My Take on the Supreme Court's Decision Affirming $4 million Premises Liability Verdict
That sound that you just heard was the jaws dropping of lawyers all over Mississippi in reaction to the Mississippi Supreme Court's decision in InTown Lessee Associates v. Howard. The Court affirmed a total verdict of $4 million to two plaintiffs were were beaten and robbed at the InTown Suites on I-55 in Northeast Jackson.
Here are the key phrases from Justice Kitchens' unanimous opinion, which it states repeatedly:
“InTown argues for the first time on appeal……”
and
“InTown did not make a contemporaneous objection [at trial]……”
Translation: InTown had nothing to appeal because the potential appeal issues were not preserved during the trial.
For instance, InTown couldn't really attack the damages amount on appeal because at trial InTown agreed to a verdict form that did not separate economic and non-economic damages. The opinion states:
“InTown did not object to these instructions. Because it did not object to the form of the jury instruction at trial, InTown is procedurally barred from doing so on appeal.”
When I blogged about this verdict in 2009 I stated that there was no defense at trial. Even so, I am a little surprised to see this large of a verdict get affirmed on appeal. But if you think about it, this Supreme Court doesn't have much tolerance for stuff like not preserving objections.
Judge Tommie Green was the trial judge. Jackson attorney Ashley Ogden represented the plaintiffs. Defense trial counsel were Wade Manor and Andy Clark with the Scott Sullivan law firm in Ridgeland.
InTown's appellate counsel were Trey Jones and Joseph Sclafani with the Brunini law firm in Jackson. To be fair to those guys, they were not hired until after the trial and were playing a losing hand that had already been dealt. Ogden has a reputation of refusing to discuss settlement after trial, so it's unlikely that there was anything that the Brunini lawyers could do to save this one.
This decision will be good for the business of appellate defense lawyers. The take-away for large corporations and insurance companies is to hire your appellate lawyers before the trial and have them in the courtroom to make sure that all potential appeal issues are preserved.
Here is Randy Wallace's take on the decision.
Between this and "Hot Coffee", very good week for plaintiffs.
One can't decide whether trial counsel committed malpractice just from reading the opinion, but the thought does come to mind. InTown seems to've been determined to scrimp and save to the last. Now they have a $4M verdict.
On the defense side, there are many times when an in-house counsel or insurance adjuster calls all the shots. Sometimes, developing the case takes a back seat to saving money on defense costs. Sometimes the decision maker does not "get it" when it comes to recognizing the risks involved in a case.
Plaintiff lawyers without defense experience are quick to attribute everything to the defense lawyer, but often they are simply following marching orders.
I suspect (but don't know) that InTown or its insurer had a lot to do with how the case was worked up and whether there were serious attempts made to settle the case before trial.
Good points, Philip, tho several of the errors in this case were simple failures to object, or to submit a proper verdict form. But I can well imagine that InTown rode hard on trial counsel. And it's not clear how much difference better tactics would've made to the outcome.
I often have the joy of being called in to the mound after trial to write the briefs, so I definitely feel the Brunini lawyers' pain.
And of course, just because it looks like an easy case to win should not detract from plainitffs' counsel -- making a case look easy often requires a great deal of work.
For me, the failure to put on any defense is questionable at best. Even if In Town had no credible employees to call on liability (which sounds like the case), most defendants would have had a medical/psychological expert to question the extent of the injuries and possibly an economist to challenge the future lost earnings claim.
The defense apprently viewed liability as a lost cause, especially with the JPD weighing in on the Plaintiff's side. This should have caused them to place greater emphasis on defending the damages.
In the end, the venue and general verdict form did them in.
In Harrison County, with no one at the defense table, it would be about $150K each, tops.
We don't know if the case was being defended under a reservation of rights, with the carrier denying liability for some damages, such as non-economic damages. If so, defense counsel did exactly the right thing in blurring the distiction between economic and non-economic damages, so that the insurance carrier would have to pay the entire judgment. I think criticism of the defense counsel is unwarranted without knowing more about the coverage situation.
In Harrison County, the jury would likely send a note out asking if they could make the plaintiffs pay for the defendant's security guards.
someone explain to me how there would be a reservation of rights on non-economic, but not economic, damages.
Phillip, your comment regarding marching orders is disturbing. When my clients direct me to do something repugnant, inefficient, or just plain dumb, I refuse and get out. Whether it's a trial strategy issue or an immoral goal, I think clients should reserve hiring lawyers for when they truly are seeking representation, counsel and advice. I know this is easy for me to say because my clients are generally one time clients whereas a defense lawyer tends to have the expecation of repeat business. But does that really mean that our profession is so weak that we have to placate and be puppets to our clients? I think this world would be much better off if all lawyers would stick to thier guns on right and wrong and not agree to stay involved when thier client gives "marching orders" otherwise.
It's not a matter of money or resources when a lawyer fails to object or preserve issues. I suppose Bill Dees may have a point about the issue on the caps, although I'm somewhat dubious. Just reading the supreme court opinion, it's hard to avoid the conclusion that this wasn't a fight, it was a walkover.