Don't be afraid to tell the judge what to do

In a constructive-trust decision today, the Mississippi Supreme Court included an "appendix" I found interesting, having tangled with this issue at the administrative level.

The Estate asserts, incorrectly, that Brooks v. Brooks stands for the proposition that when a chancery court adopts and incorporates, verbatim, a litigant’s proposed findings of facts and conclusions of law, those findings must be reviewed de novo.

In Brooks, a divorce case involving allegations of adultery, the chancellor applied an incorrect legal standard, which triggered de novo review. Instead of the proper “clear and convincing evidence” standard, the chancellor used the lesser standard of “a preponderance of the evidence.” The chancellor adopted the proposed findings of fact and conclusions of law submitted by one of the parties, including the erroneous statement of the legal standard.

A trial judge is permitted to adopt a party’s proposed findings. * * *

Thus overruling City of Greenville v. Jones, 925 So. 2d 106, 116 (Miss. 2006). (And, they might've mentioned, Miss. Dep’t of Transp. v. Johnson, 873 So. 2d 108 (Miss. 2004).)

Brooks had ultimately relied upon Rice Researchers, Inc. v. Hiter, 512 So. 2d 1259 (Miss. 1987), but that case, as quoted in the "appendix," actually allowed adoption of PFFCL. Hiter at most justified the "heightened scrutiny" approach taken in later cases of verbatim adoption.

Anyway, pretty much inside baseball for lawyers, but to us it's a useful correction. It kinda sucks having a judge ask you to draft proposed findings and then wonder if that's going to bite you in the ass later.