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

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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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With the U.S. Senate approving Justice James Graves' appointment to the 5^th Circuit Court of Appeals on Monday, attention turns to who Governor Barbour will appoint to replace Graves on the Miss. Supreme Court. I posted on this issue in this post last June. I've had lines in the water for weeks on this issue and do not really have any fresh information on this topic.  

Speculation in Jackson legal circles continues to center on Barbour appointing Graves' replacement from the Mississippi Court of Appeals. Under this theory Barbour will appoint Court of Appeals Chief Judge Leslie King to the Supreme Court, a sitting trial judge to the Court of Appeals and an attorney to replace the trial judge. Hinds County Chancery Judge Denise Owens is a name that I hear as the favorite to replace King on the Court of Appeals if it this happens. Others speculate that Owens could replace Graves on the Supreme Court.

I've gotten mixed signals on the possibility of Jackson attorney La'Verne Edney getting the Supreme Court appointment. I've heard that she does not want the position. And I've heard that she is campaigning for the job. So I've got no idea.

One interesting scenario would be for Barbour to appoint former Hinds County Circuit Judge Malcolm Harrison to one of the available positions. Word on the street is that Barbour was upset with Judge Bill Gowan for running against—and unseating Harrison. Appointing Harrison to another slot would at least put Harrison back into public service.

With Barbour still in the 2012 Presidential race, expect the position to go to an African-American. If Barbour appoints a white person to the Supreme Court, then he's not running for President.

At this point, I have no prediction on what's going to happen here. Let me know if you've heard any interesting rumors on the Supreme Court seat. If requested, I do not reveal the identity of sources. 

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Charles Griffin is reporting that Justice James Graves' 5th Circuit nomination made it out of the Senate Judiciary Committee this morning. Here is the link.

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Justice James Graves' Senate Judiciary Committee Re-vote will be Thursday January 27, 2011 at 10:00 a.m. That is 9:00 a.m. Jackson time. Here is the agenda. You can also link to a live webcast of the hearing at the same link. But I doubt that it will be very exciting.

The re-vote is necessary because judicial nominations expired with the end of the 2010 Congress. President Obama re-nominated Justice Graves to the 5th Circuit earlier this month. Graves is expected to pass through the committee and the full Senate with no problem.

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On Wednesday the 5^th  Circuit Court of Appeals affirmed a jury verdict of $2.8 million in Learmonth vs. Sears, Roebuck and Co. The Court also certified the issue of the constitutionality of Mississippi's caps on non-economic damages to the Mississippi Supreme Court.

Here is the Court's opinion.

The case was based on an auto accident between plaintiff's car and a Sears van. Plaintiff suffered a brain injury and numerous broken bones.

The case was tried in Jackson in November 2008. [Correction: it was an Eastern Division case and the trial was in Meridian]. The jury awarded the Plaintiff $4 million, of which $2.2 million was non-economic damages. The trial court reduced the non-economic award to $1 million due to the non-economic damages cap.

Plaintiff asked the Court to certify the cap issue to the Mississippi Supreme Court. Sears initially opposed the request due to the Lymas v. Doublequick case. But Sears withdrew its objection after the Court did not reach the cap issue in that case. The current version of the 5^th  Circuit opinion mistakenly says that Sears requested certification and the Plaintiff initially opposed it. The opposite is true.

Kevin Hamilton and the Hamilton Law Firm in Jackson represented the Plaintiff. Gray Laird of Page Kruger represented Sears at trial. Greenberg Traurig represented Sears on appeal.

Judge Tom Lee was the trial judge.

I will have commentary on this case later—probably early next week.

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Today's headlines suggesting that Justice James Graves' nomination to the 5^th  Circuit Court of Appeals is dead are misleading. Judicial nominations not yet approved by the full Senate die as a matter of course when the Senate adjourns for the year. That does not mean that Graves will not be confirmed.

The key statement in the article is this:

Rick Curtsinger, spokesman for U.S. Sen. Roger Wicker, R-Miss., said President Barack Obama can resubmit Graves' name when a new Congress convenes in January.

This was not unexpected. Carlton Reeves barely got confirmed before the Senate adjourned and his nomination was months ahead of the Graves nomination. Barring something unexpected happening President Obama will re-nominate Graves and he will get confirmed by the full Senate in the first half of 2010.

Meanwhile, I'm hearing that Carlton Reeves will take the oath by the end of next week with a formal investiture later in the year.

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The Senate Judiciary Committee did not act on any pending judicial nominations today. This included the 5th Circuit nomination for Justice James Graves. Here is the link.

The Point of Law blog noted in a post today that conservatives are trying to stall on all nominations for the entire lame duck session. 

President Obama may be about to learn why he should have pushed these nominations through a year ago.

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Charles Griffin reports on his Minority Defense Litigator Blog that on Thursday Justice James Graves will get his Senate Judiciary Committee vote for his appointment to  the 5th Circuit Court of Appeals. Here is a Sun-Herald story on the vote.

This is one of the steps in Graves' confirmation process. After he clears the committee he has to wait for a vote by the full Senate. I'm not getting any intel on when  the Senate vote might take place.

Carlton Reeves is still waiting for his full Senate vote. He cleared the Senate Judiciary Committee in August. Graves' wait for a Senate vote could be shorter--or longer. As Gulfport's Homer Dedeaux used to say: "that's politics, coach."

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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.

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.

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Blogs were burning up on Friday over this blog post by a California law professor (Eugene Volokh) that suggested that 5^th Circuit nominee and current Miss. S. Ct. Justice James Graves (who is African-American) is racist. Volokh's blog has a national following.

In support of the theory, Volokh contrasted Graves' voting record on several appeals In which Graves did not explain the reason for his votes. Volokh states:

Unfortunately, Justice Graves did not offer any explanation for his different conclusions about the hostile-to-gays speech and the hostile-to-whites speech. Nor did her offer any explanation for the different approaches that the opinions he joined used in those cases.

Will Bardwell believes that the attack is part of a Republican attack on Graves, whose Senate confirmation hearing is on Wednesday.

Bardwell may be right, but it's an odd attack. Following Graves' nomination to the 5^th  Circuit, Gov. Haley Barbour, and Senators Thad Cochran and Roger Wicker all endorsed Graves' nomination. All three are Republicans who have little or nothing to gain from supporting Graves.

I do not believe that Graves is racist

Graves is a black judge who was elected to the Miss. S. Ct. in a majority white district in a race against a white candidate who many people thought played the race card. He did it by convincing many white Republicans to vote for him. That's already impressive. It would be amazing if Graves pulled that off while secretly hating white people.

I can't recall hearing any lawyer who appeared in front of Graves theorize that he is a racist. I can't say that about every African-American judge in Mississippi. When Graves was a Circuit Court judge, the lawyers who had to fear him were those making bad arguments.  

Volokh's article quotes no one from Mississippi and there is nothing in the article to suggest that someone from Mississippi told him that Graves may be racist. Of course, someone fed the story to Volokh.

Appellate Judges Should Explain their Votes

While I have not heard Justice Graves criticized as a racist, I have heard criticism about his frequent dissents without written opinions. I've also heard that it could become an issue in his confirmation process. It appears that it has, though not in a way that anyone I know foresaw.   

The “I told you so” award goes to Tom Freeland, who has long complained about unexplained dissents. Here is Freeland's reaction the Volokh's article, which concludes:

There is a direct virtue to a judge’s explaining their vote beyond telling the public and the parties:  Expressing aloud what one thinks is a great way of testing whether one is right.  I really see the problem here as voting-without-explaining, a problem that is not limited to Justice Graves on that court, and that started before he ever arrived there.

And if judges fail to explain the reason for their vote, it leaves an opening for someone to explain it for them. While I believe that Volokh is wrong, Graves opened himself up to the criticism by not explaining his votes.

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Jackson lawyer Carlton Reeves' nomination to be a U.S. District Judge cleared the Senate Judiciary Committee on Thursday. Here is the Clarion-Ledger article on the story. The next step for Reeves is a full Senate vote.

Logic suggests that the Senate vote should take place in the next few weeks. But we're talking Washington politics, so throw logic out the window. Educated estimates are that Reeves' Senate vote will likely be in October or November. But once the Senate approves the nomination—which is very likely—Reeves should be sworn in as a judge in a matter of a few days. Just in time for the new federal courthouse in Jackson, which is scheduled to open later this year.

Word on the street about the nomination of Mississippi Supreme Court Justice James Graves is that his nomination to the 5th Circuit Court of Appeals will drag along, possibly into next year. Estimates are that Justice Graves will not get his Senate Judiciary hearing until sometime in the Fall, possibly after the November elections. That would likely mean a Senate vote in early 2011. Thank Republicans for the delay, but blame the Obama administration for waiting so long to appoint Graves.

There is also a possible doomsday scenario for Graves' nomination. If the Republicans regain control of the Senate in the November elections, they could halt a vote on all Obama appointees until after the 2012 presidential election. That could doom Graves' appointment, despite public support from Mississippi Republicans. While this scenario is unlikely, I am hearing that it is possible.   

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USA Today has this new article on the slow going that President Obama is having in getting federal judicial appointments approved by the Senate. The article is fairly typical of similar articles focusing on the confirmation delay during the past year or so.

 The article notes that the President is appointing record numbers of non-white males:

So far he is setting records for the number of women and minorities nominated to lifetime appointments. Nearly half of the 73 candidates he has tapped for the bench have been women. In all, 25% have been African Americans, 10% Hispanics and 11% Asian Americans.

But delay is the name of the game for Republicans:

During his first 18 months in office, his administration has been thwarted by unprecedented delays. The situation, which has received little notice against the backdrop of a pending Supreme Court nomination and the administration's complex legislative agenda, could undercut Obama's effort to significantly infuse the federal courts with more women and minorities.

The article recognizes that the Obama administration is not blameless:

With few exceptions, Senate Democrats have yet to try to force Republicans' hand. The Obama White House has been distracted by other issues — even on the judicial front, where the administration has had two high-court nominations.

Unfortunately, the article misses the point that a huge delay is the one by the President in making his appointments. It took President Obama a year and a half to nominate Carlton Reeves to the U.S. District Court despite the fact that everyone knew that Reeves would probably get the nomination after Obama won the 2008 election.

It took only eight months or so for the President to nominate Justice James Graves to the 5^th  Circuit. But again, that was too long of a delay given the fact that Graves was the front-runner from the day that Judge Barksdale took senior status. The delays in making the nominations of Reeves and Graves are 100% the fault of the Obama administration.

Sure now that the nominations have been made Republicans can be faulted for going into the 4–corners. But is that surprising? That's how Republicans play politics and Republican Senate leaders argue that it came from the Democratic play book:

I don't say all of this to say there is going to be payback," Sessions said after Leahy earlier criticized GOP stall tactics. "I am saying this to set the record straight because I will not stand silent and have what is happening today be compared with the incredibly obstructive actions the Democrats took in early 2000."

Football fans aren't surprised and don't cry when the team ahead starts taking a knee in the last two minutes of the game. Likewise, Democrats should stop crying over spilled milk and should be more proactive in making nominations in a timely fashion and pushing harder to get votes in the Senate.

Earlier posts on President Obama's judicial appointments.

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The Clarion-Ledger reported this weekend on the 5^th  Circuit upholding the tax evasion conviction against Dr. Calvin Ramsey. According to the article:

The IRS said Ramsey underreported his income and owed the government $232,117 in additional taxes. Ramsey contended he did not intentionally falsify his tax returns.

The 5th Circuit panel found ample evidence to show Ramsey tried to hide bank accounts from the government in addition to underreporting his income.

Dr. Ramsey is well known as an expert witness in Mississippi civil litigation. He had a reputation as being a hired gun who would render any opinion for either side if the side was willing to pay his hefty $750 per hour fee.

In a Hinds County case, Dr. Ramsey is rumored to have once agreed to testify as an expert witness for both sides. The trial judge (I believe it was Judge Yerger) threw him out of the case. I also heard complaints that he did not disclose his conviction to attorneys who had hired him and was still trying to collect fees post-conviction even though he was damaged goods. Dr. Ramsey is the only expert witness I ever saw who would not admit to his hourly rate at trial and had to be impeached with prior deposition testimony from another case.

Opinions differed on Dr. Ramsey's effectiveness as a witness. Dr. Ramsey is African-American and some lawyers thought that he was the best thing since sliced bread, particularly with African-American jurors. Others believed that he lacked credibility and was not very effective, regardless of the jury's demographics. I share the latter view.  

It will be interesting to see if Dr. Ramsey is successful in reviving his expert witness career after released from prison. I suspect that he will still be an option used by parties with weak cases and large bankrolls. 

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Any doubts about whether Justice James Graves would be confirmed to serve on the Fifth Circuit Court of Appeals seemed to be put to rest on Friday with Mississippi Republican Senator Roger Wicker's endorsement of Graves.

So how does Graves' imminent departure impact the future of the Mississippi Supreme Court? It's hard to say at this point, but the possibilities are frightening. Graves is viewed as a left of center justice. His replacement will be appointed by the conservative Governor Haley Barbour. That is potentially bad for both the legal rights of individuals and the legal profession in Mississippi.

Barbour will face pressure from tort reformers to appoint a replacement for Graves who appears certain to uphold the legislative caps on non-economic damages and will support a reversion to the Court's pattern under Chief Justice Smith of going years without affirming a plaintiff's verdict. That practice was exposed in 2008 by respected Jackson defense lawyer Alex Alston.

According to Alston, in the 4 1/2 years prior to June 2008 the Mississippi Supreme Court reversed 88% of jury verdicts that favored wronged victims. During the same time period, the Court reversed 0% of jury verdicts that favored big business. Alston went public with his criticisms. The Court's swinging too far to the right is widely believed to be the primary reason that Chief Justice Smith lost his re-election bid to Jim Kitchens.

Smith's defeat signaled that any Supreme Court candidate who can be portrayed as always voting for one side is vulnerable in an election. After Smith's defeat, Justice Waller became Chief Justice and the Court's decisions in civil cases began to reflect a swing from the far right to the middle. No longer are defense lawyers telling plaintiff lawyers that if you get a verdict, we'll just appeal and get you reversed. No longer are defense lawyers bragging that: “there is not an argument I can make that (insert name-you know who I mean)will not buy.”

Incidentally, most of the defense lawyers who made these jokes were morons. They just couldn't figure out why plaintiff lawyers weren't filing cases any more. As if plaintiff lawyers were motivated by creating billable hours for defense lawyers. Smart defense lawyers were just as concerned about the Court's decisions as plaintiff lawyers and are now just as happy about the Court's moderation.

Some people speculate that Governor Barbour and Mississippi conservatives are happy to get Justice Graves off the Supreme Court so that they can appoint a more conservative successor and try to roll back the progress made under Chief Justice Waller's leadership.  

So who does Barbour appoint? Unless he wants to commit political suicide it must be an African-American, since Graves is the only African-American on the Court. The name that I have heard most often is Jackson attorney La'Verne Edney, who is a partner in the Brunini Law Firm and currently serves as General Counsel of the Mississippi Volunteer Lawyers Project. Edney's background is as a defense lawyers and she is perceived as being a possible conservative vote on the Court.

Hinds County Chancery Court Judge Denise Owens is a good judge who would be a popular pick in the Bar. But her husband and brother are prominent plaintiff lawyers, so her appointment might not be popular in all circles. Another possibility is Chancery Court Judge Vicki Barnes of Vicksburg. I have been impressed with Judge Barnes in my limited appearances before her and she has shown an attention to detail that would be a plus for an appellate judge.

There has also been speculation that Governor Barbour might promote Chief Judge Leslie King from the Court of Appeals, giving Barbour an additional appointment. Proponents of this theory point out that Barbour's record of appointing minority judges is still bad. Elevating King would allow Barbour to appoint two minority judges on the State's appellate courts.

One factor with Governor Barbour that is often over-looked is whether the appointee can win an election for the seat. It is my understanding that Barbour places great weight on this factor. He wants his appointees to win their next elections, presumably because they are a reflection on his political legacy.  

At this point, I am not aware of a clear favorite for the seat. My guess is that strong rumors will emerge within the next few weeks. I will do my best to stay on top of this developing story and post what I am hearing.  

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On Thursday President Obama finally nominated Mississippi Supreme Court Justice James Graves to serve on the Fifth Circuit Court of Appeals. Here is the Clarion-Ledger's article. Here is Graves' bio on the Supreme Court's web site.

Graves has been the front runner since Judge Barksdale took senior status in the Fall. My prior posts on the vacancy are here, here, and here.

Justice Graves is very deserving and will do a fine job on the Fifth Circuit. He was a great Circuit Court judge who earned the respect of lawyers on the plaintiff and defense side. Watching hearings before Judge Graves was entertaining. He told many lawyers that they were winning based on their brief—but were losing the lead in oral argument. It was always interesting to see who had the sense to sit down and shut up. He had little tolerance for bad cases and unprepared attorneys.

Graves was also extremely effective and under rated in getting cases settled. He could scare both sides into settling. Judge Charles Pickering was the only judge that I have encountered who was as effective at pressuring the parties into settlement.

Some may disagree, but I view Justice Graves as a moderate in civil cases on the Mississippi Supreme Court. Sometimes he votes for the plaintiff, sometimes for the defense. I expect that to continue on the Fifth Circuit.

On Monday I will look to how Justice Graves' appointment may impact the dynamics on the Mississippi Supreme Court and speculate on possible appointments for the seat by Governor Barbour.

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On Friday the Fifth Circuit Court of Appeals did about the most bizarre thing that I can recall an appellate court ever doing in the Comer v. Murphy Oil case: dismissed an appeal without deciding it because it did not have a quorum to decide the case. Needless to say, it's caused a huge stir that you can read about at NMC, Anderson Blogs, and Consumer Class Action and Mass Torts, among other places.

The case at issue was the novel case where plaintiffs sued oil companies for causing climate change that makes hurricanes—specifically, Katrina—worse. We can debate the plaintiff's causation theory another day. The important point is that the Fifth Circuit couldn't get a quorum to decide the case, presumably because the justices owned stock in the defendant companies, which included BP and other major oil companies. So the Court punted the case without deciding the appeal even though the issues were ripe for determination. I honestly did not know that was an option.

Oops. Looks like President Obama should have been in a bigger hurry in getting Justice Graves confirmed to fill Judge Barksdale's seat on the Fifth.

It is almost guaranteed that the Gulf Oil Spill litigation will involve multiple appeals from the district courts to the court of appeals. But for the cases in the Fifth Circuit, there is an apparent likelihood that the appeals court will be unwilling unable to hear the appeal. This litigation is going to need an appellate court that has the guts “quorum” to decide the issues. In short, the litigation needs to be somewhere where the appellate court can hear the case. That's somewhere other than the Fifth Circuit.

This means that the MDL should not be located in the states that comprise the Fifth Circuit: Texas, Louisiana and Mississippi. How big of an advantage would it be for the oil companies to get the MDL in front of a hand-picked judge in Houston with no appellate court in play? Too big.

The MDL panel needs to think about this and locate the MDL in another circuit. For instance, in the Eleventh Circuit, which includes Alabama and Florida. Or even in a court located on the other side of the county where there is a district judge and appellate court that can hear the case.  

Incidentally, while I do not always agree with every decision by the Mississippi Supreme Court, I cannot imagine our justices doing what the Fifth Circuit did in Comer v. Murphy Oil.

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It has been five months since 5^th Circuit Judge Rhesa Barksdale announced that he was taking senior status, giving President Obama a slot to fill on the 5^th Circuit Court of Appeals. After initial speculation that the position would be filled by someone from Texas or Louisiana, word leaked that the President would fill the position with an African-American Mississippian.

Mississippi Supreme Court Justice James Graves immediately emerged as the favorite for the nomination, as discussed in this post. Other names mentioned for the nomination at one time or another in legal circles include:  

1. Hinds County Circuit Court Judge Winston Kidd,
2. Hinds County Chancery Court Judge Denise Owens,
3. former Hinds County Circuit Court Judge Robert Gibbs,
4. Jackson attorney Doug Minor,
5. Assistant U.S. Attorney Felicia Adams,  
6. Circuit Court Judge Margaret Carey-McRae,
7. Jackson attorney Walter Johnson, and
8. Jackson attorney and presumptive District Court nominee Carlton Reeves.

I believe that the White House has interviewed at least several people on this list.

Speculation continues to center on Justice Graves as the front-runner for the nomination. He is the only person on  the list with appellate court experience, in addition to previously serving as a trial judge in Hinds County Circuit Court. Justice Graves is rumored to have the support of individual(s) with close ties to the White House Counsel’s Office.

Although Justice Graves may not have universal support in conservative circles, he is rumored to have the tacit approval of Governor Haley Barbour, who would like to appoint an African-American to the Mississippi Supreme Court to strengthen his 2012 presidential bid. Governor Barbour is effectively running for President now, which should be kept in mind when viewing his political moves.

One thing the Governor needs to do before the official campaign starts is to repair his glaring deficiency in appointing minorities to judge positions, as discussed here and here. Since criticism of Barbour ‘s minority appointment record became public last year he quietly appointed several African-American judges, including appointing Macolm Harrison to fill the seat of Bobby DeLaughter. If Justice Graves is confirmed for the 5^th Circuit, Governor Barbour will get to name his replacement on the Mississippi Supreme Court. Appointing an African-American to the Supreme Court would go a long way to blunt the criticism of Barbour’s record on minority appointments.

One thing that appears certain is that the White House better get moving if it intends to fill Judge Barksdale’s seat. There is less than two years until the Iowa caucuses. But the 2012 presidential race will kick off a year before that—meaning that we are less than a year from formal announcements from Republican presidential candidates. Doesn’t that sound like fun? Presidential election campaigning less than a year away?

Once the presidential election cycle begins confirmation of judicial nominees in the Senate takes a back-seat to campaigning and political gamesmanship. At some point, the Republicans will stall votes on all nominees in hopes of regaining the White House. Look for that point to be at least a year before the election in 2012. 

This means that the clock is ticking for President Obama to fill federal court vacancies. And with Supreme Court Justices Stephens and Ginsberg expected to step down this year or next year at the latest, the White House will focus on filling those vacancies. 

President Obama needs to nominate someone for the 5^th Circuit soon and press for a Senate vote this year. Failure to do so could result in a lost opportunity to add diversity to the Court and would be a black-eye for the Obama administration. It has been known for close to a year that Judge Barksdale would be taking senior status and he made his formal announcement in September. It's inexcusable that it has taken the White House this long to name a replacement--and we're still waiting.

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In this October post, I discussed the vacant 5^th Circuit Court of Appeals slot and mentioned Justice James Graves as a candidate to fill the position. Since then, President Obama’s administration has moved at its typical slow pace in filling the position. With the President’s White House Counsel leaving the administration at the end of the year, it appears unlikely that the announcement of a nominee is imminent.

It’s my understanding that Justice Graves remains on a growing list of candidates. Other names mentioned as candidates, in no particular order, include:

1. Hinds County Circuit Court Judge Winston Kidd,
2. Hinds County Chancery Court Judge Denise Owens,
3. former Hinds County Circuit Court Judge Robert Gibbs,
4. Jackson attorney Doug Minor,
5. Assistant U.S. Attorney Felicia Adams, and 
6. Circuit Court Judge Margaret Carey-McRae.

It sounds like Judge Winston Kidd is Congressman Bennie Thompson’s candidate. But each of the other candidates have their own supporters in political circles or the bar. I have not heard of Congressmen Gene Taylor or Travis Childers supporting a candidate. Taylor is known to stay out of appointment debates. Childers is rumored to have focused on pushing for Oxford attorney Christi McCoy to be named U.S. Attorney for the Northern District. But McCoy is unlikely to get the nod.

It is believed that some of the 5^th Circuit candidates have been interviewed over the phone by the White House.  

A huge question is when will the White House make an announcement. To see how long this could go on, look at the vacant U.S. District Court seat that has long been presumed to be going to Jackson attorney Carlton Reeves. The seat has been vacant for years and Reeves has been the only known candidate since Obama’s election more than a year ago. But the White House has yet to make an announcement and appears to be in no hurry to make an appointment.

If the White House follows a similar pace with the 5^th Circuit nominee, we will be still be talking about this vacancy this Summer, and perhaps later.

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NMC and Will Bardwell are stating that with today’s 5^th Circuit partial reversal of Paul Minor’s conviction, the remaining portion of the conviction may hinge on the honest services fraud conviction. Here is what the WSJ Blog said about honest services fraud earlier this week:

The days of the honest services fraud law — for years a go-to statute for federal prosecutors — appear likely to be numbered.

The Supreme Court on Tuesday expressed deep skepticism about the law, suggesting it was too vague to be constitutional.

and:

Justices across the court’s ideological spectrum seemed in agreement that the concept of honest-services fraud was so broad as to sweep almost any white lie or self-serving act into the purview of prosecutors.

and:

And if the law is struck down in full? Expect defendants convicted under the law to rush the courthouse door. Striking down the honest-services crime would trigger “an earthquake within the criminal justice community,” said David Seide, a former federal prosecutor now with Curtis Mallet-Prevost Colt & Mosle LLP in Washington. Defendants convicted under the statute “will be able to say their convictions need to be reversed,” he said.

The 5^th Circuit remanded Minor’s case for re-sentencing by Judge Wingate. With a possible over-turning of honest services fraud law before the Supreme Court, Paul Minor could soon be walking out of prison or the courthouse.

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There is a rare opening on the 5th Circuit Court of Appeals with Judge Rhesa Barksdale taking senior status. President Obama will appoint someone to fill the seat. For a while it sounded like the appointment would go to someone from Louisiana. Later, I heard that Texas, Mississippi and Louisiana all had a shot at the seat.

I am now hearing that the White House is seriously looking at several candidates from Mississippi. The most prominent name that I am hearing as a candidate is Mississippi Supreme Court Justice James Graves. Justice Graves is qualified with eight years on the Supreme Court and experience as a trial judge before that.

You would expect there to be many people maneuvering to influence who gets this major appointment. A lot will depend on what the White House is looking for in court of appeals judges. If it is looking for someone in their fifties, then it will be tough to beat Justice Graves. President Bush often opted to fill appointments with young people who would likely hold the position for thirty years or more. Examples include Judge Sul Ozerden and Judge Dan Jordan. We do not know enough about President Obama yet to conclude if he will follow a similar strategy. All we really know is that Obama is moving slowly at making Mississippi appointments such as U.S. Attorneys, Marshals and Judge Barbour's District Judge seat.

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A few weeks ago in this post I speculated that 5th Circuit Court of Appeals Judge Rhesa Barksdale would soon take senior status. The Clarion-Ledger confirmed the news in this article today. Judge Barksdale will continue to work, but will hear a reduced case load.

This creates an opening on the 5th Circuit. Currently on the 5th Circuit from Mississippi are Barksdale, Judge Grady Jolly and Judge Leslie Southwick. Since all three are conservative, the vacancy gives President Obama the chance to appoint the only non-conservative Mississippian on the 5th Circuit. But I am hearing that a Mississippian may not get the slot at all with it instead going to someone from Louisiana. I hope that is not the case.

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The AmLaw Litigation Daily has this report on the 5th Circuit Court of Appeals affirming a $21.6 million jury verdict against an insurance company in a Katrina-related bad faith case. The Court added an extra million for bad faith. The Plaintiff was a New Orleans grocer. The damages appeared to be mainly economic for loss of business income. The Plaintiff's lawyer was Philip Franco of Adams and Reese. It's gotta be the name. The Defendant was United Fire & Casualty Insurance Co. The story states:

Franco told us that his first witness was an insurance adjustor who initially reported to United Fire & Casualty that storm damage to the roofs of Robért's grocery stores allowed in rain and wind, destroying merchandise and forcing stores to close for repairs. Franco said the adjustor testified that United Fire & Casualty pressured him to change his report in a way that favored the company and then terminated him after he did.

This goes to show that there are huge verdicts out there with the right case, no matter how conservative the jurisdiction or court. Congratulations to Philip Franco, his litigation team (I'm sure he had a lot of help) and his client. A lot of people impacted by Katrina were pulling for you.

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Over at Law.com there is a story about the 5th Circuit's opinion in Citigroup v. Bacon that rules that manifest disregard of the law by arbitrators is not a grounds for vacating an arbitrator's award. Or as they put it:

Abandon all hope, ye who seek to overturn an arbitration award, because the 5th U.S. Circuit Court of Appeals has ruled that manifest disregard of the law by arbitrators is no longer a ground for vacatur under the Federal Arbitration Act.

This is an issue where there is a split among the circuits and we need an opinion from the Supreme Court. I disagree with the following quote near the end of the article:

"I think at some point parties aren't going to enter into a process if there is really no reasonable basis for ensuring that the case is going to be based upon the law," Wade says. "There are broad policy reasons for favoring arbitration....

The person who issued this quote is a former Texas state judge who is now in private practice and plans to obtain work as an arbitrator. Arbitration is good for his business so he's a big fan of it. 

My big problem with arbitration is not that the arbitrators are unfair. The biggest problem is that the case must be big enough to justify the tremendous expense burden that arbitration imposes on the parties.  This makes the so called policy reasons favoring arbitration a disingenuous farce. Arbitration is significantly more expensive than a court case because the parties have to pay the arbitrators and the arbitration forum for "administrating" the case. These are huge expenses. In addition, arbitration proceedings are not any more efficient or faster to resolve than a court case. In particular, federal court, with its mandatory scheduling orders, is usually faster and cheaper than arbitration.

Because of the high arbitration fees and expenses, genuine disputes that involve a small dollar claim cannot be effectively resolved in arbitration. It's about impossible for a lawyer to take a case on a contingency where the amount of the dispute is less than $50,000 and there is a binding arbitration provision. Disputes like these are effectively resolved on a daily basis in Mississippi state courts because it costs around a hundred bucks to file a lawsuit and the parties do not pay the court to rule on the case.

But these are not the only problems with arbitration. Arbitration forums such as the American Arbitration Association (AAA) and National Arbitration Forum (NAF) are bad at administrating cases. It is not unusual for the parties' attorneys to cut the forums out and administrate the cases themselves to save the headache of dealing with an incompetent forum. The NAF once told me that they were closing for the Summer. It ignored repeated requests from me for details on their Summer break. 

My understanding of arbitration is that its origins are from construction litigation and other areas where technical expertise by the decision maker is arguably helpful in resolving cases. I can see that logic. But the practice of jamming arbitration agreements into all sorts of consumer agreements should be banned by Congress. Arbitration agreements in everything from nursing home admission agreements to loan contracts exist for one reason: to discourage lawsuits against against business interests and protect them from the jury system.

I believe that we are in the heyday of arbitration and do not believe that society will tolerate mandatory arbitration in consumer agreements for much longer. More decisions like Citgroup v. Bacon that leave the party that required arbitration complaining about its unfairness can only speed the elimination of mandatory arbitration. Ironically, a decision that supports arbitration could hasten its legislative elimination.