Warning: If you don't think sarcasm is funny, then you should skip this post.
U.S. District Judge Glen Davidson awarded celebrity student Constance McMillen over $80,000 in attorney's fees and expenses this week in her lawsuit against the Itawamba County School District for the District's bigoted efforts to exclude McMillen from the school prom. McMillen's offense was that she is gay and wanted to bring a girl to the prom as her date. Reminiscent of the 1984 movie Revenge of the Nerds, the district responded with a fake prom for McMillen and the rest of the school's “nerds.”
Here is the motion and here is the District's response, which consisted of asking the judge to nit-pick the attorney's fee itemization. Judge Davidson awarded the vast majority of the requested fees.
That was one damn expensive fake prom. MLR estimates of the District's costs include:
staging fake prom: $5,000
payment to McMillen: $35,000
payment to McMillen's attorneys: $80,000
payment to District's attorneys: $50,000
national embarrassment: PRICELESS
TOTAL: Approximately $170,000.
Please excuse me if my math is wrong. I am a product of Mississippi's public school system. This is in a County where the median income is $38,000 according to U.S. Census Bureau statistics.
As noted in a prior post on this case, the District's response is that it doesn't care because some sucker insurance company has to pay. Don't get your hopes up that the the District will learn anything from this. You can't fix stupid.
Constance McMillen was presumably too busy signing autographs and being the biggest celebrity in the history of Itawamba County to comment on the Court's decision.
Fellow bloggers NMC and Bardwell agree: Hinds County Circuit Judge Malcolm Harrison should have done a better job explaining his ruling in favor of the proposed November 2011 “personhood” ballot initiative. Bardwell states:
Specifically, the tenacity with which the court dodges the case's central question is downright astonishing.
Neither NMC nor Bardwell mention an underlying factor that could have weighed heavily on why judge Harrison ruled in the manner that he did: he is involved in a contested judicial election that is less than one week away.
There are only a few contested circuit court judge elections in the entire state. Judge Harrison was appointed by Governor Barbour to replace Bobby De Laughter and faces a challenge from Jackson lawyer Bill Gowan.
The personhood initiative involves all kinds of controversial constitutional issues that evoke strong feelings among many people. To me, it was unfair for Judge Harrison to draw the case. The case should have gone to Judge Yerger (who is retiring) or Judges Green or Kidd (who do not have opponents). Ultimately, everyone knows this issue will be decided by the Mississippi Supreme Court. The case is in the Circuit Court only because there has to be an appealed case for the Supreme Court to decide.
It was a no win situation for Judge Harrison and he was going to be under the microscope and criticized no matter what he did.
The moral of the story for me is not that Judge Harrison is lazy or dodges central issues. The moral of the story is that this is an example of why we should have appointed judges in Mississippi—so elections have no influence or appearance of influence on court rulings. People who thinks that the fact Mississippi's state court judges have to run for election and re-election does not impact rulings are kidding themselves.
Incidentally, Judge Harrison is receiving high marks from lawyers on both the plaintiff and defense side. Both plaintiff and defense lawyers are finding his rulings to be balanced and fair. This is a hard tight-rope for judges to walk and most state court judges cannot do it.
The case centers on Joel Held, a Baker & McKenzie attorney based in Dallas, who represented both sides of an oil-rig-drilling business that turned sour for one client while benefiting the other, according to court documents.
The suit was brought by S. Lavon Evans Jr., who had sought $150 million in actual and punitive damages. He began a drilling company in 1995 in Laurel, Miss., and four years later began drilling wells for businessman Reed Cagle, whose various businesses were represented by Held and Baker & McKenzie, according to the suit.
According to the complaint, the defendants drafted legal documents that established subsidiaries of the joint company in Evans' name and controlled by Cagle, without advising Evans that they had been created. The subsidiaries and Evans' assets were then used to obtain other loans, which would show up in the bank account of their company, then immediately be withdrawn for Cagle's other uses.
You can see my prior posts on the verdict here and here.
The lead defense lawyer has been identified as James Brown of Liskow & Lewis in New Orleans. Here is his firm bio page. I am not sure who local defense counsel was or whether they had local defense counsel.
I hear that David Dunbar of Jackson was involved in the trial, but I am not sure of his role.
There was a punitive damages component of the verdict of $150,000. Although miniscule compared to the total verdict, it opens the door to the judge awarding attorney's fees to plaintiff's counsel. Plaintiff's counsel could ask for a percentage of the verdict in attorney's fees—like 1/3. So the miniscule punitive verdict could end up adding a lot to the judgment.
The trial judge was Judge Billy Joe Landrum. Judge Landrum also presided in the August trial that resulted in a $132.5 million verdict in a case involving the death of New York Mets prospect Brian Cole. Here are prior posts on that case.
Judge Landrum has a reputation as being grouchy to defense counsel and I hear that this case was no exception.
On October 21, 2010 a federal court jury in Jackson rendered a plaintiff's verdict of $300,000 in an alienation of affection case. Here is the Complaint in Ainsworth v. Gildea. The case settled before the jury could render a verdict on punitive damages.
Judy Barnett and Michael Malouf of Jackson represented the plaintiff. Jud Lee and Cynthia Speetjens of Madison represented the out-of-state defendant. Judge Dan Jordan was the trial judge.
So much for the notion that there are not wing-nut verdicts in federal court. On a lighter note, I bet Judge Jordan never expected to preside over an alienation of affection trial when he was nominated and confirmed for the U.S. District Court. And I bet he didn't mind that one bit. But even alienation of affection cases can be removed to federal court. No word yet on whether Judge Jordan will present on the cause of action at the next 5th Circuit Judicial Conference. I'm betting not.
I just received a report of a $103 million compensatory damages verdict today in the Circuit Court of Jones County against a Texas law firm for legal malpractice. The law firm allegedly represented both sides of a transaction, disregarded the instructions of the plaintiff and caused the plaintiff (a millionaire) to lose almost everything.
Eric Tiebauer of Waynesboro reportedly represents the plaintiff. I will have more information as it becomes available.
10:00 p.m. Update: New info. on this massive verdict is being posted in the comments section. The style of the case was Evans v. Baker & McKenzie, which is one of the largest law firms in the world with over 3,000 lawyers. The largest group of lawyers appear to be in the Chicago office.
Michael J. Shemper of Hattiesburg and Laurence E. Best and Peter S. Koeppel of Best Koeppel, New Orleans, for Cross-Plaintiffs, Laredo Energy Holdings, LLC, and its subsidiaries, obtained $22.4 M of that verdict for their clients.
6:00 p.m. Saturday update: The Baker & McKenzie lawyer who was the defendant in the case has been identified as Joel Held in the firm's Dallas office. The firm's web site states that Mr. Held is a 1964 graduate of the Boston University law school and lists the focus of his practice as:
Mr. Held regularly represents securities issuers and individuals and a variety of broker dealers in investigations, enforcement matters, regulatory issues, litigation and compliance matters. He also handles private litigation, particularly those involving securities class action defense and securities-related matters. Additionally, Mr. Held provides sound counsel on public offerings, private placements, mergers, acquisitions, leveraged buy-outs, reorganizations, other types of business combinations, formations and transactions, as well as joint ventures and partnerships.
Here is the Complaint in the case filed by James McClure against Dr. Anthony Petro, Dr. Clark Ethridge and Mississippi Baptist Medical Center. The Complaint alleges that Dr. Petro perforated plaintiff's bowel during a laparoscopic procedure and that defendants breached the standard of care in failing to diagnose and treat the perforated bowel.
Dr. Ethridge was quickly dismissed from the case via a summary judgment motion. I can't tell from the docket when Baptist was dismissed, but it appears that Baptist was not at the trial.
The trial lasted one week and one day. The jury's verdict was unanimous. Here is the jury's hand-written verdict. I hear that the jury thought that the plaintiff's case was very weak.
Salvador Bivalacqua of New Orleans represented the plaintiff. From the docket, it appears that Walter Johnson and Mildred Morris from Watkins & Eager represented the Dr. Petro. [correction: It was actually Jim Becker who tried the case for the defense with Walter Johnson. Becker is a legendary veteran of the Mississippi defense bar. Mildred Morris was not involved in the trial].
If anyone has more info. on this verdict I would be happy to report it. This is an example of a stealth defense verdict in a medical malpractice trial. This happens a lot. I heard about the verdict only because my wife is friends with the spouse of one of the jurors.
The Legal Marketing Blog commented today on Tuesday's ABA Journal online article reporting that corporate legal departments cut spending for the first time in 10 years. This is not news to Mississippi attorneys, who have been struggling with a recession in the legal industry for approximately six years.
LMB states:
What it all means is that law firms are going to have to get real smart, real fast when it comes to project management. With a reduction in spending by legal departments, two things are going to happen:
Smaller and mid-size firms will pick up more work that normally was done by larger firms, simply because they can do it cheaper and just as effectively in most cases; and
Larger firms are going to be adopting project management religion very quickly, so that they can do the work more efficiently and effectively on less dollars, if there is any hope of maintaining their standard of living.
That creates important marketing and business development opportunities for firms that understand the ramifications of lower legal spending levels.
If what has happened in Mississippi is any indication, it also means fewer jobs for lawyers and their support staff and less pay for those with jobs. Support staff are often ignored when this topic comes up, but the legal recession affects the families of a lot of support staff who are not lawyers.
How law schools can continue to increase class sizes in this climate is beyond me. The notion that a law degree has value independent of a legal career may be correct. But the statement in a vacuum is misleading. An empty aluminum can on the side of the road has value. But you shouldn't go tens of thousands of dollars (or more) into debt to acquire that value.
On Thursday a divided (5–3) Miss. Supreme Court reversed and rendered in favor of the defense in Gardner Denver, Inc. v. Pittman. Here is the Court's opinion, which Chief Justice Waller wrote. Justice Graves wrote a dissent joined by Justices Kitchens and Chandler.
Facts
This was an asbestos case in Hinds County Circuit Court before Judge Winston Kidd. The plaintiff filed suit in 2002. But he was dead at the time.
For anyone who wonders how this happens—it happens. It typically happens when the plaintiff hires the attorney and then dies before suit is filed. Sometimes the deceased person's family does not report the death to the plaintiff's attorney. Plaintiff's attorney files the suit and later learns about the death when they attempt to communicate with the plaintiff about a discovery issue. It's not a huge deal unless statute of limitations issues are in play, which was the case in Gardner.
In 2004 the plaintiff moved to substitute plaintiff's widow as the plaintiff under Miss. R. Civ. P. 17(a). Plaintiff later filed an amended complaint with the widow as the plaintiff. In 2007 Defendants filed a motion for summary judgment. Defendants' motion for summary judgment was denied and the case was appealed.
Tim Porter and Johnny Givens with Porter & Malouf represented the plaintiff. Fifteen mass tort defense lawyers represented the Defendants.
Decision
The Court reversed and rendered. The Court ruled that the original complaint was a nullity and that, therefore, substitution was not proper under Rule 17(a). The lengthy dissent disagreed and argued that the cases cited by the majority were distinguishable and that substitution should have been allowed.
The majority also rejected plaintiff's waiver of affirmative defense argument even though the motion for summary judgment was filed nearly two years after the filing of the amended complaint.
My Take
My only comment on this decision is on the issue of waiver of affirmative defenses. I'm just going to repeat what I wrote in this February 2010 post:
The Court is slowly developing an irreconcilably inconsistent body of law on the issue of waiver of affirmative defenses. In some cases the court finds a waiver based on the passing of a certain amount of time. In other cases, it finds no waiver for similar or longer amounts of time. Efforts to distinguish the different cases are un-persuasive. It appears that what the Court is really doing is basing its waiver decisions on subjective feelings about who should win the case. I’m not saying that is what the Court is actually doing. But that is how it’s starting to look—and that’s a problem.
In the first relief for owners of homes ruined by bad drywall from China, a major manufacturer, Knauf Plasterboard Tianjin, has agreed to repair 300 homes along the Gulf Coast in a pilot program that it hopes will expand into a global settlement.
The major hole is that the deal applies only to Knauf drywall; although Knauf was the dominant supplier in the region, there are a host of other companies based in China which have not gotten involved, and in many cases, haven't acknowledged the proceedings.
Russ Herman, a lead plaintiff attorney who has called this the most challenging case of his long legal career because of the foreign-manufacturer issues, said those companies need to learn that they can't bring harmful products into the United States. He vowed to force them to pay what they owe, but adopted a positive tone and said he hoped the deal with Knauf would move Chinese-based companies to come to the table.
"I think the Chinese want to do the right thing," Herman said. "We would expect that if this works, they'll take a look at it."
Hopefully this program will lead to a settlement for the thousands of victims along the Gulf Coast and in Florida.
With the second book on Scruggs-gate due out this week, Saturday's Wall Street Journal ran this article addressing how power blinds people to their flaws. The first sentence of the article is basically the same question people continue to ask about Richard Scruggs:
Why do powerful people with so much to lose push so hard to squeeze out a little more gain for themselves?
According to the article, the problem is power itself. Interesting insights include:
"Power makes people feel both psychologically invincible and psychologically invisible," adds Adam Galinsky, a professor of organizational behavior at Northwestern University's business school.
Power, explains Prof. Galinsky, focuses people on their own internal goals—blinding them, in the process, to how others may view them.
Being in a position of power also may make people feel that they can do no wrong. In recent experiments, Dana Carney, a psychologist at Columbia University's business school, has found that acquiring power makes people more comfortable committing acts they might otherwise be reluctant to commit, like lying or cheating. As people rise to a position of power, she has shown, their bodies generate more testosterone, a hormone associated with aggression and risk-taking, and less cortisol, a chemical that the body generates in response to stress.
"Having power changes you physiologically, reducing your body's internal feedback that tells you which actions are good or bad," says Prof. Carney. "Power temporarily intoxicates you."
Advance reviews of Curtis Wilkie's Fall of the House of Zeus indicate that there is speculation that intoxication on pain killer medication adversely affected Scruggs' judgment. Maybe. But based on the studies cited in the WSJ article, intoxication on power could have been the main factor.
It's easy to identify the likely motivation of many of the characters in Scruggs-gate: the desire for power and money. But Richard Scruggs already had both and what he did was not going to significantly affect either.
Was Scruggs intoxicated on power? It's as good a theory as any that I've heard.
The Clarion-Ledger reports that the write in election for the Circuit Judge position in Smith, Covington, Jasper and Simpson Counties will stay on the November ballot. I previously discussed the write in election in this post.
The Supreme Court appointed Judge Henry Lackey to decide if the election will continue. Judge Lackey ruled that it will. Circuit Court clerks in the district filed the lawsuit challenging the election.
The lawsuit created an unusual alliance between Attorney General Jim Hood, Governor Haley “I haven't decided if I'm running for President” Barbour and Secretary of State Delbert Hoseman. The C-L reports:
Assistant Attorney General Harold Pizzetta, who argued the case on behalf of the state, said that when Barbour, Hood and Hosemann all agree that the write-in election should take place, "it's a freaking miracle probably a correct interpretation of the law."
Meanwhile, Circuit Court clerks revealed that Donald Duck leads in the early polling:
Donald Duck is in the running for circuit judge in the write-in election to replace the late Judge Robert Evans in the four-county court district, a circuit clerk said Wednesday.
I couldn't support the Duck, but I might could get behind the newly elected Ole Miss Dancing Bear, which has proven electability after defeating a shark and a rusty old Sugar Bowl “hotty toddy” in the hotly contested Ole Miss mascot election.
In July I mentioned in a post that Jackson attorney Greg Davis is under consideration for appointment as the U.S. Attorney for the Southern District of Mississippi. That is still the case.
I am hearing that DOJ is conducting a standard background investigation of Davis. The investigation includes calling lawyers around town and asking them what they think of Davis. Lawyers have been taking these phone calls in the last few weeks. This probably means that Davis in the current favorite to be named U.S. Attorney for the Southern District.
President Obama and the Justice Department have been asleep at the wheel on the Mississippi U.S. Attorney positions for the entire 2–year Obama administration. A review of the Main Justice Web Site's U.S. Attorney chart shows that the vast majority of positions around the county have been filled. The current rumblings surrounding Davis is no strong indication that Obama is waking up on this.
Assistant U.S. Attorney Felicia Adams is thought to still be the leading candidate in the Northern District, despite more recent rumors focusing on Senator Gray Tollison.
Frankly, Obama has taken so long to fill these positions that interest on the subject seems to have waned. Obama will be in a dog fight to keep his job two years from now, so any appointments at this late date may be short term. Filling judicial and U.S. Attorney positions is an area where the Obama administration has underachieved and disappointed its supporters.
It's looking more and more like the big winners in the BP Oil Spill Litigation will be Ken Feinberg's law firm Feinberg Rozen and defense lawyers.
The WSJ Law Blog reported Monday that Plaintiff lawyers are heading for the exits:
Plaintiffs’ attorneys who put money up front to hire experts are fretting about their investments, and some are trying to find a way to bow out of the litigation gracefully. Of course, there are plenty of complaints to be had about the pace of the Feinberg payouts so it’s too early to predict the success of the litigation.
I still think that there will be wars in court between resort properties and other businesses and their insurance companies and/or BP over lost revenue this past Summer. People didn't go to the beach due to the threat of oil. There was a definite loss of revenue even in places miles from the beach and where the oil never reached. Those victims are likely to sue.
The plaintiff lawyers who may be out of luck are the ones who went out and signed up fisherman, crabbers, shrimpers, etc. BP hired those guys to look for oil, birds with oil on them etc. Many made good money.
Meanwhile, Bloomberg reports that Ken Feinberg's firm has been paid $2.5 million so far and is getting paid $850,000 per month:
The London-based oil company agreed to pay Feinberg Rozen LLP in Washington a fee of $850,000 a month from mid-June, when Feinberg agreed to run the claims facility, through Oct. 1, according to a report today on the compensation by former U.S. Attorney General Michael Mukasey.
As for what this money covers, the article states:
The payments from BP help offset the “significant distortion” the project is causing to the Feinberg firm’s business, Mukasey said in the report today. Feinberg Rozen has turned away three mediation requests since June, according to the report.
Four attorneys spent 2,777 hours from June 16 to Oct. 4 working on the claims fund, according to the report. The firm hired two attorneys to help handle the work.
By my calculation that means Feinberg Rozen lawyers are averaging about $900.00 per hour for their work. I can't criticize Feinberg Rozen's pay for two reasons. First, I've heard that there are already lawyers in top law firms in New York, Washington and other East Coast cities who charge over $900 per hour. I suspect that BP has lawyers on its payroll who charge over $900 per hour.
Second, Feinberg Rozen has a specialty niche as resolution counsel that has no major competitor in the nation that I'm aware of. Ken Feinberg earned national fame running the settlement fund for 9/11 victims. His firm is hired by major corporations to settle mass tort and similar cases.
People might be surprised to know how many lawyers in Mississippi have dealt with Feinberg's partner Mike Rozen in negotiating settlements in large cases. I had never heard of them until Rozen showed up in a case that I worked on. I asked around and learned that many Mississippi lawyers have dealt with Rozen.
While Feinberg Rozen's compensation is large, my guess is that it is in line with what the firm charges other clients.
Want to be on an exclusive MDL plaintiffs' steering committee? Then you need to be an attorney in a large plaintiffs firm—the type that generally does not exist in Mississippi. That's my take away from reviewing the list of attorneys on the Plaintiffs' steering committee in the BP Oil Spill MDL.
Here is Judge Barbier's Order rendered Friday with the names of the fifteen lawyers on the plaintiffs' steering committee. Most of the lawyers appointed to the committee practice with large plaintiff firms. The even more exclusive executive committee is composed of four lawyers: James Roy, Russ Herman, Brian Barr and Scott Summy.
My interpretation of the Order is that the steering committee will run the entire litigation. Lawyers who represent victims—but who are not on the steering committee—appear to be getting squeezed out of the litigation.
The only Mississippi lawyer on the steering committee is former congressman and Secretary of Agriculture Mike Espy, who practices with national plaintiffs firm Morgan & Morgan. Here is Espy's application for the committee, which emphasizes his political background and firm size, as opposed to achievements as a trial attorney. Being African-American probably helped Espy make the cut. But being a former politician and a member of a large national firm could have been more important factors.
Numerous other Mississippi lawyers applied for a slot on the committee and were not appointed. I can't help but wonder if the small size of plaintiff firms in Mississippi was a hindrance in lawyers making the committee.
Most plaintiff operations in Mississippi are small as far as the number of lawyers. A large plaintiff firm in Mississippi is a firm with 4 or more lawyers. Many Mississippi plaintiff lawyers are solos, but still find a way to work mostly on big cases. It is common in Mississippi for plaintiff lawyers from different firms to team up for big litigation.
It is a model that I use in my practice all the time. But is it the best model for litigating big cases? Most of the MDL steering committee lawyers are in big plaintiff firms such as Baron and Budd and Beasley Allen.
In the late 1990's regional defense firms formed and moved into Mississippi. But plaintiff firms remained small and localized. Perhaps more large plaintiff firms would have established a presence in Mississippi in the 2000's if not for tort reform and the era of the ultra-conservative Mississippi Supreme Court.
It will be interesting to see how plaintiff firms in Mississippi will look 10–15 years from now. My guess is that we are getting close to an era where plaintiff firms in Mississippi get larger. And while this would cause plaintiff lawyers to lose some of their autonomy, it would put them in a better position to compete for leadership slots in national litigation.
This one goes into the “you've GOT to be kidding me” category.
Lee County Chancery Court Judge Talmadge Littlejohn jailed Oxford lawyer Danny Lampley on Wednesday for refusing to recite the Pledge of Allegiance in open court. Here is Patsy Brumfield's story, complete with a mug-shot of the Criminal Lampley.
Don't think it's criminal to refuse to recite the Pledge of Allegiance? Me neither. Lampley was exercising his Constitutional right to refrain from declaring his allegiance to the flag or to the U.S.A.
We don't live in Soviet Russia. In fact, Russians don't live in Soviet Russia.
How in the name of God's Green Earth a judge with a college degree, a law degree and some amount of experience as a judge in the State of Mississippi could think that he can force feed the Pledge of Allegiance down someone's throat is beyond me. Judge Littlejohn can lead the Pledge in his courtroom until the cows come home. But if someone in the courtroom refuses to join in, that's just too bad.
If anyone should know Constitutional rights and basic notions of freedoms, it's judges.
And don't even think that this is about the meaning of Lampley's refusal or whether you agree with it. This is about Constitutionally protected rights that are not checked at the door of Judge Littlejohn's courtroom.
Judge Littlejohn's conduct was ignorant and inexcusable. I hope that Judge John Toney and the Commission on Judicial Performance are already looking at this.
The talk of college football this week is yet another end of game meltdown by LSU head football coach Les Miles. Miles—who is known for losing his mind at the end of close football games—got away with one on Saturday. Here is the video of the end of the LSU vs. Tennessee game.
What Miles Did Wrong
Miles made multiple errors at the end of this game. But the colossal blunders were not getting a play in to the team until it was too late and substituting players when there was not enough time to do that. The scale of these blunders is beyond description.
This might occur in pee wee football when the clock is in the ref's pocket. But it's not something you would expect to see at any level where coaches are getting paid to coach. I'm pretty sure that Jackson Prep would fire their football coach in the unlikely event he committed these blunders.
Les Miles Can't Think Straight Under Heavy Stress
Miles wouldn't be the sharpest knife in a drawer full of spoons. But he is more stupid at the end of close games. And I think that I know what is problem is.
Miles' problem is that he can't think when the adrenalin is flowing at the end of close games. His brain just shuts down. It's very obvious.
There is plenty of video evidence to support this conclusion. Miles doesn't talk coherently in post-game interviews and makes bizarre coaching decisions. Think the 2009 LSU vs. Ole Miss game. After that game, Miles was incoherent and couldn't remember that he was the one who instructed the quarterback to clock the ball with no time on the clock.
The analogy for historians is the adage of “the fog of war.”
Miles Puts Himself in Position to Melt Down
Now I understand why successful football coaches put in the long hours during the season and often sleep in their office. It's so that when the adrenalin is flowing in a game, they have a plan. They don't want to have to make decisions by the seat of their pants when they may not be thinking clearly due to adrenalin. They don't want to be like…..Les Miles.
Miles is known to watch movies with his family the night before games. I am pro-family. But when you've only got 12 games a year and you're Les Miles, maybe instead of watching ET with the kids you should be thinking about what play you will run if LSU is on the 2–yard line at the end of the game and only has time for one play. This is not a rare occurrence for Les Miles coached teams. Miles wrongly thinks that he can just figure it out when it happens.
Miles is simply not prepared for all situations that might arise during a game. And this is a best-case scenario for Miles. If he is prepared and melts down because he can't call the play that he planned to run when he prepared for the game, then he's hopeless.
Here is the Lesson for Trial Attorneys
Trial attorneys can undergo similar levels of stress and adrenalin during trials. So how does a trial attorney prepare for those stress levels? Preparation.
Preparation is—without question—the most important component of being able to deal with stressful moments at trial. This means knowing the case well enough to be able to foresee issues that may arise during trial and figuring out a strategy ahead of time.
It also means knowing how to prepare for trial, which is an under appreciated skill that many lawyers do not possess. Plenty of lawyers put in the time before trial without adequately preparing because they do not know how to prepare for trial.
It is true that trial attorneys may not be able to foresee all stressful issues that may arise during a trial. But with thorough preparation they can foresee most of them. Also, the preparation will almost always allow the lawyer to make good decisions when the unforeseen happens.
Benjamin Franklin is credited with the saying that “by failing to prepare, you are preparing to fail.” That is true for trial attorneys. And Les Miles.
This Politico article from last week discusses the Republican political strategy of delaying votes on all President Obama's federal judiciary nominations.
The linked article includes this picture of Sessions:
Is it just me, or does Sessions look like an elderly Mickey Mouse? Seriously.
Anyway, the article mentions Democrats whining about the delays and goes on to state:
Both sides acknowledge that Obama has been relatively slow to nominate judges for the more than 100 vacancies in federal courts. Democrats said it is partially a result of the amount of resources it requires to find and vet qualified nominees. The GOP, however, said the White House’s slow pace accounts for his low confirmation rate compared with Bush’s; so far, Obama has nominated 85 judges compared with 127 nominations Bush had made at a similar point in his presidency.
Democrats seem to always be behind the Republicans in politics. I could see Democrats advocating a cavalry charge against German tanks in WW II.
Caught up in the delay are Carlton Reeves (nominated for U.S. Dist. Court) and Justice James Graves (nominated for 5th Circuit Court of Appeals). The fact that Reeves and Graves are not controversial and have the support of Mississippi Republicans does not matter. The Republicans have political gamesmanship to play.
Reeves and Graves will be confirmed by the full Senate once they get their votes. But I have no idea when that will be. It doesn't look like it will be anytime soon.
The Clarion-Ledger reported Saturday on Thursday's Mississippi Supreme Court opinion that fined Hinds County Circuit Court Clerk Barbara Dunn $5,000 for problems with her office not mailing Orders to the parties' lawyers. Here is the opinion.
The case dealt with the clerk's failure to comply with Miss. R. Civ. P. 77, which requires clerks to serve all Orders and Judgments on the parties (or their attorneys). Ms. Dunn's office has repeatedly not complied with the rule, despite a prior sanction by the Court. In order to make its point that the rule must be complied with, the Court fined Dunn $5,000 that must be paid from her personal funds.
Justice Kitchens wrote the Court's unanimous opinion, with Chief Justice Waller not participating.
My Take:
Good for the Supreme Court. Mississippi attorneys who practice regularly in Hinds County are familiar with this problem.
Here is how it often plays out. One of the circuit judges takes a matter under advisement at a hearing and rules later. It could be days, weeks or months before the judge rules. In one of the judges case in particular, it could be years before he rules (if ever). Except the Clerk does not mail a copy of the Order to the parties, who mistakenly believe that they are waiting on the judge to rule. In the meantime, appeal deadlines can expire, since lack of notice of an Order or Judgment is no excuse.
I like Barbara Dunn, but her office has got to do its job.
Hopefully, other clerks across the state will get the message. Hinds County is not the only clerk's office with issues. The Hancock County Circuit Clerk has a habit of mailing copies of Orders a few weeks after the judge signs the Order.
These types of problems are inexcusable and I am glad that the Supreme Court sent a strong message that they will not be tolerated.
Update:
Here is a sobering comment on the lack of compliance with the rule by Judge Larry Primeaux made today on his blog:
In my experience as a practitioner and as a judge, I know of only one district where Rule 77(d) notices are routinely sent out, and it is not the Twelfth District. On one occasion some years ago, I learned by pure happenstance that the court had entered a final judgment in my case 24 days before, leaving me only six days to confer with my client and decide whether we would appeal.
Will Bardwell attended Justice Graves' Senate confirmation hearing on Wednesday and wrote this account for the Northeast Mississippi Daily Journal. The hearing opened with softballs from Senator Al Franken. Franken reminded Graves that “you're good enough, you're smart enough, and dog-gone it, people like you.”
Then it was time for the Republican attack. Except the Republicans implemented a French battle plan and questioned Graves about something they couldn't beat him on: the death penalty. Bardwell reports:
Each time, Graves parried by assuring Sessions that, as a member of a lower court, he would bind himself to the decisions of the U.S. Supreme Court. As evidence of that deference, Graves told the stridently pro-death penalty senator that he had voted to affirm capital sentences in no fewer than a dozen cases.
And with that, any fear about a genuine Republican attack on Graves ended. That's not to say that Graves should quit his day job—the Republicans are holding up all President Obama's judicial nominations for the political sport of it.
But fears raised earlier in the week about a real attack on Graves proved unfounded.
After writing this post about Eugene Volokh's blog raising questions about Justice Graves, I received an email from Mr. Volokh that explained how he knew about the Mississippi Supreme Court decisions that he wrote about. The email explained:
Dear Mr. Thomas: I read with interest your post that mentioned my post about Justice Graves, but wanted to make one small factual point – though I do often learn about stories because readers send me links, in this case (as I recall) I learned about the Wilkerson and Osborne opinions myself, when they were decided. The Wilkerson case was reported in Westlaw Bulletin, and I have a daily WestClip query on that; the Osborne case, I think, likely came up in a daily WestClip query I have for new First Amendment cases. My main scholarly field is First Amendment law, so I track free speech cases closely.
Whoops, forgot to make explicit one thing: I am certain that no-one contacted me about the cases after, or even not long before, the Graves nomination; rather, it was the Graves nomination that reminded me about the cases that I had read earlier.
Volokh's explanation makes sense, particularly given this sentence that was in the first paragraph of his post:
And while I know only one small corner of Justice Graves’ work, I hope the Committee asks him a question about this corner.
By the way, I apologized to Volokh for misreading the tea leaves and he was very gracious. His blog has a national following that will include me in the future.
