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

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Y'all Politics broke the story on Hinds County Chancery Court Judge Denise Owens denying State Auditor Stacey Pickering's motion for disbursement of settlement funds in the Mississippi v. Microsoft case and approving the disbursement of $10 million in attorney's fees in the case. Here is the Order and the Clarion-Ledger's article.

Earlier posts on Hood v. Pickering disputes are here and here.

Pickering's office announced plans to appeal the ruling in the Worldcom. MCI case, but not Judge Owens' ruling in the Microsoft case.

It's politics as usual--on both sides.

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There is a lot of attention today on Carlton Reeves’ nomination to be a U.S. Dist. Judge in Mississippi. Here are some:

• Clarion-Ledger article (a good article with quotes from Reeves, Rep. Bennie Thompson and Reeves’ law partner Cliff Johnson)
• Main Justice
• Ipse Blogit
• NMC
• Will Bardwell
• Y’all Politics
• Minority Defense Litigator

The nomination is getting widespread praise in these outlets and among members of the Mississippi Bar.

Meanwhile, on North Congress Street speculation now turns to whether Senate confirmation will force the frugal Reeves to upgrade his vehicle, which he has been driving since the 90’s.  [Note to soon-to-be Judge Reeves: your ride is awesome. You’re the greatest, (insert your own compliment here)].

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It took a year and a half, but President Obama finally nominated Jackson attorney Carlton Reeves to be a U.S. District Judge for the Southern District of Mississippi. The nomination has been expected from the day that Obama won the 2008 presidential election.

Here is Reeves’ profile at his firm’s web site.

Reeves is a Yazoo City native and is a graduate of Jackson State and the University of Virginia School of Law. He clerked on the Mississippi Supreme Court for Judge Rueben Anderson, was the Chief of the Civil Division of the Southern District U.S. Attorney’s Office and has been in private practice with Phelps Dunbar and his current firm of Pigott Reeves Johnson.

Here are my prior posts on Reeves.

Reeves is very popular in the Jackson Bar and the expectation among lawyers is that he will be a fair and popular judge. Reeves will join Bush appointees Judge Dan Jordan and Judge Sul Ozerden as young Southern District judges who will likely be on the bench for thirty or more years.

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On April 14, 2010 the Circuit Court of Forrest County, Judge Dale Harkey, rendered a verdict of $579,789 in the med-mal case of Jessie Lee Johnson v. Forrest General Hospital. Here is a copy of the Court’s findings of fact and conclusions of law.

The Plaintiff underwent a successful knee replacement at Forrest General in 1998 and was transfered to the rehabilitation unit in the hospital. Two weeks later, plaintiff’s knee was injured.

Plaintiff alleged that the injury occurred when an aide assisted her to the restroom. She stated that the aide did not put down the foot rest on plaintiff's wheel chair and plaintiff’s foot caught the floor, causing the dislocation of her knee. Multiple additional dislocations followed. Ultimately, a new knee was installed. But the knee became infected and her leg was amputated above the knee.

The aide disputed plaintiff’s testimony. She stated that no accident happened and that both foot rests were on the wheelchair when she transported plaintiff. In addition, the hospital argued through expert testimony that the injury could not have occurred as plaintiff described and that the knee installation was sub-standard, which caused the dislocation.

As an aside, defendants love to dump on other health-care providers in med-mal cases when the other providers weren’t sued (they are “empty chairs”). But when the plaintiffs sue everyone in sight, the providers circle the wagons and go with some variation of a causation defense. This is a big reason that plaintiff lawyers are so cynical towards doctors.

The court weighed the evidence and decided that the plaintiff was telling the truth. The Court did more than take the plaintiff’s word for it. The Court considered evidence of a late nurse’s note that cast suspicion on the hospital’s account of the injury and compared plaintiff’s account to objective evidence in the medical records.

The Court assessed damages of:

• $199,789.54 for medical expenses
• $380,000.00 pain and suffering from at least 7 dislocations and the amputation.

The Court did not enter a final judgment because of the $500,000 cap in Tort Claims Act cases. The Court requested briefs on the Act and the limits of applicable insurance coverage.

Jennifer Ingram Wilkinson of Hattiesburg and a New Orleans firm represented the plaintiff. Gene Parker of Hattiesburg [correction: Vicksburg] represented Forrest General.

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Jackson lawyer Bruce Burton has qualified to run against Jeff Weill for Hinds County Circuit Judge for the seat being vacated by Judge Swan Yerger. Burton's profile is much lower than Weill's and I don't think that he can beat Weill.

The deadline to qualify to run is May 7 (I think).

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On Saturday Jimmie Gates and the Clarion-Ledger reported on Hinds County Circuit Court Judge Swan Yerger throwing out a racial discrimination suit against the City of Jackson by fireman Ricky Haggard.

According to the article:

Ricky Haggard had alleged he was discriminated against after he was removed from overseeing a federal grant's position in 2006 and replaced by a white male when Todd Chandler was interim fire chief.

In dismissing the case:

Yerger said Haggard had to show the city maintained a widespread, persistent practice of racial discrimination of city officials or employees.

"Acts of alleged discrimination that take place in a three-year period in one city department, all under the tenure of one supervisor hardly shows that there existed a persistent, widespread practice that fairly represents municipal policy," Yerger wrote.

Further, Yerger said even Haggard swears that Chandler was demoted as a result of discriminatory remarks Chandler made in the video. "This goes to show that Chandler's alleged conduct was hardly the expected, accepted practice of city employees," Yerger wrote.

 

Haggard apparently rejected a settlement offer from the City:

[City Attorney Pieter Teeuwissen] said the city offered a settlement, but an agreement was never reached.

My guess is that it was not a big offer. The City has been trying a lot of cases in the last few years, which suggests that it has not been making large settlement offers.

There will be an appeal:

Haggard's attorneys, Louis Watson Jr. and Nick Norris, said Yerger's dismissal will be appealed to the state Supreme Court.

Who knows what will happen on appeal. But since Hinds County judges seem to have a tendency to rule against the City, you would think that the dismissal has a good chance to be affirmed on appeal.  

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It's being reported that the A&O bankruptcy trustee settled with Provident Capital for $11 million:

The bankrupt A&O life settlement funds will receive $11 million under a legal settlement with Costa Rican bond insurer Provident Capital Indemnity.

About 720 investors and creditors are owed about $92 million from seven A&O life settlement funds that filed for Chapter 11 bankruptcy. Federal authorities and Texas securities regulators are investigating allegations of fraud on the part of A&O's principals, Marwil said. He said 23 life insurance policies held by A&O funds remain active.

Many of the policies were supposed to be insured by Provident Capital. Provident is not authorized to write insurance in the U.S., the Securities and Exchange Commission said in an unrelated case. Texas insurance and securities regulators have issued cease-and-desist orders against Provident.

The Provident bonds were to pay the face value of a policy in exchange for transfer of the policy itself if the insured didn't die by a certain date.

That's $11 million more than I thought they would get out of Provident.

Here are my prior posts on A&O.

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A Sunday Sun-Herald article focused on the problem of jurors conducting their own research during trials. Here is a link to the article posted on another site. The Sun-Herald had removed the article from its site late Sunday. 

The article quotes State and Federal judges on the Coast:

"Jurors have no business being on any device inquiring into any aspect of the trial, period -- about the parties, about the attorneys, anything," Circuit Court Judge Robert Krebs said. "They're the fact-finders and the facts they have to rely on are what's presented in the courtroom.

"I rule on various legal issues. But the parties on both sides (defense and prosecution) put on the facts they want the jurors to hear," Krebs said.

"It has worked for a long time." U.S. District Court Judge Louis Guirola said personal technology in the courtroom is an issue that has exploded.

"Everyone has a BlackBerry," Guirola said. "So in the jury room with jurors deliberating, one juror might say, 'I don't know what this word means. Let's look it up on my phone, iDictionary.' That would be improper," Guirola said.

"If the term is not defined in the courtroom, it's just as improper for them to look it up on an iPhone as it would be to ask the bailiff to bring in a dictionary," he said.

Back in December I speculated in this post that courts would have to instruct jurors on the use of social networking sites during trials. It’s happening. Federal judges on the Coast are giving a jury instruction that addresses these issues:

So in light of all the communication technology, judges on the Coast are getting very specific with jury instructions: "You may not communicate with anyone about the case on your cell phone, through e-mail, BlackBerry, iPhone, text messaging or on Twitter, through any blog or Web site, through any Internet chat room, or by way of any other social-networking Web sites, including Facebook, MySpace, LinkedIn and YouTube." Those words are part of a model given to federal judges to make sure the message gets across.

This is an issue that will only get bigger. Anyone who has ever conducted a focus group knows that jurors want the answers to questions that for whatever reason, were not addressed during the trial.

And jurors don't necessarily think that lawyers and judges are as smart and reliable for information as we would like to believe we are. Jurors crave information to help them make decisions. Given time, jurors will search for answers to their questions themselves.

Sometimes their questions may focus on issues that are not relevant and that they should not consider. Other times the questions may be on potentially relevant facts that no one thought to address during the trial.

Either way, it's not good for the judicial system when jurors are gathering information instead of deciding the case based on the information provided during the trial.

Telling jurors not to do it will help. But it is naive to think that it will alleviate the problem. No one is going to know what a juror looks up at night on the Internet during a trial.    

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Lawyer’s Weekly USA has this article on the recent Jones County drilling mud verdict that I reported here and here. The article is somewhat slanted because it heavily quotes the plaintiff’s lawyer and not the defendant’s, who declined to comment.

The article opens:

A Mississippi jury has awarded $15 million to a 71 year-old oil industry worker who developed asbestosis after years of handling bags of product containing 99 percent asbestos.

According to the article:

Among the evidence at trial was a handwritten document indicating that the company had weighed the cost of personal injury lawsuits against the profits of continuing to sell asbestos.

The article emphasized closing arguments:

Only one live witness testified for the defense - an expert who opined that it was unlikely the plaintiff had asbestosis even though he admitted he had not reviewed the plaintiff’s extensive work history with asbestos, and ultimately acknowledged that Lofton was a “pulmonary cripple.”

Jones also pointed out that the expert stopped seeing patients in 2000 to devote his full attention to serving as an exclusively defense-side expert, from which he has made over $6 million.

According to Jones, in its closing the defense told the jury that it “took courage” for the expert to give his opinion that the plaintiff did not suffer from asbestosis.

Jones countered in his closing: “It didn’t take any courage; all it took was money.”

Does anyone know what “breaking it off” is in Latin?

The story continues:

Perhaps most damaging to the defense was not putting a corporate representative on the stand.

Jones’ co-counsel Ron Franklin hammered this point home during his portion of closing arguments: “Not one human being, not one executive, not anybody from ConocoPhillips who they can put on the witness stand to tell you this product was safe. Not one person.”

Uh oh. That’s at least arguably an improper argument. It’s similar to the argument discussed in this post that contributed to a Court of Appeals reversal.

And it’s going to be hard for the plaintiff to argue that the argument was harmless if his lawyer was the source of the “perhaps most damaging” assessment. It will be interesting to see how that plays out on appeal.

I dont' get why defense lawyers tend to be so reticent in talking to reporters in situations like this. I put it in the category of things lawyers do for no good reason because that’s how its always been done. It would be tempting to say that we got hosed and are going to appeal. 

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Last week in State v. Bayer Corp. the Mississippi Supreme Court revived the State’s lawsuit against Bayer for defrauding the state Medicaid program.  

As noted by Will Bardwell, the reversal was based on a technicality where the trial court considered evidence outside the pleadings without converting the  12(b)(6) motion to dismiss to a motion for summary judgment. The reasoning for the distinction is that if the court considers matters outside the pleadings, then the responding party has a right to notice and the opportunity to submit other evidence. It’s purely a procedural issue and it is possible for Bayer to still win the lawsuit for one of the reasons as before.

Justice Kitchens wrote the Court’s opinion. Chief Justice Waller concurred and Justice Dickinson joined in  the concurrence. The concurrence argues that there are occasions where the trial court can consider matters outside the pleadings, such as an insurance policy attached to the Complaint. The concurrence agreed that the exception did not apply in this case.

Governor Ronnie Musgrove and a cast of thousands from Copeland Cook represented the State. Michael Doss and a bunch of other lawyers from Watkins Eager represented Bayer.

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On Thursday the Mississippi Supreme Court affirmed the Adams County Circuit Court’s Order refusing to enforce an arbitration clause in a nursing home admissions agreement. Here is the Court’s opinion in Adams Community Care Center, LLC v. Reed. The trial judge was Judge Lillie Blackmon Sanders.

There were two admissions agreements in the case that were signed by the resident’s adult sons. Neither son had power of attorney. In addition, the resident’s primary physician had not made a determination that the resident lacked capacity pursuant to the Mississippi Uniform Health-Care Decisions Act. Therefore, neither son had authority to act as a health-care surrogate. The Court also found that an arbitration clause was not a health-care decision under the Act. 

The Court rejected the nursing home’s apparent authority argument because there was no evidence that the resident indicated that her sons were her agents for making health-care decisions. Finally, the Court rejected the nursing home’s third-party beneficiary argument because there was not a valid contract. 

Justice Lamar wrote the Court’s unanimous opinion. Justice Graves concurred in result only without a separate opinion. Skipper Samson of Gulfport represented the nursing home. Robert Cooper and Trae Sims represented the plaintiff.

Incidentally, I believe that nursing homes get family members of residents to sign admission agreements because they want to be able to go after the family members for the nursing home’s bills. It’s a business decision. I have defended a case that a nursing home filed against a resident’s family member who signed the admission agreement. 

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In a comment to this NMC post about the Tea Party movement, Anderson gives the best definition that I've seen to date of the Tea Party:

people who sat through unprovoked war, massive deficits, and NKVD torture methods, only to flip out when a black man might raise taxes so more people can see a doctor.

I have tried to write a post on the Tea Party, but have not published it because I haven't been able to articulate what bothers me about it. The above definition captures it nicely.

Where was the Tea Party during the Bush administration? How does returning a Republican to the White House address massive deficits and government spending? Is the Tea Party intellectually honest? Is it angry white people who aren't even honest with themselves about what they are unhappy about?

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On Thursday the Miss. Supreme Court affirmed a 2008 Bolivar County defense verdict in Utz v. Running and Rolling Trucking Inc. Here is the Court’s opinion.

The case is noteworthy for its facts. It involved the 2003 death of Preston Utz when he rear-ended an 18–wheeler on Highway 61 in Bolivar County. The decedent had been awake for days at the time of the collision from cooking and smoking crystal meth. Talk about a bad plaintiff. The jury determined that any negligence on the defendant’s part was not a proximate cause of the accident.

The plaintiff raised forty-two (42) issues on appeal. The result was a 58–page opinion even though the decision was unanimous.

Justice Chandler wrote the Court's opinion. Chief Justice Waller and Justice Dickinson did not participate. Jason Strong and Steve Hazzard with Daniel Coker represented the defendant. Ashley Ogden and Wendy Yuan of Jackson represented the plaintiff.

Some lawyers believe that an appeal should be limited to a few issues. Others believe in identifying as many issues as possible. In recent years, I have heard at least one Mississippi Supreme Court Justice encourage lawyers to raise all potential issues on appeal. But in this case, it didn’t help and the Court affirmed the verdict. It will be interesting to see if forty-two appeal issues is a trend in civil cases.

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Ya'll Politics has a post about President Obama still not appointing U.S. Attorneys in Mississippi. The analysis is dead on:

Whether you are a D or R, this is a big deal. Given our lack of ability to police our own in Mississippi, we have historically disproportionately depended on US Attorneys to help deal with matters like public corruption. Steady hands with a quality backgrounds are needed to fill those seats. There is certainly no shortage of quality lawyers in Mississippi who could handle these jobs, and it's a bit of an affront to the legal community that this hasn't gotten done. With confirmation usually a few months down the road from nomination, it may legitimately be year end before Mississippi can get someone confirmed even if nominees were settled on pretty quickly. We are now running up to the point where good people may not consider taking an appointment for what would effectively be only a two year term (as one would not think that a second Obama term would be a guarantee). That's a big ask of someone to give up their entire law practice for just two years and assume all of the restrictions that a US Attorney takes on after stepping down.

I don't think the problem can be explained better than that.

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Mississippi litigation attorneys often find themselves in discovery disputes involving e-mails and other electronic data. It is common for the party resisting discovery to object to producing e-mails because it is allegedly unduly burdensome (too expensive).

Last month a federal judge in Virginia rejected Abbott Laboratories’ argument that production costs of at least $50,000 made producing e-mails unduly burdensome. Here is a link to the Court’s Order. The Order received a good bit of attention in the national media.

I once argued a similar issue before one of the federal magistrate judges in Mississippi. The judge ordered production of the e-mails and commented to the objecting attorney that he often hears these Chicken Little sky is falling arguments, but the objecting party always manages to produce the documents. Unfortunately, not all judges understand that the resisting parties are more likely concerned about what is in the e-mails.  

I suspect that the real reason that companies work so hard to resist producing e-mails is that e-mails often contain smoking-gun type communications. This is probably because people often fire off an email without thinking about whether they really want to put what they are saying in writing. If judges would consistently order the production of e-mails, then cases would be easier to settle, thus reducing the court’s docket.

Finally, I believe that companies exaggerate the cost of producing e-mails. For companies with IT departments, most of the work is done in-house. And while it does carry an expense, it’s not what the company claims because the company has to pay its employees whether they are working on email production, working on something else, or goofing off at work.   

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Winning at Trial by D. Shane Read is a trial practice book published in 2007. Some people have described it as “the best” trial advocacy book. I agree.

The book is stunningly good. It is basic enough to be used in law school trial practice classes and deep enough to benefit experienced lawyers. I own at least five trial practice books. If I had to choose just one to keep, this would be it.

 Winning at Trial is a classic that will be used by lawyers and law students for many years to come. Practicing attorneys who are not implementing the book's concepts in their trials are at a disadvantage to those who are.     

One recurring theme of the book is that the book used in my law school trial practice class (Mauet’s Fundamentals of Trial Techniques) often gets it wrong. An example is Mauet advising to be subtle and careful on cross examination and Read countering to drive your points home and not save major points for closing. I completely agree with Read. It is best to not wait until closing to drive points home for many reasons, including that jurors usually decide before closing.

Read starts his chapter on closing with the section “the overrated importance of closing argument.” Read’s point is that by the time of closing most jurors have already made up their mind. I agree. In my experience, you can feel it in the courtroom that jurors have decided even though most times you don’t know what the decision is.

Key points that Read emphasizes include:

• conducting focus groups of cases is important
• develop your own style [Gerry Spence fans will agree]
• tell a compelling story no matter which side you represent [defense lawyers sometimes fail to tell a story and simply try to prevent the plaintiff from telling their story—a sure losing strategy]
• be prepared [in my opinion lawyers who think that they can make up for poor preparation are kidding themselves]
• less is more [in my opinion losing sight of this is the most common mistake by trial lawyers]
• argue passionately and with integrity [most lawyers do this in Mississippi]

As examples of good and bad trial practice the book uses excerpts from the OJ Simpson criminal and civil trials and the Timothy McVeigh trial. The books also includes a DVD with clips from these trials.

If I was managing the litigation section of a large law firm, I would require the firm’s litigation associates to read the book and implement its concepts in their practices.   

There is a website for the book that you can access here.  

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Last week the Clarion-Ledger reported on a $205,506 federal court jury verdict for Melissa Ross, who alleged that she was wrongfully fired from the Mississippi School for the Deaf because she is black. The jury awarded Ross $40,506 for back pay and $165,000 for pain and suffering/ mental anguish/ loss of enjoyment of life/ emotional pain. Here is the Form of the Verdict on file with the Court.

 The C-L article states:

According to the lawsuit, Ross was hired at the deaf school as a special education teacher for Family Consumer Science. She was not proficient in sign language but was trying to improve, according to the lawsuit.

In a 2007 complaint to the Equal Employment Opportunity Commission, Ross said she was hired in August 2006 and was promoted with a raise in February 2007. But in May 2007, she was given a bad evaluation because she was not proficient in sign language and was told she would be fired that July, according to the complaint.

In the complaint, Ross pointed out six black teachers were fired effective July 2007.

The Department of Education was successful in getting some of the claims thrown out in a motion for partial summary judgment. Here is the Court’s Order on that motion.

Michael Brown of Jackson represented the plaintiff. Peter Cleveland with the Miss. Attorney General’s office represented the Department of Education.

The case was in the Jackson Division and was tried before Judge Henry Wingate.

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There is a rumor circulating that Jackson lawyer Ashley Ogden has decided not to run for Hinds County Circuit Court Judge. In an article as recent as two weeks ago, Ogden was quoted as saying that he intended to run for the seat being vacated by the retirement of Judge Swan Yerger:

 Jackson lawyer Ashley Ogden, who ran against Yerger four years ago, told The Clarion-Ledger in January he is preparing another run.

"I have an interest in Jackson's crime problem being solved, and that's why I ran in the first place," he said then.

But now comes word that Ogden will not run, effectively handing the seat to Jackson City Councilman Jeff Weill.

Weill is the only person who has qualified to run for the seat. The qualifying deadline is May 7.

There will be a lot of people disappointed by Ogden’s telling people for four years that he is running and then backing out at the last minute. As of yesterday, Ogden even still had his campaign web site running on the Internet. Some will argue that this kept other candidates out of the race.

Ogden’s decision, however, is not a big surprise to many Jackson lawyers. Ogden’s law firm occupies a large building on Capital Street and has numerous employees, including former Supreme Court Chief Justice Jim Smith. The future job prospects of Ogden’s employees in a down legal market could have weighed on his decision to not run.

As for Weill, I have been impressed with him on the City Council and expect him to be a good judge.

In other Hinds County Circuit Court races, Judges Green and Kidd are not expected to have opponents. Judge Malcolm Harrison, who was recently appointed by Governor Barbour, is expected to be opposed by Bill Gowan.

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I have a little more information on the $15.2 million drilling mud verdict this week in Jones County. The verdict was all compensatory damages. The jury considered punitive damages, but did not return a verdict. 

Reports are that it was an asbestos drilling mud case. The plaintiff has severe asbestosis according to his treating physician Dr. Steve Stogner, who reportedly was a great witness. The defendant was Conoco Phillips, now owned by Chevron Phillips Chemical Co., LLC. Union Carbide settled before trial and Oilfield Service & Supply Co. was dismissed on summary judgment.

Plaintiff's attorneys were Bob Hammond, Phillip Carby and the Franklin Cardwll & Jones firm from Texas.

Defense counsel was Alex Coscullela from Houston, Bernard Booth and Jeff Trotter, all with Adams and Reese.

This was the third drilling mud case tried in Mississippi. The first resulted in a $3.2 million verdict that Judge Robert Evans threw out on a JNOV motion. The second was a defense verdict.

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The Clarion-Ledger reports today on a $19 million jury verdict rendered yesterday in Hinds County against Chevron. The five plaintiffs claimed that exposure to leaded gasoline fumes at a building where they worked caused their children to be born with disabilities. The case was a Jefferson County case in which venue was transferred to Hinds County.

The C-L article explains:

All the women were pregnant when they worked in the old Jefferson County office building in Fayette, which previously was a gas station affiliated with Texaco Inc.

The women sued Texaco, which merged with Chevron Corp. in 2001, saying they were exposed to leaded gasoline fumes from tanks left in the ground when the former gas station was renovated.

Loraine Simon's 20-year-old daughter, Rosalyn, is severely mentally disabled, and the children of the other women suffer from respiratory conditions and learning disabilities.

After the two-week trial, the jury awarded Simon, the lead plaintiff, $15 million.

The trial was moved from Jefferson County to Hinds County on a change of venue request by Texaco because the women were known or worked in the county.

Chevron will appeal:

"Texaco intends to appeal today's verdict, which we believe is contrary to the evidence and law," Texaco attorney Bill Jones III said. "Texaco never owned, operated or controlled the service station or the underground storage tanks at issue. We believe there is no evidence that in any way links Texaco to claims made by plaintiffs."

Dennis Sweet tried the case for the plaintiffs. I do not know who worked up the case. Bill Jones and Barry Ford from Baker Donelson tried the case for Chevron. They have tried a lot of cases in the last ten years and have rarely lost. I was very surprised to hear that they defended a case with that high of a verdict. Judge Lamar Pickard was the trial judge.

I know very little about the case other than what is in the newspaper. But it seems like the verdict will be hard to keep on appeal. Chevron, Exxon, Shell, etc. do not own the gas stations where their gas is sold. The same applies for many businesses that operate under franchise or license agreements. In those situations, the franchisor/ licensor is typically not legally responsible for something that occurs on the premises. Perhaps something was different about this case—perhaps not. If not, this could be a reversed and rendered decision on appeal.

Another question is whether the verdict is subject to Mississippi’s tort reform caps. The article suggests not when it says that the women originally sued Texaco, which merged with Chevron in 2001. This suggests that the case was filed before tort reform laws passed.

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I have a very sketchy report of a $15.2 compensatory verdict in a Jones County drilling mud case. Honestly, I don't know what a drilling mud case is.

It's my understanding that the verdict came in yesterday and the punitive phase was today.

Judge Billy Joe Landrum was the trial judge. The only thing I've heard so far on attorneys was that the lead defense lawyer was out of Houston and in-artfully argued in his last trial loss that the defendant should win because the plaintiff was 80 and had one foot in the grave already.

I have been out of the office today and will investigate this verdict tomorrow.

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I received a report on a new email scam directed at Mississippi lawyers using the name of former Supreme Court Justice Kay Cobb. Here is the text of the email:

From: kay cobb [mailto:kbcobb@yahoo.com]
Sent: Wednesday, April 07, 2010 3:00 PM
To: kbcobb@yahoo.com
Subject: VERY URGENT & IMPORTANT

I Pray this get to you on time, I am sorry I didn't inform you about my holiday trip to United Kingdom,  I'm presently in scotland and am having some difficulties here.I had a car accident on my way back to the Hotel where I lodged and I lost my handbag where I kept my cash,credit cards and cell phone including my passport in the incident . I will like you to assist me with a loan of $3500  to sort-out my hotel bills and to get myself back home. I will appreciate whatever you can afford to assist me with and I promise to Refund the money as soon as I return.let me know if you can be of any assistance.I will send you the Information where you will wire the funds via western union money transfer. I hope to hear from you Regards Kay B. Cobb

What kind of moron would think that anyone from Mississippi would use the word "lodged"?

Hopefully Bradley Arant will see this alert before they wire a bunch of money overseas.

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Run-of-the-Mill Justice is the title of an article by Stanford Law professor Nora Freeman Engstrom published in a recent issue of the Georgetown Journal of Legal Ethics. Here is the article. The Article claims to represent the first ever careful study of settlement mill law firms. The article defines “settlement mills” as:

 “high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial.”

The basis for the article included documentary evidence and fifty interviews with forty-nine current or former settlement mill attorneys or employees. The article is a must read for anyone in private practice or interested in the practice of law.

Some of the points that I found most interesting were:

• conventional plaintiff’s firms expand significant resources screening cases and almost universally decline more cases than they accept
• settlement mills usually sign a case if there is insurance involved
• clients served by settlement mills are comparatively uneducated and underprivileged and disproportionately belong to historically disadvantaged ethnic and racial minority groups
• for most lawyers, a good reputation is the cornerstone of financial success
• contingency fees have an advantage over other legal payment schemes because they (imperfectly) align the client and attorney’s financial interests
• settlement mills settle cases with only a few hours of employee time and almost no attorney time
• the “grim outlook” for plaintiffs at trial counsels in favor of settlement of cases
• when adjusted for inflation, the median jury trial tort award decreased 56.3% between 1992 and 2001 [WOW!]
•  90.5% of Texas personal injury lawyers agreed that juries were awarding less in cases with comparable injuries
• settlement mills rarely file lawsuits and almost never engage in formal discovery
• settlement mill negotiators and insurance adjusters come to a common understanding of case values
• settlement mills are terrible for individuals with a meritorious case with large damages
• insurance companies like settlement mills because they settle big cases at a discount and settle other cases fast.

Atlanta lawyer and blogger Ken Shigley compared settlement mills to kudzu:

Such law firms are able to operate in this manner only because federal courts bar tough regulation of legal advertising, and their operations operate "under the radar" because they almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

The statistics regarding the decrease in jury trial awards is amazing. I suspect that the trend has continued since 2001. The suspicion and disdain that many jurors have for plaintiffs seems to be growing in our tort reform culture bought and paid for by the U.S. Chamber.

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Governor Haley Barbour plans to sue to bolster his presidential aspirations challenge the constitutionality of the new health-care reform. He’s going to have to take a number and get in line.

As reported by the Clarion-Ledger, State Senator and attorney Chris McDaniel (R) and Hattiesburg attorney Doug Lee beat Barbour to the punch on Friday by filing this Class Action Complaint in federal court in Hattiesburg seeking to have the bill declared unconstitutional. Plaintiff Richard Conrad and McDaniel explained the action to the C-L:

"To be an American citizen and be forced to do anything is kind of contrary to our nature," Conrad said. "If I understand the constitution correctly, we've never been made to purchase or buy a product or service from a private entity."

The plaintiffs say they oppose a mandate, effective in 2014, that would require citizens to purchase health-care insurance or pay a fine.

"Basically, the petitioners are seeking a declaration that the Health Care Act's individual mandate requiring them to purchase health insurance from an insurance company is a violation of congressional authority under the Commerce Clause of the United States Constitution," McDaniel said.

McDaniel said the Commerce Clause gives Congress the authority to regulate commerce but does not give it unlimited power.

I don’t know about you Gregg, but I’m not going to sit here while they bad-mouth the United States of America. Gentlemen.

McDaniel’s Complaint is a hefty twenty-eight pages in length and cites a lot of cases. It’s kind of dry, so you might want to start it with a full cup of coffee. Drafting a twenty-eight page complaint is not easy, so someone put some work into it or one similar.

I am not really getting why Mississippi needs to file a lawsuit over the bill. Fourteen states already filed a lawsuit and McDaniel and Lee are taking a shot at the bill for Mississippians. I’m not sure what there is to be gained from a Barbour led action, other than political capital and attorney’s fees for the outside counsel lucky enough to get hired by Barbour. 

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In September I wrote about the federal court lawsuit to expand Congress that was filed in Oxford. Here is the Complaint in the case and a New York Times article about it. I recently checked on the status of the case, and it is still in active litigation.

 The government responded to the allegations with this motion to dismiss.  In February the plaintiffs filed this response to the motion to dismiss and plaintiff’s own motion for summary judgment. The government’s response to the plaintiff’s motion is due in May.

I stick by my earlier assessment that the lawsuit is a long-shot to succeed—at best. But the plaintiff’s briefs are well-written, which suggests that someone is taking the case seriously.

The case will be decided by the three judge panel of District Court Judges Mills and Pepper and 5^th Circuit Court of Appeals Judge Southwick. With the government's response to the plaintiff’s motion not due for over a month, it probably will be at least five months until the court rules on the motions.

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In January I wrote about the $8.3 million attorney fee sought in Attorney General Jim Hood’s action against Microsoft. The dispute continues with Plaintiff’s counsel filing this Memorandum Opposing Intervention by State Auditor Stacey Pickering on March 24, 2010.

Hood’s lawyers argue that Pickering is late  to the dance, having filed his motion to intervene over five years after Hood hired the lawyers and they filed the lawsuit. A cursory reading of the response suggests that Pickering is going to lose. But does he even care?

Political gamesmanship is the likely motivator behind Pickering’s attempted intervention. He arguably gets the political benefit from his stance regardless of whether he wins or not. Either way, he can claim on the campaign trail that he challenged Jim Hood and “trial lawyers.” Winning the challenge was probably always a secondary goal.

Incidentally, I recently read that the general public does not vilify "trial lawyers" as much as some people think.