Hicks v. Mickelson

• Decision Date: 23 December 1987
• Docket Number: Nos. 86-5375,86-5376,s. 86-5375
• Citation: 835 F.2d 721
• Parties: , 9 Fed.R.Serv.3d 1122, 24 Fed. R. Evid. Serv. 505 Elaine HICKS, Appellant, v. George S. MICKELSON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 721

835 F.2d 721

56 USLW 2406, 9 Fed.R.Serv.3d 1122,

24 Fed. R. Evid. Serv. 505

Elaine HICKS, Appellant, v. George S. MICKELSON, Appellee.

Nos. 86-5375, 86-5376.

United States Court of Appeals,

Eighth Circuit.

Submitted May 13, 1987.

Decided Dec. 23, 1987.

Owen L. Sorenson, St. Paul, Minn., for appellant.

Harvey C. Jewett, Aberdeen, S.D., for appellee.

Before ARNOLD, Circuit Judge, WRIGHT, ^* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Elaine Hicks, disappointed with the result in her divorce action, brought a legal malpractice case against her lawyer, George S. Mickelson, and now appeals from the adverse verdict. She argues that the district court ¹ abused its discretion by allowing the attorneys only fifteen minutes for voir dire examination of the jury panel, that it abused its discretion in excluding evidence of the sale of her ex-husband's business (which occurred some thirteen months after the trial of the divorce case); and she argues the verdict was contrary to the law and the evidence. We affirm the judgment of the district court.

We need not dwell at length on the facts leading up to the Hickses' divorce. Suffice it to say that the Hickses enjoyed an extravagant life-style. They owned three Corvettes and three other vehicles, they traveled and entertained frequently, and they generally enjoyed most of the material advantages of modern life. Doyle Hicks derived substantial income from his amusement and vending machine business. In addition, he allegedly skimmed substantial amounts of profit from the business.

The Hickses were afflicted with another all too common attribute of the modern "good life"--marital discord. Evidently, Elaine Hicks became romantically involved with one of her husband's business associates. She hired an attorney for the purpose of prosecuting a divorce and, thereafter, they were able to obtain appraisals and agree with Doyle Hicks on the value of most of the marital assets. They were unable, however, to agree on the value of the amusement and vending machine business. Doyle Hicks had it appraised at approximately $200,000 by a businessman knowledgeable in the industry. Mrs. Hicks believed the business to be worth approximately $500,000, and her attorney commenced efforts to obtain an individual to evaluate the business. A court order was obtained requiring Doyle Hicks to pay $1,000 for an appraisal on his wife's behalf but, after the preliminary report, it became evident that a final report costing between $3,000 and $5,000 would be required. In addition, Mrs. Hicks' attorney obtained information about the alleged skimming and felt it desirable to subpoena further business records and "cash cards." He advised Mrs. Hicks that he would need to redepose Doyle Hicks. Mrs. Hicks did not wish to incur the expense of further discovery and, after some fee disputes, fired her lawyer and hired George Mickelson.

Mickelson's handling of the divorce was the subject of widely differing testimony at the malpractice trial. Elaine Hicks stated that Mickelson never talked to her former lawyer and did not look at his files. Mickelson testified that he obtained and reviewed these files. Mrs. Hicks contended that Mickelson spent only thirteen hours preparing the case, treating it as a routine divorce, and that he was not prepared for trial with respect to Doyle Hicks' business valuation expert witness. Mickelson testified that he realized the importance of the value of the husband's business and advised Mrs. Hicks that testimony should be obtained to substantiate a higher value for it, but that she told him it was not necessary as discovery was completed and she did not want to incur further costs. She insisted that the case be tried as soon as possible without further delay or expense. Mickelson therefore used a gross receipts formula, making an allowance of $100,000 for skimming, to arrive at a theory supporting Elaine Hicks' claimed $500,000 value for the business.

At the divorce trial, the judge accepted Doyle Hicks' evidence that the value of his business was $261,000. The judge refused to consider the gross receipts formula advanced by Mickelson. Approximately one year after the entry of judgment in the divorce case, Doyle Hicks sold his vending machines and routes for $225,000, plus $20,000 in inventory. According to Mrs. Hicks, the portion of the business sold was only 36% or so of the total value, and the remainder was the more profitable portion of the business.

Elaine Hicks filed this malpractice case against George Mickelson shortly after her ex-husband's partial sale of the business, complaining particularly about his failure to prepare and to present evidence of the business' value. At the commencement of trial, the district judge announced that he would generally examine the jury panel and would allow each attorney fifteen minutes to conduct voir dire, but would consider extending voir dire if need be. He restricted Mrs. Hicks' counsel to fifteen minutes. She argues on appeal that because Mickleson was a candidate for Governor of South Dakota and the trial occurred just five months before the election, she needed more time on voir dire to evaluate possible juror bias. She also contends that the district court erred in refusing to admit the evidence of the sale of her former husband's business. Finally, she argues that the verdict was against the law and the evidence.

I.

Before the prospective jurors were called, the district judge established the ground rules. He informed counsel that he would ask general questions and counsel would then be allowed to interrogate individual jurors in the event of a positive response, and to conduct supplemental voir dire examination, but emphasized that each side would be limited to fifteen minutes. Counsel for Mrs. Hicks asked "how hard and fast" the court's time limitation was and the district judge answered that he was pretty tough, but if one thing led to another and the questioning lasted a little longer or there were unforeseen interruptions, he would take that into consideration. If there were frivolous questions, however, he would be extremely tough.

The prospective jurors were then brought into the courtroom and the court introduced the parties and inquired if any of the jurors knew either of them. The judge outlined the basis of the claim involved, and he asked if any had knowledge of the Hicks divorce, if they had been divorced, whether it might carry over to the case, and their availability for a week-long trial. The court further interrogated jurors who knew the parties or had some knowledge of the divorce. The judge told the panel that he would instruct them as to the law of the case at the conclusion of the evidence and asked if there were any reasons why they would be unwilling to accept or follow the instructions. Finally, he asked the panel if, on the basis of what they then knew about the case, anyone would have difficulty being a fair and impartial juror.

Counsel for Mrs. Hicks then asked the jury panel if any member had been involved in the coin-operated machine business or if anyone had owned a business, which led to the specific interrogation of two jurors. Counsel then inquired whether anyone had been involved in appraising businesses or property, whether anyone regularly dealt with accountants, and whether anyone had been a witness in a trial or a party to a lawsuit. The latter question led to specific inquiry of two jurors. The panel generally was asked if anyone had had any dealings with an attorney other than those panel members who had already been interrogated. Three jurors were specifically interrogated and it developed that one was employed as a secretary by a lawyer. The panel was asked if anyone had prior jury experience in a civil case.

Counsel for Mrs. Hicks then asked whether the panel members were aware that Mickelson was a candidate for Governor and if they could lay that aside and determine the case based on its facts. They were asked if anyone had worked in Mickelson's campaign or any other Republican candidate's campaign, if they had seen any newspaper articles or literature that might relate to the case, and if they could disregard that material and rely solely on what they heard in the courtroom in reaching their decision. Counsel asked the panel if each member felt that he could be the kind of juror he would like to have sitting on his own case if he were in court, and if anyone disagreed with the legal system or felt that it wasn't proper or right to bring a claim in court. Counsel for Mrs. Hicks then stated that he had nothing further. Opposing counsel interrogated briefly and the court informed all present that counsel were going to have an opportunity to deliberate before they exercised their peremptory challenges. No further statements, comments, or objections came from Mrs. Hicks' counsel at this time.

Mrs. Hicks' counsel states in the appellant's brief that he was amazed at the limitation of voir dire and further states that "not wanting to get off on the wrong foot, very little record was made (regrettably)." He also observes that "during voir dire it became readily apparent that it would be impossible to finish all the voir dire planned, much less to examine each juror individually * * *." The brief further states that counsel approached the bench during voir dire to ask for more time, and in an off-the-record discussion the district judge refused this request.

Our study of the record reveals that an off-the record conference was in fact held during the voir dire by Mrs. Hicks' counsel. Counsel has attached an affidavit to the appellant's opening brief, in which he states that the conference took place when he was thirteen minutes into his voir dire examination and that he was unaware that it was not on the record. He further states that during this conference he advised the court that fifteen minutes was inadequate to...