Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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"Berg weaves nuts-and-bolts techniques that will make you a better trial lawyer with illustrative stories from his legendary career. He has tackled a wide variety of cases and draws from his varied experiences to explain his winning methods."

Berg has tried many cases and clearly loves trial work. The book contains just the right mix of nuts-and-bolts tips and war story examples from Berg's trials. It also helps that Berg has a good sense of humor that he incorporates into his writing.

One of the things that I appreciated was Berg's willingness to take on conventional wisdom. I have developed the opinion that conventional wisdom is often wrong in litigation and trial practice. As an example, conventional wisdom is that you only ask a question in cross-examination that you know the answer to and have a deposition or document to impeach the witness with if you don't get the right answer. And while you want to keep this "rule" in mind, to conduct a truly great cross-examination you have to develop instincts to cast this rule aside at the right moment. Berg agrees and states that the essence of the rules of cross is to listen to your instincts.

 The structure of the book is typical for trial a practice book. There are chapters on persuasion, preparation ("90% or winning is preparation") and focus groups, before proceeding to chapters based on the phases of a trial starting with voir dire. Berg is right about the importance of preparation. But one thing that I have noticed is that many--if not most--lawyers do not know how to prepare for trial. The result is a lot of unfocused work before trial and a mess of a trial.  

 At 310 pages the book is just the right length. With a list price of $75.00, Amazon.com currently sells it for $47.25. It is worth the price and worth the read.

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Governor Barbour appointed Malcolm Harrison Circuit Court Judge for Hinds County today to fill the term of Judge Bobby DeLaughter. Harrison is currently the County Attorney for Hinds County. Here is Harrison's bio:

Hinds County Attorney, S. Malcolm O. Harrison is a native of Jackson, Mississippi and graduated with honors from Jackson State University in 1991. Attorney Harrison attended Cumberland School of Law, Samford University in Birmingham, Alabama graduating in 1994 with his Juris Doctor degree. Attorney Harrison was admitted to the Mississippi Bar, April of 1995. Attorney Harrison is licensed to practice law in all Courts in the State of Mississippi, including the Supreme Court of Mississippi as well as the Fifth Circuit Court of Appeals in Louisiana.

Attorney Harrison is a member of several legal associations including, the American Bar Association, Mississippi Bar Association, Magnolia Bar Association, Mississippi Trial Lawyers Association, and American Trial Lawyers Association.

Attorney Harrison is involved and holds many offices in civic organizations, including Leadership Jackson; City of Jackson, Mayor's Youth Initiative, NAACP; Salvation Army; Trustee Board Member, Farish Street Missionary Baptist Church; 7th District Scholarship Chairman; Omega Psi Phi Fraternity, Inc.; T.C. Almore Lodge #242 F&AM; and Jackson State University, National Alumni Association.

On November 2,1999, Attorney Harrison was elected County Attorney for Hinds County Attorney for Hinds County, Mississippi. Attorney Harrison was the first African American elected County Attorney for Hinds County, Mississippi. Attorney Harrison also serves as the City Prosecuting Attorney for Bolton, Mississippi.

Attorney Harrison is married to the former Tammiko Walker and they have two sons, Khari and Kiland.

You can read my prior posts speculating about Harrison getting this seat here. I view this as a smart appointment by Barbour, who appears to be positioning himself for a possible presidential bid. He recently came under criticism for not appointing African-American judges, which I discussed here. Look for Barbour to appoint more black judges over the next couple of years in order to repair his image on this issue.

Harrison will probably have opposition in the next election, but he stands a good chance to retain the seat if he campaigns hard.

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It's only been a week and a half since my last post on the glacial pace of President Obama's judicial and U.S. Attorney appointments, but coverage is growing in the national media.

The process reminds me of the photo to the right.

On Monday I saw this Slate article tilted "The Bench in Purgatory." The Slate article blames Senate Republicans for the delays:

It seems clear that Senate Republicans are prepared to take the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president's judicial nominees.

The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama's agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so.

This afternoon the WSJ Law Blog had this article titled: "Blame Game: On Obama's Judicial and U.S. Attorney Nominees." The article cites the Slate article and comments:

But for now, what we can say from our own little corner of the world is that the process for replacing vacancies on the federal bench and among federal prosecutors hasn’t exactly been a quick one.

Last week I said this about the President's appointments and Republicans:

If the President thinks that Senate Republicans will give his nominations a pass because he appoints people his administration perceives as moderates, then he is kidding himself. Republicans play politics for keeps and are going to oppose the President's nominees for political reasons, regardless of who they are. 

It is going to take a long time for Obama to get his appointees through the Senate. The quicker the process starts the better.

My personal opinion is that if Senate Republicans are sandbagging votes on Obama's nominations, then it is a political mistake and symptomatic of a party that has lost its moorings. But regardless of that, I don't see how the White House can blame Republicans for the fact that the Obama is not making appointments. It's not the Republicans' fault that Obama has not nominated 57 of 90 U.S. Attorney slots or most of the 90-plus vacancies on the federal bench.  The fact that the Republicans are playing hard ball should make it easier to decide on nominees--not harder. If the Republicans are going to oppose everyone, then why spend time looking for someone who Republicans might agree to? To borrow a football analogy, it's time for the White House to make some half-time adjustments. They need to forget about the Republicans and make the nominations for these positions.

If the anniversary of Obama's inauguration arrives and there are still massive vacancies, look for Republicans to use it as evidence of the President's ineptness. It's time for the President to head the Republicans off at the pass and name appointees/ nominees for all vacant judicial and U.S. Attorney positions. Once that is done, then the President and Democrats can blame confirmation delays on Republicans.    

Finally, last night Mississippi blogger Will Bardwell had this post citing statistics that President Bush was slower filling appointments than Obama. Is that what we're already down to with Obama? Comparing his presidency to perhaps the worst president EVER?  I was hoping for a presidency that compared favorably with administrations that were significantly better than Bush's. 

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The Saturday Clarion-Ledger was legal themed with three articles covering legal issues. There was this article about Big Law paying would-be associates to perform public interest work instead of starting work at the firm, which doesn't have work for new associates due to the recession. These are great programs for several reasons. Money starved non-profits and public policy firms get free legal work. The new lawyers get valuable experience and exposure to the poor and and mistreated that most would not otherwise obtain. The bad news is that this is a terrible sign for the legal industry in general and current law students in particular. For the legal industry it indicates how little work big firms have. For law students, if Big Law is paying new lawyers to work somewhere else, then the job market must be terrible.   

Another article was this article about this week's Mississippi Court of Appeals decision in which the Court ruled that a railroad did not have standing to challenge an adoption by a former employee who sued the company.

The longest article was this Jerry Mitchell article about the Mississippi Supreme Court reversing Judge DeLaughter's grant of summary judgment for attorneys Gene Tullos and Crymes Pittman. The article contained this statement:

Since that plea, the high court has upheld nearly all of DeLaughter's rulings in criminal and civil cases.

That did not seem right when I read the article. It did not seem right to Tom Freeland either, who wrote this post about it at NMC and commented:

Since the first of August, the Mississippi Supreme Court has published opinions in four cases appealed from rulings by Judge DeLaughter.  All four were reversed; it’s a small sample size, but the court hasn’t upheld a single one of DeLaughter’s rulings since the plea.   His rulings have faired better in the Court of Appeals– three affirmances, two in civil cases (one of the affirmances was a pro se criminal appeal).  Going back to when the cloud first formed over his head in December of 2007, there were two reversals and six affirmances by the Supreme Court, which is more what you’d expect.

I’m having trouble counting four reversals, no affirmances as “upholding nearly all of DeLaughter’s rulings…” since the plea.

Agreed. I try to read the Court's hand-down decisions every Thursday. My general impression, without going back and doing the research, was that Judge DeLaughter was usually affirmed before the judicial bribery scandal and has been usually reversed since the scandal. Perhaps that is just a coincidence. But perhaps it is not. Overnight, DeLaughter went from a very respected judge to a judge whose every ruling is suspect. It's only natural for the Court to take a harder look at DeLaughter's decisions.

As for the underlying Tullos case, it should be kept in mind that the Court's reversal was on procedural grounds and did not address the merits of the case. Both Tullos and Pittman commented for the Clarion-Ledger article and appear to have solid defenses. I think it was smart for Tullos and Pittman to comment to Mitchell to get their side of the story out to the public. I do not understand why more people who are parties in high profile cases do not get their story into to public domain.

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The Clarion-Ledger is reporting that:

Longtime federal prosecutor Don Burkhalter has been selected interim United States Attorney for the Southern District of Mississippi.

U.S. Attorney General Eric Holder announced the selection today.

 

Burkhalter replaces Stan Harris, who had been acting U.S. Attorney for the Southern District of Mississippi. Harris had been serving since Dunn Lampton retired in January.

 

Harris, a member of the Mississippi Army National Guard, was deployed to Iraq as a member of the 155th Brigade Combat Team.

 

The White House has not said when President Barack Obama will name U.S. attorneys for the northern and southern districts in Mississippi.

 

Burkhalter served in the Department of Justice in Washington, D.C. for more than 10 years and in the United States Attorney’s office in Jackson for more than 20 years.

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One of my first posts about A&O and Adley Abdulwahab ("Wahab") attached this Illinois Notice of Hearing . Paragraph 24 states that an A&O private offering memorandum listed Wahab's credentials as managing member of A&O as including a 1996 degree in economics from LSU. On a hunch, I investigated this claim and received the following response:

Mr. Thomas,

 

We have checked our files and cannot find any record for a student using the name Adley Abdulwahab or Adley Wahab.  If I can be of further assistance, please do not hesitate to contact me.

 

Sincerely,  

 

Robert K. Doolos

University Registrar

Louisiana State University

Room  112, Thomas Boyd Hall

Baton Rouge, LA  70803-2804

rdoolos@lsu.edu

P - 225/578-1690

F - 225/578-5991

Apparently, Wahab and A&O are dishonest.

But what about the claim that Wahab worked for BHC Marketing? My sources tell me that Wahab did work for BHC, which is where he met Brent Oncale, but that BHC fired Wahab because he could not get licensed as a result of a prior forgery conviction. 

Sources also tell me that before working at BHC Wahab and a partner operated a joint venture involving a gas station casino where gift cards were used instead of money. Wahab's forgery conviction led to the end of this venture. 

Before the gas station casino Wahab worked for Taco Bell. My source tell me that Wahab never attended any college.  

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On October 16, 2009 a United States District Judge in Texas entered this Order holding Adley and Sarah Abdulwahab in civil contempt of court for failing to comply with the Court's July 30, 2008 order. Here is the SEC's motion to hold the Wahabs in contempt.

Here are some of the hi-lites of the Order:

• a warrant for the arrest for the Wahab's will be issued within 30 days;
• each Wahab is fined $500 per day until they comply with the Court's prior order;
• the W Financial Group receivership is expanded to include the Wahab's personal assets;
• the Wahab's must transfer to the receiver $735,000 held in off-shore accounts in Jersey in the Channel Islands and any other money held there; and
• the Wahabs must immediately surrender their passports to the SEC.

Is it just me, or is the Wahab saga starting to sound like the Martin Frankel story? 

There was a good book written about Frankel, as well as the American Greed episode on CNBC. 

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Once again the Justice Department refused to turn over Ed Peters' immunity agreement. Here is the DOJ's response. I received what appears to be a form letter like the one that DOJ sent last time, as discussed in this earlier post.

But this time DOJ added a note on the last page:

NOTE: We have received your letter dated Sept. 16, 2009. Is the immunity agreement you seek a public record?

Great. A clue. I take this to mean that DOJ is either trying to be helpful, or playing games. I'm a natural cynic, so it's not much of a question to me. But I'll take the bait anyway and request all public records.

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U.S. Bankruptcy Trustee Patrick Collins did not pull any punches at the A&O creditor's meeting last week. You can listen to the entire meeting here. The meeting was over three hours long and Mr. Collins' comments were a small part of it. Among Mr. Collins' comments to the investors:

• you've been screwed;
• you've been lied to;
• some of the A&O policies have already lapsed;
• the lapse of other policies is imminent; and
• there is no money or other assets available to pay premiums on the policies.

Participants by phone included government regulators, including attorneys from the Texas attorney general's office. Discussions were heated at times and sad at others. One woman said she put her kids college fund into these investments and asked if she was going to be able to send her kids to college.

Russell Mackert testified under oath. Among Mackert's testimony:

• he lives in the same subdivision as Abdulwahab ("Wahab") and Mackert's finance is Wahab's wife's aunt;
• Shepard Capital was created for the purpose of acting as custodian of the A&O entities;
• the sale price of A&O to Blue Dymond was close to $3 million;
• Blue Dymond is a Nevis LLC;
• he dealt with RJ Stephenson from Blue Dymond;
• Mackert drafted the sale documents;
• he drafted trustee documents for 10-12 insureds and he was referred by life insurance agents;
• he was trustee for some of the policies;
• he controls A&O Life Funds LP's bank accounts;
• there are a few hundred dollars in the bank accounts;
• in March 2009 they started hearing about Prestige Title's problems;
• the Prestige-A&O relationship pre-dates Mackert's involvement with Shepard;
• the $4.6 million that A&O gave to Prestige to pay premiums was supposed to last for the life of all the policies;
• Mackert filed a police report with the Biloxi police department;
• Shepard hired an attorney in Biloxi [Don Dornan] to represent A&O; 
• Prestige bounced checks for premiums in February;
• Oncale and Almindinger loaned money ($40,000 each) to the company so premiums could be paid;
• Wahab had other legal problems and couldn't contribute;
• under the bond agreements the bond holders were supposed to pay if the insured did not die by a certain date;
• PCI did not pay under any of the bonds;
• 1 bond should have paid out as of today; 
• he described getting the run-around from the bond company; 
• the folks in Mississippi [Stephen Colson] looted the company's funds; and
• the bulk of the investors' money was used to acquire policies. 

Someone said that substantial commissions were paid to insurance agents who brought these policies to the companies. It was also said:

• the paper work is a mess;
• there is a secondary market for these policies where they could be sold;
• Mackert and his lawyer don't know what happened to any money before Mackert got involved; and
• they don't know if there were inappropriate distributions to insiders or brokers.

 Patrick Collins said there was wide-spread fraud here and law enforcement in multiple jurisdictions are looking at this. He can't really say when it started and stopped or who did it.

Mackert said there is an on-going federal investigation involving Prestige's principal [Colson].

It does not take a rocket scientist to see what happened here or where it is headed. The details have not emerged yet, but the big picture is clear. See this prior post regarding where the A&O money went. I'm not buying that all A&O's problems were caused by Prestige and Colson.   

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No, that's not a typo. Ford Motor Co. got a defense verdict in Jefferson County today at the conclusion of a two week trial.  

 The plaintiff was a passenger who was paralyzed in a roll-over of a Ford Explorer that was pulling a trailer. The driver of the Explorer passed out from hypoglycemia and ran off the road. Plaintiff's defect allegation was instability of the vehicle and that the seat belt did not work properly. The plaintiff asked for $9.5 million in closing.  

Barry Ford, Bill Jones and Everett White at Baker Donelson were among a team of lawyers representing Ford. Plaintiff's counsel were lawyers from South Carolina and New Orleans. Plaintiff had Deborah McDonald as local counsel, but it's my understanding that she was not brought in until shortly before trial.

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Today's Washington Post has this article about President Obama's tortoise-like pace for making appointments to the federal bench. Key points include:

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23.

The White House predicts that nominations and confirmations will pick up soon.

But liberal activists argue that Obama needs to quicken the pace, partly for political reasons. "It is incumbent on the Democrats and the White House to push as hard as they can to confirm judicial nominees, given that next year Republicans will make an all-out effort to block candidates as a means to gin up their base before the election," said Nan Aron, president of the Alliance for Justice, an advocacy organization.

I agree that the President is moving too slowly. I'm not seeing any caution. Even if there is caution, it is misplaced. If the President thinks that Senate Republicans will give his nominations a pass because he appoints people his administration perceives as moderates, then he is kidding himself. Republicans play politics for keeps and are going to oppose the President's nominees for political reasons, regardless of who they are. 

It is going to take a long time for Obama to get his appointees through the Senate. The quicker the process starts the better. Nine months have already been wasted. Obama does not have three more years to get his appointments through. He has about two, since Senate Republicans will go into the four-corners during the election year in hopes of winning the election and gaining the appointments.

 I read somewhere that President Bush took little interest in his judicial appointments. That makes it even more galling that his administration was more efficient at making appointments than Obama's. The President taught Constitutional law. You would have thought that he would make naming his appointments and getting them confirmed a priority.  

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The Clarion-Ledger is reporting that acting U.S. Attorney for the Southern District Stan Harris will be deployed to Iraq next week. No word on who will replace Harris as acting U.S. Attorney. Perhaps head of the criminal division and Gulfport native John Dowdy?

Let's hope the White House will not have a say in appointing the new acting head of the office. If it does we may be in for a long wait, since the White House can't get it's act together enough to appoint the permanent U.S. Attorneys in either the Southern or Northern Districts. It's like Jackson Mayor Harvey Johnson has gone to Washington. 

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John Spalding wrote a lengthy comment to my last post about A&O that is listed below:

Mr. Thomas,

Your conclusions are misplaced. First and foremost, my wife and I are creditors in the A&O bankruptcy mess. I hear we are in the top five of investors who have lost money. A&O is trying to place companies that should not be bankrupt with companies that have financial problems to rid themselves of all their liabilities and attempt to avoid paying further interest. A&O's claim is that the Mississippi escrow company ran off with $2 million or $4 million, depending on which document you believe. What's a $2 million error between friends? The real question should be--how much should have been with the escrow company in Mississippi to pay premiums and where is that money? I believe the answer is closer to $12 million. Coincidentally, the SEC in the W Financial mess, involving Adley Wahab and Michael Wallens, accuses Wahab of receiving an improprer transfer of $10 million after Wahab's assets were frozen from Mackert.
Were I the trustee, the first order of business would be to see what policies had lapsed or were about to lapse and determine how to keep insuance companies from further lapsing any policies. Then I would try to figure out where the money is. I offered to talk with the Trustee last Friday. I have met with and spoken under oath with the Texas State Securities Board on at least three occasions and didn't "take the nickel", as you inaccurately suggest.
Not all insurance polices are created equally. Perhaps some of the policies should be allowed to lapse rather than pay exhorbitant premiums on something that should not pay for a number of years. I don't know, but if I were the trustee, I would be trying to figure it out.
You failed to mention that Bayou City Escrow was included in one lawsuit and then DISMISSED because it did not do anything wrong. It completely followed the terms of the Escrow Agreement between it and investors.
Finally, any suggestion that Bayou City Escrow was ever contracted to purchase policies, pay the bond premiums or prepay insurance premiums is inaccurate. There may be some other company who was retained to do so, I do not know, but I know Bayou City never was.
Thanks for allowing me to clarify.

John Spalding

I still don't believe that Mr. Spalding's law firm should be representing other A&O investors and asking those investors to waive conflicts, but I appreciate him taking the time to respond to my earlier post.

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Just when I thought the A&O situation could not get more bizarre, it has. There has been an unbelievable development in the A&O Life Bankruptcy proceeding. In the comments section to this earlier post on A&O, there was talk regarding a potential conflict of interest by a law firm that solicited A&O investors as clients. On October 6, 2009 the bankruptcy trustee (Patrick Collins) filed a motion for Rule 2004 examination of John and Laura Spalding regarding representation of investors by the Johnson Spalding Law Firm, which is where John Spalding practices law.  Here is a copy of the Motion. 

According to the motion:

In 2006-2007 Bayou City Escrow was an escrow agent for A&O. In that capacity Bayou City received millions of dollars in investments from investors and passed the funds to A&O entities and others.  John and Laura Spalding owned Bayou City.

John and Laura Spalding have run into trouble in Illinois for not registering life settlement investments as securities. Here is a link to that document. 

John Spalding is a lawyer with the law firm of Johnson and Spalding in Houston. In September 2009 a lawyer with Spalding's firm appeared in the bankruptcy proceeding on behalf of A&O investors, including the Spaldings. The firm now claims to represent 75 investors and entities.

Bayou City is already a defendant in at least one lawsuit against A&O.

Johnson and Spalding is claiming to represent investors who refused to sign contracts with the firm. So we have a law firm whose name partner owns a company being sued by A&O investors representing A&O investors. Sound like a conflict?

Now proceed to Ex. 8 to the motion, which starts on page 46 (of the pdf) and is an affidavit from Texas attorney Janet Chafin. According to Ms. Chafin:

Johnson and Spalding had a call-in conference for A&O investors on September 12, 2009. Johnson and Spalding lawyers Deborah Fritsche and Lori Hood led the call. During the call they did not disclose the firm's relationship with Bayou City. The firm offered to represent the investors for $325 per hour pro rated with an initial retainer of $1,000 or $2,000, depending on the amount invested.

Now proceed to p. 62 (pdf) of the motion, which is a Johnson and Spalding letter "to confirm you waive any conflict of interest arising from Johnson, Spalding, Doyle, West and Trent's representation of you...." The letter then lists other firm clients, including John and Laura Spalding. "You agree, understand and waive any conflicts of interest by and between you and any of the referenced parties which exist now or which may arise in the future."

Oh. My. God. That is un-freaking-believable. Potential targets in the A&O litigation sign up to represent investors and then attempt to have them waive the conflict of interest. I say attempt here because I do not believe that any court would enforce the waiver.

A&O is broke. Lawsuits on behalf of investors seeking to recover their losses will focus on brokers and other associates of A&O who participated in any fraud. Without question, Bayou City, which is owned by the Spaldings, is a potential target and has already been sued in at least one case. This creates a huge conflict of interest for Johnson and Spalding that exists regardless of the attempts to have the conflicts waived. Also, to waive a conflict the client must give knowing and informed consent. That appears not to have happened here.

You would guess that the Spaldings do not want to be deposed. Too bad! On October 14, 2009 the Court granted the motion and ordered the depositions. As Mickey Haller would say, don't be surprised if the Spaldings take the nickel.

I would be shocked if someone has not already filed a bar complaint in Texas against Johnson and Spalding and its lawyers. I am not familiar with disciplinary proceedings in Texas. But in Mississippi, the Bar would not look kindly upon this situation and a serious career altering sanction would be imposed.  

One other point: if I were an A&O investor I would insist that my lawyer take the case on contingency. You need a lawyer who is going to sink or swim with you, not someone who is going to get paid by the hour while taking no risk in the event that no money is recovered. It doesn't have to be a full contingency. It could be part hourly rate at a reduced rate and part contingency. Here is a quote from the web site of David Berg's firm in Houston:

Whether on the defense or plaintiffs side, we have always been willing to share the financial burden of litigation with our clients, entering into creative fee agreements that tie our fees to our results.

If I were an A&O investor I would be looking for a law firm with a similar attitude. This will not be an easy case to collect on and investors need counsel highly motivated to collect, not just get a judgment. 

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Having lost the real trial, the Sun-Herald reports that the plaintiff lawyers in the FEMA trailer litigation now want the court to order two non-binding mock trials:

Plaintiffs' attorneys asked a judge to order two nonbinding "summary jury trials" for the litigation after a federal jury on Sept. 24 rejected a New Orleans family's claims that elevated levels of formaldehyde in their FEMA trailer jeopardized their health.

A plaintiffs' lawyer says summary jury trials can promote a mass settlement, but attorneys for trailer manufacturer Keystone RV Company are opposed to the proposal. U.S. District Judge Kurt Engelhardt didn't immediately rule on the request.

Summary jury trials typically last less than a day and cost much less than real trials.

It's almost like having already lost the Super Bowl, the losing team wants Vegas to put a point spread on the game.

I wonder if the plaintiffs proposed the summary jury trials before the real trial? I wonder if plaintiffs conducted their own one day focus group studies or mock trials and like their chances at winning a one day summary trial? I wonder if anyone is raising the fact that every jury consultant you ask will tell you that one day focus group type proceedings are not predictive of the actual outcome at trial?

What I don't wonder is whether the defendants will agree to the proposal. I think we know the answer to that one. The plaintiffs are probably going to have to either settle for peanuts or win a real trial.

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The bar sent out an email last week seeking comments on a proposal by the federal court judges in the Northern District of Mississippi to eliminate divisions:

The judges of the Northern District have requested that the circuit council recommend to the Judicial Conference of the United States and the Congress that Congress rescind 104, thus leaving the Northern District without statutory divisions.  The effect of such action would arguably allow the judges of the Northern District to conduct trials and other proceedings in a case at any place where court is authorized to be held in the district, regardless of where the action is filed.

I cannot tell what the practical effect of the change would be, but my initial reaction is not positive and I have a lot of questions. Under the proposed change how would potential jurors be summoned and from where? Also, how would the trial location be selected? Would the trial always be at the courthouse where the assigned judge has his or her chambers? Will parties and lawyers from one area of the district have to go to another area to try a case just because that is where the judge is? Then, will the Southern District make the same proposal? If we're going to do this why do we need federal courthouses all over the state? Why not have one in the Southern District and one in the Northern District? 

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There is a rare opening on the 5th Circuit Court of Appeals with Judge Rhesa Barksdale taking senior status. President Obama will appoint someone to fill the seat. For a while it sounded like the appointment would go to someone from Louisiana. Later, I heard that Texas, Mississippi and Louisiana all had a shot at the seat.

I am now hearing that the White House is seriously looking at several candidates from Mississippi. The most prominent name that I am hearing as a candidate is Mississippi Supreme Court Justice James Graves. Justice Graves is qualified with eight years on the Supreme Court and experience as a trial judge before that.

You would expect there to be many people maneuvering to influence who gets this major appointment. A lot will depend on what the White House is looking for in court of appeals judges. If it is looking for someone in their fifties, then it will be tough to beat Justice Graves. President Bush often opted to fill appointments with young people who would likely hold the position for thirty years or more. Examples include Judge Sul Ozerden and Judge Dan Jordan. We do not know enough about President Obama yet to conclude if he will follow a similar strategy. All we really know is that Obama is moving slowly at making Mississippi appointments such as U.S. Attorneys, Marshals and Judge Barbour's District Judge seat.

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A unanimous Mississippi Supreme Court ruled for the homeowners today in the most watched case before the Court in recent memory. Here is the Court's opinion in Corban v. USAA. Justice Randolph wrote the Court's opinion, which is not surprising to people who saw the oral argument. Justice Randolph was active in the oral argument and openly critical of some of the insurance company arguments.

Although not a party, Nationwide appeared in the case and argued at the hearing. Nationwide's theory was that if hurricane winds blows the home from the Coast all the way up to Wiggins, but 8 hours later a storm surge reaches where the home used to be, then there is no insurance coverage. The Court rejected this bad argument. 

The Court found that all water damage, including storm surge, is excluded. All wind damage is covered. The plaintiff must show that there was an accidental physical loss. Once the plaintiff meets his/her burden, the insurance company has the burden to prove that the damage was caused by the storm surge to the exclusion of wind. If the plaintiff can prove evidence of wind damage before the surge arrived, then the plaintiff is on good shape. The plaintiff has the burden of proof to establish that there was wind damage for contents. In an earlier version of this post I erroneously stated that the plaintiff had the burden for everything.

This was a big win for the Corbans, led by attorney Judy Guice of Biloxi. The Court should be credited for reaching a unanimous decision, since such decisions often carry more weight than split decisions.

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Today's Clarion-Ledger contains this article about Jackson city councilman Jeff Weill considering running for the Circuit Court seat that Judge Yerger will vacate with his retirement at the end of next year. The article states:

"It's definitely on my radar," Weill said. "The current plan is to look hard at this opportunity - it's a once-in-a-decade opportunity - and to make a decision after the first of the year."

So far, Weill said his interest has been limited to a few conversations with supporters. But he said he believes he could make more of an impact from the bench on public safety, a key issue in his recent Ward 1 re-election campaign.

"I think I could do more to protect the citizenry as a judge than as a councilman," said Weill, who was re-elected in June to a four-year term on the council. "One of the things Yerger has done is move the criminal docket forward. That's a problem we have and I would like to continue the work he has done."

I can't argue with anything Weill says here, but as a Jackson resident, I would hate to see him leave the city council. I have been impressed with his demeanor and attention to detail on the council.  

Jackson attorney Ashley Ogden also plans to run for seat:

"I have an interest in Jackson's crime problem being solved and that's why I ran in the [last election]," he said. "I would expect a minimum of six to seven people running for that seat, and I'll be one of them."

Ogden will be a formidable opponent for anyone. He garnered 42% of the vote against Judge Yerger and campaigned very hard. Retired Supreme Court Chief Justice Jim Smith now works for Ogden's law firm and will probably be an asset to an Ogden campaign.

Weill is a republican and is probably the hand-picked choice of the the republican party. He has proved that he can win an election and would be a challenge to Ogden. It would not be surprising to see Judge Yerger retire early so that Governor Barbour can give Weill a head start by appointing him to fill the remainder of Yerger's term.

Republicans might not support Ogden because his law practice focuses on representing injured victims instead of insurance companies and big business. While this does not necessarily mean that Ogden would be a bad judge for big business, his background might scare them. Average citizens will love Ogden's tough on crime message and Weill will look like a copy-cat if he uses a similar theme. It promises to be an interesting race.

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Late Monday blogs and the Clarion-Ledger reported the filing of the anticipated civil suit against Karen and Stuart Irby. Here is a link to the Complaint. One interesting aspect of the case is the fact that Mississippi's cap on punitive damages that was enacted with tort reform may have limited or no application in the case. Here is relevant language from the statute, Miss. Code Ann. 11-1-65:

(3) (a) In any civil action where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed the following:

      (i) Twenty Million Dollars ($ 20,000,000.00) for a defendant with a net worth of more than One Billion Dollars ($ 1,000,000,000.00);

      (ii) Fifteen Million Dollars ($ 15,000,000.00) for a defendant with a net worth of more than Seven Hundred Fifty Million Dollars ($ 750,000,000.00) but not more than One Billion Dollars ($ 1,000,000,000.00);

      (iii) Five Million Dollars ($ 5,000,000.00) for a defendant with a net worth of more than Five Hundred Million Dollars ($ 500,000,000.00) but not more than Seven Hundred Fifty Million Dollars ($ 750,000,000.00);

      (iv) Three Million Seven Hundred Fifty Thousand Dollars ($ 3,750,000.00) for a defendant with a net worth of more than One Hundred Million Dollars ($ 100,000,000.00) but not more than Five Hundred Million Dollars ($ 500,000,000.00);

      (v) Two Million Five Hundred Thousand Dollars ($ 2,500,000.00) for a defendant with a net worth of more than Fifty Million Dollars ($ 50,000,000.00) but not more than One Hundred Million Dollars ($ 100,000,000.00); or

      (vi) Two percent (2%) of the defendant's net worth for a defendant with a net worth of Fifty Million Dollars ($ 50,000,000.00) or less.

   (b) For the purposes of determining the defendant's net worth in paragraph (a), the amount of the net worth shall be determined in accordance with Generally Accepted Accounting Principles.

   (c) The limitation on the amount of punitive damages imposed by this subsection (3) shall not be disclosed to the trier of fact, but shall be applied by the court to any punitive damages verdict.

   (d) The limitation on the amount of punitive damages imposed by this subsection (3) shall not apply to actions brought for damages or an injury resulting from an act or failure to act by the defendant:

      (i) If the defendant was convicted of a felony under the laws of this state or under federal law which caused the damages or injury; or

      (ii) While the defendant was under the influence of alcohol or under the influence of drugs other than lawfully prescribed drugs administered in accordance with a prescription.

(4) Nothing in this section shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary and constitutional requirements, and to order remittitur where appropriate.
 

Karen Irby has been charged with a felony and reports are that both Karen and Stuart Irby had been drinking on the night of the accident. So it looks like the punitive cap may not apply in the case.

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The A&O bankruptcy trustee has set up an information web site. Here is a link to the site. It looks like a great site. You can access all filings in the case, which was previously possible only through the Pacer web site. It also provides contact information for the trustee.

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In August I posted about a Clarion-Ledger article discussing Governor Barbour's failure to appoint a single African-American judge to the state court judiciary since taking office in 2004. According to this new article in the Jackson Advocate, Barbour's record in minority appointments to the state judiciary is now 0-24. To put it in perspective, if Barbour's next appointment is African-American it will raise his batting average for minority appointments from 0% to 4%.

The African-American population in Mississippi is 37%. In order for Barbour to raise his appointment batting average to over 37%, he will need to appoint fifteen African-Americans in a row without a single white. Needles to say, that is not going to happen.

There are currently two open positions in Mississippi where Barbour will make an appointment: Judge DeLaughter's seat in Hinds County Circuit Court and the late Judge Middleton's seat in the Chancery Court for the Seventeenth District (Claiborne, Jefferson, Adams and Wilkinson counties). Appoint two African-Americans here and Barbour can raise his average to 7.6%. While 2 out of 26 is still ridiculously low, it would not have the same ring as zero. 

It does not take a rocket scientist to see that Barbour is positioning himself for a presidential run. But his record on minority judicial appointments will be fodder for those voices, many from within conservative circles, who say that a white Mississippian cannot be elected president. While I disagree with that general statement, I do agree that a white Mississippian who can be portrayed as stuck in the 1960's cannot be elected president. 

I'm not a big Haley Barbour fan, but it would be pretty cool to see a Mississippian president. Governor Barbour has some work to do on his minority appointments if it's going to be President Barbour.  

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There is a growing controversy surrounding Bayer's Yaz birth control pills. Lawsuits are being filed that claim that the pills cause blood clots that often lead to death. The best coverage on the issue that I have found so far is by Jim Edwards at the Pharma Analysis Blog. Here is his latest post, which also links other posts on the topic.

The lawsuits allege that Yaz's ingredient of progesterone increases the risk of blood clots. There have been at least 50 deaths involving Yaz and Bayer was found to have been deceptively marketing the drug. Studies show that there is an increase in clots among users of Yaz. However, the occurence of clots still appears fairly low and, according to Bayer, is a rare event. 

Lawyers in other parts of the country are starting to advertise for Yaz cases. I have yet to see any advertisements in Mississippi.  With a still low incidence of clots with the drug, it's hard to say whether the litigation could get big like with fen phen or Vioxx. It does not appear that lawyers are accepting cases from users of the drug who did not suffer blood clots and such a strategy appears risky. Defense lawyers looking for the next big wave of litigation in Mississippi might want to look somewhere else. Even if Yaz litigation does explode, it could easily wind up in an MDL in another part of the country.

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A Harrison County jury returned a defense verdict Wednesday in the defamation trial against WLOX television station:

A jury on Wednesday found that WLOX did not defame a homebuilding company in an “Action Report” in 2006.

The jury of six men and six women deliberated less than two hours before reaching its verdict.

Here is the Sun-Herald article on the verdict. The case stemmed from the station's report on a dispute between a home owner and a building contractor. The plaintiffs asked for $1 million in damages. Here is an earlier post on the trial. The Sun-Herald article continues:

In closing arguments, WLOX attorney Henry Laird told the jury, “They’re blaming WLOX for what Fairley said. The right to free speech is not a one-way street. This is also about the right for you to know and the right for WLOX to report the news.”

Tupelo attorney Jim Waide, representing the Hudsons with Jackson attorney Chuck McRae, said he thought the jury ruled for WLOX “because the TV station is held in high regard in Harrison County.”

In other words, Waide is saying the jury was biased. I wasn't there, but I find that hard to believe. I grew up on the Coast. In my experience people were fairly ambivalent about WLOX, which has to compete with New Orleans and Mobile stations for viewership of the local news shows. I suspect that the jury was fair and the plaintiffs just didn't prove their case.

This verdict is known because the Sun-Herald covered the trial. You never hear about most defense verdicts because defense lawyer's clients don't want the publicity and plaintiff lawyers aren't going to advertise a losing effort. Plaintiff lawyers, on the other hand, sometimes alert the press after a big win. That's why you see more plaintiff verdict stories in the papers.

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This week in the Chinese drywall litigation Judge Eldon Fallon entered a default judgment against one of the manufacturers:

A Chinese drywall manufacturer that didn’t respond to a class-action lawsuit has been found in default, an early legal victory for homeowners who blame the product for various health problems and property damage.

During a pre-trial hearing in New Orleans on Thursday, U.S. District Judge Eldon Fallon issued a default judgment against Taishan Gypsum Co. Ltd., court records show. The company failed to respond to a lawsuit filed by an Alabama home builder despite being notified of it in late June, the judge said.

Unless it is withdrawn, the judgment prevents Taishan Gypsum from defending itself in court against numerous suits accusing it and others of making defective drywall that was installed in U.S. homes.

Here is a link to the quoted article. Woo hoo!! Plaintiffs Win! Plaintiffs Win!   Not so fast sparky.

In a case like this a default judgment is a bad thing for the plaintiffs. The manufacturer is turning its back on the plaintiffs and basically saying that the plaintiffs will not be able to collect on the judgment. I've read somewhere that plaintiffs' attorney Russ Herman said that they will seize ships that carried the drywall in order to collect. I wouldn't bet on it. The article points out that the Chinese government owns Taishan Gypsum. Somehow I don't see the U.S. allowing an international incident by Mr. Herman seizing ships to satisfy money effectively owed by the Chinese government. Here is an article that does not sound optimistic about the prospects of recovery.

Here's an idea. The U.S. is up to its eyeballs in debt owed to China due to the trade imbalance. Maybe Congress could pass a law authorizing the U.S. government to reimburse the victims of the Chinese drywall and then deduct the amounts from what we owe China. Is this feasible? I have no idea. But it may take this kind of creative thinking for the victims to receive compensation.

Here are my prior posts on Chinese Drywall litigation.

Here is an excellent post from the PopTort Blog explaining the litigation.