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

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

Yesterday's Wall Street Journal ran this editorial tilted “Mississippi Justice on Email”. The article makes a poor attempt to connect the Scruggs State Farm litigation to Attorney General Jim Hood's request to Congress that it rewrite federal law to allow Mississippi to sue Gulf Oil Spill companies in state court. In attempting to make a connection that is not there, the editorial made several comments that are insulting and unfair to the Mississippi legal system.

To be clear, I'm not defending Hood's tactics with State Farm. I'm not a Hood apologist and I have criticized him several times on this blog. Suffice it to say that Hood probably could have handled the State Farm litigation better. But that does not mean that there is a connection between the State Farm litigation and the oil spill litigation.

Consider these statements in the editorial:

• It turns out that Mr. Hood was so tight with the Mississippi tort mob that he turned to them for help to refute our arguments that he was . . . in bed with the Mississippi tort mob.
• Mississippi is famed for its jackpot justice, and as the emails reveal, Mr. Hood and his cabal work together to squeeze settlements from their targets.
• As with the Katrina litigation, the Pascagoula lawsuit society is hoping for the mother of all jackpots against Big Oil. If the AG can keep this litigation at home, he can use the powers of his office to work with this crew to hit another gusher.
• BP and the other companies involved in the spill will be writing big checks no matter where the cases are adjudicated, and rightly so. But Mr. Hood offered no compelling reason in his Congressional testimony that the lawsuits against the oil giant belong outside of federal court. The only reason would be to allow Mr. Hood and his "friends" greater ability to stack the deck against industry and the rule of law.

First, reference to a “Mississippi tort mob” is a little much. Some lawyers—fewer than 10–-broke the law. They got caught. They were disbarred and went to jail. The characterization of a “tort mob” suggests a massive conspiracy and a legal system run amuck. That is not the case in Mississippi.   

Second, while Mississippi is known for jackpot justice, that's history. Germany is known for military aggression, but that doesn't mean that France and Poland should prepare for invasion. The combination of tort reform and, to a larger extent, the Mississippi Supreme Court changing the law on joinder and appellate bonds ended “jackpot justice.” There are even defense verdicts coming out of Jefferson County, once the epicenter of jackpot justice. It has literally been years since I have heard one person who actually practices in the system say that the Mississippi legal system is plaintiff biased. Maybe the Journal should devote its time to containing the spread of communism from the Soviet Union.

Third, what the heck is the Pascagoula lawsuit society? And is the fact that Mississippi plaintiff lawyers are pursuing oil spill litigation any different from other affected states? The Journal agrees that: “BP and the other companies involved in the spill will be writing big checks no matter where the cases are adjudicated, and rightly so.” So what's wrong with lawyers representing oil spill victims?

Fourth, there is nothing inherently wrong with Hood trying to get a home field advantage in oil spill litigation. The oil companies are also trying to get a home field advantage by having the cases heard in federal court in Houston. Mississippi's legal system is not crooked and locating the oil spill litigation in Mississippi would not “stack the deck” any more—or less—than locating it in Houston.

Mississippi's judicial system is an easy target for a New York based newspaper. But its continuing criticism of a legal system that is not broken is unfair.     

• Email This
• Print
• Comments (5)
• Trackbacks

I'm sick of alienation of affection lawsuits. Who's with me?

I'm sick of this one, which ironically was filed by a former Miss. Supreme Court Justice (McRae) who advocated abolishing the cause of action while he was on the Court. I'm sick of this one, which is just getting started. I'm sick of the one involving my old law firm that recently was the subject of a Supreme Court decision. I'm sick of the entire cause of action.

Here are just a few of the problems that I have with the cause of action:

• fault—in an alienation of affections lawsuit, fault is placed on the third-person involved in the affair instead of the cheating spouse. But it was the cheating spouse who broke a vow.
• causation—who can really say that the “alienation of affection” is what caused the marriage's demise? Anyone who has ever been married knows that marriages are extremely complicated.
• damages—as pointed out by Justice Dickinson in a concurring opinion in Fitch v. Valentine, there are no standards for compensating the plaintiff.
• quasi-extortion—there is a quasi-extortion element to the cause of action. I've heard that many alienation of affection claims settle before suit is filed in order to keep the allegations out of the public record. Once suit is actually filed, the case is likely to go to trial because the plaintiff has shot his/ her biggest bullet. Compare that to the rest of the civil justice system where cases are rarely settled before suit is filed, but most do settle after suit is filed.
• resolution—I do not believe that an alienation of affection case promotes the orderly resolution of the acrimony between the individuals involved. In fact, I think that it does the opposite.
• 42 states do not recognize the cause of action. That fact standing alone does not make the action bad, but it does suggest problems.
• the danger of entrapment—an enterprising couple who are grifters could set up an alienation of affection lawsuit and then share in the proceeds. A new couple moves to town. The wife is seen around town flirting with doctors and other wealthy men. This leads to a notorious affair followed by an alienation of affection lawsuit by the woman's husband. In the lawsuit, the woman testifies that the affair did alienate her affection from her husband and destroyed their marriage. After a big settlement the couple then moves to North Carolina or another state that recognizes the action and starts the whole scam over. This is not that far-fetched to me. In fact, I would be surprised if there has never been collusion in an alienation of affection lawsuit.

In summary, it's a bad cause of action that should be abolished.     

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

In an opinion from Thursday in Delta Regional Medical Center v. Green, the Mississippi Supreme Court ruled on conflicting language in Miss. Code Ann. 11–46–11 regarding when a plaintiff can file suit. Justice Pierce wrote the Court's unanimous decision affirming the decision of the Washington County Circuit Court by Judge Richard Smith. Here is the opinion.

Miss. Code Ann. 11–46–11(1) states that a party must file a notice of claim with the chief executive officer of a governmental entity 90 days before filing a lawsuit.

But Miss. Code Ann. 11–46–11(3) states that the statute of limitations is tolled for 95 or 120 days and that the claimant has 90 days to file suit after service of the notice of claim on the governmental entity.

 In resolving this confliction language the Court stated:

…we are left with no choice but to find the phrase 'during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim' found in Section 11–46–11(3) unenforceable.

The result of the decision is that a plaintiff can file suit 90 days after providing notice. In this case, the plaintiff gave notice on the ninety-first day, so the trial court correctly denied the defendant's motion to dismiss.

George 'Boo' Hollowell of Greenville represents the plaintiff. Carl Hagwood of Greenville represents the defendant.   

• Email This
• Print
• Comments
• Trackbacks

The AP reports that while speaking in Pensacola this week, BP Oil Spill Fund Administrator Kenneth Feinberg urged people to find out what BP will pay them before filing a lawsuit:

Feinberg also said there's no reason for individuals affected by the massive Gulf of Mexico spill to file lawsuits - at least not yet.

Feinberg urged claimants to see how much he'd be able to pay them for before suing.

A separate article in the New York Times reports that Feinberg knows that he is facing skeptics:

Mr. Feinberg knew he was facing many skeptics — and cynics — who no doubt wondered if they could get more money from the oil company, not to mention satisfaction, in the courts. He acknowledged the doubters, noting that they were being asked to sign up for “a program that’s never been tried, never been tested and that they view with some skepticism.”

I'm a cynic myself, but at this time I agree with Feinberg. People who hire a lawyer on a contingency fee contract will have to collect much more in litigation just to break even with BP's non-lawsuit offer. 

My estimate is that you need to recover approximately 50% more in a lawsuit to match BP's original offer. This figure is derived by applying a 30–40% contingency fee and adding another 10–20% in case expenses that ultimately are subtracted from the client's recovery.

And people don't have to sign a contingency agreement with a lawyer to get legal advice. Most lawyers will work for an hourly rate. People could hire a couple of hours of a lawyer's time to review BP's offer and proposed settlement papers and discuss the issues involved in deciding whether the offer is fair. I realize that everyone can't afford even a few hundred dollars to pay a lawyer, but many people can.

Don't get me wrong. I expect that many people will have to file lawsuits. But not everyone. If possible, people should at least attempt to resolve their own claims before signing away a big chunk of their recovery.  

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

The Itawamba County School District has agreed to pay $35,000 plus attorney's fees to settle the lawsuit filed by lesbian student Constance McMillen over the school district's efforts to keep her from attending the high school prom. But the school district wants people to know two things:

1. the school district admits no wrongdoing, learned nothing and maintains its high level of stupidity:

   School district attorney Michelle Floyd issued a statement Tuesday saying "the Itawamba County School District believes that Constance McMillen's rights under the United States Constitution were not violated by any act, omission, policy, custom or practice of the district."

2. the district isn't paying anything—some sucker insurance company is:

   Floyd said the district's insurance policy would pay the award.

Newsflash for clueless school district: The insurance company settled because it—along with pretty much everyone else—realizes that you are stupid. A bait and switch fake prom? To keep the gay kid out? Are you kidding me? Do you know how many levels of stupidity that covers? Of course you don't. You were probably running off the handicapped kid when they covered equal rights in school.

Constance McMillen Wins—Itawamba County High School Students are the Big Losers

Constance McMillen comes out of this as the big winner. She handled this matter with dignity, got to meet the President and is nationally famous. 

The saddest thing about this is the horrible example that the school district leadership set for its students. The message to the students at the high school is that it is ok to pick on students who you don't like because of their color, gender, religion, health, sexual orientation, weight, height or anything else that makes people different from you. But its not ok. It's wrong.

But now it will take years for some of these kids to figure it out on their own. Twenty-five years from now Constance McMillen will be receiving apologies from her former classmates who figured it out somewhere along the way and need to apologize to clear their consciences. The guilt that those students will carry around for the rest of their lives makes them the big losers in this debacle.     

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

Some lawyers believe that every trial is about who is lying. I am not in that camp. I think that most witnesses believe what they are saying—even when it's wrong.

But I agree that someone lies in many trials. Usually, the worst thing that happens is that the deception causes their side to lose the case. So I was a little surprised when I heard that a North Mississippi man is being prosecuted in federal court for making false statements in a trial. But it's true.

Here is the indictment in U.S.A. v. Rock. The indictment alleges that Kenneth Rock Sr. knowingly made material false declarations during a federal civil trial in North Mississippi in September 2007.  The testimony at issue related to prior criminal convictions, criminal charges and disability income.  

The defendant could get up to five years in jail if convicted. Here is the penalties sheet.

Almost all lawyers stress to witnesses the importance of telling the truth in depositions and on the witness stand. A lying witness is a sure-fire way to blow up a case. But for the witness, it can also lead to criminal charges.    

• Email This
• Print
• Comments
• Trackbacks

There are reports of a $1.7 million verdict on Monday in Jackson County Circuit Court. The case was a business dispute involving claims for breach of fiduciary duty. Matthew Mestayer and Mark Lumpkin were plaintiff's counsel.

I am trying to get more information on this verdict.

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

As reported yesterday on Ya'll Politics and other sites, it appears that Gray Tollison will be the next U.S. Attorney for the Northern District of Mississippi. Tollison is a great choice. But why hasn't he emerged as a candidate sooner?

I have not called around looking for U.S. Attorney rumors in a while, so Tollison's name caught me by surprise. The last I heard was that Felicia Adams was likely to be the U.S. Attorney for the Northern District. Perhaps she is now in the mix for the Southern District post. I've also heard that Jackson attorney Greg Davis is a possibility for the nomination. But that was not a rumor with much conviction, so I am not making a prediction there.

No matter how you cut it, President Obama and the Justice Department have totally botched the two U.S. Attorney nominations in Mississippi. We are a year and a half into what may be a one term presidency and we are still waiting on both nominations. Alan Lange nailed it on this issue in April and I'm just going to quote from his take:

 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.

That was in April. The further that we go without nominations, the more this applies.

• Email This
• Print
• Comments
• Trackbacks

A memorial service for Judge Robert Evans is scheduled for Friday, July 23, 2010 at 10:00 a.m. at the Smith County Courthouse in Raleigh. Here is Judge Evans' obituary, which ran in the Clarion-Ledger on Sunday.  

In addition to his legal and judicial career, Judge Evans was an avid historian and authored The Sixteenth Mississippi Infantry: Civil War Letters and Reminiscences.

I recommend the book for Civil War buffs. It is quiet moving at times, such as when you learn that men whose letters you had been reading were killed in battle.

I never told Judge Evans that I read and enjoyed his book because I didn't want to look like an ass-kisser. But now I wish that I had.

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

A Hinds County Circuit Court jury returned a $3.6 million verdict Friday in a premises liability case. Judge Winston Kidd was the trial judge.

The Plaintiffs were Benny Ohazurike, Esther Ohazurike, and Darlington Ohazurike (6 year old son). Plaintiff's counsel were Ashley Ogden and former Chief Justice Jim Smith.

The Defendants were Parham Pointe South (owner), Ballard Realty Company (management company), and K. Wayne Rice & Associates (owner). Defense counsel were: (1)     Jamie Travis with Page Kruger & Holland in Flowood (attorney for Parham Pointe South and K. Wayne Rice & Associates); and (2)  Benny “Mac” May with Dunbar Monroe in Ridgeland (attorney for Ballard Realty and Crystal Bridges-Corcoran).

Case Facts According to Plaintiffs

Plaintiff Benny Ohazurike is a creator and designer of board games.  In 2001 Benny and his wife Esther moved into Parham Apartments on Ridgewood Road.  Plaintiff’s apartment had a leaky roof and developed mold and mildew inside the apartment.  Plaintiffs asked management to fix the maintenance problems inside their apartment, including the leaky roof and the mold and mildew inside their apartment and to clean their carpet.  Management refused to perform any maintenance or repairs on their apartment. 

 In mid 2007 a pipe in the Plaintiffs’ bathroom began to leak.  For at least 6 weeks Benny begged the manager and the maintenance staff to fix the leak.  They told Benny they would fix the leak and never did.  In May 2007 Benny and Esther went to the grocery store.  When the family came back to their apartment they discovered the leaking pipe in the bathroom had burst and flooded the majority of the apartment.  Benny had been keeping blueprints for his board games on the floor in the apartment bedroom while he worked on them.  Benny also had blueprints and partial game designs stored in the closet.  The flooding from the burst pipe destroying 19 of Benny’s game designs and blueprints.

 Management did not stop the water spewing from the pipe until several hours after it was discovered and reported by the Plaintiff.  After the flood, management continuously refused to replace the carpet in the apartment, make any other repairs or move the family into a vacant apartment.  Because of the flood the carpet began to mildew and mold spread throughout the apartment.  Plaintiff’s 3 year old son, Darlington, developed a skin condition and a cough.  Benny and Esther also developed coughs and became ill from the mold.  Darlington’s skin is permanently dotted and scarred as a result of the skin condition he developed.  Plaintiffs sued Defendants alleging failure to provide maintenance and repairs both before and after the flood, their failure to clean the mold in their apartment, and failure to replace the mildewed carpet which caused their Plaintiffs’ illnesses.

 At trial several former employees of Parham testified that management and the owners intentionally ignored the Plaintiff’s requests for repairs and maintenance and threw away his maintenance requests.   The employees testified that Benny annoyed management because he asked for repairs and because he acted as an informal security guard and maintenance man and would constantly complain about the lack of maintenance on the property, the crime on the property, and employees not doing their jobs. 

There was testimony that management denied maintenance to the Plaintiffs in order to force them out and rent the apartment for a higher price.  There was testimony that certain members of management and maintenance would randomly turn off the air conditioner to the Plaintiffs’ apartment to force them to move.  One employee, a housekeeper, testified that management forced her to sign false criminal affidavits against Benny alleging that he had threatened her with a gun.  The employee testified that when she refused to go to court and pursue the false charges, management fired her.

The defendants’ witnesses who were all former managers and regional supervisors testified that the plaintiffs were several months behind on rent and that no flood occurred. The defendants testified that just because the rent was late they could not deny maintenance service to tenants. The defense argued that the value of the plaintiffs’ injuries was zero and that the plaintiffs’ damaged games had no value. The plaintiff countered by showing a pattern at the property of no one being able to determine who owed rent because of the problems with managers taking cash and money orders and not applying the rent to the correct tenants. The plaintiff also showed that while he had fallen behind on rent in the past he had always paid up making his rent current and paid.

The Verdict

The jury awarded the Plaintiffs the following amounts:

Benny -  $2,502,208.00, Ester- $500,253.00,  Darlington - $601,251.00.

The total amount awarded to the Plaintiffs was $3,603,712.00.

My Take

The damages verdict sounds really high for those injuries. It will be interesting to see what happens if the case goes up on appeal.

This is Ashley Ogden's sixth seven figure verdict reported on this blog in a little over a year. That is impressive by any measure and places Ogden at the top of the heap of Mississippi plaintiff lawyers. That stature tends to make people a target and it will be interesting to see how Ogden handles the attention.

This verdict will lead to more chatter that I have been hearing as Ogden compiled these verdicts. First, some Jackson lawyers believe that the senior litigation partners at many Jackson defense firms are afraid to try a case against Ogden in Hinds County. Their argument is that senior partners step in and try cases that they think that they will win, but let the lawyers who worked up the case try it when they think they will lose.  This is not my theory—but I've heard it several times. 

Second, this verdict will lead to more talk around town about the irony of Chief Justice Smith working for Ogden. The perception among lawyers on both sides was that the Supreme Court would not affirm a plaintiff's verdict when Smith was the Chief Justice. The fact that Smith went into a plaintiff practice after losing his election to Justice Kitchens is ironic. But it also suggests that the man who led the Court did not share the view that plaintiffs could not get—and keep—a verdict in Mississippi. It will be interesting to see what happens when the Supreme Court rules on the appeals of these cases that Smith worked on with Ogden. 

• Email This
• Print
• Comments
• Trackbacks

Mississippi Republican Senators Thad Cochran and Roger Wicker endorsed Jackson attorney Carlton Reeves at Reeves' Senate Judiciary confirmation hearing on Thursday in Washington. President Obama nominated Reeves to be a U.S. District Court Judge for the Southern District of Mississippi. The position is a lifetime appointment.

A webcast of the hearing can be viewed here. Honestly, it's about like watching paint dry and lacked the grand standing by Senators seen in Supreme Court nominee hearings.

The hearing agenda included four other nominees to the federal bench. I did not watch the entire hearing. By my count there were two Senate Judiciary Committee members at the hearing. Questioning of nominees started at about minute 77 on the webcast.

Senator Kyl of Arizona questioned Reeves about a letter that he wrote in 2007 opposing the nomination of Judge Leslie Southwick to the Fifth Circuit. Reeves handled the questioning well, pointing out that he wrote the letter on behalf of the Magnolia Bar Association. He also pointed out that as of 2007, the Fifth Circuit had only had two African-American judges in its history. In all fairness, Senator Kyl was very polite during the questioning. 

In my opinion, the endorsements by Senators Cochran and Wicker guarantee that Reeves will be confirmed in a landslide vote. The Senate vote is not expected to take place for another several months.

Despite pre-hearing speculation, Reeves did not wear his Mississippi Litigation Review and Commentary baseball cap during the hearing.

• Email This
• Print
• Comments
• Trackbacks

The Clarion-Ledger reports today that funeral services for Judge Evans are still pending:

Funeral services are pending for Circuit Judge Robert G. Evans, who died Tuesday from cancer. He was 61.

Evans died at St. Dominic Hospital in Jackson, less than two months after being diagnosed with pancreatic cancer, according to a statement from his office.

Thursday's print edition ran this article about Judge Evans.

• Email This
• Print
• Comments
• Trackbacks

There is a dispute brewing among Louisiana plaintiff lawyers over who will get to argue at the MDL Panel hearing on July 29, 2010 that all oil spill cases should be transferred to Louisiana.

Some lawyers want New Orleans lawyer Russ Herman to argue for the Easter District of Louisiana at the hearing. That prompted this lengthy response email from Louisiana lawyer Dan Becnel:

With all due respect, please be advised that I was the original moving party in the MDL and filed the first lawsuit which asked for a MDL.  I have since filed complaints in numerous jurisdictions.  Complaints I filed deal with numerous issues other than simply economic loss.  They deal with Civil RICO, Environmental cases, and tax abatement cases, to name a few.  We also filed securities cases, as has Jim, in New York, Lafayette, and other locations.  While I have great respect for Calvin and Russ, I must advise that nobody to my knowledge that has filed a motion to speak before the MDL Panel has the credibility that I have before this Panel.  An example of that is that on Wednesday, I spent hours with Professor Francis McGovern at the request of the Chair of the Judicial Panel of Multidistrict Litigation, Judge Heyburn to discuss a study he has commissioned dealing with MDL’s, their procedures, its good points and recommendations for improvement.  There are very few lawyers from around the country who were asked to participate in this study.  As a matter of fact, Professor McGovern will be attending the MDL hearing at the request of Judge Heyburn, as he did at the last major MDL hearing that dealt with the Toyota case. 

 

I have been appearing before the MDL Panel on a regular basis since 1970.  Just over the last few years, almost every major MDL that has come to New Orleans, I not only argued the case but was the moving party.  An example of a few are the following:

 

1)      Propulsid, MDL No. 1355, assigned to Judge Fallon;

2)      Vioxx, MDL No. 1657, assigned to Judge Fallon;

3)      Ford Paint, MDL No. 1063, assigned to Judge Vance

4)      Shell Motiva, MDL No. 1632, assigned to Judge Lemelle; and

5)      Chinese Drywall, MDL No. 2047, assigned to Judge Fallon.

 

In addition, I have appeared on a regular basis before the Panel for over 35 years, sometimes having three or more cases to argue before the Panel.

 

It should be noted that Jerry Meunier and I were so upset about the entire MDL process allowing only a two or three minute argument per district, that he and I coordinated efforts to have the Panel grant extended arguments.  It was increased to an hour of argument, which we estimate at thirty minutes per side.  I had spoke to Professor Francis McGovern about this issue.  Jerry Meunier filed an excellent brief on this issue and the request we both made was granted.  Since most people on the ListServ did not attend the MDL hearing dealing with Toyota, the last major MDL that was argued before the Panel, each district was given two minutes, with 27 districts being allowed to argue.  Jerry had requested time for me to argue and I agreed. 

 

I do not have any objection to having someone else participate; however, the economic loss cases are one component of this MDL.  Environmental cases and Civil RICO cases are other components.  Tax Abatement is another.  In addition, at the Toyota MDL hearing, Judge Heyburn asked if more than one judge should be appointed.  I am sure he will request the same at this MDL hearing.  Certainly the Securities cases have a separate MDL number.   After speaking with people who have great insight into the process, I believe there will be two to three judges appointed.  In all probability, Judge Ellison will take the Transocean Limitation case.  It is my intention to strongly support New Orleans. If the Panel thinks judges in New Orleans have conflicts, I even want, at the request of Rob Gordon, to ask for a Judge to be imported into New Orleans to hear the case rather than requiring  the case and all the parties to go somewhere else.  Let there be no mistake, I want the Eastern District of Louisiana first, and alternatively, the Middle District and/or the Western District.  There is great speculation as to where this case will go.  From my experience in over 35 years practicing before the Panel, the one thing we do know is  “Nobody can predict what the Panel will do.”  A good example is the recent argument I made on Chinese Drywall, Arnold Levin, who has vast experience in the MDL , argued for Miami and Florida.  Almost 65% of all the cases in the MDL came from Florida but yet, the Panel accepted my argument requesting Judge Fallon in the Eastern District. 

 

With the above in mind, practicing before the MDL Court is not a popularity contest but one of credibility before the Panel.  Jerry Meunier and I discussed this very issue over the last few weeks.  Although he never made an appearance before the Panel in his career, I thought his brief was excellent and his insight to argue was even better.

 

I do not intend to defer my time to the Attorney General, much less the Justice Department.  In all probability, MMS maybe a party defendant.  While Steve and Jim have done an excellent job as Liaison Counsel, neither have experience before the MDL Panel.  Russ, to my knowledge, has only appeared once but has given great insight into many cases before the Panel where he and I have worked in concert but I am usually the person who makes the argument.  Russ has repeatedly complimented my argument which brought Chinese Drywall to New Orleans.

 

I hope you understand my position.  

 

One of my lawyers, Will Percy, will be assisting Professor Bea at a symposium today in reference to the Oil Spill and will accompany him to Grand Isle tomorrow to further assist him with filming a new segment for 60 Minutes on the Deepwater Horizon disaster.  As you know, Solly Granatstein is the producer who I assisted in the first 60 Minutes piece and I have been working with 60 Minutes since then on the second piece being produced.  Please keep this confidential.

 

DANIEL E. BECNEL, JR.

There will presumably be plaintiff's lawyers from other parts of the country arguing to have the case transferred to their backyards. Meanwhile, BP attorneys will argue for a transfer to the federal court in Houston. 

So where will the oil spill cases wind up? Who knows. As Becnel stated in his email:  Nobody can predict what the Panel will do.

• Email This
• Print
• Comments
• Trackbacks

Circuit Court Judge Robert Evans has died. Judge Evans presided over the Thirteenth District, which included Covington, Jasper, Simpson and Smith Counties.

It's my understanding that Judge Evans was diagnosed with pancreatic cancer a couple of months ago. 

Judge Evans was very popular among both the Bar and Judiciary in Mississippi. On the rare occasions that I heard a lawyer state that the did not enjoy practicing before Judge Evans, the person who said it was clueless.

 I have not received notice of funeral arrangements and will post them when I do.   

• Email This
• Print
• Comments
• Trackbacks

On Monday the Senate Committee on the Judiciary scheduled Jackson attorney Carlton Reeves' confirmation hearing for Thursday of this week. In April President Obama nominated Reeves to be a United States District Judge for the Southern District of Mississippi. The hearing will be at 3:00 central time in Room 226 of the Senate Dirksen Office Building in Washington.

The hearing is open to the public and can be viewed on the internet at this link: http://www.judiciary.senate.gov/hearings/hearing.cfm?id=4687.

Typically, the confirmation hearings for district court nominees are a mere formality. The hearing should not be confused with a full Senate vote, which probably will not take place for at least a couple of months. This is not unusual and in all likelihood, the Senate will approve Reeves' nomination by a wide margin. 

Once the Senate approves Reeves' nomination, he will probably be sworn in as a judge within a matter of a few days. Reeves' formal investiture ceremony will likely be scheduled for a few months after he actually takes the oath and begins serving as a judge. My guess is that Reeves' investiture will be sometime after the new federal courthouse in Jackson opens this Fall. 

For earlier posts on Reeves' nomination see here  and here.

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

The A.P. reported Saturday on a three judge panel in U.S. District Court for the Northern District of Mississippi granting the defendant's motion for summary judgment in the lawsuit attempting to force the expansion of Congress. Here is the Court's opinion authored by Fifth Circuit Judge Leslie Southwick.

I previously discussed the case here and here.

The A.P. reported:

Plaintiffs argued that adding House seats would make it easier to create districts roughly balanced by the number of residents. The lawsuit suggested expanding the House to either 1,761 seats or 932 - an expensive, time-consuming and politically contentious proposal.

Americans currently have a negative view of Congress and probably prefer to get rid of many of the current Senators and Representatives instead of adding a bunch more to keep them company.

The plaintiffs refuse to quit and immediately filed this notice of direct appeal to the U.S. Supreme Court.

I expect the Supreme Court to affirm the rejection of the case and I expect the opinion to be unanimous.

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

Thirteenth District Circuit Court Judge Robert Evans has been unable to preside over cases for some time due to an illness. Judge Evans' district includes Covington, Jasper, Simpson and Smith Counties and he is the only judge in the district.

Judge Frank Vollor has stepped in to preside over cases in the district on an interim basis. Judge Vollor retired from the bench in 2009 after serving as a Circuit Court Judge for the Ninth District, which includes Warren County.

I am sure that Judge Vollor will do a great job, but Judge Evans is irreplaceable. If I could pick one state or federal trial judge to try a case before, it would be Judge Evans. He maintains complete control over his courtroom while basically having an open chambers for the lawyers during a trial. Lawyers from both sides spend a lot of time in Judge Evans' office during trials drinking coffee and shooting the bull.

When Judge Evans rules he has a way of softening the blow for the side that he is ruling against. In addition, he has a great judicial temperament and I have never seen him “poison the well” with a jury by using different tones of voices to lawyers on opposing sides. He is a great trial judge.

I have heard Judge Evans state how much he loves his job and how fun it is. That passion is evident in the courtroom and he makes trying a case fun for the lawyers.

• Email This
• Print
• Comments
• Trackbacks

A while back I tried to read Your Witness, Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers, edited by Steven F. Molo and James R. Figliulo. The book is devoted to cross-examination techniques.  The average customer review on Amazon is 4 and half stars, which is higher than the average review for The Art of Cross Examination. 

The format of the book is a compilation where fifty well-known Chicago trial lawyers each wrote a chapter that was several pages in length. The chapters cover different topics, so in theory there is no over-lap.  

I read about half the book. Some of the chapters were quiet good. Others were kind of lame and a chore to read. Many of the authors told a war story from a past trial. 

Personally, I don't care for trial war stories unless there is a punch line involved. You can't go wrong by taking a vow to never tell a war story from a trial unless there is humor to the story. Even then, there are many times when the only people who appreciate the story are people who were actually in the trial with you. If you want to see some trial lawyers' eyes glaze over, tell them a long trial war story with no humor in it. You will remind them of Ted Striker from Airplane. 

I am also not a fan of war stories from losing trials. The reason should be obvious: if the cross-examination or whatever was that great, shouldn't you (or I) have won the trial?  

But I digress. I am not a big fan of the compilation format. I highly recommend McElhaney's Trial Notebook. I am less of a fan of McElhaney's Litigation, which is a compilation of individual articles. This may be just a personal preference on my part. I don't like reading a book full of short stories either. I always seem to start compilation books, but cannot finish them. That is what happened here.

The book costs only $29.50 on Amazon. So I can recommend buying it to have in your litigation library as a resource, even if you do not intend to read it cover to cover.       

• Email This
• Print
• Comments (22)
• Trackbacks

Costa Rican bond company Provident Capital Indemnity was involved in the collapsed A&O Life Investment Fund. According to the SEC, Provident is now involved in another collapsed life settlement "investment."

Here is the SEC's Complaint filed in Texas against American Settlement Associates, Charles Jordan and Kelly Gibson. The complaint alleges that the defendants sold fractional ownership interests in a viatical policy and then did not use the investors' money to cover future premium payments on the policy. Instead, the defendants used the investors' money to support defendants' lavish lifestyles.

 The complaint alleges that defendants raised over $3.7 million from more than 50 investors in 10 states. The defendants promised a fixed rate of return of between 42% and 48%.

How in the world could anyone believe that they could get that kind of guaranteed investment return? If someone promises you that kind of return, then you need to hold onto your wallet and run.

 As in the A&O debacle, the defendants assured investors that the investment was protected by a bond issued by Provident Capital. The complaint alleges that Provident Capital is unreliable, has a checkered regulatory history, and is banned from California.

In all likelihood, this is another life settlement investment scheme that will leave insurance agents collecting large premiums and investors holding the bag. 

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

A Pike County Circuit Court jury returned a plaintiff's verdict for $25,000 on Thursday in a nursing home case. The defendant was a Tara Cares owned nursing home.

Eric Stacener and Andrew Neely of Jackson represented the plaintiff. Davis Frye, Brad Smith and Barry Ford with Baker Donelson in Jackson represented the defendant. Judge Mike Taylor presided over the trial.

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

The Wall Street Journal ran this article on Thursday about plaintiffs' lawyers and the BP oil spill. The article states:

Plaintiffs' attorneys are scrambling to avoid being frozen out by a $20 billion fund aimed at compensating Gulf of Mexico oil-spill victims outside of court.

According to Louisiana attorney Daniel Becnel:

"People are firing their lawyers left and right," said Daniel Becnel, a Louisiana attorney who has filed numerous claims against BP on behalf of fishermen, shareholders and others.

This is a big change of tune for Becnel since early May, when he predicted that he would settle with BP within 90 days.  

It does appear that the claims fund will negate the need for a lot of litigation. Claims fund administrator Kenneth Feinberg is universally respected and has the trust of both BP and the government to be fair in administering claims. Feinberg is hopeful that claims will be paid within 60–90 days after being submitted. A claimant who decides to hire an attorney on a 40% contingency fee contract would need to collect 40% extra just to break even. So it makes sense for victims to try to resolve their claims on their own before hiring lawyers.

Obviously, plaintiffs' lawyers who hoped to generate revenue from oil spill litigation may end up disappointed. But they will not be the only ones. Defense firms who were gearing up for a decade of contentious litigation will be sick. BP hired $500 per hour lawyers who stand to make hundreds of millions from the litigation.  

When the dust settles, I bet that defense lawyers would earn more in fees from protracted litigation than plaintiffs' lawyers. And the defense lawyers shoulder none of the risks. Unlike plaintiffs lawyers, defense lawyers are not responsible for payment of litigation expenses and bill their clients either monthly or quarterly. This means that they typically do not run the risk of having to pay for office overhead for an extended period of time with no revenue coming in. Further, the longer and more contentious the litigation, the more money defense lawyers make.

Plaintiffs lawyers, on the other hand, can put so much time and money into a case that it winds up working out badly for the lawyers. 

On the whole, defense lawyers make more money than plaintiff lawyers and they do it within a less risky business model. This fact is conveniently omitted from the WSJ article and virtually every article that mentions plaintiff attorneys' fees. 

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

There are reports of a defense verdict rendered today in a Jefferson County asbestos drilling mud case against Conoco Phillips Chemical. Adams & Reese is believed to have represented the defendants.

I believe that this was the same cast of characters as involved in the April 2010 $15.2 million verdict in Jones County in a drilling mud case that I discussed here, here and here.

This was a huge defense win.

There was another defense verdict in Jefferson County less than a year ago, as reported here.