Your Lawyer Forgets To Ask Questions During Trial

What if your lawyer forgets to ask your spouse important questions during the trial?

This new case from the Mississippi Court of Appeals teaches us that you better remind your lawyer to ask the questions or you are out of luck.

Thomas Ethridge married Christy Ethridge on February 20, 2015.

They had one kid while they were married.

They agreed to an irreconcilable differences divorce.

So, the only issue the trial judge had to decide was child custody and visitation.

Thomas got upset because the trial judge limited his visitation based in part, on the tender-years doctrine.

Thomas was also upset because he claimed Christy lied and committed perjury when she testified at trial about her ability to care for the child.

Thomas then files an appeal to the Mississippi Court of Appeals.

The Mississippi Court of Appeals looks at the case and the trial transcript (that’s the transcript the court reporter takes).

Here is some of the legal “mumbo jumbo” the Mississippi Court of Appeals talks about in reviewing this issue:

In reviewing a child custody decision, we will affirm unless the chancellor was manifestly wrong, the decision was clearly erroneous, or the chancellor applied an erroneous legal standard.  Error arises if the chancellor’s decision is not supported by substantial evidence in the record.  Limbaugh v. Limbaugh, 749 So. 2d 1244, 1246
(Miss. Ct. App. 1999).

Thomas argues that the trial court incorrectly applied the tender-years doctrine and the fact that he is a male, when it decided the issues of custody and visitation, and, in so doing, incorrectly considered and applied the Albright factors.

Christy responds that the court did not abuse its discretion by awarding her physical custody, nor did the court improperly rely on the tender-years doctrine, despite Thomas’s representations to the contrary.

The child was only eight months old at the time of the custody determination, clearly a child of “tender years.”

She notes that, even though the tender-years doctrine has been weakened, “there is still a presumption that a mother is generally better suited to raise a young child.”

The court declared that “the Albright analysis is not a formula[,] and it does not involve who wins how many factors to get custody. It is a balancing test and an analysis that the law requires for the [c]ourt to consider custody . . . . ” See O’Briant v. O’Briant, 99 So.
3d 802, 805 (¶15) (Miss. Ct. App. 2012).

Thomas asserts that the reason the issue of her mental fitness was not brought before the court was because his trial counsel was involved in a hitand-run accident and was distracted when he returned to the court.

In response, Christy points out that Thomas’s counsel rested before the break for lunch, and after lunch, the judge announced his ruling from the bench, so Thomas’s counsel’s incident during the break had
no effect on the proceedings.

In rejecting Thomas’s post-trial motion for a new trial based on the allegation that Christy had committed fraud during the trial, the chancellor stated:

At oral argument Christy’s counsel represented that all parties and
[Thomas]’s trial counsel were aware that Christy had a prior stay at Pine
Grove in Hattiesburg as a result of a break up with a prior fiance before her marriage to Thomas.  Those records were provided in discovery and appear to concern the years 2010 through 2012. Copies of those records were provided by Christy’s counsel to the Court and Thomas’s current counsel at the motion hearing.  Those records are being filed under seal in the court file. 

The records are not in evidence from trial.  The use, non-use, or relevance of such information by Thomas at trial is deemed by the Court to involve trial strategy.  The information was apparently known to Thomas and his counsel at trial.  It was not introduced nor offered into evidence.  Thus, there is no new or unknown evidence intentionally withheld by Christy that supports Thomas’s motion for a new trial on the grounds of perjury or fraud upon the Court.

Now, let me give you the English version of what happened.

Thomas’ lawyer forgot to ask questions about Christy’s mental health.

Was it because the lawyer was in a wreck?

I don’t know and I can’t tell from the decision.

I do know this teaches us all a valuable lesson.

If you want to ask questions about something you better do so at the trial.

If you forget, no matter what the reason, you are out of luck.