Thursday, May 13, 2010

Forewarned is forearmed

Apart from the egregious Akins decision (see post below), there are a couple of interesting reversals today in criminal cases -- one in a murder case where the defendant's prior domestic abuse plea was wrongfully admitted in the form of a videotaped interrogation, and another reversing a conviction where the defendant's waiver of the right to counsel was not "knowingly and intelligently made."

Both seem cogent, indeed painfully obvious, but some language in the latter may come back to haunt civil litigants. First they quote URCCC 8.05:
When the court learns that a defendant desires to act as his/her own attorney, the court shall on the record conduct an examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney.
The Court's bold, with footnote:
This Court has held that, “unlike the discretionary nature of ‘may,’ the word ‘shall’ is a mandatory directive. . . . no discretion is afforded the trial judge.” Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994) (emphasis in original).
"Shall" means "shall," the Court reiterates:
Were our decision today different, the ramifications would extend far beyond this case. Our trial judges and lawyers would be left to wonder whether Rule 8.05, or any other rule, means what it says. It is no small concern to us that our rules and statutes are replete with provisions of what “shall” and “shall not” be done. Were we to hold otherwise, the bench and bar would surely wonder what definition de jour this Court might apply to “shall” in future cases.

This interests me because of another rule in the URCCC, which TBA considers likely to be the most disregarded rule of court: 4.04(A):
All discovery must be completed within ninety days from service of an answer by the applicable defendant.
(Garner's Modern Legal Usage deems "must" equally prescriptive as "shall," if not moreso.)

After today's unanimous opinion in Patton, I would not want to be arguing to this Court that Rule 4.04(A) doesn't really count. Get those agreed scheduling orders in place early, folks.

... 2d and 3d most disregarded rules: M.R.C.P. 56(h), court "shall" award expenses to prevailing party upon denial of summary judgment; M.R.C.P. 37(a)(4), "shall" award costs and attorney's fees on grant of motion to compel, unless "opposition to the motion was substantially justified" (when you figure out what that means, tell us) "or that other circumstances make an award of expenses unjust." ("Other circumstances" in our experience include "necessity of securing campaign contributions from a local attorney who practices more often in the court than does the Jackson attorney whose Rule 37 motion I've just granted.") Leave your own "most disregarded rule" candidate in comments!

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