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

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A new report from the American Association for Justice accuses the U.S. Chamber's Institute for Legal Reform of being "lawsuit-happy hypocrites." Here is a link to the report titled "Do As I Say, Not As I Sue: Exposing the Lawsuit-Happy Hypocrites of the U.S. Chamber's Institute for Legal Reform".

According to the AAJ:

The Institute for Legal Reform (ILR), an arm of the U.S. Chamber of Commerce, has the sole mission of restricting the ability of individuals harmed by negligent corporations to access the civil justice system. According to the multinational corporations that finance ILR, American businesses are hindered by too many lawsuits. Yet these same corporations show no hesitation in liberally using the courthouse themselves.

Caterpillar for instance, one of ILR’s board members, sued Disney because it felt the depiction of bulldozers in the straight-to-video movie George of the Jungle 2 was overly villainous. FedEx, another stalwart ILR board member, took a “stand for justice” by suing a man for making a chair out of FedEx boxes. And Johnson & Johnson used the civil justice system to take on a most unlikely foe – the Red Cross.

However silly these lawsuits may sound, they share one common theme: the company filing the lawsuit had the Constitutional right to do so. What makes their actions shameful and hypocritical is that these companies are members of ILR’s board for the sole purpose of denying Americans this same right, especially when severely harmed or killed by the companies’ products and services.

• Honeywell International: $14.8 million
• Abbott Laboratories: $20 million
• Johnson and Johnson: $21 million
• Prudential: $16 million

But these guys are worth it because of all the jobs that they are creating, right?

The CEO of Gannett made $7.9 million. Think about that when you read the Clarion-Ledger and wonder what happened to your favorite writers.

What about Berkshire Hathaway CEO Warren Buffet, who says that the U.S. should raise taxes for the wealthy? $525,000. How about Apple CEO, the late Steve Jobs? $1 dollar. It's good to see there are some wealthy people with integrity and who are not emptying the vault into their own pockets.

Look at this chart and think about how Americans are struggling. This is the fuel for the Occupy Wall Street movement.   

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People predicting litigation over the unusual aspects of the merger between Watkins Ludlam and Jones Walker turned out to be right.

On October 14, former Watkins Ludlam shareholders Hall Bailey and Vikki Taylor filed suit against the seven Watkins Ludlam partners who negotiated the merger with Jones Walker. The Watkins Ludlam lawyers named as defendants were William Dossett, Dennis Miller, Neville Boschert, Aileen Thomas, Jeffrey Barber, Craig Landrum and Gary Snyder.  

Watkins Ludlam was also named as a defendant. But from my reading of the Complaint, the individuals are the target defendants. Jones Walker is not a defendant. The suit alleges breach of fiduciary duty and other claims.

Here is the Complaint, filed in the Circuit Court of Hinds County.

I view paragraph 39 as containing the most interesting allegation in the Complaint:

"Under terms of the agreement not disclosed to shareholders was the fact that the Watkins Ludlam Defendants negotiated for themselves financial terms materially better than that of other Watkins Ludlam shareholders similarly situated and in particular the Plaintiffs, whereby they achieved pecuniary gain at the expense of the Plaintiffs."

Danny Cupit of Jackson and John Shows of Flowood represent the plaintiffs.

My Take:

This is very interesting. As I stated in yesterday's post, I am preparing for trial and have limited time to blog this week. I will post my commentary about this lawsuit later (probably early week-after-next).

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It's going to be a light blogging week here at MLR due to a trial next week and a lot of fires to put out on other stuff.

October has always been one of my two busiest months (along with January) for my entire career. It's the nicest month weather-wise in Mississippi. But I spend almost the whole month inside, including weekends. 

Why can't lawyers and judges enjoy the weather and slow down in October? Instead, July is slow. If ever there was a month to spend indoors working in Mississippi, it is July. 

For those looking for more to read, here are a couple of links:

Law Schools Pressed to be Honest

Spying on Jurors' use of social media during trial has become a business.

Enjoy the weather.

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On Thursday the Mississippi Supreme Court affirmed a chancellor's grant of a divorce under the grounds of habitual and excessive use of opium, morphine or other like drugs when the actual drug involved was marijuana. Here is the Court's opinion from Thursday in Carambat v. Carambat.

Facts:

The unhappy couple lived on the Coast. Need I say more? 

Just kidding. I get to make that joke because I am from the Coast.

Mr. Carambat smoked a lot of weed. He basically smoked weed every day. Mrs. Carambat says that Mr. Carambat's weed usage made him unproductive at work. She met someone else, had an affair and left her husband for the other man on the grounds that he smoked too much pot.

The Trial Court Ruling:

The Chancellor granted the divorce on the grounds that Mr. Carambat's admission that he regularly smoked pot from age 14 to 55 was habitual and excessive and was "an other like drug" within the divorce grounds of "habitual and excessive use of opium, morphine, or other like drug."

The Majority Opinion:

The Court affirmed in a 6-3 decision. Justice King wrote the Court's opinion. The Court ruled that marijuana was an "other like drug" to opium and morphine because "other like drugs" refer to drugs with similar adverse effects.

The Dissent:

Justice Carlson wrote the dissent joined by Justices Dickinson and Kitchens. The dissent contended that marijuana is not like opium or morphine. The dissent pointed out that "if the Legislature wishes to provide for divorce on the grounds of abusing any illegal drug, or any dangerous drug, it of course may do so. To date, however, it has not."

Therefore, a divorce should not have been granted on this ground.

My Take:

It sounds like the real reason that Mrs. C wanted the divorce was that she met another man. Mr. C was ok smoking weed until she met someone else. But since "I met someone I like more than you" is not a grounds for divorce, she went with the pot argument.

I believe that someone should be able to divorce their spouse on the ground that the spouse habitually smokes pot. A habitual pot smokers' ability to procrastinate and be lackadaisical is matched only by their ability to talk a big game when stoned. I'm sure it's infuriating to be married to someone who habitually smokes pot. Life is short and I'm all for granting people a divorce on that ground.

But that is a decision for the legislature, which defines the permissible grounds for divorce. Equating marijuana to opium or morphine is just plain wrong. They are different drugs that create different issues for users and those affected by the users. About the only similarity in their adverse effects is that they can both be bad.

 Marijuana is simply not addictive in the same sense as opium, morphine and their street cousin heroin. It's almost comical to put it in the same category as those drugs. 

The dissent is right in this case. I'm all for the Legislature creating a divorce grounds for marijuana usage. But the Supreme Court just did when the Legislature has not.   

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The Director of the University of Mississippi Law Schools Career Service Director has garnered national attention--and not in a good way. The hugely popular Above the Law blog reported this week on the director sending an email to students taking the position that the career services office is not in the business of finding students jobs. The email states in part:

“A little birdie” stopped by my office after I sent the last e-mail and informed me that there was some type of agreement among several of the 2L’s and 3L’s to refuse to supply this information in some form of protest against Career Services not “doing our job” — apparently misconstrued as “finding people jobs.”

My first reaction upon reading this was: My God! Joyce Whittington would never say that. She must no longer be the Career Services Director. Turns out I was right.

The law schools website lists the current Career Services Director as Kristin Flierl. Joyce Whittington was the director for over 25 years. I had heard that Joyce was going to retire, but I wasn't sure when.

It didn't take long to find a 2003 UM Lawyer article about Joyce in which she took the exact opposite position of Ms. Flierl on what her job was:

I think one of the most stressful parts of this job is that it’s never done—a class may graduate, but not everyone in the class has a job. So I’m still working with those kids, sometimes for months, to help them find jobs. And there’s always a 2L or a lL who needs a summer job. Then there are the alums who have Job A but seek Job B, or quit Job A before they have Job B.

For a person who likes to have things “finished,” it took me a while to realize that I’m never going to be finished, that there’s always another student or another alum who needs something. But that’s the nature of the job. I consider this office to be truly service-oriented and client-based, with my kids and my alums being the clients.

So the law school has gone from having a career services director who was a beloved and award-winning figure who viewed her work as never done; to a patronizing impostor who views her work has never starting? Nice!!!

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Mississippi lawyers are painfully aware that there is less litigation than there used to be. The Blog of Legal Times reports on a Fulbright & Jaworski survey of corporate counsel that they do not expect the trend to continue, at least on a national level:

The lull in litigation is not expected to last, as 92 percent of corporate counsels polled predict litigation levels to remain the same or increase within the next year. The report cited stricter regulation and company growth as factors for the expected litigation increase.

To the extent that there is a growth area in litigation, it is expected to come from the regulatory side:

On the regulatory front, 55 percent of U.S. companies retained outside counsel to conduct regulatory investigations, which reached a four-year high. The bulk of investigations were initiated by the Department of Justice, state attorneys general, the Occupational Safety and Health Administration, and the Environmental Protection Agency.

My Take:

First, I don't put much weight on what corporate counsel says. Their department budget's are tied to litigation levels and less litigation means lower department budgets. So they have an incentive to always predict the same or growing litigation levels. Plus, many in-house lawyers are complete morons.

Second, I don't know where all this regulatory litigation takes place. But it's not Mississippi. Attorney General Jim Hood's office has an active litigation practice against corporations on behalf of the State. But it's not that many cases and it does not keep that many lawyers busy outside the A.G.'s office.

I expect the litigation recession in Mississippi to continue. Major factors include no mass-joinder or Rule 23 in State Court, tort reform, conservative juries and a conservative judiciary.

But there are other factors in play such as the fact that there is less commerce and and development to throw off commercial disputes due to the Great Recession and roads and products are getting safer over time.

Barring an unforeseen event that causes a lot of litigation, I do not expect things to change significantly in Mississippi. And my opinion is the same even if the Supreme Court rules that the non-economic damages caps are unconstitutional.

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Judge Primeaux's blog has the story this morning about Court of Appeals Judge William Myers resigning effective December 31, 2011:

COA Judge William Myers has submitted his resignation, effective December 31, 2011.

The replacement appointee will be from the district comprising Forrest, George, Greene, Hancock, Harrison, Jackson, Lamar, Pearl River, Perry, Stone and parts of Wayne counties.

Wouldn’t it be grand if the appointee were a chancellor? Of course, to be appointed, one has to apply for the job.

For those interested in the position:

Anyone interested in applying should send 12 copies of their resume and 12 copies of their writing sample by Nov. 9 to Ed Brunini Jr., Chairman of the Judicial Appointments Advisory Committee, at P.O. Box 119, Jackson, MS 39205. Anyone interested in recommending prospective candidates should send their letters of recommendation to Mr. Brunini at the same address.

My Take:

Twelve copies? 12? in 2011? For a committee that has 31 members? How exactly does that math work?

The judicial appointment advisory committee should also accept applications for a scanner. The committee can use this “scanner” to “scan” the 1 resume and writing sample from applicants. They can then be emailed to the committee members.

Better yet, why not just ask applicants to email their resume and writing sample to Mr. Brunini? Or his assistant if he is too old school to crank a computer.

In all seriousness, I agree with Judge Primeaux that former chancellors are under represented on the Court of Appeals and Supreme Court. There are plenty of good chancellors in Judge Myers' district and it would be nice to see one of them get the appointment.

Finally, I wonder who will make the appointment? Governor Barbour or Governor Bryant?

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A couple of weeks ago Above the Law had this story about the growing list of lawsuits against law schools for allegedly misrepresenting employment rates to potential students. Lawsuits are filed or planned against over 15 law schools nationwide.

The plaintiffs' lawyers in many of these cases predict that there will be suits filed against all law schools within the next year:

Strauss and Anziska held a media conference call this afternoon, with Strauss stating that he believed “almost every law school in the country will be sued by the end of 2012&Prime because the “problem isn’t going away, and the legal academy isn’t owning up to it.” Strauss and Anziska noted multiple times that they would not sue a school unless they had three plaintiffs.

Anziska noted that prior to the Alaburda v. TJSL suit, law schools reported inaccurate employment data with “Madoff-like consistency.” Strauss and Anziska are challenging the post-graduate employment data of these 15 additional law schools because they are in “markets that are saturated with lawyers, making the statistics implausible.”

Dean Wormer must be quaking in his boots.

And now the U.S. Senate is getting involved.

It will be interesting to see if law school litigation makes it to Mississippi. It will be more difficult here than in some states with no state court Rule 23 and no mass joinder allowed. If cases are filed, one would expect Miss. College to be sued before Ole Miss because it is a private school that is more expensive.

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I recently wrote about the Mississippi's Public Employees Retirement System (PERS). My point was that the 8% investment return assumption in the system is not realistic. Monday's Wall Street Journal contained an article that stated that other states with an 8% assumption are considering reducing the assumption.     

The WSJ article states:

Turmoil in Europe, the sluggish economy and low interest rates are intensifying pressure on public pension-fund systems to reduce the annual-performance assumptions they use to determine contributions from taxpayers and employees.

Some lawmakers and pension officials are pushing to abandon the roughly 8% annual-return assumption set by many public-employee funds, saying the rate is unrealistically high given upheaval in markets around the world and the preceding financial crisis.

Some state and local pension plans have already reduced their assumptions:

Since the financial crisis, at least 19 state and local pension plans have cut their return targets, while more than 100 others have held rates steady, according to a survey of large funds by the National Association of State Retirement Administrators.

And yes, lowering the assumption could jeopardize the “13th check” that represents a cost-of-living adjustment:

In Minnesota, legislators last year reduced cost-of-living adjustments for retired public workers until the funding level of the pension system improves. Lowering the rate of return could lower the pension system's funding level and potentially delay when the cost-of-living adjustments are restored. Some state lawmakers say lowering the rate will benefit the system over the long haul. "A new day has dawned," said Morrie Lanning, chairman of the Legislative Commission on Pensions and Retirement in Minnesota, who wants to lower the return target. "It may have made sense in the past, but it's not realistic anymore."

Meanwhile, Cottonmouth suggests that there is a Republican attack on PERS to shift the management of state pensions to private hands.

My Take:

I'm not saying that Cottonmouth is wrong that there is a Republican agenda to shift management to private companies. I'm not saying he's right either. I don't know one way or the other.

But there is trouble on the horizon if the 8% investment return assumption is not lowered and the fallout dealt with. And taxpayers will be the ones left holding the bag, as stated in this comment to the WSJ article:

What risk does the public employee have? Practically none. The taxpayers absorb nearly 100% of the risk that the public pension fund will not achieve its assumed rate of return. And in practically all states, the defined benefit that public sector employees are paid are guaranteed under the state constitution. What a scam on the taxpayers.

This is why you should care whether the 8% assumption is reduced whether you are in the PERS system or not. When PERS does not average an 8% return—and it's probably not going to—the State of Mississippi will have to come up with the money to fund the shortfall. Where is that money going to come from? The State is strapped for cash already.

Those vested in the system would just as soon keep the 8% assumption, since lowering it will require increasing participant contributions or reducing future benefits.

Governor Barbour did the right thing by appointing a commission to study the PERS system and the leadership of the commission is in good hands with Gulfport Mayor George Schloegel. If and when the commission makes any recommendations, I may be back saying that they are recommending the wrong things. But at this point the train is on the tracks.      

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As widely reported, the Mississippi Supreme Court ordered Judge Eddie Bowen to recuse himself in the Smith County asbestos drilling mud case that was tried to a $322 million verdict in May. In June the defendant Union Carbide moved for Judge Bowen's recusal in the case because his father sued Union Carbide 20 years ago and settled the case. Judge Bowen and the plaintiffs opposed the motion.

The Mississippi Supreme Court's hand-down list on Thursday included the following unanimous ruling:

In Re: Union Carbide Corporation, et al.; Smith Circuit Court; LC Case #: 2006-196; Ruling Date: 05/19/2011; Ruling Judge: Eddie Bowen; Disposition: Union Carbide's Petition for Disqualification of Trial Judge Pursuant to M.R.A.P. 48B, for an Immediate Stay of All Proceedings, and for Other Extraordinary Relief is granted. Judge Eddie H. Bowen shall immediately recuse himself from further proceedings in Smith County Circuit Court Cause No. 2006-196, and all matters pending therein shall continue to be stayed until such time as a judge is appointed to preside. To Grant: Waller, C.J., Carlson and Dickinson, P.JJ., Lamar, Kitchens and Chandler, JJ. Not Participating: Randolph, Pierce and King, JJ. Order entered.

Anderson links the actual order in the comments.

My Take:

I miss Judge Evans.

This case is a mess. $322 million for a single plaintiff case in a venue that—let's be honest—is funny. As in 'odd' funny. The chances of that verdict holding up on appeal are exactly 0.

A new judge will be appointed by the Supreme Court. That judge will presumably order a new trial or significantly reduce the verdict. Then they may all get to go back down to Raleigh for another trial with Gene Tullos and a Smith County jury. Where Union Carbide will once again be a big underdog.     

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That's a question that was asked in this weekend's Clarion-Ledger article by Jerry Mitchell following the unsealing of Ed Peters' grand jury testimony [available here courtesy of NMC] in Scruggs-gate. 

The photo to the right is of Peters and Bobby DeLaughter. Now we know what they are smiling about.  

The article quotes Oxford lawyer and blogger Tom Freeland (NMC) on this issue and states:

Oxford lawyer Tom Freeland, who has covered the case closely on his website, North Mississippi Commentor, nmisscommentor.com, said Peters' statements "show a lot more about what was going on inside and how corrupt it was."

Elsewhere in the FBI statement, Peters described how he had been approached by both sides in the same lawsuit involving a fatality.

"It's totally unethical," Freeland said. "Peters is on both sides of a transaction, hoping money shakes loose."

What has surprised him is the Scruggs cases weren't pursued by Mississippi prosecutors.

"These are state crimes, too," Freeland said. "Both local and statewide prosecutors have left it alone."

Attorney General Jim Hood sent letters to the local district attorneys in those counties, offering his assistance to them.

District Attorney Ben Creekmore of New Albany said his office met with federal prosecutors and let them know if there was anything that needed to be pursued, he would.

"We felt like any insertion of our office into that whole mess would have gained very little as far as criminal justice is concerned," he said. "It would have been more attention-seeking than justice."

He added that his office has "our hands full with our dockets."

I raised this question in 2010 in this post about a Sid Salter interview of Rankin County District Attorney Michael Guest. Salter raised the question in 2008 in a column that he quotes in his comment responding to my 2010 blog post, and took issue to Johnny Come Lately's on this issue:

District attorneys in multiple venues in Mississippi have already spoken to the fact that since Mississippi's attorney general didn't prosecute public corruption cases against Peters, DeLaughter, Langston, Scruggs, Balducci, Patterson, et al, then they didn't think they had the resources to go after such charges either. If you will recall in the Neshoba County state charges against former Klansmen Edgar Ray Killen and other high profile cases, the local DA got the active support of General Hood's office and his personal intervention in the case.

But Hood took a pass on the judicial bribery cases altogether — all of them.

Where were you in 2008 on this issue, Mr. Thomas? Massaging your "certified civil trial advocate" plaque?

What color is that, Bubba?

Next time you have a question about how I go about the interview process, be sure and weigh in again. I love interaction with "certified civil trial advocates" — being a mere mortal and all.

 My Take:

I still can't get over the Salter personal attack, but that's neither here nor there. 

I find it interesting how this issue has evolved since Salter first raised the question in 2008. Salter seemed to blame Attorney General Jim Hood for there being no State prosecution against Peters. But Jerry Mitchell's 2011 article states that General Hood offered to assist local D.A.'s in prosecutions. And there were at least three D.A. jurisdictions where charges could have been brought. And the feds could have prosecuted too in either the Northern or Southern Districts.

So who's to blame for what many agree is an injustice that Peters was never charged? I never came up with a good answer to this question. I heard a lot of theories; many of which made sense. But I never heard what I thought was a good definitive answer.  

On the issue of Eaton's culpability for Peters' actions in the Eaton v. Frisby case, Tom Freeland makes a good point at NMC:

It strikes me that the question isn’t whether Ed Peters, hired as a lawyer by Eaton, was supposed to influence the judge– after all, isn’t that what lawyers do?  The question is whether Peters (who was hired secretly and off the record, a fact Eaton’s legal pleadings keep omitting) was hired to improperly influence Judge DeLaughter.

 Specifically, I would like to see Eaton's answer to these two questions that I posed in this 2009 post:

I would like to see Eaton and McGrath answer these two questions:

1. exactly who told you that you should hire Ed Peters? 
2. what was the reason(s) you were given for why you should hire Peters?  

Because let's face it: somebody on the Eaton side of the 'v' knew that they were hiring Peters to improperly influence DeLaughter. Or at a minimum, they figured it out pretty quickly that that's what Peters was doing when he came back reporting to them on what he was doing.

Think about it. In the Scruggs v. Wilson case Scruggs' lawyers knew every move Peters made in communicating with DeLaughter. Eaton v. Frisby was a very complicated trade secrets case. Peters was not Eaton's primary lawyer—not even close. But we are supposed to believe that—completely on his own—Peters got up to speed on the details of the case and then discussed them with DeLaughter? Come on.

If you haven't seen it already, you want to check out this recent NMC post on Eaton v. Frisby. NMC also has Ed Peters' 302 Report here, which details Peters' involvement in the case. In the 302 report, Peters states that he was hired by Eaton lawyer Mike Shauman of the Quarles Brady law firm in Milwaukee and that Jackson lawyer Mike Allred was Eaton's local counsel. It's impossible to read Peter's account of his improper meeting with DeLaughter about the Eaton case without concluding that the Eaton camp knew about the meeting. 

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Hinds County Defense Verdict

There was a defense verdict returned on Friday in a Hinds County medical malpractice trial. I do not know the names of the parties or the facts of the case. The vote was 11-1.

Heber Simmons of Ridgeland represented the plaintiff. Mildred Morris of Watkins Eager in Jackson represented the defendant. Stuart Harmon of Jackson represented a defendant who was dismissed via a directed verdict. Judge William Gowan presided in the case.

Wall Street Journal Article on Dr. Adam Lewis

Saturday's Wall Street Journal had a long front-page article about Jackson neurosurgeon Dr. Adam Lewis. Anderson writes about the article here. The article focuses on the death of a 48 year old patient who died hours after back surgery in April.

The WSJ had the man's medical records reviewed by nationally preeminent surgeons, who said that the man was not a candidate for surgery.

Lewis has a high rate of surgeries on his patients and owns part of the company that sells the devices that he implants. Anderson states:

So many doctors cannot rest content making a good living from being doctors; they have to own their own MRI, or their own specialty clinic, or their own medical-device company.

The article (which is behind a pay wall) heavily quotes Lewis' attorney, Whit Johnson with Currie Johnson in Flowood. Dr. Lewis gets sued a lot and is a controversial figure in the Jackson medical community. I don't think that Jackson doctors are surprised by the allegation that Dr. Lewis operates on too many patients. I reported a verdict from earlier this year here.

Kingfish quotes much of the WSJ article here.

Sun-Herald Article on Former Miss. Supreme Court Justice Joel Blass

The Sun-Herald ran this article over the weekend on former Supreme Court Justice Joel Blass of Pass Christian. Blass bucked the racist norm in the Mississippi Legislature in the 1950's and was highly respected in the legal community. The article quotes current Supreme Court Justice Jess Dickinson:

Jess Dickinson, a presiding State Supreme Court Justice, practiced law with Blass in Gulfport in the early 1990s.

“The practice of law today really needs a dose of professionalism,” he said. “The lawyers have gotten so strident and aggressive. They do so in an attempt to represent their clients, but professionalism has seemed to drift away from this profession.

“Joel Blass exhibited the epitome of professionalism. He is a gentleman’s gentleman, a lawyer’s lawyer, a scholar, and a mentor to every lawyer, whether they were in his firm or not. You could always trust him.”

Justice Dickinson's comments are consistent with everything that I've heard about Blass.

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Fun Friday is back—at least for this week—by widespread, universal, popular, a couple of dude's demand.

The SEC looks like a 2 horse race this year between Bama and LSU. The teams look pretty similar, but you have to give Bama the edge for 3 reasons: (1) LSU vs. Bama is in Tuscaloosa, (2) Trent Richardson, and (3) Nick Saban. If Bama wins the national title this year, you kind of have to wonder how much longer Nick Saban will coach. He hides it well if he is a coach forever kind of guy.

But LSU fans have a lot to be optimistic about. LSU has beaten 3 ranked teams away from home and not really been challenged in any game. Usually with a Les Miles team every game is a heart-attack game that goes down to the wire. The fact that LSU has won every game comfortably says a lot about the strength of this team.

What's up with Miss. State and Ole Miss? Will either win 6 games this year? I don't see a path for Ole Miss to win 6 after losing to Vandy and BYU. Houston Nutt doesn't have it anymore. Everyone knows it. The question is: when can Ole Miss afford a new coach? 

Isn't it ironic that Ole Miss has a group of fans called “Forward Rebels” and a bunch of fans who just want to go back to the good ole days of Colonel Reb and Dixie? State is the big winner when many Ole Miss fans refuse to let go of the past.

State might not get to 6 wins either. State's offense looks terrible. Do they have an offensive line? The Dan Mullen window of opportunity to move up in the coaching ranks is closing. Two losing seasons in a row and he will not have a job at State either.

The Saints look good. But Green Bay looks great. It's going to be hard for the Saints to get out of the NFC this year, particularly if they have to play in Green Bay in January. At this point, I would not bet on a Saints return to the Super Bowl.     

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The Northeast MS Daily Journal reported yesterday that disbarred Jackson lawyer Vann Leonard will be sentenced on October 13 in federal court in Aberdeen for embezzling $327,585 from a bankruptcy estate. Leonard pleaded guilty in the case in February. The court sealed the file and Leonard returned to the practice law where he (allegedly) embezzled money from clients. Leonard has been in jail since May for embezzlement not related to the federal court charges.

Jackson Jambalaya has provided the only coverage of the Leonard saga in the Jackson area. Other JJ posts are here and here. 

Leonard's client trust account was overdrawn several times in the months leading up to the embezzlement from the bankruptcy estate. It is unlikely that Leonard would have still been practicing law at the time if Mississippi had a rule that required financial institutions to report to the Mississippi Bar when lawyers bounce checks from their trust accounts. 

In 1988 the American Bar Association issued a model rule for trust account overdraft notification. Here is a link to the ABA rule. Mississippi should adopt the ABA model rule in order to protect the public from unscrupulous attorneys. If we had such a rule, there would be many fewer victims of Vann Leonard.

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Now retired Hinds County Circuit Judge Swan Yerger had a reputation for going out of his way to dismiss cases. Judge Yerger seemed to get reversed by the Mississippi Supreme Court more than any other judge in the state for defense rulings. It happened again last week in Compere v. St. Dominic.

The case was a medical-malpractice action. The plaintiff filed the action less than 60 days after providing defendants with pre-suit notice. The defendants moved for summary judgment based on the deficiency in the pre-suit notice. Judge Yerger took the matter under advisement.

Plaintiff filed a second complaint more than 60 days after giving pre-suit notice. Judge Yerger then dismissed the first case due to the notice defect and dismissed the second case finding it was an improperly filed action under the doctrine of priority jurisdiction.

Judge Yerger also assessed monetary sanctions against plaintiff's counsel for filing the second complaint. It's unclear whether defendants requested the sanctions or Judge Yerger did it on his own.   

The Supreme Court's Opinion:

A unanimous Supreme Court reversed the dismissal of the second complaint and imposition of sanctions and remanded the case for further proceedings. The Court reasoned that priority jurisdiction did not apply. Priority jursidiction applies: 

“when the same lawsuit has been filed in two different courts, not in the same court. More importantly, that doctrine presupposes a pending action that the plaintiff can proceed upon and obtain 'adequate relief.'”

The Court noted that defendants “fail to argue or cite any authority that a lawsuit should be dismissed with prejudice and with monetary sanctions under priority jurisdiction.”

Justice Lamar wrote the Court's opinion. James Bobo of Brandon represented the plaintiff. Lane Staines, Sharon Bridges, Jonathan Werne (all with Brunini), Ray McNamara and Stephanie Edgar (both with Watkins Ludlam) represented the defendants.

My Take:

James Bobo is a good guy,  so I am glad to see Judge Yerger's decision reversed. Cases like this are why Judge Yerger had a reputation for being pro-defense and unfairly dismissing cases. Most people would agree that cases should not be dismissed where there is no authority to support the dismissal.

Incidentally, Judge Jeff Weill replaced Judge Yerger on the Hinds County Circuit Court. Early reviews on Judge Weill have been favorable from both plaintiff and defense lawyers. 

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NMC had a good post last week about the Mississippi Supreme Court's Order requesting briefing on the waiver issue in Sears v. Learmonth. This is the case where the 5^th Circuit asked the Court to decide whether Mississippi's cap on non-economic damages is constitutional. That was the sole question that went to the Court.

But the Court appears hung up on the fact that the jury's verdict did not separate economic and non-economic damages and the District Court accepted a stipulation on the damages components. NMC writes:

So I’m going to express two different kinds of surprise, in the form of a question:  Why would an appeals court not accept this stipulation by the parties?  And, once the federal court has accepted the stipulation, what business is it of the state court, on certification of a different question altogether, to question that?

I’m taking this to mean they really, really don’t want to reach the question of constitutionality of the caps.

Good questions and a logical conclusion based on the posture of the case. Also interesting is Anderson's comment on NMC's post wondering why the Court even accepted the question if—as it appears—it wants to avoid answering it.

Here is my prior post on the Court's request for additional briefing.