Category Archives: Civil Procedure

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Mississippi Rules of Civil Procedure provides as follows:

(c) Service.
(1) A subpoena may be served by a sheriff, or by his deputy, or by any other person
who is not a party and is not less than 18 years of age, and his return endorsed thereon shall be prima facie proof of service, or the person served may acknowledge service in writing on the subpoena. Service of the subpoena shall be executed upon the witness personally.Except when excused by the court upon a showing of indigence, the party causing the subpoena to issue shall tender to a non-party witness at the time of service the fee for one day’s attendance plus mileage allowed by law. When the subpoena is issued on behalf of the State of Mississippi or an officer or agency thereof, fees and mileage need not be tendered in advance.

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In Mississippi, judges may grant what is known as a “continuance,” which is a temporary postponement of the trial or court hearing. Either the plaintiff or the defendant may request a continuance, but the Court may also issue a continuance without consulting with either party to a case.

Continuances may be requested when unforeseen events – such as illness or scheduling conflicts – arise but may be granted if a recently retained attorney needs additional time to prepare.  The judge considers the grounds for requesting the continuance, and determines whether there is a valid reason for postponing the case. A judge will usually permit a continuance if it is necessary to preserve the rights of each party to a case, and to prevent a miscarriage of justice. Before issuing a continuance, a judge may evaluate your reason for requesting a continuance, whether you’ve made a good-faith effort to avoid delaying the case, and whether a continuance will prejudice either party in the case.

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One ground upon which a lawsuit may be dimissed is that of forum non conveniens.  A defendant may present arguments that the venue in which the lawsuit was filed is improper due to lack of access to witnesses and evidence.  In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:

(i) Relative ease of access to sources of proof;

(ii) Availability and cost of compulsory process for attendance of unwilling witnesses;

(iii) Possibility of viewing of the premises, if viewing would be appropriate to the action;

(iv) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his remedy;

(v) Administrative difficulties for the forum courts;

(vi) Existence of local interests in deciding the case at home; and

(vii) The traditional deference given to a plaintiff’s choice of forum. Alston v. Pope, 112 So.3d 422 (Miss. 2013)    Miss.Code Ann. § 11-11-3(4)(a) (Rev.2004).

 

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When bringing an action against a party, an important consideration is where to file the lawsuit.  A lawsuit will only be heard if it has been filed in the proper venue, or county.

Mississippi statute regarding proper venue provides that “Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant [1] resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.”  Miss.Code Ann. § 11-11-3(1)(a)(i) (Rev.2004).  In interpreting the venue statute, Mississippi Courts “specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there.” Hedgepeth v. Johnson, 975 So.2d 235 (Miss. 2008) citing Medical Assurance Co. of Mississippi v. Myers, 956 So.2d 213 (Miss. 2007).

 

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In Mississippi, the statute of limitation deadline to sue an attorney for malpractice is three years.  Mississippi’s general three year statute of limitations deadline is applicable to legal malpractice cases. This imposes a three year deadline on suing the attorney from the date of the malpractice.  Mississippi courts recognize the discovery rule in malpractice cases.

In the case of Smith v. Sneed, the Mississippi Supreme Court held that “the statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer”. 638 So. 2d 1252 (Miss. 1994).

In the case of Channel v. Loyacono, the Mississippi Supreme Court held that “the discovery rule is to be applied when the ‘plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question’ or it may be applied ‘when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act” 954 So. 2d 415 (Miss. 2007).

In other words, a client who learns of the attorney’s malpractice should file suit within three yearsfrom the time of the discovery to preserve a claim.

 

 

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Before initiating medical malpractice litigation, the attorney should give the treating physician’s insurance carrier an opportunity to settle.  The attorney will prepare what is commonly referred to as a demand package (also referred to as a settlement package, demand, or demand letter).

The demand package consists of a written brief that includes (i) a concise statement of when and how the malpractice occurred; (ii) a thorough explanation of the theory of how the other party was negligent (specifically addressing any weaknesses); and (iii) a summary of damages (e.g. related injuries, prior related medical bills associated with those injuries, pain and suffering, cost estimate of necessary and related future medical care); and (iv) the settlement amount demanded.

Attached to the demand packet, the following exhibits should be included:

(a) medical reports; (b)  photos of disfigurement; (c) photos of the client (before the injury, during treatment, and after treatment has completed); (d) medical records (including doctor’s notes and diagnostic imaging results); (e) witness statements; (f) pay stubs / income tax returns, if making a lost-wages claim; and (g) the appropriate jury instructions (that would apply if a lawsuit were to be filed).

A well prepared demand packet brief will also cite case law and their application to the facts

 

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In Mississippi, at any time after a judgment is entered, the person awarded a judgment (judgment creditor) is entitled to a court order requiring the debtor to appear and answer questions, under oath about matters that would help the judgment creditor to collect. These questions might relate to what type of property they own, where that property is located, whether or not the debtor has a job, etc.

Mississippi Code Annotated § 13-1-261, provides authority for such a procedure:

(1) To aid in the satisfaction of a judgment of more than One Hundred Dollars ($ 100.00), the judgment creditor may examine the judgment debtor, his books, papers or documents, upon any matter relating to his property as provided in Sections 13-1-261 through 13-1-271 ; except that no single judgment creditor may cause a judgment debtor to submit to examination under this section more than once in a period of six (6) months.

(2) In addition to the method of examination prescribed in subsection (1), the judgment creditor may, in the alternative, utilize the discovery procedures set forth in the Mississippi Rules of Civil Procedure for the purpose of examining the judgment debtor.

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In some cases, an attorney may find that they cannot represent a client due to the client’s illegal or unethical behavior.  The attorney must exercise caution when withdrawing and follow the Mississippi Rules of Ethical Conduct.

The Ethics Committee of the Mississippi State Bar has opined that Rule 1.16 of the code indicates that a lawyer may withdraw from representing a client for good cause if withdrawal can be accomplished without material adverse effect on the client. Rule 6.2(c) indicates that a lawyer should not avoid appointment to represent a person except for good cause such as the client being so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

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The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). M.R.C.P. 59, 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.

A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. M.R.C.P. 59(b), (e); M.R.A.P. 4(d); City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 985 (¶ 3) (Miss.2001) (citations omitted). Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment. Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001) (citations omitted).

But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). City of Jackson, 792 So.2d at 985 (¶ 3). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (citing Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991)). So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment. Melton v. Smith’s Pecans, Inc., 65 So.3d 853, 858 (¶ 18) (Miss.Ct.App.2011) (citing Overbey v. Murray,569 So.2d 303, 305 (Miss.1990); Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988); Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)).  Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1236 (Miss. Ct. App. 2013)

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A subpoena is a writ issued by the court in which a civil action has been filed.  Subpoenas are issued by the Circuit Clerk and served on a person or entity.  There are generally two types of Subpoenas:  the Subpoena Ad Testificandum, which seeks testimony from the person or entity, or the Subpoena Duces Tecum which seeks documents from the person or entity.

Generally speaking, when a subpoena is to be served upon an individual, the attorney directing the service will hire a process server for service.  As the information or testimony required is time sensitive, an affidavit of service from the process server is returned to the requesting attorney.  The affidavit is then filed with the clerk and made a part of the record.

Upon service of the Subpoena, the receiving party must respond in the manner and time period as ordered.  If the receiving party fails to respond with the requested testimony or document production, the serving party may file a Motion for Contempt and Sanctions.  The party serving the subpoenas can be sanctioned if the court finds that the power was exercised to harass or burden the recipient.

Although considered burdensome by the recipient, Subpoenas are an effective discovery tool in both civil and criminal cases.