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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Sun-Herald reports that BP didn't consider hurricanes in its oil spill response plan:

Rep. Edward Markey says BP's disaster response plan for an oil spill doesn't mention hurricanes or tropical storms.

Markey says the omission is yet another example of what the oil giant was not prepared to handle.

The Massachusetts Democrat's comments came during a congressional hearing on a law to improve technology intended to prevent disasters like the Deepwater Horizon oil spill.

Officials responding to the oil spill in the Gulf Coast are scrambling to prepare for Hurricane Alex, which is expected to touch the lower half of the Rio Grande Valley tonight. The center of the storm is expected to hit 100 miles south of the U.S. border.

In related news, investigators are trying to identify these two individuals, who are believed to have been in charge of certain aspects of BP's response plan:

 These two individuals have a known history of not preparing for hurricanes. Anyone with information on the identity of these individuals should contact authorities.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Clarion-Ledger reported today on a $150,000 jury verdict rendered several weeks ago for police officer Shirley Johnson in a Holmes County sexual discrimination case against the City of Belzoni. Here is the article. I had not previously heard about this verdict.

The articles states:

Two weeks ago, a Humphreys County Circuit Court jury awarded police officer Shirley Johnson $50,000 each from the city, Police Chief Mickey Foxworth and officer David James.

Johnson filed the lawsuit in 2006.

Johnson alleged she was harassed by James and that the chief didn't do anything about her complaint.

Plaintiff's attorney Craig Panter of Madison described the case as including a gender discrimination claim:

"It was a bigger issue than just sexual harassment; it was gender discrimination," Panter said Tuesday.

The City of Belzoni filed a motion for judgment not withstanding the verdict and plans to appeal if the motion is denied.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

USA Today has this new article on the slow going that President Obama is having in getting federal judicial appointments approved by the Senate. The article is fairly typical of similar articles focusing on the confirmation delay during the past year or so.

 The article notes that the President is appointing record numbers of non-white males:

So far he is setting records for the number of women and minorities nominated to lifetime appointments. Nearly half of the 73 candidates he has tapped for the bench have been women. In all, 25% have been African Americans, 10% Hispanics and 11% Asian Americans.

But delay is the name of the game for Republicans:

During his first 18 months in office, his administration has been thwarted by unprecedented delays. The situation, which has received little notice against the backdrop of a pending Supreme Court nomination and the administration's complex legislative agenda, could undercut Obama's effort to significantly infuse the federal courts with more women and minorities.

The article recognizes that the Obama administration is not blameless:

With few exceptions, Senate Democrats have yet to try to force Republicans' hand. The Obama White House has been distracted by other issues — even on the judicial front, where the administration has had two high-court nominations.

Unfortunately, the article misses the point that a huge delay is the one by the President in making his appointments. It took President Obama a year and a half to nominate Carlton Reeves to the U.S. District Court despite the fact that everyone knew that Reeves would probably get the nomination after Obama won the 2008 election.

It took only eight months or so for the President to nominate Justice James Graves to the 5^th  Circuit. But again, that was too long of a delay given the fact that Graves was the front-runner from the day that Judge Barksdale took senior status. The delays in making the nominations of Reeves and Graves are 100% the fault of the Obama administration.

Sure now that the nominations have been made Republicans can be faulted for going into the 4–corners. But is that surprising? That's how Republicans play politics and Republican Senate leaders argue that it came from the Democratic play book:

I don't say all of this to say there is going to be payback," Sessions said after Leahy earlier criticized GOP stall tactics. "I am saying this to set the record straight because I will not stand silent and have what is happening today be compared with the incredibly obstructive actions the Democrats took in early 2000."

Football fans aren't surprised and don't cry when the team ahead starts taking a knee in the last two minutes of the game. Likewise, Democrats should stop crying over spilled milk and should be more proactive in making nominations in a timely fashion and pushing harder to get votes in the Senate.

Earlier posts on President Obama's judicial appointments.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Clarion-Ledger reported this weekend on the 5^th  Circuit upholding the tax evasion conviction against Dr. Calvin Ramsey. According to the article:

The IRS said Ramsey underreported his income and owed the government $232,117 in additional taxes. Ramsey contended he did not intentionally falsify his tax returns.

The 5th Circuit panel found ample evidence to show Ramsey tried to hide bank accounts from the government in addition to underreporting his income.

Dr. Ramsey is well known as an expert witness in Mississippi civil litigation. He had a reputation as being a hired gun who would render any opinion for either side if the side was willing to pay his hefty $750 per hour fee.

In a Hinds County case, Dr. Ramsey is rumored to have once agreed to testify as an expert witness for both sides. The trial judge (I believe it was Judge Yerger) threw him out of the case. I also heard complaints that he did not disclose his conviction to attorneys who had hired him and was still trying to collect fees post-conviction even though he was damaged goods. Dr. Ramsey is the only expert witness I ever saw who would not admit to his hourly rate at trial and had to be impeached with prior deposition testimony from another case.

Opinions differed on Dr. Ramsey's effectiveness as a witness. Dr. Ramsey is African-American and some lawyers thought that he was the best thing since sliced bread, particularly with African-American jurors. Others believed that he lacked credibility and was not very effective, regardless of the jury's demographics. I share the latter view.  

It will be interesting to see if Dr. Ramsey is successful in reviving his expert witness career after released from prison. I suspect that he will still be an option used by parties with weak cases and large bankrolls. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Clarion-Ledger reports on the Mississippi Supreme Court upholding Hinds County Circuit Judge Swan Yerger's $1,560,642.83 sanction against Eaton Corp. and its attorneys in the Eaton v. Frisby trade secrets case.

The reasons for the sanction are unknown and no one is talking:

Eaton and Frisby's attorneys will not discuss the case publicly.

"The information you asked about is under seal by the court, and we are not in a position to comment," said Gary Klasen, a spokesman for Eaton.

"I won't confirm or deny it," said Alan Perry, an attorney for Frisby.

Although Supreme Court documents are public record, many in this case have been filed under seal.

Actually, just about every substantive pleading has been filed under seal in the case. I believe that Frisby opposes the seal, but that Eaton and Judge Yerger support it. Presumably, the reason for the seal is to keep improper conduct under wraps. The biggest mystery in the case is why Judge Yerger wants to keep the matter confidential. The last time I checked the court file there was no order that explained the court's rationale.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Today's Wall Street Journal contained an article on plans that states have to recover oil spill related losses from BP. Mississippi Attorney General Jim Hood seems to have a handle on the scope of the possible litigation:

Mississippi Attorney General Jim Hood has sought advice from state university researchers, economists and lawyers to assess the environmental and economic damage the spill has caused to the state.

Mr. Hood said the process could take three or more years before he could present BP with the final bill because the issues aren't straightforward. For instance, hotel capacity along the coast may be similar to last year's but rooms now are occupied by clean-up workers instead of money-spending tourists.

Mississippi has already received $25 million from BP to pay for costs from the spill and another $25 million for its local governments that are grappling with an array of economic issues brought on by the slick that has washed ashore.

"We're first going to ask BP to pay what we can come up with and hopefully we can negotiate with them," Mr. Hood said. "But I'm losing faith quickly."

His advance planning includes strategies for a lawsuit against BP in state court. "I certainly don't want to be thrown into the mix with thousands of other claims" in federal courts, Mr. Hood said.

General Hood: (1) is consulting experts to assist in quantifying damages; (2) has a realistic estimate on the length of the impact (3 or more years); (3) is trying to first resolve the issue through negotiation; and (4) is planning litigation strategy in the event that negotiations with BP fail.

Hood's handling of the situation looks very good. And much better that Governor Barbour's, whose failure to publicly recognize the scope of the disaster is facing growing criticism. 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Saturday's Wall St. Journal had this report on the growing crackdown in the life settlement arena. The story focuses on a Florida insurance became rich selling the policies, but who now faces criminal charges. According to the article:

Mr. Brasner's reversal of fortune is part of a post-bubble crackdown by state authorities, aimed at the middlemen who played a crucial role in filling the pipeline for stranger-originated policies. In a frenzy that bears some similarities to the subprime-mortgage debacle, billions of dollars of stranger-originated life insurance was sold to senior citizens between 2004 and 2008 with the intention of selling the policies to investors. The investors thought they spotted an opportunity in policies that seemed underpriced; some funds accumulated hundreds of such policies.

This is yet another example of why individual investors should stay away from life settlement investments. There are just too many crooks in the business.

For more information on this topic, read about A&O Life Funds.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

In 2007 State Farm sued Attorney General Jim Hood. Here is the Complaint. State Farm does not like Jim Hood. No one likes State Farm. When State Farm filed the lawsuit, it filed this motion to seal the case. The Court later unsealed the case.

In 2008 Sate Farm and Hood settled and the Court dismissed the case. Here is the order. The terms of the settlement agreement were confidential and the court ordered that they remain under seal.

In 2009 Ya'll Politics, joined by three television stations, moved to intervene in the case in order to obtain the terms of the settlement agreement. State Farm did not object. General Hood did. Here is Hood's Response to the Motion to Unseal the agreement.

Hood's response states several times that the Court ordered that the settlement agreement be sealed upon a showing of good cause. I have looked for something in the record confirming that statement, but have not found it. Maybe I just missed it.

It seems that Hood views the terms of the settlement agreement as politically embarrassing. But open access to court proceedings should take precedent over politics.  

It is bad form and bad law for court files to be sealed without an evidentiary basis for a finding of good cause in the record. An example is Judge Yerger's unexplained sealing of all relevant pleadings in the Eaton v. Frisby case pending in Hinds County.  In the good old days newspapers viewed themselves as the guardians of public access to the courts and challenged improper sealing of court files and court proceedings. Now, newspapers can't afford to pay the lawyers to make the challenges.

I would like to see Judge Bramlette grant the motion for two reasons. First, it would reverse the trend of unexplained sealing of court files and confidentiality orders not supported with evidence. Second, it would start a trend of new media (a blog) successfully challenging secrecy in the courts. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

As Louisiana companies ask a federal judge to lift the ban on deepwater drilling, the issue of whether to continue drilling in the Gulf following the BP Horizon disaster is a big topic of conversation. On Sunday the Clarion-Ledger ran competing opinion articles on whether offshore drilling should be banned.

Louis Miller of the Sierra Club advocated banning offshore drilling and instead developing alternative energy sources.

State Senator Merle Flowers disagreed, arguing that offshore drilling is needed for energy supplies and the jobs that it creates.  

So who is right? They both are.

Senator Flowers is right that advocating a complete ban on offshore drilling is “naive.” Mr. Miller is right that we should develop renewable energy. But until we have developed enough renewable energy sources to replace oil, we don't have much option to offshore drilling. We may not like that fact, but it is a fact.

 The United States is in desperate need of a comprehensive energy plan designed at sharply reducing or eliminating our dependence on oil. The era of cheap and easily accessible oil is ending. Major energy companies are not replacing their oil reserves through new discoveries as fast as they are being depleted. That is why we are having to drill in 5,000 feet of water in  the Gulf and are looking at the Artic for possible future drilling. If Peak Oil is not already here, then it will be soon. We should plan for dwindling supplies now—not when there is a supply crunch that drives gas to $10 per gallon.

One idea is Boone Pickens' plan. The pillars of the plan are:

• Create millions of new jobs by building out the capacity to generate up to 22 percent of our electricity from wind. And adding to that with additional solar generation capacity;
• Building a 21st century backbone electrical transmission grid;
• Providing incentives for homeowners and the owners of commercial buildings to upgrade their insulation and other energy saving options; and
• Using America's natural gas to replace imported oil as a transportation fuel in addition to its other uses in power generation, chemicals, etc.

People may disagree with some of Pickens' ideas or have their own ideas. But it is better than what we have now: nothing. Congress needs to enact energy legislation now, since it will take years to implement. Failure to do so is a failure in leadership by the executive and legislative branches.

What about deepwater drilling? Should we ban that? Again, I say no. My reasoning is that it is now pretty clear that BP was grossly negligent in its operation of the Horizon. That suggests that deepwater drilling can be done safely. BP just wasn't doing it. But the government needs to make an example of BP and the Justice Department should criminally prosecute the people responsible for running that rig. Their actions caused the deaths of eleven people and an evironmental disaster.

We need oil like a heroin addict needs his next hit. We've got to have it. I'm all for working to end the addiction. But until we do, we have to have oil. And deepwater is one of the only places that we have to get it.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Employee theft at law firm is probably more common than you think. I saw two articles just last week about employees stealing from their firm. In New York a secretary who stole over $600,000 from her firm was sentenced to 4–13 years in prison. Meanwhile, in Pennsylvania a paralegal who stole $75,000 from her firm received house arrest.

This happens in Mississippi all the time. I personally know of three firms that pressed charges against employees who stole from the firm within the last eight years. In each case, I also knew the employee and they all appeared trustworthy. Without question, they were all hard working and were good employees except for the stealing.

Employee theft has occurred at large Capital Street Jackson firms and at solo practices. It has happened all over the State. And the scary thing is, everyone does not get caught.

Lawyers need to think about this and develop a plan for preventing employee theft from happening. There are resources on the internet that list steps that can be taken to reduce the risk of employee theft. In deciding what to do your gage should not be whether you think that you can trust your employee(s).

• Email This
• Print
• Comments (6)
• Trackbacks
• Share Link

I previously posted about Attorney General Jim Hood's State lawsuit against Microsoft and the $8.3 million attorneys fee paid to a group of lawyers that included Jackson lawyer Brent Hazzard, Susman Godfrey of Houston and David Boies' firm. The prior posts are here, here, and here. It looks like Jake and Elwood are putting the band back together to make a run at BP and the other usual suspects in the Gulf Oil Spill Litigation.

Here is the Class Action Complaint that the group filed in Houston, Texas on behalf of an Alabama resident. The complaint's class definition is:

All Gulf of Mexico residents who claim injury and/or damages as a result of the April 20, 2010 fire and explosion which occurred aboard the Deepwater Horizon drilling rig  and the resulting oil spill.

  I'm not sure what to make of a class of “Gulf of Mexico residents.”

Joking aside, I don't know anything about Susman Godfrey. But I'm impressed by this statement from their firm website:

In handling complex litigation, our firm is guided by two principles, both of which reduce expense without sacrificing chances for success. First, less is best. Excess discovery is not just nonproductive, it often is counterproductive. Excess discovery removes the element of surprise at trial, forces the opposition lawyers and witnesses to get prepared earlier than they otherwise would, and often takes the eyes of the lawyers who engage in it off the ball. The best lawyers are best able to handle (and create) surprise at trial. We believe in retaining our natural advantage.

I'm not sure I've ever seen a statement like this in print—but I completely agree. That's a truly outstanding observation. I've tried to explain this concept to other lawyers and have had trouble articulating it. Many young defense lawyers are trained to conduct excess discovery, but they don't know why. Sometimes the reason is that it creates more billable hours, but more often it's inertia in a system where that's how it has always been done.

David Boies (pictured) is a legal heavyweight who has been the subject of at least two books. Just yesterday I blogged about his penchant for wearing the same cheap suit to trial every day. If he truly engages in the oil spill litigation, then this group is more likely to end up in a leadership role in the litigation.

Brent Hazzard is also somewhat of a mystery to me. I recently met him and he seemed like a good guy. But we didn't get into his background and experience.

So far this is one of many complaints filed by many groups of lawyers. But it is one to keep an eye on.

• Email This
• Print
• Comments (9)
• Trackbacks
• Share Link

This post addresses a decision that every trial lawyer spends an inordinate amount of time contemplating: what to wear to court? The question is particularly relevant when it comes to jury trials. Jurors absolutely discuss and make judgments about lawyer attire.

Consider the following stories:

• Thirteen years ago I attended the NITA trial academy. Part of the process involved a mock trial with jurors deliberating the case on closed circuit television. One juror commented that my pants were “high waters” and that I shouldn't wear “high waters” to court. That was my favorite suit. Guess how many times I wore it after that?
• During the same NITA trial academy I wore a khaki poplin suit. As I passed another attendee in the hall he asked me if my suit was made out of burlap. It didn't matter that he was kidding and that we were both “under the weather” from a very late night with other attendees. I couldn't wear the suit to court after that.
• I have heard a lawyer blame losing a trial on wearing nice suits to court.
• I have heard a lawyer blame losing a trial on wearing cheap suits to court.
• I have watched focus group deliberations where lawyers who deliberately dressed down with a sports coat and slacks instead of a suit were derided by the focus jurors for not wearing a suit. At least half the focus groups that I have participated in involved juror discussions about attorney attire.
• I tried a case to verdict in Hinds County where during deliberation jurors voted on a “Who's who” for the lawyers in the case. Not surprisingly, Barry Ford won best dressed.
• Prominent lawyer David Boies has a simple system. He gets one cheap blue suit and wears it every day for the entire trial with black tennis shoes. At the end of the trial, he has been known to take the suit off and leave it in the trunk of his rental car.  

Some lawyers believe that there are suits venues and sports coat and slacks venues. Other lawyers believe all venues are the same. And I couldn't even begin to analyze how these issues affect women lawyers. But I do know that it is even a bigger issue for women due to having more options as to what to wear.

Hinds County Circuit Court has a local rule that governs lawyer attire. Rule 1.10 provides:

All attorneys are expected to dress in professional attire.

Personally, I think the Mississippi Supreme Court should strike that rule as unconstitutionally vague. In the Summer I would like to wear to court the attire of a professional golfer. Something tells me that that would not go over well.

When it comes to court attire, judges have it easy. They just put on their black robe and hit the bench. Sometimes I wish lawyers had courtroom uniforms—like maybe jump suits. The jumpsuits would be color coded based on who the lawyer represents. Prosecutors wear one color, criminal defense lawyers another. Civil plaintiff and defense lawyers would have their own colors.

Can't someone on the rules committee do something about this? 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Surprise, surprise! After seven months, the DOJ denied my appeal seeking disclosure of Ed Peters' immunity deal with the government. Here is the letter denying the appeal.

Previous posts about DOJ's refusal to disclose Peters' immunity deal are here, here, here, and here. 

In the last of the above-linked posts I point out that former DOJ prosecutor Tom Dawson disclosed the terms of Peters' deal in Kings of Tort, which Dawson co-authored with Jackson political observer Alan Lange:

On page 199, the book states that in exchange for immunity, “Peters would surrender his law license, resign from the bar permanently, and forfeit all monies received from Scruggs and Langston, in addition to [throwing Bobby DeLaughter under the bus] testifying truthfully.” That’s it.

The fact that DOJ continues to refuse to produce the agreement when one of its former prosecutors disclosed the terms of the deal in a book makes me want to run out and join the Tea Party. You've got to love the bureaucracy.

Needless to say, I am not going to waste my time filing a lawsuit trying to confirm what Dawson disclosed in his book.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I think of the comic strip Dilbert when I think of BP's gaffes related to the Gulf oil spill. But this video captures my perception of BP (and most other large corporations): 

• Email This
• Print
• Comments (8)
• Trackbacks
• Share Link

Any doubts about whether Justice James Graves would be confirmed to serve on the Fifth Circuit Court of Appeals seemed to be put to rest on Friday with Mississippi Republican Senator Roger Wicker's endorsement of Graves.

So how does Graves' imminent departure impact the future of the Mississippi Supreme Court? It's hard to say at this point, but the possibilities are frightening. Graves is viewed as a left of center justice. His replacement will be appointed by the conservative Governor Haley Barbour. That is potentially bad for both the legal rights of individuals and the legal profession in Mississippi.

Barbour will face pressure from tort reformers to appoint a replacement for Graves who appears certain to uphold the legislative caps on non-economic damages and will support a reversion to the Court's pattern under Chief Justice Smith of going years without affirming a plaintiff's verdict. That practice was exposed in 2008 by respected Jackson defense lawyer Alex Alston.

According to Alston, in the 4 1/2 years prior to June 2008 the Mississippi Supreme Court reversed 88% of jury verdicts that favored wronged victims. During the same time period, the Court reversed 0% of jury verdicts that favored big business. Alston went public with his criticisms. The Court's swinging too far to the right is widely believed to be the primary reason that Chief Justice Smith lost his re-election bid to Jim Kitchens.

Smith's defeat signaled that any Supreme Court candidate who can be portrayed as always voting for one side is vulnerable in an election. After Smith's defeat, Justice Waller became Chief Justice and the Court's decisions in civil cases began to reflect a swing from the far right to the middle. No longer are defense lawyers telling plaintiff lawyers that if you get a verdict, we'll just appeal and get you reversed. No longer are defense lawyers bragging that: “there is not an argument I can make that (insert name-you know who I mean)will not buy.”

Incidentally, most of the defense lawyers who made these jokes were morons. They just couldn't figure out why plaintiff lawyers weren't filing cases any more. As if plaintiff lawyers were motivated by creating billable hours for defense lawyers. Smart defense lawyers were just as concerned about the Court's decisions as plaintiff lawyers and are now just as happy about the Court's moderation.

Some people speculate that Governor Barbour and Mississippi conservatives are happy to get Justice Graves off the Supreme Court so that they can appoint a more conservative successor and try to roll back the progress made under Chief Justice Waller's leadership.  

So who does Barbour appoint? Unless he wants to commit political suicide it must be an African-American, since Graves is the only African-American on the Court. The name that I have heard most often is Jackson attorney La'Verne Edney, who is a partner in the Brunini Law Firm and currently serves as General Counsel of the Mississippi Volunteer Lawyers Project. Edney's background is as a defense lawyers and she is perceived as being a possible conservative vote on the Court.

Hinds County Chancery Court Judge Denise Owens is a good judge who would be a popular pick in the Bar. But her husband and brother are prominent plaintiff lawyers, so her appointment might not be popular in all circles. Another possibility is Chancery Court Judge Vicki Barnes of Vicksburg. I have been impressed with Judge Barnes in my limited appearances before her and she has shown an attention to detail that would be a plus for an appellate judge.

There has also been speculation that Governor Barbour might promote Chief Judge Leslie King from the Court of Appeals, giving Barbour an additional appointment. Proponents of this theory point out that Barbour's record of appointing minority judges is still bad. Elevating King would allow Barbour to appoint two minority judges on the State's appellate courts.

One factor with Governor Barbour that is often over-looked is whether the appointee can win an election for the seat. It is my understanding that Barbour places great weight on this factor. He wants his appointees to win their next elections, presumably because they are a reflection on his political legacy.  

At this point, I am not aware of a clear favorite for the seat. My guess is that strong rumors will emerge within the next few weeks. I will do my best to stay on top of this developing story and post what I am hearing.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On Thursday President Obama finally nominated Mississippi Supreme Court Justice James Graves to serve on the Fifth Circuit Court of Appeals. Here is the Clarion-Ledger's article. Here is Graves' bio on the Supreme Court's web site.

Graves has been the front runner since Judge Barksdale took senior status in the Fall. My prior posts on the vacancy are here, here, and here.

Justice Graves is very deserving and will do a fine job on the Fifth Circuit. He was a great Circuit Court judge who earned the respect of lawyers on the plaintiff and defense side. Watching hearings before Judge Graves was entertaining. He told many lawyers that they were winning based on their brief—but were losing the lead in oral argument. It was always interesting to see who had the sense to sit down and shut up. He had little tolerance for bad cases and unprepared attorneys.

Graves was also extremely effective and under rated in getting cases settled. He could scare both sides into settling. Judge Charles Pickering was the only judge that I have encountered who was as effective at pressuring the parties into settlement.

Some may disagree, but I view Justice Graves as a moderate in civil cases on the Mississippi Supreme Court. Sometimes he votes for the plaintiff, sometimes for the defense. I expect that to continue on the Fifth Circuit.

On Monday I will look to how Justice Graves' appointment may impact the dynamics on the Mississippi Supreme Court and speculate on possible appointments for the seat by Governor Barbour.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Kingfish broke the story Tuesday on Karen Irby's motion to withdraw her guilty plea. Here is Kingfish's report and the motion. Here is today's Clarion-Ledger article on the story.

The motion seems to be barking up the right tree as far as the applicable law. But it's going to be a big hill to climb. Here is the applicable law:

1. Voluntariness
 
U.R.C.C. 8.04(A)(5) provides that "it is within the discretion of the court to permit or deny a motion for the withdrawal of a guilty plea." If the defendant is advised regarding the nature of the charge and the consequences of the plea, it is considered "voluntary and intelligent." Alexander v. State, 605 So. 2d 1170, 1172 (Miss.1992). Furthermore, "Solemn declarations in open court carry a strong presumption of verity." Baker v. State, 358 So. 2d 401, 403 (Miss.1978) In Roland v. State, 666 So. 2d 747, 750 (Miss.1995), this Court held that when the trial court questions the defendant and explains his rights and the effects and consequences of the plea on the record, the plea is rendered voluntary despite advice given to the defendant by his attorney. Id. See Smith v. State, 636 So. 2d 1220, 1225 (Miss.1994).
 
2. Ineffective assistance of counsel.
 
Another ground for reversal of a guilty plea is ineffective assistance of counsel. Claims of ineffective assistance of counsel are judged by the standard in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).The two-part test set out in Strickland is whether counsel's performance was deficient and, if so, whether the deficiency prejudiced the defendant to the point that "our confidence in the correctness of the outcome is undermined." Neal v. State, 525 So. 2d 1279, 1281 (Miss.1987). This standard is also applicable to a guilty plea. Schmitt v. State, 560 So. 2d 148, 154 (Miss.1990). A strong but rebuttable presumption exists that "counsel's conduct falls within a broad range of reasonable professional assistance." McQuarter v. State, 574 So. 2d 685, 687 (Miss.1990). To overcome this presumption, the defendant must show that "but for" the deficiency a different result would have occurred. Strickland, 466 U.S. at 694, 104 S. Ct. 2052. 

So there is a strong presumption under the law that the plea was voluntary and that there was an effective assistance of counsel.

But the motion raises some interesting facts. Karen Irby estimates that Stuart Irby paid attorney Joe Holloman at least $500,000 in the case. The motion attaches documents that show that Holloman was was paid at least $95,000 on the case and projected that it would cost $632,224 to defend the case through trial. 

There is nothing illegal or improper about one person paying another's legal bills. In fact, it is very common. The key is that the attorney represents the defendant--not the person paying the bills. Holloman claims that he maintained his loyalty to Karen Irby and there is no evidence at this point that proves otherwise. There are only allegations by a convicted felon.

Karen Irby already sued Stuart Irby. She will probably sue Joe Holloman too.   

I still doubt that Karen Irby will be successful in getting her sentence reduced, but she has made it interesting. There could be a book or movie in this before it is over.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

The entire Mississippi Supreme Court heard oral arguments on Tuesday before a mostly full courtroom in the Double Quick v. Lymas case. Here is the Clarion-Ledger's article on the hearing. The audience was not disappointed as the arguments were very interesting.  

Case Background

The case is a premises liability case out of Humphrey County involving the shooting of a patron by a third-person in the parking lot of a convenience store in Belzoni. There was a large jury verdict that the trial court reduced due to the legislative cap on non-economic damages. Both sides appealed. The defendant appealed on liability and the plaintiff challenged the constitutionality of the caps.

The Court Focused on Liability Issues

The justices appeared most interested in the liability arguments. Defense counsel John Henegan argued for thirty minutes and argued that the verdict should be reversed and rendered based on lack of foreseeability and proximate cause. Plaintiff counsel Joe Tatum then argued for thirty plus minutes and did not get to the cap issue until his time had technically expired. Henegan then argued caps for close to thirty minutes on rebuttal. It looked liked the lawyers were more eager to get into the caps than the justices.

It appeared that five or more justices were skeptical that the plaintiff established that the shooting was foreseeable or that any negligence by Double Quick proximately caused the shooting. For this reason, the case could be reversed and rendered without ever reaching the cap issue.

Justices Were Skeptical of Legislative Caps Arguments

On the issue of the caps, Justice Pierce pointed out that the plaintiff did not raise on appeal the argument that the caps violate the equal protection clause. It appeared that Justice Pierce thought that this was the best argument challenging the caps. Several justices appeared skeptical of the constitutionality of the caps in their questioning of counsel.

Henegan argued that not only are the caps constitutional, but that the legislature can eliminate the right to recover “these types of damages” entirely. I thought he lost the justices with that one. The justices quickly realized that if the legislature can abolish some types of damages, then it can abolish the right to recover all damages. And it did not look like they were buying it.

Henegan was steadfast on this argument, citing the workers' comp system and the fact that the legislature abolished hedonic damages as a separate category of damages. But it's my understanding that hedonic damages are recoverable, they are just within the other non-economic damages. In addition, Justice Pierce pointed out that the workers' comp system is different, since employees do not have to prove negligence in return for the limits on recovery.

In any event, the right to sue for damages in civil court is older than this country. If the right were abolished, people would revert to taking the law into their own hands. Violence and chaos would be common. The best thing about our civil justice system is that it provides an orderly mechanism for resolving disputes. Although the system is imperfect, it beats the hell out of the alternative.

Henegan argued that the right to recover can be eliminated by the state legislature. I think he is dead wrong.

One last point on this issue. I find it difficult to believe that companies that make money from selling liability insurance advocate a system where there can be no tort liability. Liability insurance carriers would be out of business. So while insurance companies like caps that limit exposure, they do not want to eliminate exposure. It would eliminate their business.   

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

According to the Mississippi Supreme Court's docket calendar, there are two en banc oral arguments today involving civil cases. At 10:00 a.m. the Court will hear arguments in three Copiah County cases that were consolidated for appeal. From the captions, the cases look like nursing home cases.

The main event is at 1:30 p.m. when the Court will hear arguments in Double Quick v. Lymas. It's my understanding that the constitutionality of Mississippi's tort reform damages caps is at issue in this case.

Both arguments can be viewed live through a web-cast from the Court's web site.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

According to this AP article, less than half the federal judges in Florida, Alabama, Mississippi, Louisiana and Texas are eligible to preside over oil spill cases due to connections with the oil industry. The article relies on 2008 disclosure forms.

The article states:

Thirty-seven of the 64 active or senior judges in key Gulf Coast districts in Louisiana, Texas, Alabama, Mississippi and Florida have links to oil, gas and related energy industries, including some who own stocks or bonds in BP PLC, Halliburton or Transocean — and others who regularly list receiving royalties from oil and gas production wells, according to the reports judges must file each year. The AP reviewed 2008 disclosure forms, the most recent available.

Of course, smart judges who owned stock in BP, Haliburton or Transocean at the time of the spill sold their stock soon after the spill.

  The story states:

The AP review of disclosure statements shows the oil and gas industry's roots run as deep in the Gulf Coast's judiciary as they do in the region's economy.

This may be painting with too broad of a brush. I suspect that many judges in other parts of the country also own or owned stock in these companies. They are all leading companies in their industry and are common investments in the energy sector. There is a good chance that anyone who holds individual stocks in their brokerage or retirement accounts owned stock in at least one of these companies. 

 Similar conflicts recently caused the Fifth Circuit Court of Appeals to dismiss an appeal, as discussed in this post. So this issue will be in play at both the trial and appellate court levels.

Some attorneys (presumably plaintiff's attorneys) want to bring a New York Judge to Louisiana to preside over the case:

Some attorneys have come up with an unusual assertion: import a New York federal judge with a strong background in environmental lawsuits to Louisiana to preside over the cases.

They are recommending that the U.S. Judicial Panel on Multidistrict Litigation appoint U.S. District Judge Shira Scheindlin. Scheindlin presided over settlement of some 200 lawsuits brought against BP and other oil companies over a toxic additive called MTBE that contaminated drinking supplies nationally — and she has no oil and gas investments, according to her financial disclosure forms.

Sounds like the makings of My Cousin Vinnie 2. It's twenty years later and Vinnie is now a federal judge who returns to the Deep South to preside over the cases involving the biggest environmental disaster in U.S. history.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Kingfish reports on Karen Irby's two prong attack on her 18–year sentence for causing the deaths of Mark Pogue and Lisa Dedousis. Irby is asking the Mississippi Supreme Court to order Judge Tommie Green to recuse herself from the case and making a similar request to Judge Green. As grounds for the request, Irby argues that her lawyer had a conflict of interest because he was being paid by Stuart Irby.

Irby also faults her original lawyer for not asserting the defense of intervening superseding cause, which would have pointed the finger at Stuart Irby. The problem with this argument is that it is based on an affirmative defense in a civil case that is used when the defendant denies liability. The defense would not be applicable even in a civil case where the defendant admitted liability, which is essentially what Irby did by pleading guilty.

In a criminal case it would not be an affirmative defense. Instead, it would be the basis for a not-guilty plea. But Karen Irby pleaded guilty. And in order to plead guilty, Irby had to state on the record that she was satisfied with her legal representation.

The oddest thing about Irby's strategy is that she is not asking to be allowed to withdraw her guilty plea. She just wants a lighter sentence. The the grounds for the lighter sentence is that she didn't do it—Stuart Irby did. But you don't get a lighter sentence when someone else did it—you get acquitted.

It appears that Karen Irby expected a light sentence due to the support of the victims' families and her allegations against her husband. But Irby's sentence of a less than maximum 18 years is not surprising, as reflected in this post after the plea but before the sentencing. Irby could have gotten 20 years. In fact, she could get 20 years if she is successful in re-opening her sentencing.

Irby's attempt to get her sentence reduced is interesting. But it's unlikely to be successful. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

As widely reported, the Mississippi Supreme Court disbarred former Hinds County Circuit Court Judge Bobby DeLaughter on Thursday. Here is the opinion.

A terrible ending to the legal career of a lawyer who prosecuted one of Mississippi's most important cases ever (against Byron De La Beckwith), wrote an excellent book on the case, and became a respected—but wildly unpredictable—judge.

I did not know DeLaughter personally, but I still find this matter sad. Not so much for DeLaughter, but for the entire Mississippi legal profession.

  Here are prior posts on DeLaughter.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I have a report of a $1.1 million jury verdict returned Wednesday in Hinds County Circuit Court in a case tried before Judge Winston Kidd.

The reported facts are that it was a wrongful death case. The decedent had stomach ulcer surgery and was released from the hospital. After discharge the ulcer hemorrhaged, causing the death. I assume that the plaintiff alleged that the surgery was not properly completed and the decedent should not have been released from the hospital.

Alton Peterson was the plaintiff's lawyer. Defense lawyers were Whit Johnson, Stephen Kruger and Marc Caraway. I do not yet know the identity of the parties.

I will post an update if I obtain more information.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 With Governor Haley Barbour downplaying the signficance of the oil spill, MLR located this rare video footage of Barbour from his college days (play video):

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

On Friday the Fifth Circuit Court of Appeals did about the most bizarre thing that I can recall an appellate court ever doing in the Comer v. Murphy Oil case: dismissed an appeal without deciding it because it did not have a quorum to decide the case. Needless to say, it's caused a huge stir that you can read about at NMC, Anderson Blogs, and Consumer Class Action and Mass Torts, among other places.

The case at issue was the novel case where plaintiffs sued oil companies for causing climate change that makes hurricanes—specifically, Katrina—worse. We can debate the plaintiff's causation theory another day. The important point is that the Fifth Circuit couldn't get a quorum to decide the case, presumably because the justices owned stock in the defendant companies, which included BP and other major oil companies. So the Court punted the case without deciding the appeal even though the issues were ripe for determination. I honestly did not know that was an option.

Oops. Looks like President Obama should have been in a bigger hurry in getting Justice Graves confirmed to fill Judge Barksdale's seat on the Fifth.

It is almost guaranteed that the Gulf Oil Spill litigation will involve multiple appeals from the district courts to the court of appeals. But for the cases in the Fifth Circuit, there is an apparent likelihood that the appeals court will be unwilling unable to hear the appeal. This litigation is going to need an appellate court that has the guts “quorum” to decide the issues. In short, the litigation needs to be somewhere where the appellate court can hear the case. That's somewhere other than the Fifth Circuit.

This means that the MDL should not be located in the states that comprise the Fifth Circuit: Texas, Louisiana and Mississippi. How big of an advantage would it be for the oil companies to get the MDL in front of a hand-picked judge in Houston with no appellate court in play? Too big.

The MDL panel needs to think about this and locate the MDL in another circuit. For instance, in the Eleventh Circuit, which includes Alabama and Florida. Or even in a court located on the other side of the county where there is a district judge and appellate court that can hear the case.  

Incidentally, while I do not always agree with every decision by the Mississippi Supreme Court, I cannot imagine our justices doing what the Fifth Circuit did in Comer v. Murphy Oil.

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

On Thursday in a 7–2 decision the Mississippi Supreme Court affirmed the Grenada County Circuit Court's grant of summary judgment in Angle v. Koppers, Inc. Here is the Court's opinion. Justice Lamar wrote the Court's opinion joined by Chief Justice Waller and Justices Carlson, Dickinson, Randolph, Chandler and Pierce.

The case was a toxic tort case where plaintiff claimed to suffer injuries as a result of exposure to toxic chemicals. The most recent of plaintiff's claimed injuries occurred in 2001. Plaintiff filed suit in 2005.

Plaintiff argued that the statute of limitations began to run when  she discovered that her medical problems were the result of exposure to toxic chemicals. Defendants argued that the statute of limitations began to run when plaintiff was diagnosed with her illnesses. The Court agreed with the defendants.

The Court's decision was based on its interpretation of this provision in Mississippi's general statute of limitations, Miss. Code Ann. 15–1–49:

(2) In actions for which no other period of limitations is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury. 

The Court noted that the statute does not state discovery of the injury and its cause. The Court also pointed out that medical malpractice cases are governed by a different statute and discovery rule.

Justice Kitchens dissented and was joined by Justice Graves. The dissent argued that the statute cannot begin to run until a plaintiff is aware of all four elements of a negligence claim, including causation. Therefore, the dissent argued that the statute did not begin to run until the plaintiff discovered that her illnesses were caused by the exposure to the toxic chemicals.

Chris Shapely and a bunch of other lawyers represented defendants. Elizabeth Carlyle and and bunch of other lawyers represented the plaintiff.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Monday's Clarion-Ledger had this article covering Hinds County Circuit Court Judge Winston Kidd's Order that the Mississippi Department of Human Services (DHS) must pay $500,000 in damages to a child who was sexually abused while in DHS custody.

The case stems from a Judge Kidd's 2004 ruling awarding the child $750,000 and the 2007 Mississippi Court of Appeals that affirmed on liability, but remanded the case for a new trial on damages.

In one part of its decision, the Court of Appeals said DHS' investigation of the youth's claim was "grossly inadequate."

Jackson attorney Cliff Johnson represented the child and characterized the damages as follows:

"Our client suffered horrific abuse while under the care of the state of Mississippi, and we hope that the state will at long last accept responsibility for its conduct," Johnson said.