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

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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.