads each day in Mississippi.  The vast majority of them are diligent and careful public servants.  However, they are human and they do make mistakes.  Purchase adequate uninsured motorist coverage to ensure you and your family are protected in the event of injury through no fault of your own in a car wreck with an police officer or fireman.



Settlement Releases by Phone

With increasing frequency we are hearing from individuals that were injured and then contacted by an insurance adjuster trying to settle their case within a day or two of the injury.

In a recent case, an adjuster contacted a man that was injured in a car wreck on the Monday morning following a Friday evening wreck.  The adjuster offered to pay him $3,500 to settle his claim.  The gentleman called me to ask “is this a good deal?”  Needless to say, it wasn’t a good deal.

The man had been to the hospital, but had absolutely no idea what his medical expenses were.  The man has his own medical insurance that will pay for his medical treatment, but his medical insurance company would have to be repaid from any settlement in the case.  The insurance company didn’t tell him that.  The man had follow up medical visits scheduled.  The insurance company had no intention of paying for those, but didn’t tell the man that.  At the time the insurance adjuster was trying to get the man to agree to a telephone release, the man was taking prescription pain medications that could have impacted his judgment.  Long story short, it was a good decision on the man’s part to contact an attorney before agreeing to a settlement.

There is no rush in settling an injury case.  The insurance company or adjuster for the person that injured you is not your friend.  You aren’t in their “good hands” and they are not there to help you.  They have one goal and that is to settle the case as quick and as cheap as possible.   Do not do it!

Do not speak with an adjuster beyond what is required to obtain their contact information.  If you have an attorney, give the adjuster your attorney’s contact information and terminate the call.  If you don’t have an attorney, tell the adjuster that you do not wish the discuss the case at this time.  Then, go find an attorney to consult on the matter.  Do not give the adjuster a statement (recorded or otherwise) about how the injury occurred.  You are under no legal requirement to do so and may seriously damage your case by speaking with the adjuster.

Do not sign any documents or an authorization for the adjuster to obtain medical records.  While some of your medical records may be relevant to your injury claim, you do not want to give an unlimited authorization for an adjuster to obtain every medical record that has been created for you since birth.

The bottom line – Always consult an attorney before speaking with an insurance adjuster or providing any documents to an insurance adjuster.


How to wreck your injury case

I previous blogged about things NOT to do during your divorce.  It has turned out to be one of the more popular subjects on my blog based on 200K+ page views.  Now that you know how to better survive a divorce, lets talk about things you shouldn’t do if you have an injury case.  These are in no particular order of importance.


1.  Lie to your lawyer or withhold evidence.

2.  Fail to notify your lawyer that you are preparing to file bankruptcy or file bankruptcy without telling your injury lawyer.

3.  Destroy evidence.

4.  Speak with an insurance adjuster before speaking with your lawyer.

5.  Delay medical treatment.

6.  Disregard your attorney’s advice.

7.  Talk to your doctor about your legal case.

8.  Talk to anyone other than your lawyer about your case.

9.  Take actions/perform activities you claim you cant do.

10.  Make a wage loss claim if you don’t want to open up your finances to scrutiny.

11.  Claim any element of damages you cannot back up.

12.  Fail to obtain information about your injury as soon as possible.

13.  Fail to keep a diary about the incident for your attorney.  Write down everything you think is important.

14.  Admit fault.

15.  Post about your injury or case to social media sites.

16.  Enter into a quick settlement agreement with an insurance company over the phone.

17.  Fail to repay Medicare, Medicaid or an ERISA plan for medical care they paid on your behalf resulting from the negligence of a third party.

There are other things for a plaintiff to avoid while pursuing a legal case, but these were fresh on my mind from mistakes made by potential clients in the not too distant past.

Defense Expert’s Attack on the Collateral Source Rule Falling Short

The collateral source rule can be summarized by stating “[c]ompensation or indemnity for the loss received by plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the [defendant] in mitigation or reduction of damages….” Coker v. Five-Two Taxi Serv., 211 Miss. 820, 826, 52 So.2d 356, 357 (1951). “[A] tortfeasor cannot use the moneys of others (insurance companies, gratuitous gifts, etc.) to reduce the cost of its own wrongdoing.” Brandon HMA v. Bradshaw, 809 So. 2d 611, 618 (Miss. 2001).

The Mississippi Supreme Court has applied the collateral source rule to:

  • Payments by Medicare.  Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002).
  • Payments by Medicaid.  Brandon HMA v. Bradshaw, 809 So. 2d 611 (Miss. 2001).
  • Amounts “written off” by a non related medical provider.  Purdon v. Locke, 807 So. 2d 373 (Miss. 2001)

However, the collateral source rule does not apply to amounts written off by the tortfeasor.  McGee v. River Region Medical Center, 59 So. 3d 575 (Miss. 2011).  A plaintiff can open the door to collateral source evidence by testifying to a lack of funds to pay for treatment. Geske v. Williamson, 945 So. 2d 429, 435 (Miss. Ct. App. 2006). Likewise “when a witness falsely swears that he or she paid, as opposed to incurred, medical expenses when, in fact, the medical expenses were paid by a third party” the court may allow a defendant to cross examine a plaintiff regarding collateral sources. Robinson Prop. Group, L.P. v. Mitchell, 7 So. 3d 240, 245 (Miss. 2009).

Despite the fact that Mississippi has uniformly followed the collateral source rule, defendants and their expert witnesses continue in their attempts to circumvent the rule.  The most recent attempt involves expert witness John Schneider, Ph.D.

Dr. Schneider claims to apply a health economics methodology to determine a weighted average of healthcare prices actually transacted in the market.  Sartin v. Wal-Mart Stores East, L.P., 1:14-cv-00003-HSO-RHW at page 17 (S.D. Miss. June 5, 2015).  In Sartin, use of Dr. Schneider’s “reasonable value” calculation reduced plaintiff’s life care plan from over $2.1 million in charges down to $590,588.

Although Dr. Schneider artfully avoids referencing insurance or any other collateral source in his Report, his methodology for determining the reasonable value of Plaintiff’s medical care would violate Mississippi’s collateral source rule.  Dr. Schneider’s methodology differentiates between expected charges for services as opposed to reasonable value or actual cost to a patient.

Sartin v. Wal-Mart Stores East, L.P., 1:14-cv-00003-HSO-RHW at page 23 (S.D. Miss. June 5, 2015).  The Court went on to state that “Dr. Schneider’s opinions on the reasonable value or medical care are therefore unreliable and irrelevant.”  Id.  

Judge Ozerden was again confronted with Dr. Schneider in the case of Williams v. Manitowoc Cranes, LLC, 2016 U.S. Dist. Lexis 3553, (S.D. Miss. January 12, 2016).  The result was the same.  “Dr. Schneider’s methodology as applied to this particular case represents a backdoor attempt to give Defendant the benefit of any type of write-off from the actual hospital charges…”  Id. at pages 11-12.  “Dr. Schneider seeks to confer the benefit of any payment or write-off from a third party on the Defendant instead of the Plaintiff.  The collateral source rule as it has been interpreted by the Mississippi Supreme Court prohibits this result.”  Id. a 12.

While Dr. Schneider and defendants disagree on principle, the public policy behind the collateral source rule is quite simple.  “If there is a windfall from which one is to benefit, the injured plaintiff and not the tortfeasor should receive that windfall.”  Chickaway v. United States, 2012 U.S. Dist. LEXIS 110602, *7, 2012 WL 3236518 (S.D. Miss. Aug. 7, 2012).


Another First

Firsts of anything have always been memorable to me whether it was my first dog, girlfriend, school, gun, whitetail deer, 10 pound bass or whatever.

Practicing law is no different.  I remember back to my first divorce trial, first injury trial, first win and unfortunately, my first loss.  The older I get, the occurrence of firsts is significantly less frequent, but they do still occur.

This morning I experienced another first.  It was the first time in 16 plus years and several hundred attempts that I have walked into the Hinds County Chancery Courthouse in Jackson and passed through the metal detector without hearing a beep.

I was so accustomed to the beep that I had already walked forward and lifted my arms for the deputy with the handheld metal detector.  I am not certain who was more surprised, me not hearing the beep or the deputy looking at my outstretched hands which probably appeared to him like I wanted a hug.  When I told him it was the first time in 16 years that the metal detector hadn’t beeped, he laughed and checked to make sure it was still functioning.  It was.  Here’s to another first.  Good Lord willing, hopefully I will experience a few  more.1st

Think before you send.

Some 10+ years ago a defense lawyer as young as I was filed a motion in limine a few days before trial.  Most of it was baseless and by my estimation designed to either get a few more billable hours in or distract me from trial preparation.  Nevertheless, I had to respond to it.  So on a Friday afternoon, I went item by item and responded in a dignified manner…..until I got to the last item.

Plaintiff should be precluded from arguing that defendant is represented by a powerful big city law firm.

Sure enough, the defendant was represented by a law firm much larger than mine.  Most every defendant is.  They had 50+ lawyers in offices in Jackson and a few other places around the southeast.  However, in the whole scheme of things this defense lawyer was not from a big city and his firm’s power was suspect even then (the firm doesn’t exist today).  Rather than simply agreeing not to bring up the subject, I replied with a Friday afternoon snark.

Plaintiff’s counsel agrees not to comment of the defendant being represented by a powerful big city law firm as same would be untrue.

As is advised by legal writing experts, I have since axed the word “same” from my writing, but this was 10+ years ago.  I mailed off the response and went about my weekend.  After closing arguments and while waiting for the jury verdict, the senior partner defending the case remarked that my response wasn’t very gentlemanlike.  He was correct, and I apologized to him.  Since that day, I have made it a policy to always let a response sit for a day after drafting prior to sending it out.

A similar policy would have well served Mississippi House of Representative member Jeffrey Guice of Ocean Springs this week.  A Richland mother, Nicole Nichols, wrote Guice seeking help with the Medicaid system for her diabetic daughter.  Guice’s response:

13537745_1702424976684863_439688363568522985_n (1)

I don’t know Guice.  Maybe he is rude to everyone or maybe Ms. Nichols simply caught him on a bad day at a bad time.  Either way, Guice would do well to follow Seth Godin’s email checklist:

Email checklist

Before you hit send on that next email, perhaps you should run down this list, just to be sure:

  1. Is it going to just one person? (If yes, jump to #10)
  2. Since it’s going to a group, have I thought about who is on my list?
  3. Are they blind copied?
  4. Did every person on the list really and truly opt in? Not like sort of, but really ask for it?
  5. So that means that if I didn’t send it to them, they’d complain about not getting it?
  6. See #5. If they wouldn’t complain, take them off!
  7. That means, for example, that sending bulk email to a list of bloggers just cause they have blogs is not okay.
  8. Aside: the definition of permission marketing: Anticipated, personal and relevant messages delivered to people who actually want to get them. Nowhere does it say anything about you and your needs as a sender. Probably none of my business, but I’m just letting you know how I feel. (And how your prospects feel).
  9. Is the email from a real person? If it is, will hitting reply get a note back to that person? (if not, change it please).
  10. Have I corresponded with this person before?
  11. Really? They’ve written back? (if no, reconsider email).
  12. If it is a cold-call email, and I’m sure it’s welcome, and I’m sure it’s not spam, then don’t apologize. If I need to apologize, then yes, it’s spam, and I’ll get the brand-hurt I deserve.
  13. Am I angry? (If so, save as draft and come back to the note in one hour).
  14. Could I do this note better with a phone call?
  15. Am I blind-ccing my boss? If so, what will happen if the recipient finds out?
  16. Is there anything in this email I don’t want the attorney general, the media or my boss seeing? (If so, hit delete).
  17. Is any portion of the email in all caps? (If so, consider changing it.)
  18. Is it in black type at a normal size?
  19. Do I have my contact info at the bottom? (If not, consider adding it).
  20. Have I included the line, “Please save the planet. Don’t print this email”? (If so, please delete the line and consider a job as a forest ranger or flight attendant).
  21. Could this email be shorter?
  22. Is there anyone copied on this email who could be left off the list?
  23. Have I attached any files that are very big? (If so, google something like ‘send big files’ and consider your options.)
  24. Have I attached any files that would work better in PDF format?
  25. Are there any 🙂 or other emoticons involved? (If so, reconsider).
  26. Am I forwarding someone else’s mail? (If so, will they be happy when they find out?)
  27. Am I forwarding something about religion (mine or someone else’s)? (If so, delete).
  28. Am I forwarding something about a virus or worldwide charity effort or other potential hoax? (If so, visit snopes and check to see if it’s ‘actually true).
  29. Did I hit ‘reply all’? If so, am I glad I did? Does every person on the list need to see it?
  30. Am I quoting back the original text in a helpful way? (Sending an email that says, in its entirety, “yes,” is not helpful).
  31. If this email is to someone like Seth, did I check to make sure I know the difference between its and it’s? Just wondering.
  32. If this is a press release, am I really sure that the recipient is going to be delighted to get it? Or am I taking advantage of the asymmetrical nature of email–free to send, expensive investment of time to read or delete?
  33. Are there any little animated creatures in the footer of this email? Adorable kittens? Endangered species of any kind?
  34. Bonus: Is there a long legal disclaimer at the bottom of my email? Why?
  35. Bonus: Does the subject line make it easy to understand what’s to come and likely it will get filed properly?
  36. If I had to pay 42 cents to send this email, would I?


Pro Se Party Wins His Divorce Appeal

Chancery Court can be difficult even for lawyers.  Things that appear insignificant can suddenly hit you like a sledge hammer on the pinky toe.  A party without benefit of legal counsel is at a significant disadvantage.  That doesn’t mean that self represented parties never win or the court disfavors them, but it is rare for a pro se party to succeed.

Dwayne Norris, representing himself, recently bucked the odds and prevailed in the appeal of his divorce case.  The facts underlying Norris v. Norris, NO. 2014-CP-00939-COA, are relatively short:

 Dwayne and Jacqueline were married in October 2008. They separated in May 2012. On June 20, 2012, Jacqueline filed her complaint for divorce on the ground of habitual cruel and inhuman treatment. Dwayne was served with the summons and complaint. Dwayne filed two pro se responses on July 17, 2012, and again on July 24, 2012, which the chancery clerk filed. On January 13, 2014, Jacqueline filed her notice of service of discovery to which Dwayne did not respond. Jacqueline filed her motion to set trial on March 11, 2014, and a notice of hearing set for April 9, 2014. On April 9, 2014, the chancellor entered an order that set the trial for June 5, 2014. The chancery clerk filed a certificate of mailing that indicated Dwayne was sent a copy of the order setting trial on April 9, 2014.  A trial was held on June 5, 2014. Dwayne did not appear. The trial was held in Dwayne’s absence. Jacqueline and Quinesha McCurdy, Jacqueline’s stepsister, both testified on Jacqueline’s behalf.. On June 12, 2014, the chancellor entered the final judgment that granted Jacqueline a divorce due to habitual cruel and inhuman treatment, changed her name, and allowed her to retain all property in her possession. The chancellor further awarded Jacqueline “$5,000 . . . as equitable distribution of the parties’ debt.”

Dewayne’s brief on appeal very colorfully challenged the sufficiency of the evidence supporting the $5,000 award with a few zingers:

She got the goldmine, I got the shaft.

The trial transcript reflects the lack of specificity and completely unsubstantiated estimations.

There are no defaults in divorce cases, and the defendant’s failure to appear should note provide a plaintiff with a blank check and abrogate the necessity of having an evidentiary basis for the amount of the judgment.

Because the appellant was not present to give his perspective on the factual circumstances, the wife and her attorney had the courtroom all to themselves, free to make assertions with impunity, representations without fear of contradiction, and to paint the vilest portrait of your appellant uninterrupted by objections.

This is like buying a pig in a poke.  There are no defaults in divorce cases, and the defendant’s failure to appear should not be license for a plaintiff to ring up the cash register without showing some evidentiary basis for the amount of the judgment.

The Court of Appeals sided with Dewayne:

Jacqueline did not introduce any documentary evidence to support her claim. Also, the record before us does not indicate that Jacqueline filed a financial statement, as required by Rule 8.05 of the Uniform Chancery Court Rules….Because we conclude that the chancellor’s findings are not supported by substantial evidence, we must also find that the chancellor’s award of $5,000 to Jacqueline was manifestly wrong.

Norris, at paragraph 12-13.

So what do we learn here?  Even if the other side doesn’t show up, put your proof in the record.  Don’t rely on guestimates.  Prepare a proper 8.05 financial statement and introduce it to support your request for an equitable distribution.

If you need to polish up on how to prepare a proper 8.05, take a look at Chancellor Primeaux’s 10 Tips For More Effective Rule 8.05 Financial Statements and his subsequent Five More Tips for More Effective Rule 8.05 Financial Statements.

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