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

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Last Wednesday a North Mississippi federal court jury awarded $50,000 in emotional distress damages to former Como police chief Cleve Gale. Como fired Gale in 2008 after serving 25 years as chief. The 3–2 vote to terminate Gale was along racial lines with 3 white alderman voting to terminate.

Here is Gale's Complaint. The jury's verdict form indicates that the jury found that race was one motivating factor in the town's decision to fire Gale, but other factors were also involved. Because of this finding, Gale did not recover back pay. Here is the verdict form.

The jury consisted of 7 whites and 1 black.

Jim Waide and Rachel Pierce of Waide & Associates in Tupelo represented the plaintiff. Gary Friedman and Brett Harvey of Phelps Dunbar in Jackson represented the defendant. Judge Michael Mills presided in the case. 

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HarrisMartin is reporting that last week a Claiborne County jury rendered a defense verdict in favor of Empire Abrasive Equipment Corp. in a silica trial. According to the portion of the article that I have access to:

A jury in Claiborne County, Miss., has found for the sole trial defendant in the latest silica injury trial, apportioning any liability equally between the plaintiff and "Unnamed Parties," HarrisMartin is reporting.

In the first case against Empire Abrasive Equipment Corp. to go to trial, jurors found that its "ricochet" protective hood played no role in injuries to a former sandblaster.

I will report more information on this verdict if it becomes available.

In other news, the Mississippi Supreme Court has scheduled oral arguments for 1:30 p.m. this afternoon in the 2010 Jones County asbestos drilling mud case that resulted in a $15 million jury verdict. The arguments can be viewed live via web cast here at the Supreme Court's website.

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Wednesday's Clarion-Ledger contained this article about the City of Jackson settling a lawsuit with Cedric Willis, who was wrongfully imprisoned for 12 years. Willis was convicted of murder and armed robbery in 1997, but was later exonerated by DNA evidence. 

Willis alleged that the City of Jackson was at fault because a police officer lied when he claimed that a confidential informant identified Willis as the perpetrator. But Willis' attorney Rob McDuff of Jackson stated that the majority of blame should go to former Hinds County District Attorney Ed Peters and his assistant D.A. Bobby DeLaughter:

Willis' attorney, Rob McDuff said the settlement was less than his client should have received, but called it a "reasonable compromise" in light of a recent U.S. Supreme Court decision that made it harder to win this sort of case.

"This settlement of Cedric's federal constitutional claims is not what he should have received, but there were certain factors that required us to compromise," McDuff said.

"We could not sue the culprits most responsible - former prosecutors Ed Peters and Bobby DeLaughter - because of the legal doctrine of prosecutorial immunity."

Ed Peters was something else. Dirty as all get-up but equally slippery. At least DeLaughter lost his job and did some time.    

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The news Tuesday of the passing of U.S. District Judge Allen Pepper was a shocker. It was just last week that I reported on a jury verdict in a case tried before Judge Pepper.

The Mississippi legal community expressed uniform admiration for Judge Pepper and sadness over his death. From Patsy Brumfield's article in the NEDJ:

Chief U.S. Dist. Judge Mike Mills:  “I’ve lost a good friend, a wonderful person.” “He was a good judge.” "He will be missed all over the state of Mississippi.”

Ashland attorney Anthony Farese: He was  “an excellent judge who firmly followed the law, but had compassion for his fellow man.”

Oxford attorney Christi McCoy: A finer person has never put on a black robe.” “He truly cared for the people he had to sentence.”

Tupelo attorney Guy Mitchell III: “He was a fair-minded man.”

From Jimmy Gates' article in the Clarion-Ledger:

U.S. Dist. Judge Neal Biggers: “He was a pleasure to work with and also just to hang out with."

Tupelo attorney Jim Waide: "They just loved him around the (federal) courthouse."

Former Greenville Mayor Heather McTeer: “had a strong history on the federal bench" and "was very supportive of his community."

U.S. Dist. Judge Sharion Aycock: “His life included practically every facet of public service - with over thirty years in private law practice, service on numerous state and national professional boards and committees, his military service, his church, his community, not to mention his exemplary service to the federal judiciary."  

A bio on Judge Pepper locate by Cottonmouth states that Judge Pepper maintained a solo practice in Cleveland for thirty years before being appointed to the bench in 1999.

I did not know Judge Pepper and never personally appeared before him. But I have an affinity for any lawyer who can maintain a solo practice for thirty years. Attorneys who practiced before Judge Pepper loved him. He will be sorely missed.   

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Jackson Jambalaya has the video of the hearing before Hinds County Circuit Judge Tommie Green over Attorney General Jim Hood's helping get the pardon recipients out of jail attempt to block the release of convicts who Gov. Barbour pardoned. I must confess, I didn't watch it. I've never been much on pre-season games. I view the Circuit Court fight as a pre-season skirmish before the Supreme Court decides the issue. 

Procedurally, this reminds me of when Judge Malcolm Harrison had to decide the case that challenged the personhood initiative. Everyone knew that the case involved constitutional issues that the Supreme Court would have to decide. Everyone except the Supreme Court that is. In hindsight, the Supreme Court deciding to not decide was sheer brilliance. But my point is that whatever Judge Harrison ruled, the Supreme Court would have final say. The same appears to apply to Judge Green's decision regarding the Barbour pardons.

One argument being made to uphold the pardons is that the Governor's decision on pardons are final and not subject to review. Cottonmouth was the first site that I saw raise this issue in this post. Anderson cited a dissent from a 1921 Mississippi Supreme Court case that stated that a Governor's decision regarding whether publication was made is not open to judicial review. So far I'm not getting this argument.

The same Mississippi Constitution provision that creates the Governor's right to pardon requires publication before the issuance of the pardon. I don't see where the Constitution grants to Governor the right to pick and choose which provisions have to be followed. Perhaps the Governor does have that right with respect to pardons. But I want to hear it from the Supreme Court before I'm buying it. Or at least get a better justification than I've read so far.  

Finally, I'm against what I perceive to be knee-jerk reaction to Barbour's pardons that the pardon laws should be changed. Getting past the issue of whether that can be done without an amendment to the Constitution, I'm not in favor of throwing out the baby with the bathwater. There are situations where pardons are appropriate and just. I don't want to take away the power to grant the “good” pardons because people don't like how Gov. Barbour exercised that power. People who don't agree with the pardons should be mad at Gov. Barbour—not the law.   

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A Warren County jury returned a plaintiff verdict of $654,000 on Friday in the second trial of a slip and fall case. The style of the case was Goodman v. APAC-Mississippi.

This was the re-trial of a case originally tried in 2000. The first trial resulted in a plaintiff verdict of $400,000. Here is the Supreme Court's 2002 opinion reversing the verdict and remanding the case for a new trial.

According to the 2002 opinion, the plaintiff alleged that he injured his knee when he slipped on mud at an APAC work site. I'm not sure when the accident happened, but I understand that the case was filed in 1996. One of the reasons for the reversal was that the trial court improperly excluded a photograph of the work site on the day of the accident because it did not depict the spot where Goodman fell.

Rocky Wilkins of Jackson and and Kelly Loyacono of Vicksburg represented the plaintiff. Rob Wells of Young Williams in Jackson represented the defendant.

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Above the Law reported Wednesday on the spread of a common law firm issue to law schools: someone getting their lunch stolen out of the fridge. ABL mocked this very serious issue with a picture of a “Hungry” Incredible Hulk.

Anyone who has ever had their lunch raided in the firm fridge knows that this is no laughing matter. It's infuriating. And the commonly offered solution provided by the UCLA Law School is totally inadequate:

We also highly encourage that you label your lunch with your name or other clear identifying marks to discourage theft as much as possible.

Whoever wrote that suggestion should be the leading suspect for lunch thief. If anything, writing your name on your lunch greatly increases the chance that your lunch will be stolen. The sneaky lunch thief will steal your lunch no matter what. But when you write your name on it, your friends will also steal it just because they think it's funny. And unless it's your lunch, it kind of is.

No, if you want to really keep your lunch from getting stolen you must cast aside common misperceptions like "writing your name on your lunch prevents theft"; and abandon stereotypes—like suspecting that the thief must be one of the fat guys. The fat guy is actually the least likely person in the firm to steal your lunch, because he knows that he will be the top suspect.

So what can you do to protect your lunch? You must go on the offensive and take the war to the enemy. Here are a few suggestions to get the creative juices flowing:

• if you want to try writing your name on your lunch, also date it—with a date 3 months ago. Then put the bag in the back of the fridge behind something.
• bring 2 identical items. place them in the fridge together under a note that says:“I peed on one of these.” Of course, the secret of this trick is to pee on both and go out to lunch that day. Then go around the office all afternoon laughing about it.
• let leftovers rot in your fridge at home for several months and then put them in the firm fridge disguised as your lunch.
• repeat the previous suggestion, but do write your name on the lunch. Leave it in the fridge for months, occasionally adding another item. Once you have done this long enough, it might be safe to start sneaking in your real lunch.
• buy a safe that fits on one of the fridge shelves and lock your lunch inside everday. you can offset the cost of the safe by offering to rent out safe space for other people's lunches. just never let anyone else have the combination.

The point is that the lunch thief is like the Honey Badger. It takes what it wants. To defeat the lunch thief, you need to prepare like Nick Saban. And like Saban, don't ever smile about it. This is serious business.     

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An article in Wednesday's Wall Street Journal focused on California investor Judah Hertz, whose company recently bought most of Parkway Properties' buildings in Jackson. The article opens:

After a four-year hiatus on the sidelines, California investor Judah Hertz is buying office buildings in small cities with some of the highest vacancies and lowest demand in the country. That probably means more torment for other landlords in these markets.

Parkway was apparently desperate to get out of the Jackson market:

Mr. Hertz is buying for such a low price that he says he is going to be able to undercut the competition, charging lower rents and offering more incentives to tenants.

And lost money:

For Parkway, the sale to Mr. Hertz closes the chapter on a painful investment for a company whose market capitalization is about $200 million. Parkway says it will recognize a $58 million to $60 million fourth-quarter loss related to the sale of the portfolio as well as two remaining buildings it is still trying to sell in Memphis and Jackson.

The buildings that Hertz bought have huge vacancy rates:

The portfolio's 24% vacancy rate is even higher than those of the overall markets. Third-quarter vacancy rates were 16.1% in Richmond, 22.1% in Memphis and 17.5% in Jackson, according to Reis Inc.

My Take:

I don't know about you, but I'm asking my landlord to cut my rent in half before Hertz recruits me to move into the Deposit Guaranty AmSouth Regions University Club big tall empty building downtown.

This is not surprising. Parkway was probably wise to take what it could get and exit the Jackson market before it erodes further.

Hertz may feel like he can make money on the deal by simply maintaining current occupancy rates. Hertz could be disappointed if he is planning to fill the buildings by being more competitive on rent. The big banks aren't coming back to Jackson. Butler Snow is locked into a long-term lease. I guess Baker Donelson's lease could be coming up for renewal in the next few years. But it would take a sweet deal to get them out of perhaps the best office location in the Jackson area at the Meadowbrook Office Park. It will be interesting to see what Hertz does with that space.

For those looking for the connection to Mississippi litigation, see my prior post here.     

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In December I wrote here and here about Baptist Hospital v. Kelly. This was the case where the Mississippi Court of Appeals affirmed a $4.6 million jury verdict in a Hinds County medical malpractice case a few weeks after the parties agreed to settle. Based on a few things I've heard, I believe that the settlement had not been finalized yet when Court issued its opinion.

My second post on the case noted that the docket reflected a motion to vacate the Court's opinion. Although my earlier post is a bit unclear on this point, the motion to vacate was not a joint motion. On January 10, 2012 the Court issued this order granting Baptist's counsel's motion to withdraw and taking no action on the motion to vacate opinion.

Best I can tell, this means that the Court's opinion remains on the books and is good law. That is good news for lawyers who want to cite the case in the future.

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On Thursday a North Mississippi Federal Court jury in the Delta Division rendered a total verdict of $771,000 in a retaliatory discharge trial against DeSoto County and jail administrator Steve Atkinson.

The plaintiffs were former jailers Tammy Williams, Cheryl Hambrick and Earl Russell. The plaintiffs alleged that they were fired for reporting Sgt. Stephen Winters for assaulting an inmate in the jail. Here is the Third Amended Complaint. The defendants claimed that the plaintiffs were fired for other reasons.

The firings happened in 2004. Plaintiffs filed suit in 2005. The case was twice appealed to the 5^th Circuit and there was a trial with a hung jury in March 2011.

The jury found for all three plaintiffs against both defendants. Here is the jury's verdict. The jury awarded the following damages:

• $182,000 actual damages to Tammy Willliams
• $215,000 actual damages to Cheryl Hambrick
• $174,000 actual damages to Earl Russell
• $50,000 punitive damages to Tammy Williams
• $50,000 punitive damages to Earl Russell
• $50,000 punitive damages to Cheryl Hambrick

Jim Waide and Rachel Pierce of Waide and Associates and Shane McLaughlin (all of Tupelo) represented the plaintiffs. It appears that Steven Lacey from Barfield & Associates in Madison was the lead defense counsel. 

District Judge Allen Pepper presided in the case.

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A great thing about having a blog is that you get to comment on current events. But an active law practice often prevents a blawger from commenting about current events when they happen. That has been the case as the story has unfolded over the last few days involving the approximately 200 pardons that Gov. Barbour granted this week on his way out of office. Since I haven't been able to write a blog post since Monday (many posts are written days in advance of posting), much of what I could say has already been said.

As in many areas, blogs are covering the issue more thoroughly than the main stream press. Among the blogs that I read regularly, NMC, Jackson Jambalaya, Anderson and Cottonmouth have all made significant contributions on the story. The public's revulsion over the pardons is captured on the Victims of Mississippi Pardons Facebook Page. 

Even Frank Corder with the pro-Republican site Ya'll Politics criticized the pardons in this post. I don't agree with everthing in Corder's post, but I agree with most of it. Corder notes that even for Republicans, the way Gov. Barbour handled the pardons was bad policy and bad politics.

In particular, this point by Corder is close to exactly what I planned to blog about the fiasco, if Corder hadn't stated it so well before me:

Barbour’s actions and communication strategy spoke of a political tone-deafness that is uncharacteristic for him. Looking at it truthfully, Barbour would not in a million years have made these pardons en masse were he a presidential candidate at this moment. It just would not have happened.

So, why he does it now is truly a headscratcher. It’s situational politics and for someone who prides himself on his principles, it will leave a small but noticeable mark in his history.

Not only would Barbour not have done this if he were a presidential candidate, this indicates that Barbour has written off Vice President or serving on the cabinet of a Republican presidential administration—both of which were still the subject of at least some speculation. This was not the move of someone who views a return to the public sector as a possibility. It creates way too much heat.  

This is an unbelievable WTF moment for Barbour. Despite the fact that I often disagreed with Barbour, he always looked smart and politically savvy to me. And I appreciated his candor, even when I didn't like what he was saying. I never imagined that Barbour would do something so unwise, while simultaneously handling it so poorly. It is—as Corder says—truly a head-scratcher.    

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Jackson office space owner Parkway Properties is pulling out of the Jackson market. In my opinion, Parkway's exit is a reflection on the ongoing recession in Mississippi's legal sector. 

In this controversial post from August 2011, I discussed what a Republican controlled Mississippi House of Representatives would mean for the legal profession. I stated the following regarding the impact on the Jackson economy:

There would be negative repercussions in the local economy of Jackson, where the legal industry ranks behind only the government and medical industries as far as jobs. Owners of office space such as Parkway Properties would suffer due to the declining demand for office space.

In November Republicans did gain control over the House of Representatives. Two months, later Parkway Properties has seen enough and is selling most of its Jackson office space.  

Amy McCullough with the Mississippi Business Journal has this article on Parkway exiting the Jackson office space market. McCullough asks the logical question of whether the sale will lead to layoffs among Parkway's 89 Mississippi employees. 

The MBJ article states:

Parkway’s downtown Jackson assets that it is selling are: One Jackson Place, 111 Capitol Building, Pinnacle at Jackson Place, Parking at Jackson Place, and UBS Building / River Oaks Place. The company currently retains the City Centre building at 200 South Lamar Street.

 Who are major tenants of those buildings? Law firms. Shrinking law firms.

Pinnacle at Jackson Place is the new building that houses Brunini and the Jackson office of Jones Walker (formerly Watkins Ludlam). Jones Walker bought Watkins Ludlam and promptly started firing lawyers. Word on the street is that the Jones Walker footprint in Jackson will continue to shrink as other lawyers are forced to retire or otherwise exit in the next few years.  

One Jackson Place used to be home of the U.S. Attorney's Office, but the office has now moved into the new federal courthouse. Across the street is the Regions Building that used to be the home of Butler Snow and the University Club.  

111 Capital Building is the former home of Phelps Dunbar's Jackson office. But Phelps' Jackson office has shrunk and is now housed in smaller space in the Meadowbrook Office Park where Baker Donelson has its offices.

Parkway explains that it expects to expand by focusing on core growth markets like Orlando, Tampa and South Florida. Left unsaid in that statement is that Parkway views Jackson as a market in decline. I bet that Parkway has close to zero employees in Jackson in a few years.  

This is an example of what I talked about in the August post about how the decline in the legal sector spreads to other areas of the economy. A recession in the legal industry does not only affect personal injury plaintiff lawyers. It does not affect only lawyers and their employees. It reaches into other industries and impacts people who had no idea that their job depended on a healthy legal sector. Parkway Properties sees this and is leaving.   

As I stated in Monday's post, I expect “stuff” to really hit the fan in 2012 for the legal sector in Mississippi. The Parkway exit gets the year of bad news off to a fast start.

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The Mississippi Jury Verdict Reporter recently published its January 2012 edition and a sperate publication: the 2011 Year in Review. The Year in Review is an unbelievable resource. It is 185 pages long and includes details on all 220 verdicts reported in 2011. It also sorts the verdicts based on attorney, type of case, judge, county and region of the state. Here is a link to a MJVR sample from the edition. It is a fabulous resource and is something that all litigators will want to own.

The January 2012 edition continues the trend of plaintiffs having difficulty in simple negligence cases. The Reporter covered three six figure plaintiff wins. But all three involved an element of intentional conduct. One was a police brutality case that I covered in this post. Another was an assault case involving a fight outside a bar in Oxford. The third involved a negligence claim by a roofer against a homeowner who knocked the roofer off the house by hitting him with a thrown shingle.

Three car wreck cases resulted in a zero verdict and two small plaintiff verdicts that sound like defense wins. An example is the Harrison County verdict of $32,500 where the plaintiff had $40,000 in medical bills. 

There was a defense verdict in a Lauderdale County medical malpractice verdict and the insurance company win in the Jackson federal court dec.-action case that I covered in this post. 

It looks like when economic times are tough, most Mississippi juries take it out on plaintiffs in negligence cases. This is consistent with what my focus groups tell me, although I do not see an obvious correlation.    

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The WSJ Law blog reported on Friday on the December Labor Department Report statistics regarding jobs in the legal services sector. The report shows a loss of 1,800 jobs in the legal sector in December with a loss of 2,700 jobs in the last year.

As law schools continue to grow classes and pump out students, the ABA President isn't sympathetic:

It’s inconceivable to me that someone with a college education, or a graduate-level education, would not know before deciding to go to law school that the economy has declined over the last several years and that the job market out there is not as opportune as it might have been five, six, seven, eight years ago

-William Robinson, president of the American Bar Association

Even investment-economy blogs are getting into the act. Here is a Zero Hedge Blog post that characterizes the issue as a bubble in lawyers. The focus of the Zero Hedge article is the huge debt accumulated by most law students who are entering a declining job market. The article has a good summary of the global problem:

Our economic slump is pushing four years now. The evidence is easy to find: huge deficits, slow growth, mortgage defaults, declining real estate prices, high unemployment and an economy that can’t produce enough jobs. There are less obvious consequences too.

In my opinion, the legal sector in Mississippi is feeling the national trend of a legal-sector recession harder than in most places. When the economy crashed in 2007–2008 Mississippi's legal sector was already in a recession caused by the elimination of mass joinder, more conservative jurors and—to a lesser extent—tort reform caps. Other places have been in a recession since 2007. The Mississippi legal sector recession started at least 5 years earlier.

Even worse, after nearly 10 years of a receding legal sector in Mississippi, there is no sign that the market is stabilizing and will at least stop shrinking anytime soon. In fact, I predict the problem will accelerate over the next two years. 

During this time period, I expect to see a few more noticeable purges of lawyers by big firms similar to what Jones Walker did when it took over Watkins Ludlam. Jones Walker's move reflected a conclusion that Watkins Ludlam had too many lawyers. I doubt Watkins Ludlam was the only big firm in Mississippi with that issue. If I am correct, other firms will be forced to deal with the issue in the next two years. 

Lawyers who have their own book of business that they can take with them to another firm or their own practice will be safe. Everyone else is exposed--and that is a big segment of big firm lawyers, due to the reliance on institutional clients. 

Lawyers in the exposed category may look around and conclude that they are safe because they are a better lawyer than Joe Blow down the hall, but it's more complicated than that. Law firm politics are always brutal. But firm politics are even more cut-throat when there isn't enough work to go around. The surviors will be the ones who win out at the firm politics game.             

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Readers of this post from Tuesday who wonder how the 5^th Circuit Court of Appeals analyzes appeals of attorney fee awards have a recent 5^th Circuit decision that provides insight on this question.

In this March 2011 post I wrote about U.S. District Judge Henry Wingate awarding 21% of the requested attorney's fees and expenses in the City of Jackson Fire Department sexual harassment case. Here is a 2009 post on the case. This was the case where one of the plaintiffs testified that her monthly car note was paid “supernaturally” “by the grace of God.” Thank you, Jesus.  

Last week the 5^th Circuit Court of Appeals affirmed Judge Wingate's decision, which the plaintiffs had appealed. Here is the 5^th Circuit's per curiam opinion.

The Court reviewed Judge Wingate's decision under an abuse of discretion standard and found no abuse of discretion. Judge Wingate substantially reduced the plaintiff's request due to duplicative and massive billings by the plaintiff's D.C. lawyers. Two lawyers billed a combined 2700 hours on the case and six other lawyers from the firm billed time to the case. Judge Wingate found that to be excessive. The total fee and expense award affirmed on appeal was $263,901.78.    

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The AP, Bloomberg, WSJ, and Forbes all have stories on Judge William Coleman vacating the $322 million verdict in the 2011 Smith County asbestos drilling mud case along with all other orders entered by Judge Eddie Bowen in the case. According to a Union Carbide assertion cited in the Forbes article, the plaintiff's damages were—at most—$45,000 in future medical bills. Anyway you cut it, the verdict was ridiculous. 

The verdict landed Smith County on a Judicial Hellhole list. If there was a judicial enigma list, Smith County would be at the top of the list. On paper, you would expect Smith County juries to be ultra-conservative. But add local attorney Gene Tullos into the mix and you get a $322 million verdict for a plaintiff who—apparently—wasn't hurt bad.

If there is a downside for Union Carbide, it is that the case is still pending in Smith County. Historically, the Mississippi Supreme Court has reversed and rendered appeals of mega-verdicts that it decides on the merits. It would be interesting to see the result of a trial with venue transferred to a neighboring county, like Simpson County.   

Prior posts on the case:

• Mississippi Supreme Court Removes Judge Bowen from $322 Million Verdict Case
• Judge Bowen and Plaintiff Respond to Union Carbide's Recusal Motion Confused by Clarion-Ledger Article on Union Carbide $322 Million Smith County Verdict
•  
• A Look at Union Carbide's Recusal Motion in $322 Million Smith County Asbestos Verdict
• Report of $322 Million Verdict in Smith County Drilling Mud Case

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In the next few weeks the Mississippi Supreme Court will hear oral arguments in the appeals of three cases that resulted in substantial verdicts for the plaintiff. The cases are:

1. Denbury Onshore v. Precision Welding. Oral argument January 18 at 10:30 a.m. This is the appeal of a 2010 verdict of $1.5 million in a Lincoln County breach of contract case. Here is my 2010 post on the verdict.
2. Phillips Petroleum v. Lofton. Oral argument January 30 at 1:30 p.m. This is the appeal of a 2010 verdict of $15.2 million in a Jones County asbestos drilling mud case. My posts on the verdict are here, here and here. This case has a record of 88 volumes.  
3. Miss. Valley Silica Co. v. Eastman. Oral argument February 1 at 1:30 p.m. This is the appeal of a 2009 verdict of $7.6 million in a Warren County silica case. Here is my post on the verdict. The record in this case is a mere 49 volumes.

Here is the Court's master docket calendar for the Court's first sitting (January 2 –  March 2). The vast majority of cases are submitted for decision without oral argument.

If you've ever witnessed an oral argument in a case where there is nothing to add to the brief, then you know why most cases don't have oral argument. In cases where the Court does schedule oral argument, the Justices typically get the lawyers focused on whatever issues the Court has questions about.

You can watch the oral arguments live here on the Supreme Court's website. I prefer to attend in person so I can see the Justices at all times. But being able to watch from your desk is great. It would be nice if the courtroom had a video screen so people sitting in the gallery could see the front of the lawyers who are arguing the cases, since the podium faces away from the gallery.  

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Earlier this year I wrote about a Plaintiff verdict in a Hurricane Katrina wind vs. water trial against Lloyd's of London here, here and here.

The plaintiff was allowed to recover attorney's fees in the case because the Court found that Lloyd's had no arguable basis to deny the claim. On December 21 Judge Sul Ozerden awarded the plaintiffs the following extra-contractual damages:

• $1,922,487.25 in attorney's fees
• $234,800.73 in expenses
• $954,245.31 in pre-judgment interest.

The total extra-contractual damages were $3,111,533.29 (plus post-judgment interest).

Here is Judge Ozerden's 40–page opinion on the attorney's fee issue. The Court awarded a rate for Don Barrett of $375 per hour ($475 hr. requested) and David McMullan's of $300 per hour ($345 requested). From my knowledge of hourly rates in Mississippi, both the rates requested and the rates awarded were in the range of reasonableness when compared to premium rates charged by top litigation attorneys in the state.  

Lloyd's took an interesting approach in opposing the requested rates by identifying the rates of its trial attorneys: $285–hr. for Paul Fields from Atlanta and $200–hr. for Whit Johnson from Currie Johnson in Flowood. Lloyd's should be ashamed that it was paying Whit Johnson only $200–hr. Whit is one of the top defense lawyers in the state and could justify a rate double what Lloyd's was paying him.

Judge Ozerden also reduced the compensatory damages award to $1,832,602.20 based on the policy's coinsurance condition and windstorm or hail deductible. Here is that opinion. 

My Take:

Judge Ozerden's opinions were thorough and well-reasoned.

Don't look for Lloyd's to be lobbying for loser-pays legislation when the State Legislature convenes this week.