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

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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 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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Gov. Barbour appointed Chancellor Gene Fair of Hattiesburg to the Mississippi Court of Appeals on Wednesday to fill the term of the retiring Judge William Meyers. Here is the Clarion-Ledger article on the appointment. Judge Fair has served as a chancellor since 2007 of the district that covers Forrest, Lamar, Marion, Pearl River and Perry counties.

I have not appeared before Judge Fair and do not know him. But for some reason, he sounds fair.   

I strongly favor former chancellors holding some of the seats on the Court of Appeals and Supreme Court. Chancery court law is often a lot different from Circuit Court law—as I am often reminded when I have to venture into chancery court.

It makes sense to have former chancellors on the appellate courts. I have heard numerous lawyers express similar sentiments over the years. 

And how can you do better than a judge named Fair? If I were him, my campaign slogan would be: "Keep it Fair." 

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Governor Barbour's PERS Study Commission released its report yesterday. JJ has the video and data helpful to analyzing the situation. There is also commentary at Cottonmouth and Ya'll Politics.

Although I often disagree with the commentary at Ya'll Politics, this statement is dead on:

What the Legislature will do with these recommendations is anyone's guess. But burying our heads in the sand isn't the answer; we must begin to eat this elephant and find a way out of our current situation.

The solution is definitely not to kick the can down the road for 5 years as suggested by Democratic Senator Hob Bryan. That would be a weak self-serving move that would make the problem worse in the long run.

Fact is, the PERS Commission's recommendations don't go far enough. There will always be shortfalls as long as the underlying investment returns assumption is inflated and unrealistic. The current assumption is 8%. The commission recommends reducing the assumption to 7.5%. Problem is, the actual average return for the last 10 years was 5.41%—still 2% lower than the recommended assumption.

Who really believes that the stock market it going to perform much better over the next 10 years than it did over the last 10 years? Hell, it could even perform worse. In 2001 the world was not confronting a spreading sovereign debt crisis that will force governments world wide to cut spending. 

The world in 2001 was also not confronting the current oil supply crunch where every time it looks like the economy gets going, oil prices spike causing the economy to stall. There is no solution to the oil supply crunch because demand is increasing in emerging economies as fewer countries export oil because of increased domestic consumption and the depletion of existing oil fields.    

This is a “Houston, we have a problem” moment in the world, U.S. and Mississippi. Ignoring the problem is not the answer. Does it suck for PERS participants? Absolutely. Is it unfair? You bet. But cuts are going to have to be made. And the sooner they start cutting, the smaller the cuts will have to be.

Now is the time for leadership among Mississippi politicians—particularly Republicans since they are in control. Will they step up and make hard decisions on tough issues like PERS? Or will they pander to the far right and pass embarrassing legislation on social issues and pass laws to help CEO's? We're about to find out.

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Kingfish with Jackson Jambalaya dropped another PERS bombshell yesterday in this post. JJ links the latest PERS actuary report, which states that PERS' funding level has dropped to 62.2%. The post includes a lot of relevant data regarding PERS. 

I found these figures to be particularly frightening:

Asset allocations:
47.8% in US equities
25.4% in debt securities
4.6% in real estate
19.5% in non-US equities

That is a very aggressive asset allocation, with almost 70% invested in stocks and only 25% invested in bonds (I am assuming that “debt securities” are bonds). Having 70% invested in the stock market is great in years where the market rises dramatically. But in bad years—years like 2008 (-8.2%) and 2009 (-19.4%)–-investment performance gets killed.

More importantly, the growing global sovereign debt crisis means that future growth of the world economy—and the stock market that follows the economy up and down—is far from a sure thing. The world borrowed its way into the current debt crisis. The bill is now due in Europe and will be due here in the U.S. soon. That means more bad years in the stock market and fewer great years. And the great years the market does have will likely be on the heels of a horrendous year.   

The bottom line on this is that Mississippi is playing Russian Roulette with the stock market. Russian Roulette is dangerous. Currently, PERS is dangerous. 

I previously wrote here and here that the PERS 8% investment assumption is not realistic. A passage from the Chris Martenson book The Crash Course explains why unrealistic investment assumptions are so dangerous:

State and municipal pensions are in horrible shape, and in 2010 were found to be underfunded by $3 trillion and more than $500 billion, respectively. This happened for two reason. First, various governmental administrations regularly made the decision to defer funding of these promises until some later date….Second, the plan administrators were allowed to make absurd projections of future rates of return sometimes as high as 11 percent per year. These were clearly not achievable, yet the assumptions remained in place. The attractiveness of this practice is that the higher the assumed rate of return, the less money had to be placed into the account.

*****

The problem with using such wrong assumptions is that instead of working for you, compounding works against you. Even a slight miss in returns a few years back will mushroom into a very large future shortfall. That's just how compounding works, and that's exactly where hundreds of underfunded pension plans now find themselves.

Mississippi is one of those pension plans. This is something that will have huge and profound ramifications in our State in the coming years. One day soon this will be the biggest news story in Mississippi.

State political leaders are going to have to deal with the problem—and the sooner the better. They don't want to because there are only two solutions, both of which will make people mad: (1) require higher contributions from participants; and (2) reduce benefits. That sucks, but that's how it is. The Republican leadership needs to step up and start dealing with this problem in January. The longer they wait the greater the political backlash will be when PERS blows up.  

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Former Mississippi Governor Bill Waller, Sr. died on Wednesday at the age of 85. Gov. Waller served as governor from 1972 to 1976. There was a 1–term limit at the time.

In the 1960's Gov. Waller served as Hinds County District Attorney and twice tried Byron De La Beckwith for the murder of Medgar Evers. Both trials ended in mistrials. It was impossible to convict a white man for murdering a back man in Mississippi at that time, but credit Waller for trying.

I knew Gov. Waller not as a politician (I was 5 when he was elected and 20 when he last ran for office in 1987), but as a fellow lawyer. I had the pleasure of working with Gov. Waller over the last few years in a case where he represented the plaintiffs and I represented one of the defendants. We developed a good working relationship in the case and I always enjoyed talking to him. The best word that I can use to describe Gov. Waller as a lawyer is that he was a character.

As a lawyer, Gov. Waller was a character in a way that no one in my generation is or can be. There was simply no telling what he would say or do in the case. Once while his client was being deposed by a very young co-defense lawyer, Gov. Waller kept entering and leaving the conference room while the deposition proceeded in his absence. 

At one point the lawyer taking the deposition started asking questions that Gov. Waller took issue with. Now keep in mind that Gov. Waller had not opened his mouth once in the deposition and had been in and out of the room. So did he “object to the form”? Not hardly. He loudly asked “what in the hell does that have to do with anything?” The stunned lawyer tried to explain, at which point Gov. Waller made his point even more forcefully. It was classic.

At another point in the case I was trying to broker a settlement. Things broke down when Gov. Waller increased his demand. By a lot. Frustration abounded on the defense side, since we were willing to pay the earlier demand. But Gov. Waller didn't care. He insisted on the higher amount. And guess what? He got it. Every penny of it. I greatly admired the tenacity even while it was making my job hell in trying to get the case settled.

Gov. Waller's personality was a gift. The more I dealt with him, the more I understood why he was a successful politician. He had one of those endearing personalities that no matter what he did, it made you like him even more. That is a super-rare trait. He was a true character who was one of my all-time favorites in opposing counsel.       

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To hear Republicans tell it, Attorney General Jim Hood (pictured) won re-election due to unprecedented support in North Mississippi. Here is an article on the race on LegalNewsline.com, an anti-consumer site funded by Big Corporations.

The article quotes a baffled Rep. Philip Gunn, who will be the Speaker of the House in January:

So how did Hood hang on to his position as the state's top lawyer?

"I really don't know what people were thinking," Gunn said. "I don't know why they would vote for him, to be honest."

Gunn, who was selected as the GOP's preferred candidate for House speaker on Monday, said some of it probably comes down to location.

"Jim Hood has been a very popular candidate in the state," he admitted. In 2007, Hood easily defeated Republican Al Hopkins.

"But you have to know the dynamics," Gunn said.

Northeast Mississippi traditionally has been a Democratic stronghold, he explained.

"And that's kind of his home base," Gunn said. "He has a lot of popularity there. The Northwest also is a solid Democratic base.

"Basically, in northern Mississippi he has home-field advantage."

My Take:

The A.P. website shows vote results by county. General Hood “hung on” with a 180,000 vote win—61% of all votes. Hood “hung on” by taking 77 of 82 counties, including Steve Simpson's home county (Harrison). Hood almost won Rankin County, losing it 51–49. If not for that pesky South Mississippi County of DeSoto (located just south of Memphis), Hood basically would have pitched a shut out. Hood's appeal was state-wide and he did not win because of a landslide in North Mississippi. It was a state-wide landslide.

And let's be honest, Steve Simpson is probably asking where Philip Gunn was before the election. I did not get the impression that state Republican leaders were lining up to stand in front of the Hood Train during the campaign.  

General Hood stands up for regular people against big corporations. He banged on insurance companies after Katrina and BP after the Gulf Oil Spill. His office goes after perverts trying to commit cyber-crimes against children and people exploiting the elderly. Every day folks appreciate that about Hood. But Republicans politicians hate Hood for it because they have to listen to their big corporation supporters whine about Hood.

Look for the Republican war on Jim Hood to now shift to the legislature. Republicans want to either stop the State actions against big corporations that Hood has championed or prevent Hood from hiring the outside lawyers who take the cases. Republican Legislators would rather assign the cases to their supporters.

Republicans believe that if they can cut-off Hood's power to hire outside counsel, then they can cut-off his campaign contributions and Republicans can take the A.G. position. That may have been the case 4 years ago, but at this point Hood is a force who will stay in the A.G. position for as long as he wants.    

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The Clarion-Ledger reports that Mississippi Supreme Court Presiding Justice George Carlson will retire at the end of his current term. The term runs through 2012. Chief Justice Waller spoke glowingly of Justice Carlson:

Chief Justice Bill Waller Jr. called Carlson “a tireless public servant whose life is characterized by hard work, attention to detail, fairness and collegiality.  

“No one worked longer hours or paid more attention to the work of the Court than Justice Carlson,” Waller said in the news release. “Above all, he demonstrates the highest ethical standards possible in his public and personal life. No person has positively shaped the image of the Court in the past 10 years more than Presiding Justice Carlson.”

Justice Carlson will have served on the bench for 30 years at his retirement (19 as circuit judge, 11 on Supreme Court).

My Take:

I heard a few weeks ago that Justice Carlson might retire, but was not going to blog about it until there was an official announcement. I probably shouldn't discuss Justice Carlson's legacy on the Court until his actual retirement date, since he will still be a justice for another year and I may have cases before the Court during that time period.

The timing of Justice Carlson's announcement and the fact that he will serve out the remainder of his term are classy moves. If Justice Carlson retired immediately, then whoever Governor Barbour (or Bryant) appointed to replace him would have a huge advantage in the election for the position. But now the candidates will be on a level playing as far as a perception of incumbency.

It will be interesting to see who throws their hat in the ring for the seat.    

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There was a lot of speculation in the comments to my Doomsday Post last week that the Republican controlled government in Mississippi will push for the Legislature to enact “loser pays” laws similar to what Texas recently enacted. Here is a link to an article in Inside Counsel Magazine that discusses the Texas “loser pays” law.

The article states:

The most significant feature of the 2011 Omnibus Tort Reform Bill is a modified loser-pays proposition that shifts fees to the loser when a case is disposed of on a motion to dismiss. While Perry has publicly touted the law as a landmark reform that will attract businesses to the state and allow employers “to spend less time in court and more time creating jobs,” the statute may prove to be a mixed blessing, and it certainly won’t deliver a deathblow to the plaintiffs bar.

I did not know that before this law, Texas did not have provisions that allow defendants to file a motion to dismiss that challenges the legal sufficiency of the allegations in the complaint:

Prior to passage of the latest tort reform bill, Texas was one of only eight states that didn’t permit parties to file motions to dismiss, which challenge the legal sufficiency of the allegations in the complaint. Not only does the new law create a motion-to-dismiss procedure, but it also makes it mandatory that the loser pays the winner’s fees for litigation of the motion. This has two advantages for businesses—courts can quickly dispose of meritless lawsuits prior to costly discovery, and a company can force the plaintiff who filed the case to foot the bill for the motion.

But the Texas “loser pays” provision goes both ways:

The flip side is that the loser-pays provision goes both ways. If a defendant files a motion to dismiss on which the plaintiff ultimately prevails, the defendant will be paying plaintiffs counsel’s bills. Many think the provision ultimately favors the plaintiffs bar.

The Texas provision also affects offers of judgment:

Finally, the reform attempts to encourage both sides of a dispute to settle cases before trial by clarifying the rules for making an offer of judgment. Similar to Federal Rule of Civil Procedure 68, the Texas law permits a party to protect itself from incurring additional legal fees early on by making a reasonable settlement offer or demand.

Under the new rule, if a plaintiff obtains a jury verdict of 80 percent or less of the settlement offer made by the defendant prior to trial, the defendant is entitled to its legal fees incurred after the date of the settlement offer, up to the total amount of the verdict. Likewise, if the plaintiff obtains a verdict of 120 percent or more than his settlement demand, the plaintiff is entitled to recover fees incurred after the demand was made. The statute also permits the prevailing party to recover costs associated with taking depositions, such as court reporter fees.

My Take:

I haven't formed an opinion yet on the offer of judgment aspect of the Texas rule. But how in the name of God's green earth could a state not have a rule that allowed a defendant to file a motion to dismiss? That's about as screwed up feature of litigation as I have ever heard. An early motion to dismiss allows a defendant to obtain dismissal in a case that does not state a viable claim. You've got to have that rule in the books.

In my opinion, this provision in the Texas form of “loser pays” would not hurt good plaintiff lawyers and their clients, so long as it does not change the legal standards for deciding a motion to dismiss. That standard is that the court must assume that all allegations in the complaint are true. Good plaintiff lawyers will hardly ever—if ever—lose a motion to dismiss with that standard.   

If I am on the defense side of a case, I do not want this law on the books. If I am defending a case I want to be able to file a motion to dismiss without having to pay attorney's fees to the plaintiff lawyer if I lose.

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The WSJ reported this morning on the SEC investigating the compensation of executives of oil-driller Nabors Industries, including CEO Eugen Isenberg. Nabors is about to pay Isenberg $100 million to leave the company. The Journal reports that Nabors executives frequently used corporate jets to fly to resort destinations for the wealthy, such as Palm Beach and Martha's Vineyard.

I know what you're thinking: "this does not affect me.” That's where you are wrong. The systemic reallocation of wealth from the middle class to top executives affects virtually all Americans.

Take Nabors, for example. While Nabors executives empty the corporate vault into their own pockets, the company pays 0 to shareholders in the form of a dividend. Don't think you own shares in Nabors? Think again. If you have a 401k, you probably are invested in a mutual fund that owns shares in Nabors.

Participate in PERS? Same goes for you. As PERS flounders and lawmakers begin to confront projected short-falls, corporations sitting on piles of cash pay hundreds of millions to top executives and little or nothing to shareholders in dividends. If corporations increased dividend payouts by just 2%, PERS would be on much safer footing.

But top executives are not thinking about how to get money to shareholders. They are focused on getting the money into their own pockets. At your expense. And these guys absolutely control the Richublican (Republican) party by making massive contributions to Republican candidates and PAC's. Contributions paid for by the corporation. Shareholders' money being used to ensure that America's top-level graft can continue unabated.

You may think you fit into the Richublican world. But you don't. They let you think you do. You don't. Do you have a mansion in Palm Beach, homes in Martha's Vineyard and Aspen and an apartment in Manhattan? No you don't. These guys view people who make $500,000 a year as lower middle class. And they're coming for everyone. Yes, that means you doctors. How's it going to feel when Medicare and Medicaid get massive cuts to free up even more cash for the CEO elite?  

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Ya'll Politics is reporting that in yesterday's election Republicans won enough House of Representative races to take the majority in the House. Republicans now control both chambers of the state legislature and the executive branch. This is the realization of the doomsday scenario for Mississippi lawyers that I wrote about in August in this post.

On one hand I have to tip my hat to Republican politicians, who flat-out play the political game better than Democrats. But the results give me a sick feeling in the pit of my stomach. So much so that I am not going to write much about what this means until I am less upset. 

Suffice it to say that more tort reform is likely on the way that will make the 2002 and 2004 reforms look pro-plaintiff. When that happens, many people working in the legal industry in Mississippi will lose their jobs. I'll write more about who and why later. But when some of you who are reading this get laid off in 3 years, you should point back to this election as the cause.

If you are a lawyer working for a firm and your work load is currently low, then you probably will not have a job with your firm in 5 years. Good luck getting a job somewhere else or convincing the bank to loan you the money to start your own practice. 

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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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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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There has been a lot of press lately about Mississippi's Public Employees Retirement System (PERS) and the stability of the program. Governor Barbour appointed a special commission to study the system. Here is a recent Clarion-Ledger article on the topic.

Much of the focus—and pretty much all of the Clarion-Ledger's focus—has been on the future stability of the “13th check”, which provides an extra check at the end of the year for a cost of living increase in retirement benefits.

Ted Carter with the Mississippi Business Journal's report on the issue focused on the question of whether the PERS assumed rate of investment return is sustainable. I believe that Carter's focus is correct and the investment return issue is the 600–pound gorilla with PERS—not the 13th check. MBJ's article states:  

The study commission has hired GRS Actuarial and Consulting Services of Southfield, Mich., to help with the panel’s audit recommendations and other proposals.

Schloegel said GRS and the panel will scrutinize PERS projections that the system can maintain returns of 8 percent on investments. “We want to know whether that needs to be looked at and challenged,” he said.

Tim Medley, a speaker and principal of Jackson financial advisory firm Medley & Brown, said 8 percent is “ambitious.”

The PERS Trust, the system’s policy board, should have more investment specialists serving on it and PERS itself should have at least “10” investment analysts rather than the single one it now has, Medley said.

Medley was being nice calling the 8% investment assumption ambitious. A more appropriate term would involve profanity, so I'll call it hog-wash.

Presumably, money paid into PERS by participants is invested in a combination of stocks and bonds. Care to take a guess on the average return of the S&P 500 for January 1, 2000 through December 31, 2010? 2.4%. In fact, the S&P today is at 1162, a level hit first it in 1998. Think about that. $1,000 invested in an S&P index fund in 1998 is now worth....$1,000.  

Stock market returns are fueled by economic growth. If the economy is growing at all—which is up for debate—it's not by much. And experts predict anemic economic growth could be with us for another decade as we recover from the 2008 financial crisis.

What about bonds? The Vanguard Total Bond Market ETF currently yields 3.2%. That number is not going up unless interest rates rise. But the Fed just committed to another 2 years of interest rates close to zero. You simply can't find consistent returns of 8% in this market. Historical returns are just that--historical.

How big of an impact does this have on the PERS system? Here is an example. A $1 million account earning 8% for 11 years will grow to $2,331,639. But if the account earns 2.4%, the total after 11 years is only $1,298,074. That's a difference of $1,033,565. I used the calculator at this website to reach these figures.

What's the bottom line? PERS is not sustainable at current levels unless there is a dramatic rise in interest rates or a huge turn around in the economy. Personally, I don't see either happening in the foreseeable future.

That means Mississippi would have to make up the short-fall by allocating money from the State budget to PERS or cutting benefits. Most likely, there will be a combination of both. This should scare state employees, including those in working in the the judicial system.  

But don't blame Governor Barbour or the special commission chair George Schloegel, Mayor of Gulfport. Barbour should get credit for not sticking his head on the sand on this issue and Schloegel is a good choice to chair the commission. Schloegel is the former president of Hancock Bank, which did not have to take TARP bailout money from the government in the 2008 financial crisis. By comparison, Trustmark took $215 million and paid it back. Regions took $3.5 billion and hasn't paid it back.     

Mississippi's pre-paid college tuition program has a similar problem, as I discussed in this post.  

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I missed it. The Supreme Court issued an Order last week in the Sears v. Learmonth case where the Court is to decide whether Mississippi's cap on non-economic damages is constitutional. Here is the Court's September 15, 2011 Order.

The Order states that the Court is hung up on the fact that the verdict form did not separate economic and non-economic damages. The parties stipulated that the amount of non-economic damages was $2,218,905. The Order asks the parties to address:

 "what fact(s) and/or legal authority exist for this Court to accept a stipulation regarding the amount of noneconomic damages found by the jury?"

Here is the final judgement in the District Court. It does not separate the damages.

This case came to the Court via certification on the caps issue from the 5th Circuit Court of Appeals.

Justice Michael Randolph issued the Court's Order.

My Take:

Sears' reply brief is due November 28, 2011; several weeks after the November elections. Coincidence? Maybe. Maybe not.

But cynics should keep in mind that this is not the first time that the Court has focused on this specific issue. The Court mentioned that economic and non-economic damages should be separated on the verdict form in the InTown Suites decision that I wrote about in June here. In that case, the Court ruled that the defendant could not challenge the amount of non-economic damages on appeal because the verdict form did not separate economic and non-economic damages.

In this case, the record does not contain a verdict form that separates economic and non-economic damages. Under the InTown Suites case, the verdict should be affirmed without reaching the caps question. Except the parties stipulated the amount of damages that were economic and non-economic. That was a bad stipulation for somebody. I can't decide who.

 The Court's request for more briefing on the stipulation makes sense based on the InTown Suites decision. This is all very interesting.

It would be funny if the Court answers the 5th Circuit's certification question by stating that the Court finds that under Mississippi law, the amount of non-economic damages can't be challenged when the verdict form does not separate economic and non-economic damages. Instead of answering the 5th Circuits question, the Court would answer its own question. Possible? Maybe.  

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Last week the Mississippi Supreme Court issued decisions in two cases that will allow voters in the November elections to decide issues related to abortions and eminent domain.The Court basically punted on the substantive issues and decided the cases on procedural grounds.

In Hughes v. Hoseman the plaintiffs challenged Measure 26, which asks voters to decide whether life begins at conception. Cliff Johnson and Rob McDuff of North Congress Street in Jackson represented the plaintiffs.

Here is the Court's 7–2 opinion. Justice Pierce wrote the majority opinion. Here is a CNN article on the case.

The Court determined that the dispute is not ripe for adjudication, since the amendment has not passed yet. The decision contradicts a 2000 Miss. Supreme Court decision that ruled that the Court does have the authority to review the constitutionality of proposed initiatives. Neither side raised the ripeness issue.

In Speed v. Hoseman, the plaintiff challenged the State's ability to take and transfer private property through eminent domain. Here is the Court's 7–2 opinion. Justice Lamar wrote the majority opinion. As in the personhood case, the Court dismissed the case on ripeness grounds.

My Take:

I thought David Hampton's analysis in the Clarion-Ledger was good:

It is disappointing that the state Supreme Court is allowing the referendums on eminent domain and the so-called "personhood" amendments to proceed on the Nov. 8 ballot. There clearly are legal issues with both, but the court basically punted and said the election should be held before any further consideration. The court said it was not known if the amendments would be rejected, so it would be premature. News flash.  As flawed and potentially harmful as both of these amendments are, they will be overwhelmingly approved. The move to restrict eminent domain appeals, wrongly so, to property rights beliefs and the personhood amendment is a thinly veiled referendum on abortion. They have strong public support. They, along with the initiative to require voter ID, however, mostly are politically motivated efforts to appeal to voters passionate about those issues and bring voter turnout, which Republicans see as beneficial to the GOP. The Supreme Court will be seeing these again. The fact that we have an elected Supreme Court most likely played a role here. It would have been very politically unpopular for the judges to block the election. That's too bad. These initiatives should not be on the ballot.

In all likelihood, the Court's decision simply delays its having to rule on these politically sensitive issues. I prefer an appointed judiciary so that observers don't view “an elected Supreme Court” as being a factor in decisions.

Finally, these opinions are more evidence that the principle of stare decisis is not strong in Mississippi—at least not currently.

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Mississippi had two big wins recently in civil litigation headed by Attorney General Jim Hood.

Mississippi Recover $8.1 Million in Tobacco Litigation

A couple of weeks ago, Jackson County Chancery Judge Jaye Bradley ordered R.J. Reynolds to pay the State over $8.1 million based on the company under paying the State in money owed from the 1997 tobacco settlement. Here is the Clarion-Ledger article on the State's win.   

Can you believe it? A tobacco company lied about cigarettes. What's the world coming to?

 Meanwhile, General Hood's opponent in the November A.G. election criticizes Hood's use of out-of-state lawyers in A.G. litigation:

His opponent in this fall's election, Steve Simpson, has criticized Hood for selecting law firms to represent the state without independent oversight.

"If elected, I will ask the Legislature to establish a procedure to review the reasonableness of the contingency fees after an application by the law firm," Simpson said in a statement. "I believe that our law firms in Mississippi are some of the best in the country and will ask that these firms be given preferential treatment when outside counsel is required."

So who were these lawyers who Hood hired for the recent tobacco litigation? The Ledger reports:

The state's legal team was headed by Lee Young, who worked on the original tobacco settlement, Hood said.

So where is this “Lee Young” from? Oh, Pascagoula. Granted that's in Mississippi, but barely.

Assisting Young on the tobacco case were Matthew Mestayer of Biloxi and Charles Mikhail of Moss Point.

Mississippi Recovers $38 Million in Drug Litigation

Wednesday's Clarion-Ledger reports that the State is recovering $38 million from Sandoz, Inc. for inflating wholesale prices of prescription drugs:

Judge Thomas Zebert awarded Mississippi $23,661,618 in compensatory damages, $11,830,809 in punitive damages and $2,699,000 in penalties, for a total of $38,191,427.

In addition, the court entered an injunction on Sandoz reporting false average wholesale prices to Mississippi, the release stated.

"Sandoz, with its greed for more profits, caused Mississippi to overpay on drug prescriptions and some of our neediest citizens were being denied health care due to cost overruns," Hood said in the release.

Representing Mississippi in the drug litigation was Ronnie Musgrove (name sounds familiar) of the Copeland Cook law firm in Ridgeland. The only odd thing about that is that Copeland Cook is a large insurance defense firm.

My Take:

In a two week period Jim Hood recovered $46 million for the State. And he did it with Mississippi lawyers. This was probably not the best two weeks for the Simpson campaign. 

The problem that Republicans have in unseating Jim Hood is that Hood seems to be doing a credible job as A.G. I agree with Simpson that Mississippi lawyers should get preferential treatment when outside counsel is needed. But it's not like Hood only uses out-of-state lawyers. Mississippi lawyers are sprinkled in even on the cases where out-of-state lawyers are used. I just don't see Simpson getting much traction with this criticism of Hood.

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Mississippians will go to the polls in November to decide State House of Representative races. The results of those races will determine whether the House will be majority Democrat, with a Democratic speaker, or majority Republican with a Republican speaker. The election will likely have a profound affect on the future of the legal profession in Mississippi.

Today's Wall Street Journal reports:

The Republican Party has launched a major push to capture the Mississippi House of Representatives this fall, a goal that has eluded it since Reconstruction and that would remove nearly every vestige of Democratic control from the state's government.

Election 2011

Mississippi enacted tort reform in 2004 that placed a $1 million cap on non-economic damages. The State previously capped ($500,000) non-economic damages in medical malpractice cases—and the statute defines medical malpractice broadly.

It's my understanding that since 2004, Republican legislators have continued to propose bills to further restrict individuals' access to justice in the court system. Specific examples that I've heard were proposals to:

• reduce the non-economic damages cap to $250,000 in all cases;
• eliminate a private right of action for bad faith denial of an insurance claim; [can you imagine what would happen after the next hurricane if this passed?];
• eliminate the right to sue pharmaceutical companies for defective drugs if the FDA approved the drug; and
• basically eliminating the right to sue for injuries caused by defective products [you couldn't with a $250,000 cap anyway].

There are political observers in Mississippi who believe that if Republicans gain control of the House, then the legislature will enact some or all of these measures.

What More Tort Reform Would Mean for Lawyers

What would that mean for the legal profession in Mississippi? Think about it.

With a $250,000 non-economic damages cap, there would be few cases that justified spending $50,000–100,000 in expenses getting a case to trial. Those cases are cases with huge economic damages due to something like paralysis or a plaintiff who earned a lot of money who can make a big lost wages claim. But only a very small percentage of the population earns enough to make a large lost wages claim.

Therefore, a $250,000 cap would eliminate personal injury cases that require expert witnesses. If you don't believe me, look at what has happened in nursing home litigation. The nursing home corporate shell game combined with $250,000 claims eroding insurance policies has virtually killed nursing home litigation in Mississippi. Wilkes and McHugh left the state. So did defense firms that specialized in nursing home defense. Nursing home litigation used to be the majority of my practice. I have not filed a case in several years.

Because of the costs of expert witnesses, personal injury cases other than fender-bender cases would largely go away.

Plaintiff lawyers who made money during the litigation boom would likely retire. Other plaintiff lawyers would attempt to convert their practices to general practices that primarily handled criminal and domestic work. That would not be a panacea, however, because the competition for those cases would be fierce.

Many defense lawyers would lose their jobs and many defense firms would go away. I'm not naming any names, but many of the medium-sized litigation firms would cease to exist. Firms with 40–50 litigators would see that number reduced in half at least, unless most of their cases are outside the State of Mississippi.

A lot of lawyers would retire. A lot of lawyers would leave the state or take in-house jobs paying a fraction of what they now earn. Many legal assistants, secretaries, court reporters and other legal industry support staff would lose their jobs.

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. Private schools in the Jackson area would lose students. Country clubs, bars and restaurants frequented by lawyers would take a big hit.

Lawyers Are Ignoring The Risk 

It's interesting that hardly anyone is talking about this in the legal profession. You would think that lawyers would be scared to death. Instead, most are blissfully ignorant that they could be out of a job in two years.

In particular, big firm lawyers not at the top of the firm's compensation pyramid ignore the danger to the future of their careers. These are the lawyers who either ignored tort reform or outright supported it. They were actually surprised when the combination of tort reform and the end of mass joinder led to some of their friends getting laid off.

You would think these folks would look at how many fewer defense lawyers there are in 2011 compared to 2001 and the current purge at Watkins Ludlam/ Jones Walker and see that things could go bad for them. Instead, they wrongly view their jobs as tenured or civil servant type positions.

Why do people ignore danger like this? I think it's human nature. Only Noah built an ark.

But not everyone is ignoring the signs of danger. Some lawyers are building their ark. There are plaintiff lawyers who are making contingency plans for advertising campaigns for domestic work. There are defense lawyers who are taking bar examinations in other states and trying to get a foothold in those states.

I have not finalized my contingency plan for what I will do if we get more tort reform. But I am thinking about it. My current practice probably will not be viable if we get more stringent tort reform. Much as it would pain me to have to go back to work for someone else, I might have to. But in another state.    

In my opinion, the Mississippi Supreme Court is on the brink of upholding Mississippi's cap on non-economic damages. I am on the record as stating that the caps have not had the impact that big business propaganda outlets give them.  But once the Court upholds the current caps, how could it reject lower caps? Or any other legislative measures to limit access to justice? It probably can't.

Which means that the future of the legal profession hangs in the balance of the November legislative races. And hardly any lawyers know it.   

 Democrats now enjoy a 13-seat advantage in the 122-member Mississippi House, while the Senate and six of seven other statewide offices are under Republican control. Attorney General Jim Hood is the only Democrat to hold statewide office.

The state GOP has brought in a new party boss: 25-year-old campaign strategist Tim Saler, who most recently headed up Republicans' successful campaign to capture the legislature in North Carolina.

Republicans need a net gain of eight seats to take control of the House and are targeting 21 Democrats they believe are vulnerable. Mr. Saler, who is the state GOP's executive director, said his party plans to spend more than $1 million supporting its candidates, deploying sophisticated polling and consumer data to get out the vote, as well as advertising and other help. "In some respects, we are bringing a gun to a knife fight," he said. 

Democrats now enjoy a 13-seat advantage in the 122-member Mississippi House, while the Senate and six of seven other statewide offices are under Republican control. Attorney General Jim Hood is the only Democrat to hold statewide office.

Republicans need a net gain of eight seats to take control of the House and are targeting 21 Democrats they believe are vulnerable. Mr. Saler, who is the state GOP's executive director, said his party plans to spend more than $1 million supporting its candidates, deploying sophisticated polling and consumer data to get out the vote, as well as advertising and other help. "In some respects, we are bringing a gun to a knife fight," he said.

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My name is Phil and I am a white Mississippi Democrat. At least I was for the last 20 years. But what's the point now? Who wants to be the last unicorn?

As for the primaries as a whole, the Clarion-Ledger's David Hampton nailed it:

The candidates in the  top races were not very dynamic  and there have been no real popular issues to catch voters’  attention. The issues facing Mississippi are complex and don’t  lend themselves to sound-bite solutions, but that is mostly what campaigns are about these days. Candidates avoid the tough stuff, which is good politics. Overall, the campaigns across the board have been weak, lacking bold ideas and solutions.

To put it in simpler terms, the races were lame.

I get it that all the Republican candidates want to take long showers with Haley Barbour and ride in his motorcycle's side-car. And months of “I love Haley” commercials worked. I'm ready to vote for 4 more years of Haley. The people who were actually running those commercials? Not so much. If I'm one of these guys I'm not sure that I want to be stepping into the Haley void. There is no evidence that any of them can fill Barbour's shoes.

No Republican candidate distinguished himself or herself enough to make people care. Good or bad. Dave Dennis? Who? Kingfish has been calling this one right for a while:

Still haven't figured out the Dennis campaign or if one even existed. Phil campaigned for this job for four years but I'm not sure if and when Dennis ever did.

And Phil Bryant was beatable.

Tate Reeves vs. Billy Hewes? The only difference I could identify in these two is Reeves has a better jump shot.

As for the Democratic side, it's pitiful. The Mississippi Democratic party transformation to being all African-American is almost complete. In a state with only a 37% black population, that's a losing formula.

Take for example the Hinds County Sheriff's race, where white incumbent Malcolm McMillin unwisely ran in the Democratic primary. Anderson described the result:

Due to his failure to switch parties, the inevitable has befallen Malcolm McMillin: he's lost the Hinds County Democratic primary to a black candidate for sheriff.

Does anyone think that Jim Hood could get elected Attorney General as a Democratic candidate if he was not the incumbent?

I actually feel sorry for Johnny Dupree and Bill Luckett. A run-off? That's like being in the play-in game to see who will be the 64th seed who gets to play Duke in the NCAA Basketball Tournament.  

On a state wide level, Mississippi is now a one party state. It's easy for me to say that's bad, since I often vote for the Democratic candidates. But after the lame 2011 primaries, it should be easy for a lot of people to agree.

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The Clarion-Ledger is reporting that President Obama nominated Jackson attorney Greg Davis to become U.S. Attorney for the Southern District of Mississippi:

President Barack Obama has nominated a Jackson lawyer as the next U.S. attorney for the Southern District of Mississippi.

Gregory Davis is a member of the law firm Davis, Goss & Williams PLLC, which he co-founded.

Davis graduated from Mississippi State University in 1984 and Tulane University School of Law in 1987.

If confirmed by the U.S. Senate, Davis will succeed Dunn Lampton, who retired. First Assistant U.S. Attorney John Dowdy Jr. has been the office's interim leader since January. 

President Obama [a.k.a. The Tortoise] nominated Davis nearly a full year after his name first surfaced as a candidate for the position.

My Take:

Finally, one of my own people gets nominated to an important federal position. That's right. Davis is……..a golfer.

When Davis walks into the federal courthouse, the U.S. Marshals will say: “now there goes a man who knows the humiliation, degradation, frustration, anger, and total injustice of…..slicing a ball into the drink on 18 with the match on the line.” 

Davis is a shining beacon for golfers everywhere that there is hope for overcoming that devilish past time.  

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I attended the oral argument in Sears v. Learmonth yesterday at the Mississippi Supreme Court. I counted approximately 50 people in attendance—mostly plaintiff lawyers. Given the importance of the decision, I thought that every firm in Jackson hosting summer clerks would be there with their clerks. Perhaps they did not want it to look like they support caps.

The argument lasted 90 minutes. Lawyers for both sides did a good job. Kevin Hamilton of Meridian and Robert Peck of Washington argued for the plaintiff with Peck getting the most time. Frank Citera from Chicago argued for the defense.

Justice Dickinson was the most active Justice in questioning the lawyers. By my count he interrupted lawyers from both sides 6–7 times to ask a question. His key question to plaintiff was: why is this different from tort claims or workers comp where the legislature has removed something from the jury?

A key question by Justice Dickinson to the defense was: doesn't the constitutional right to trial by jury mean more than the form of the trial?

Other justices and my ballpark count of their number of interruptions with questions (some interruptions involved a series of questions):

• Waller: 6 (3 each side)
•  Carlson:  2 (1 plaintiff, 2 defense)
• Randolph: 3 (all plaintiff)
• Pierce: 3 (2 plaintiff, 1 defense)
• Chandler: 3 (1 plaintiff, 2 defense)
• Lamar: 1 (plaintiff)
• Kitchens: 2 (defense)
• King: 0.

My guess is that Justice Dickinson is the justice who most enjoys oral argument.

 Justice Randolph cited statistics that of the states that have considered caps, 18 found them constitutional and 4 unconstitutional (Alabama, Oregon, Georgia and Washington).

Justice Chandler challenged defense counsel to cite something that found that there was a society benefit from the caps. Defense counsel couldn't.

Justice Carlson asked defense counsel if he could name a single case where the non-economic damages were too high and the trial court, court of appeals and supreme court all refused to lower the damages. Citera couldn't name one, and fell back into the practice of vague references to large verdicts in the jackpot justice days that were settled post-trial or reversed on appeal: Uh.....asbestos.......uh.......silica. Yea, Yea, silica. I remember hearing about a lot of silica nonsense.

Citera stated that he believed that in enacting the caps, the legislature responded to a perceived problem. I agree. But the perceived problem (jury verdicts too high) was not the real problem (venue and joinder problems as discussed here). Stated simply, the policy argument for caps is that we need them because some businesses think they need them—not because they really need them.

Great. We're stuck with tort reform because its proponents have brain washed a segment of society.

It's a night-light rationale. We don't leave the hall light on because our young kids really need it on. We leave it on because they think they need it on and it's not worth fighting them over.

I've given a lot of thought to whether I would make a prediction based on what I saw. I've decided that I will, but without identifying what I thought tipped the Court's hand. I will write it down and may discuss it after the Court issues an opinion.

My Prediction:

The caps stand.

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A definition of 'propaganda' is “information, especially of a biased or misleading nature, used to promote or publicize a particular cause or point of view.” Last week's Madison County Journal's editorial supporting tort reform damages caps meets this definition. 

Here are some of the gems from the editorial followed by my explanations:

Since tort reform, medical liability insurance premiums have decreased more than 60 percent.

Since tort reform, there has also been a severe recession with record unemployment that was caused by some of the business interests who campaigned for tort reform. But we gave those companies a taxpayer funded bailout and let them return to business as usual.

Also, medical liability insurance premiums decreasing by 60% wasn't caused by damages caps. It was caused by the Mississippi Supreme Court's eliminating Mississippi's mass-joinder law that allowed thousands of plaintiffs to be joined in a single suit.

By removing the incentive of extreme verdicts with exorbitant attorney's fees, Mississippi no longer attracts thousands of out-of-state plaintiffs clogging our judicial system.

Once again, the paper is crediting tort reform for something caused by the Supreme Court's elimination of mass-joinder.

Incidentally, I have never once seen an actual lawyer quoted as saying that caps are responsible for eliminating out-of-state plaintiffs as opposed to rulings by the Miss. Supreme Court. So where is the Journal getting its information? Haley Barbour press releases?

 And when we wonder why all too often the judiciary did not throw out frivolous lawsuits and sanction attorneys for filing them, we simply think back to the words of Dickie Scruggs when he said "the judiciary is elected with verdict money."

The reference to Scruggs doesn't really fit the editorial. But Scruggs was a plaintiff lawyer who went to jail, so they needed to work him into the piece.

Mississippi can't afford a return to "jackpot justice."

How exactly would throwing out the caps return Mississippi to the jackpot justice days? They don't say. They just trust that ole Haley wouldn't steer them in the wrong direction on this.

The fact of the matter is that lifting the caps would not return Mississippi to the jackpot justice days. Those problems were caused by the mass-joinder law, venue law that no longer applies, Mississippi law that required defendants to post a bond of 125% of a judgment in order to appeal and less than 5 state trial court judges who were not doing their jobs. None of these problems exist anymore and none were affected by caps.

How do I know I'm right on this? First, have you ever noticed that none of these pro-tort reform articles ever quote a lawyer or legal expert such as a law school professor? Not even defense lawyers who campaigned for tort reform. Ever wondered why? Go back to the definition of propaganda and think about it. 

Second, since med-mal caps were passed in 2002 and non-economic caps in other cases were passed in 2004 there has not been a single case where the Mississippi Supreme Court had to rule on the constitutionality of the caps. That tells you how few and far between are cases where the caps actually apply.

Tort reform proponents ignore the fact that both the trial court and the appellate court can reduce damages awards that are out of line based on the facts of the case. In the last seven years the Mississippi Supreme Court has reversed most plaintiff verdicts, regardless of the verdict's size. The Court has affirmed some plaintiff verdicts since Alex Alston wrote his article a few years ago pointing out this fact. But plenty of verdicts are still being reversed.

I don't know what the Supreme Court will do with the caps issue. But I do know that there are smart justices on the Court. I'm sure they know that tort reform honks are taking the credit for eliminating jackpot justice that should go to the Court. So whoever the pro-tort reformers are trying to fool, it's not fooling the nine justices who will actually decide the issue.  

Here are my prior posts on tort reform.

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Governor Haley Barbour pulled out of the 2012 presidential race on Monday. Technically, Barbour withdrew before entering the race. The reality is that he has been running since the Fall and is the first serious candidate to withdraw from the race.

There is little speculation in the Mississippi papers as to why Barbour withdrew. That clears the deck for a wing-nut legal blogger to speculate away. From the outfield seats, here's why it looks like Barbour pulled out.

1. Barbour's campaign was not getting any traction.

An article in today's Wall Street Journal made this point:

Richard Quinn, a South Carolina political strategist advising the political action committee of former Utah Gov. Jon Huntsman, another possible entrant to the race, said Mr. Barbour's was struggling in the state, and that his decision underscores Republican voters' dissatisfaction with the current crop of candidates.

Mr. Barbour has spent weeks meeting voters in New Hampshire, Iowa and South Carolina. But his would-be candidacy was not getting any lift in the polls. Hewas seventh in a poll of likely GOP voters in South Carolina released Monday by American Research Group, with support from 2% of those polled.

Without support in a southern state such as South Carolina, there appeared to be no road to the nomination for Mr. Barbour, who would have been pitted against Midwesterners such as former Minnesota Gov. Tim Pawlenty and Minnesota Rep. Michele Bachmann in Iowa and against Mitt Romney, a former Massachusetts governor, in neighboring New Hampshire.

    2.    Health Issues.

Barbour is 63 years old and had back surgery last week. It's possible that he did not believe that he was physically up to campaigning for the next 18 months. There is no shame there if that is the case. I don't see how presidential candidates do it. And John McCain is an exception. McCain is a former POW who could probably eat nails. Barbour is a mere mortal like the rest of us.

    3.     Obama Will Probably Win Re-election.

The question of whether President Obama will win re-election is a fluid issue. Last Fall I would have said no. Now, it looks like he will win re-election. Does Haley Barbour really want to campaign for 18 months to suffer a Bob Dole-like loss? Probably not.

   4.     The Nut-job Factor.

There is a nut-job factor in the Republican nomination process that I believe works against Haley Barbour. Speculation in the national media is that Republicans who want to get the nomination will have to pander to the large base of nut-job Republicans. Like the birthers. To his credit, I can't see Governor Barbour going on TV and trying to look as dumb as possible on some issues so he will play better with the nut-job crowd.

Conclusion

I am a little sad that it's already over for Mississippi's first serious presidential candidate. Who knows when we will have anyone else who is even in the discussion.

Barbour is a force who is respected by allies and opponents alike. As one person once told me: “I may not like what Haley Barbour tells me he is going to do, but at least he is not going to say one thing to my face and then go do the opposite.”

It will be very interesting to see what Governor Barbour does when his term expires in January. No doubt he will be on the campaign trail in 2012 beating the drum for Republican candidates and accumulating IOU's.  

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As Governor Haley Barbour continues his nation-wide pre-announcement presidential campaign, he is starting to look like one of the GOP front-runners. If not the GOP front-runner.

A couple of weeks ago conservative columnist George Will pegged Barbour as one of only 5 real Republican contenders:

  Let us not mince words. There are at most five plausible Republican presidents on the horizon - Indiana Gov. Mitch Daniels, Mississippi Gov. Haley Barbour, former Utah governor and departing ambassador to China Jon Huntsman, former Massachusetts governor Romney and former Minnesota governor Tim Pawlenty.

Meanwhile, with Japan fighting off a full-scale nuclear meltdown, nut-job outspoken “conservative” columnist Ann Coulter espouses the benefits of radiation. But back to Haley.

The national press is treating Barbour like the frontrunner. The Clarion-Ledger had a front page story today about a Texas businessman's large donation to Barbour's PAC. The reporter who wrote the story is with the Nashville paper.

Today's Wall Street Journal had an article discussing GOP contenders' split on military budget cuts.  One contender got their photo in the article. Guess who?

Barbour breaks ranks with some Republicans by saying that spending cuts should include cuts to the nation's military:

Mississippi Gov. Haley Barbour this week told an audience in Iowa that any effort to balance the federal budget must include cuts in defense spending.

"We can save money at the Pentagon," Mr. Barbour told a group of about 200 GOP activists in Davenport. "If we Republicans don't propose saving money on defense, we lose credibility."

Barbour's take on defense spending is spot on. In order to meaningfully reduce spending, the U.S. will have to cut spending on the military, Social Security and Medicare. Everyone in Washington knows it. Many Republicans are afraid to admit it, since its a triple crown of bad news for the Republican base. 

Companies that benefit from defense spending fill campaign coffers. In states like Mississippi many Republican voters want less government spending, but not cuts of their own Social Security and Medicare benefits. Spending cuts without cutting military and entiltlement spending is like a diet where you get to eat all you want. It may be what you want to hear, but it isn't going work. Barbour gets points for not sticking his head in the sand on this issue.

The national media is learning what political observers in Mississippi and Republican insiders have known for a long time. Barbour is smart and he's for real. So is he going to win? Who knows. He may not even officially enter the race. But right now he's campaigning and looking like a contender.  

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The Mississippi State House of Representatives defeated the latest judicial pay-raise bill last week. The bill needed 71 votes to pass, but got only 59. Here is a link to how members voted on the bill.

Mississippi has the lowest paid judiciary in the nation. The bill would have provided a 37% pay raise for judges who are 100% underpaid and who have not seen a raise in years. The bill proposed to fund the raise by modestly increasing lawsuit filing fees.

Opponents of the bill gave a suspect defense of their votes:

Opponents said with a tight state budget, this isn't the time to consider raises for any public employees.

"I admire the legal system for their intestinal fortitude to come down here and ask for this at this time," said Rep. Ted Mayhall, R-Southaven. "We don't have the money."

By “we” Mayhall presumably meant the state budget coffers. But since the raise was to be funded by filing fees rather than the general budget, Mayhall's explanation does not make sense.

Tort reform proponents use similar Mayhallogic (not logical) to defend damages caps. They argue for the caps by saying that caps are needed due to frivolous lawsuits. But that does not make sense because caps come into play only in cases involving the most seriously injured.

What does make sense is the notion that Mayhall and other opponents of the judicial pay-raise bill do not want a strong judicial branch. They want to substitute the legislature's judgment and authority for the judiciary's. They want to eviscerate one of the three branches of government.

With tort reform's limits on non-economic damages, the legislature tells the judicial branch that the legislature does not trust the judiciary to administer justice fairly. Instead, the legislature determines what are the outer limits on just compensation for victims of other people's wrong-doing.

When the judiciary tells the legislature that judges need a raise, the legislature says no. We will set the laws on how much victims can recover and how much you get paid. You'll get nothing and like it.

This raises an interesting dynamic with at least two cases challenging the constitutionality of damages caps currently before the Mississippi Supreme Court. Will the Court accept that Uncle Mayhall and the rest of the legislature know best? Or will the Court rule that the caps are unconstitutional and violate the Constitution's equal protection clause?

One thing is for certain: the Supreme Court is unlikely to uphold the caps in order to protect their high-paying jobs. Every single justice on the Court could make more money in the private sector. On average, they would make significantly more. But why should Mayhall and other legislators care? Unlike state court judges, legislators can have another job to supplement their State pay.

With the election victories in the last few years of Justices Kitchens and Graves, it's apparent that judges do not have to suck up to big business in order to win elections. Having a moderate record and good campaign skills is more important to winning an election than approval by the Chamber.

It would be ironic if the Court strikes the caps. If it does, I suggest the following passage for the Court's opinion: “the Court admires the legislature's intestinal fortitude to come down here and tell the Court how much people can recover in lawsuits. But the Constitution says that this is a job for the legal system. You don't have this power. Juries and judges do.”  

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Governor Barbour's appointment yesterday of Court of Appeals Chief Judge Leslie King to replace Justice James Graves on the Supreme Court was anticlimactic. It's a bit like hiring an assistant coach on your current staff to replace your head football coach. It may be the best move, but it's not very exciting for the fan base.

Many people predicted King would get the position from the day that President Obama appointed Justice Graves to the 5^th Circuit Court of Appeals. Gov. Barbour admitted that King was the only candidate who he considered. It is a safe pick and a smart pick.

So who does Barbour appoint to replace King on the Court of Appeals? This is more interesting because there is no one obvious candidate. The people who always predicted King would get promoted to the Supreme Court believe that Barbour will appoint a current African-American state court judge. But there are four judges in Hinds County alone who fit this profile even if you only consider circuit and chancery judges. And the district is much bigger than just Hinds County.

Judge Denise Owens is a name I hear a lot and would be a popular choice. But unlike with the Supreme Court position, Barbour promises to run this pick through his judicial advisory committee. That would seem to make it a more wide open race. And a more interesting appointment from the fans' point of view.

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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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The Clarion-Ledger reported Wednesday that Assistant U.S. Attorney John Dowdy has been appointed interim U.S. Attorney for the Southern District of Mississippi. Dowdy replace Don Burkhalter, who retired this month and was also serving on an interim basis.

Seeing as how the Obama administration has forgotten about U.S. Attorneys in Mississippi, the appointment was made by Chief U.S. District Judge Louis Guirola, Jr.

Dowdy is a career prosecutor who has been with the U.S. Attorney's office since the early 1990's. The Clarion-Ledger article says 1988, but Dowdy was a 1983 graduate of Gulfport High School, which would have put him in law school in 1988. I believe that Dowdy worked in the U.S. Attorney's office during law school, but that would have been in a non-attorney capacity. [Correction: Dowdy began working in the office during law school and tried several cases while still in law school under a limited practices act].

Dowdy is from Gulfport and lived next door to, ahem, and near a bunch of other characters on Harrison Ave. in Gulfport. Dowdy is the nephew of prominent Democrat Wayne Dowdy. Dowdy is also first cousins with Harrison County Assistant D.A. Joel Smith, who is thought to be a leading candidate to replace the retiring Cono Caranna.

Dowdy will presumably hold the U.S. Attorney position until President Obama wakes up and makes a permanent appointment. No word on if or when that will happen.

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Nearly two years since I first blogged about Mississippi U.S. Attorney appointments, Ya'll Politics links this Patsy Brumfield blog article about renewed speculation that President Obama may be about to appoint state Sen. Gray Tollison as the Northern District U.S. Attorney. Tollison's name first surfaced as a possibility in July.

Ms. Brumfield sounds tired of the speculation:

So, I wont' say it's a sure thing.

But I'm told from a very reliable source, with Washington perspectives, that state Sen. Gray Tollison of Oxford will be The Guy. Tollison is mum on the subject.

Of course, that comes after months and months of on/off/confused, and yea even no reports that it was Oxford attorney Christi R. McCoy or Felicia Adams, who's an assistant U.S. attorney in Jackson.

But maybe this time, it's right. We'll see.

My reaction is the same as I perceive Brumfield's to be: fatigue.

It reminds me of the scene from the movie Invincible where Mark Wahlberg tells the Eagles manager that they have his name spelled wrong on his locker. The manager's unenthusiastic response is that he is sorry, but does it really matter?

That's how I'm going to feel if and when Obama ever gets around to appointing U.S. Attorneys in Mississippi. It will be very anti-climatic because it is something that he should have done a long time ago and has totally botched.   

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With most people now recognizing that Haley Barbour is running for President in 2012, speculation turns to when he will announce that he is running. Look for the announcement around February 10, 2011.

How do I know this? I looked at when people announced in 2007 for the 2008 race. Here is when major candidates announced:

• Edwards: Dec. 26, 2006
• Dodd: Jan. 11, 2007
• Clinton: Jan. 20
• Biden: Jan. 31
• Huckabee: Jan. 28
• Obama: Feb. 10
• Romney: Feb. 13
• Giuliani: Feb. 15
• McCain: Feb. 28

They have a name for candidates who screw around, get coy and "test the waters": Fred Thompson. Thompson waited all the way until Sept. 5 to announce. Don't look for anyone to make that mistake again.

So for Barbour (and other serious candidates) it could be as early as mid-January ,or as late as the end of February. A good guess is in between. Feb. 10 seems like a good a date as any, since it worked for Obama. At least that's how I see it.

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Results for Tuesday's runoffs in judicial elections:

Hinds County Court: Melvin Priester over Brent Southern

Madison County Court: Steve Ratcliff over Will Longwitz

13th Chancery District (Covington, Jefferson Davis, Lawrence, Simpson, Smith): David Shoemake over incumbent Judge Larry Buffington

13th Circuit District (Smith, Jasper, Simpson, Covington): Interim Judge Eddie Bowen over Wilton McNair

10th Chancery District: Dawn Beam over Scott Phillips.

Reports were that voter turnout was low. The Clarion-Ledger reported that the Madison County race got ugly.

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Incumbents--many unopposed--were the big winners in Tuesday's judicial elections in Mississippi. The best site I found for vote totals in all the races was on the Northeast Mississippi Daily Journal's website.

Judge Donna Barnes defeated challenger Kelly Mims for the Court of Appeals. Mims ran a hard race, but voters did not have much of a reason to vote Barnes out of office.

In local judge races, Jeff Weill won Swan Yerger's seat on the Hinds County Circuit Court with over 60% of the vote. Whoever Governor Barbour appoints to replace Justice James Graves on the Mississippi Supreme Court should fear Weill. I believe that Weill can beat anyone else who runs for the seat.

Bill Gowan defeated Malcolm Harrison by 700 votes for the other contested Hinds County Circuit Court seat. Gowan won on the strength of a bunch of Malcolm McMillan TV commercials. Harrison had been appointed to the position by Governor Haley Barbour. Rain on Tuesday may have been the deciding factor in Gowan's win.

On the Coast, Gulfport native Jennifer Schloegel beat four other candidates to win the Chancery Judge seat being vacated by Margaret Alfonso, who won a county court judge seat. Schloegel, her husband Mark, and both their families are well known and popular on the Coast. Schloegel's father-in-law is mayor of Gulfport.

Like Weill, Schloegel probably could also win an election for the Court of Appeals or Supreme Court. She would also be a candidate for an appointment to replace Justice Mike Randolph on the Mississippi Supreme Court if he ever acts on rumors that he is interested in running for state wide office.

There will be an interesting runoff between Melvin Priester and Brent Southern for Hinds County County Court judge. Priester got over 5,000 more votes than Southern. But Southern will pick up all Frank Farmer's supporters and a lot of Trent Walker's in the runoff. I expect the runoff to be close and would not be surprised to see Southern win based on better voter turnout by his supporters.

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The latest edition of the Jackson Free Press contains this article about Mississippi's elected judiciary system by reporter Adam Lynch. The article covers a lot of ground including:

• Minor-gate;
• Scruggs-gate;
• the U.S. Chamber's history of trying to influence judicial elections in Mississippi;
• Alex Altson's outing of the Chief Justice Jim Smith Supreme Court's pro-business voting record; and
• arguments for an appointed judiciary in Mississippi.

Former State Court Supreme Court Justice Oliver Diaz advocates a cleaner elected judiciary system:

The former justice remains convinced that a cleaner election system is the best method to get a good judge. “The elective system isn’t inherently bad in and of itself. It just has to be conducted in the right way,” Diaz said. “The way we conduct it now, it is flawed, where these groups from outside the state, outside the country even are allowed to come in and basically buy a seat on the Mississippi Supreme Court if they want to.”

I am quoted in the article based on my support for an appointed judiciary.

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The Clarion-Ledger reports that the write in election for the Circuit Judge position in Smith, Covington, Jasper and Simpson Counties will stay on the November ballot. I previously discussed the write in election in this post.

The Supreme Court appointed Judge Henry Lackey to decide if the election will continue. Judge Lackey ruled that it will. Circuit Court clerks in the district filed the lawsuit challenging the election.

The lawsuit created an unusual alliance between Attorney General Jim Hood, Governor Haley “I haven't decided if I'm running for President” Barbour and Secretary of State Delbert Hoseman.  The C-L reports:

Assistant Attorney General Harold Pizzetta, who argued the case on behalf of the state, said that when Barbour, Hood and Hosemann all agree that the write-in election should take place, "it's a freaking miracle probably a correct interpretation of the law."

Meanwhile, Circuit Court clerks revealed that Donald Duck leads in the early polling:

Donald Duck is in the running for circuit judge in the write-in election to replace the late Judge Robert Evans in the four-county court district, a circuit clerk said Wednesday.

I couldn't support the Duck, but I might could get behind the newly elected Ole Miss Dancing Bear, which has proven electability after defeating a shark and a rusty old Sugar Bowl “hotty toddy” in the hotly contested Ole Miss mascot election. 

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On Monday Gov. Barbour's office announced the appointment of District Attorney Eddie Bowen to replace the late Judge Robert Evans as circuit judge in the 13th District (Covington, Jasper, Smith and Simpson counties).

Bowen had been the D.A. for the district since 1999. Perhaps most importantly, Bowen's D.A. experience gives him name recognition in the district. That will presumably give him an advantage in the write-in election that will take place in November. I discussed that election in this post.  

It will be interesting to see what will happen if Bowen loses the election. For instance, what if Gene Tullos or David Garner wins? Could the winner refuse the post, thus allowing Gov. Barbour to appoint Bowen again?

The situation looks less chaotic than before Bowen's appointment. But it is still interesting.

This district is a focus for civil litigators because Smith County and the Paulding District of Jasper County have reputations as being dangerous venues for defendants. The recent $131 million verdict against Ford Motor Co. in the Brian Cole lawsuit was tried to a Paulding jury.

I once was co-counsel defending a case in Paulding and there was a plaintiff verdict of $2 million. We felt pretty good about keeping the number that low. It didn't even feel like a loss. [Judge Evans later granted defendants' post-trial motions.]

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The Clarion-Ledger reports that Judge Robert Evans' successor will be chosen by a write-in vote. Judge Evans was the only candidate who qualified to run. He died of cancer after the sign-up deadline passed. The district covers Jasper, Smith, Simpson and Covington counties.

Circuit clerks in the district are not enthused about the upcoming election:

"I see no good coming out of it," Smith County Circuit Clerk Anthony Grayson said. "I'm not looking forward to it. With just 60 days to go, we have to try to educate the voters about it."

Grayson said he wasn't consulted about the process prior to the announcement.

"I'm really disappointed (in the process selected)," Grayson said. "The people of the district deserve better. ... I sort of thought someone would be appointed."

In addition to expecting turmoil, Grayson said he wonders about names of individuals being written on ballots who are not qualified to serve as circuit judge. Also, he worries about names possibly being misspelled.

Not to mention all the votes people with names like Harry Crotch will get.

A circuit court judge is a vitally important position in Mississippi's legal system. Circuit court judges can preside over a capital murder trial one week and a multi-million dollar civil case the next week.

My personal preference is for all circuit court judges to be appointed. I believe that the overall quality of the judiciary would be better with appointed judges. I also believe that politics would play less of a part in the decision making. 

But even if you prefer an elected judiciary, a write-in election is a bad idea. Write-in elections are for positions like class favorite in junior high schools. A write-in election for judge in a four county district will likely lead to many lawyers splitting the votes. If that's the case, there will probably be a run-off between two lawyers who collectively did not accumulate 50% of the vote. Even worse, neither may want the position. 

Also, will lawyers raise money and campaign when the election will be decided by such a crap-shoot mechanism? And that's assuming that they can raise money when they did not qualify to run. 

Hopefully, someone who will be a good judge will win. But right now that would seem to require luck more than anything else.    

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Tupelo lawyer Kelly Mims is challenging Judge Donna Barnes for her Mississippi Court of Appeals post for the Northern District. Judge Barnes has held the position since 2004.

Here is Mims' campaign website.

Mims is a 2000 graduate of the University of Mississippi School of Law. He has worked as a Lee County Public Defender and appears to have primarily practiced criminal defense in private practice.  Ya'll Politics ran Mims' press release announcing his candidacy today.

 Here is Judge Barnes' campaign website.

Although Mims does not have a track record as a judge, I suspect that he would be a moderate to conservative jurist. He appears to have a conservative background and served in the U.S. Army. His stint as a Public Defender is probably more of a reflection of wanting to get good experience as opposed to a statement of judicial or political values. His private practice has been in a small firm, which almost always results in representing more individuals than insurance companies and corporations.  

Judge Barnes was originally appointed to the court and did not have an opponent in her only election. It remains to be seen how either Judge Barnes or Mims perform on the campaign trail. Contested judicial elections in Mississippi often come down to who campaigns the hardest. And by this I mean actually getting out and meeting voters. That could be the case with this one.

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Yesterday's Wall Street Journal ran this editorial tilted “Mississippi Justice on Email”. The article makes a poor attempt to connect the Scruggs State Farm litigation to Attorney General Jim Hood's request to Congress that it rewrite federal law to allow Mississippi to sue Gulf Oil Spill companies in state court. In attempting to make a connection that is not there, the editorial made several comments that are insulting and unfair to the Mississippi legal system.

To be clear, I'm not defending Hood's tactics with State Farm. I'm not a Hood apologist and I have criticized him several times on this blog. Suffice it to say that Hood probably could have handled the State Farm litigation better. But that does not mean that there is a connection between the State Farm litigation and the oil spill litigation.

Consider these statements in the editorial:

• It turns out that Mr. Hood was so tight with the Mississippi tort mob that he turned to them for help to refute our arguments that he was . . . in bed with the Mississippi tort mob.
• Mississippi is famed for its jackpot justice, and as the emails reveal, Mr. Hood and his cabal work together to squeeze settlements from their targets.
• As with the Katrina litigation, the Pascagoula lawsuit society is hoping for the mother of all jackpots against Big Oil. If the AG can keep this litigation at home, he can use the powers of his office to work with this crew to hit another gusher.
• BP and the other companies involved in the spill will be writing big checks no matter where the cases are adjudicated, and rightly so. But Mr. Hood offered no compelling reason in his Congressional testimony that the lawsuits against the oil giant belong outside of federal court. The only reason would be to allow Mr. Hood and his "friends" greater ability to stack the deck against industry and the rule of law.

First, reference to a “Mississippi tort mob” is a little much. Some lawyers—fewer than 10–-broke the law. They got caught. They were disbarred and went to jail. The characterization of a “tort mob” suggests a massive conspiracy and a legal system run amuck. That is not the case in Mississippi.   

Second, while Mississippi is known for jackpot justice, that's history. Germany is known for military aggression, but that doesn't mean that France and Poland should prepare for invasion. The combination of tort reform and, to a larger extent, the Mississippi Supreme Court changing the law on joinder and appellate bonds ended “jackpot justice.” There are even defense verdicts coming out of Jefferson County, once the epicenter of jackpot justice. It has literally been years since I have heard one person who actually practices in the system say that the Mississippi legal system is plaintiff biased. Maybe the Journal should devote its time to containing the spread of communism from the Soviet Union.

Third, what the heck is the Pascagoula lawsuit society? And is the fact that Mississippi plaintiff lawyers are pursuing oil spill litigation any different from other affected states? The Journal agrees that: “BP and the other companies involved in the spill will be writing big checks no matter where the cases are adjudicated, and rightly so.” So what's wrong with lawyers representing oil spill victims?

Fourth, there is nothing inherently wrong with Hood trying to get a home field advantage in oil spill litigation. The oil companies are also trying to get a home field advantage by having the cases heard in federal court in Houston. Mississippi's legal system is not crooked and locating the oil spill litigation in Mississippi would not “stack the deck” any more—or less—than locating it in Houston.

Mississippi's judicial system is an easy target for a New York based newspaper. But its continuing criticism of a legal system that is not broken is unfair.     

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As reported yesterday on Ya'll Politics and other sites, it appears that Gray Tollison will be the next U.S. Attorney for the Northern District of Mississippi. Tollison is a great choice. But why hasn't he emerged as a candidate sooner?

I have not called around looking for U.S. Attorney rumors in a while, so Tollison's name caught me by surprise. The last I heard was that Felicia Adams was likely to be the U.S. Attorney for the Northern District. Perhaps she is now in the mix for the Southern District post. I've also heard that Jackson attorney Greg Davis is a possibility for the nomination. But that was not a rumor with much conviction, so I am not making a prediction there.

No matter how you cut it, President Obama and the Justice Department have totally botched the two U.S. Attorney nominations in Mississippi. We are a year and a half into what may be a one term presidency and we are still waiting on both nominations. Alan Lange nailed it on this issue in April and I'm just going to quote from his take:

 Whether you are a D or R, this is a big deal. Given our lack of ability to police our own in Mississippi, we have historically disproportionately depended on US Attorneys to help deal with matters like public corruption. Steady hands with a quality backgrounds are needed to fill those seats. There is certainly no shortage of quality lawyers in Mississippi who could handle these jobs, and it's a bit of an affront to the legal community that this hasn't gotten done. With confirmation usually a few months down the road from nomination, it may legitimately be year end before Mississippi can get someone confirmed even if nominees were settled on pretty quickly. We are now running up to the point where good people may not consider taking an appointment for what would effectively be only a two year term (as one would not think that a second Obama term would be a guarantee). That's a big ask of someone to give up their entire law practice for just two years and assume all of the restrictions that a US Attorney takes on after stepping down.

That was in April. The further that we go without nominations, the more this applies.

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In 2007 State Farm sued Attorney General Jim Hood. Here is the Complaint. State Farm does not like Jim Hood. No one likes State Farm. When State Farm filed the lawsuit, it filed this motion to seal the case. The Court later unsealed the case.

In 2008 Sate Farm and Hood settled and the Court dismissed the case. Here is the order. The terms of the settlement agreement were confidential and the court ordered that they remain under seal.

In 2009 Ya'll Politics, joined by three television stations, moved to intervene in the case in order to obtain the terms of the settlement agreement. State Farm did not object. General Hood did. Here is Hood's Response to the Motion to Unseal the agreement.

Hood's response states several times that the Court ordered that the settlement agreement be sealed upon a showing of good cause. I have looked for something in the record confirming that statement, but have not found it. Maybe I just missed it.

It seems that Hood views the terms of the settlement agreement as politically embarrassing. But open access to court proceedings should take precedent over politics.  

It is bad form and bad law for court files to be sealed without an evidentiary basis for a finding of good cause in the record. An example is Judge Yerger's unexplained sealing of all relevant pleadings in the Eaton v. Frisby case pending in Hinds County.  In the good old days newspapers viewed themselves as the guardians of public access to the courts and challenged improper sealing of court files and court proceedings. Now, newspapers can't afford to pay the lawyers to make the challenges.

I would like to see Judge Bramlette grant the motion for two reasons. First, it would reverse the trend of unexplained sealing of court files and confidentiality orders not supported with evidence. Second, it would start a trend of new media (a blog) successfully challenging secrecy in the courts. 

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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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The entire Mississippi Supreme Court heard oral arguments on Tuesday before a mostly full courtroom in the Double Quick v. Lymas case. Here is the Clarion-Ledger's article on the hearing. The audience was not disappointed as the arguments were very interesting.  

Case Background

The case is a premises liability case out of Humphrey County involving the shooting of a patron by a third-person in the parking lot of a convenience store in Belzoni. There was a large jury verdict that the trial court reduced due to the legislative cap on non-economic damages. Both sides appealed. The defendant appealed on liability and the plaintiff challenged the constitutionality of the caps.

The Court Focused on Liability Issues

The justices appeared most interested in the liability arguments. Defense counsel John Henegan argued for thirty minutes and argued that the verdict should be reversed and rendered based on lack of foreseeability and proximate cause. Plaintiff counsel Joe Tatum then argued for thirty plus minutes and did not get to the cap issue until his time had technically expired. Henegan then argued caps for close to thirty minutes on rebuttal. It looked liked the lawyers were more eager to get into the caps than the justices.

It appeared that five or more justices were skeptical that the plaintiff established that the shooting was foreseeable or that any negligence by Double Quick proximately caused the shooting. For this reason, the case could be reversed and rendered without ever reaching the cap issue.

Justices Were Skeptical of Legislative Caps Arguments

On the issue of the caps, Justice Pierce pointed out that the plaintiff did not raise on appeal the argument that the caps violate the equal protection clause. It appeared that Justice Pierce thought that this was the best argument challenging the caps. Several justices appeared skeptical of the constitutionality of the caps in their questioning of counsel.

Henegan argued that not only are the caps constitutional, but that the legislature can eliminate the right to recover “these types of damages” entirely. I thought he lost the justices with that one. The justices quickly realized that if the legislature can abolish some types of damages, then it can abolish the right to recover all damages. And it did not look like they were buying it.

Henegan was steadfast on this argument, citing the workers' comp system and the fact that the legislature abolished hedonic damages as a separate category of damages. But it's my understanding that hedonic damages are recoverable, they are just within the other non-economic damages. In addition, Justice Pierce pointed out that the workers' comp system is different, since employees do not have to prove negligence in return for the limits on recovery.

In any event, the right to sue for damages in civil court is older than this country. If the right were abolished, people would revert to taking the law into their own hands. Violence and chaos would be common. The best thing about our civil justice system is that it provides an orderly mechanism for resolving disputes. Although the system is imperfect, it beats the hell out of the alternative.

Henegan argued that the right to recover can be eliminated by the state legislature. I think he is dead wrong.

One last point on this issue. I find it difficult to believe that companies that make money from selling liability insurance advocate a system where there can be no tort liability. Liability insurance carriers would be out of business. So while insurance companies like caps that limit exposure, they do not want to eliminate exposure. It would eliminate their business.   

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 With Governor Haley Barbour downplaying the signficance of the oil spill, MLR located this rare video footage of Barbour from his college days (play video):

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A few weeks ago I ran into Ashley Ogden and asked him about his decision to not run for Judge Yerger's Circuit Court Judge seat. Ironically, the place where I ran into Ogden was at a fundraiser for Jackson City Councilman Jeff Weill, who is running for the seat and is likely to win.

Ogden stated that instead of running for judge, he plans to do some work as a special prosecutor for the Hinds County District Attorney. He hopes to get heavy sentences imposed for crimes such as robbery. Ogden believes that Jeff Weill will be a good judge and he plans to work with Weill in his capacity as a special prosecutor.

Ogden stated that he still has aspirations to be a judge. He believes that at some point in the future Weill will be appointed or elected to higher office and that the Circuit Judge position will be open again. I tend to agree with Ogden's assessment that Weill may end up in higher office.

Bruce Burton and Ali Shamsiddeen have qualified to run against Weill.

I expect Weill to win going away and to be an excellent judge.

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Y'all Politics broke the story on Hinds County Chancery Court Judge Denise Owens denying State Auditor Stacey Pickering's motion for disbursement of settlement funds in the Mississippi v. Microsoft case and approving the disbursement of $10 million in attorney's fees in the case. Here is the Order and the Clarion-Ledger's article.

Earlier posts on Hood v. Pickering disputes are here and here.

Pickering's office announced plans to appeal the ruling in the Worldcom. MCI case, but not Judge Owens' ruling in the Microsoft case.

It's politics as usual--on both sides.

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Jackson lawyer Bruce Burton has qualified to run against Jeff Weill for Hinds County Circuit Judge for the seat being vacated by Judge Swan Yerger. Burton's profile is much lower than Weill's and I don't think that he can beat Weill.

The deadline to qualify to run is May 7 (I think).

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Governor Haley Barbour plans to sue to bolster his presidential aspirations challenge the constitutionality of the new health-care reform. He’s going to have to take a number and get in line.

As reported by the Clarion-Ledger, State Senator and attorney Chris McDaniel (R) and Hattiesburg attorney Doug Lee beat Barbour to the punch on Friday by filing this Class Action Complaint in federal court in Hattiesburg seeking to have the bill declared unconstitutional. Plaintiff Richard Conrad and McDaniel explained the action to the C-L:

"To be an American citizen and be forced to do anything is kind of contrary to our nature," Conrad said. "If I understand the constitution correctly, we've never been made to purchase or buy a product or service from a private entity."

The plaintiffs say they oppose a mandate, effective in 2014, that would require citizens to purchase health-care insurance or pay a fine.

"Basically, the petitioners are seeking a declaration that the Health Care Act's individual mandate requiring them to purchase health insurance from an insurance company is a violation of congressional authority under the Commerce Clause of the United States Constitution," McDaniel said.

McDaniel said the Commerce Clause gives Congress the authority to regulate commerce but does not give it unlimited power.

I don’t know about you Gregg, but I’m not going to sit here while they bad-mouth the United States of America. Gentlemen.

McDaniel’s Complaint is a hefty twenty-eight pages in length and cites a lot of cases. It’s kind of dry, so you might want to start it with a full cup of coffee. Drafting a twenty-eight page complaint is not easy, so someone put some work into it or one similar.

I am not really getting why Mississippi needs to file a lawsuit over the bill. Fourteen states already filed a lawsuit and McDaniel and Lee are taking a shot at the bill for Mississippians. I’m not sure what there is to be gained from a Barbour led action, other than political capital and attorney’s fees for the outside counsel lucky enough to get hired by Barbour. 

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In January I wrote about the $8.3 million attorney fee sought in Attorney General Jim Hood’s action against Microsoft. The dispute continues with Plaintiff’s counsel filing this Memorandum Opposing Intervention by State Auditor Stacey Pickering on March 24, 2010.

Hood’s lawyers argue that Pickering is late  to the dance, having filed his motion to intervene over five years after Hood hired the lawyers and they filed the lawsuit. A cursory reading of the response suggests that Pickering is going to lose. But does he even care?

Political gamesmanship is the likely motivator behind Pickering’s attempted intervention. He arguably gets the political benefit from his stance regardless of whether he wins or not. Either way, he can claim on the campaign trail that he challenged Jim Hood and “trial lawyers.” Winning the challenge was probably always a secondary goal.

Incidentally, I recently read that the general public does not vilify "trial lawyers" as much as some people think.

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You’ve got to give it to the Mississippi Legislature for sheer unpredictability. With teachers across the state facing layoffs due to budget shortfalls, you would not think that any state employees are getting raises from the legislature. You would be wrong.

Check out Senate Bill 2610, which authorizes raises of as much as $8,300 per year to District Attorneys and lesser amounts to legal assistants and criminal investigators. The bill authorizes the D.A.’s to pay themselves the raises from office-generated funds, county funds, municipality funds, federal funds, grants or private foundations. So pretty much wherever they can find some money, they can use it to pay themselves.

This bill promises to be rather unpopular with other segments of the population, such as teachers and state court judges. Mississippi’s woefully underpaid state court judges have been unsuccessfully trying to get a pay raise out of the legislature for years.

Senators Nunnelee, Dearing, Jackson and Watson sponsored the bill. It’s my understanding that the bill is on Governor Barbour’s desk for signing.

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Kingfish has the story on Jeff Weill's announcement that he is running for the Hinds County Circuit Court Judge seat that is being vacated by Judge Swan Yerger:

Jackson City Councilman Jeff Weill of Ward 1 announced his candidacy for the Hinds County Circuit Judge position currently held by Swan Yerger. Yerger announced he is retiring from the bench. Weill made the announcement before a gathering in front of the Willie Morris Library on Old Canton Road. Weill is a lawyer and former prosecutor.

Weill has done a good job on the city council and is a viable candidate. Jackson lawyer Ashley Ogden is also expected to run for the seat. Some Jackson lawyers doubt that Ogden will run due to the size and success of his private law practice, which includes former Mississippi Supreme Court Chief Justice Jim Smith.

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On Friday Attorney General Jim Hood announced that he will run for re-election in 2011. As stated in the Clarion-Ledger’s article, the big news with Hood’s announcement is that it ends speculation that he will run for governor in 2011. Hood's decision is a smart one, even if Hood does want to run for governor.

Hood is only forty-seven and has plenty of time to run for governor. With the Hood being a Democrat and the Republican party currently dominating in Mississippi, now is not the time for Hood to give up the office he has for one that he may not win.

The Ledger article points out the commissioner of public safety Steve Simpson may run for A.G.:

Steve Simpson, the commissioner of public safety, said last year that he might run for attorney general in 2011. He could not immediately be reached Friday for comment.

Simpson would presumably run as a Republican. I suspect that Hood would easily beat Simpson. Simpson is from the Coast. Al Hopkins, who is also from the Coast, ran against Hood in the last election and lost. I don’t see Simpson gaining significantly more traction than Hopkins.

Hood promised to continue his good works as A.G.:

"My decision will allow me to continue our hunt for child pornographers and Internet predators; to protect our elderly citizens; and to shield our residents from corporate wrongdoers," Hood said.

Hopefully, Hood will increase prosecutions against nursing homes that abuse and neglect their elderly residents.

Meanwhile, Sunday’s Clarion-Ledger reported on the current state of the Mississippi Democratic party:

Democratic insiders paint a picture of a fractured and unorganized party divided by racial tension and lacking the necessary discipline, leadership and money to make an impact next year in statewide races.

The reasons for the poor Democratic showing in Mississippi are many and complicated. Republicans will probably dominate state-wide elections for many years to come. Jim Hood is the exception, and he may not be able to climb to a higher office than A.G. 

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Main Justice has this story reporting that Southern District Assistant U.S. Attorney Felicia Adams is being considered for the U.S. Attorney in the Northern District. Adams was once thought to be a candidate for the open Fifth Circuit judgeship, but it’s now pretty clear that Justice James Graves will be appointed to the Fifth Circuit unless unexpected opposition emerges. Graves is deep into the vetting process with his name already having been passed on to the A.B.A.

It appears that Adams being in the running for the Fifth Circuit helped her with the U.S. Attorney post, since she was not previously known to be a candidate for the position. Adams is not well known in the Jackson legal community, but is well thought of by those who do know her.

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As discussed in this March 1 post, State Senate Insurance Committee Chairman Buck Clarke killed a bill that would have required Mississippi nursing homes to carry $500,000 in liability insurance coverage. Sid Salter has the story in today’s Clarion-Ledger.

Why would Buck Clarke kill a bill that passed in the House with bipartisan support? Salter explains:

 Because the nursing home operators, their lobbyists and the insurance industry have vast influence in the Legislature.

The vast influence was bought:

How influential is the nursing home industry at the Capitol? Campaign finance records show that in 2007 Gov. Haley Barbour got $50,000 from the Mississippi Health Care Association (MHCA), the association that represents many of the nursing homes, and $62,000 total from nursing home industry donors.

Campaign finance records show that in 2007, Lt. Gov. Phil Bryant received $50,000 from nursing home operator Ted Cain of Health Services, Inc., in Wiggins, $11,000 from MHCA and $63,250 total from nursing home industry donors.

Campaign finance records show that in 2007, House Speaker Billy McCoy, D-Rienzi, got $5,000 from Cain, and $3,000 from MHCA for a total of $8,000 from the nursing home industry. Clarke, R-Hollandale, in whose committee the nursing home liability insurance bill died, got $1,500 in 2007 campaign contributions from the nursing home industry.

In total, 2007 campaign finance records show that the Mississippi Health Care Association gave a total of $132,000 in contributions to legislators and statewide elected officials.

Lobbying records show in 2009, MHCA paid lobbyist Beth Clay $80,000 to represent the organization's interests.

Elderly people living in nursing homes with Medicaid and Social Security picking up the tab cannot compete with that kind of money. Salter hit on the fact that taxpayer dollars fund these nursing homes:

Is that fair to vulnerable patients in those private facilities? Is it fair for them to have paid taxes or have families paying taxes that subsidize the public nursing homes' tort claim coverage while the laws allow private nursing homes to be uninsured or underinsured for the very same offenses against the elderly? No.

Many nursing homes owned by political subdivisions or private entities already carry at least $500,000 in liability insurance. Ironically, it is the uninsured and underinsured nursing homes that commit the most neglect and abuse of their elderly residents. Insured nursing homes tend to take better care of their residents than uninsured or underinsured nursing homes. 

The reason for this is that the uninsured nursing home owners' profit over patients mentality permeates the entire operation and endangers the lives of their elderly residents. When something bad happens, the nursing home faces little or no legal accountability. If the resident or their family sues and obtains a judgment, the nursing home declares bankruptcy to prevent collection of the judgment. The nursing home then reopens under the same ownership, but as a different corporate entity. It’s a scam designed to aviod liability. 

Think about it. All Mississippians have to have liability insurance to drive vehicles on the road. But nursing homes that are entrusted with caring for our most vulnerable elderly adults can have no liability insurance. That's crazy. 

What can people do who have to put a loved one in a nursing home? Here are a few tips:

• Read my thoughts on choosing a nursing home for a loved one.
• Ask the nursing home at admission if they have at least $500,000 in insurance coverage.
• Avoid nursing homes that now or in the recent past have carried little or no insurance. These include:
  • Community Eldercare Nursing Homes, which is based out of Tupelo and operate under the name Community Living Center of (location); 
  • Trinity Mission Health and Rehab of Clinton;
  • Heritage House nursing homes (various locations);
  • Community Care Center of (location);
  • Hinds County Nursing and Rehabilitation Center, LLC.

There are many more Mississippi nursing homes that are not insured or carry a claims and defense cost eroding policy that basically just covers the fees of the nursing homes’ defense lawyers. If any readers know of any other Mississippi nursing homes that this applies to, please let me know and I will add them to the list.  

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Sid Salter with the Clarion-Ledger penned this story yesterday about the efforts of Mississippi nursing home owners to defeat a bill pending in the legislature that would require nursing homes to carry $500,000 in liability insurance coverage. My understanding is that the bill passed in the House of Representatives. There is a rumor circulating that Senate Insurance Chair Buck Clarke has been instructed to let the bill die in his committee by the powers that be. That would be horrible for all Mississippians.

Putting a Loved One in a Nursing Home is a Decision Many Mississippians are Faced with Every Day

Like many Mississippians, Salter had to put his parents in nursing homes when their failing health left them unable to care for themselves and in need of more care than family members could provide. This is very common and it could happen to anyone. If you have elderly parents who are not wealthy and you have a job so that you can not provide 24–hour care, then it can happen to you. Salter recognizes that his parents were lucky because they received good care, but that is not always the case:

My folks were fortunate. The people we paid to care for them when we could no longer care for them treated them with respect and compassion.

That's the way it is in most of Mississippi's nursing homes, but not in all of them.

Nursing home abuse happens in Mississippi like it happens in the rest of the country - physical abuse, sexual abuse and financial abuse. There are over 15,500 Mississippians in 184 Mississippi skilled nursing facilities.

Like Salter, I know what it is like to have a parent who needs constant care. You may say that you would never put your loved one in a nursing home. But until you see what it means for someone to need 24–hour care, you really don’t know what you are talking about.  

You can read my thoughts on choosing a nursing home for a loved one here.

Many Mississippi Nursing Homes Carry Little or No Liability Insurance

Most Mississippi nursing homes provide consistently good care to their residents. Many carry adequate liability coverage that is available to compensate victims when the care is not good and causes injury. But there are many Mississippi nursing homes with little or no insurance. Even worse, it is the nursing homes without insurance that provide the worst care.

I represent victims of nursing home abuse and neglect and their families. Most calls that I receive about a potential case involve a small group of nursing homes. Even worse, it is these repeat offenders who carry no liability coverage or only enough to pay their defense attorneys in defending a case.

Exposing the Litigation Strategy of the Nursing Homes with Little or No Insurance 

Not carrying liability insurance is not a financial necessity. Nursing homes are very profitable. It is a defense strategy to avoid being held accountable. When threatened with a suit, the first thing these nursing homes do is write a letter to the victim’s lawyer stating that there is either no insurance, or only enough to pay the defense lawyers. If liability is clear, the nursing homes then make an unfair low-ball settlement offer and insinuate that the nursing home will file bankruptcy if you obtain a big verdict in court.

This creates a no win situation for the victims—and the nursing home owners know it.

Nursing Homes are Very Profitable

Don’t believe nursing home operators when they say that they cannot afford liability insurance. I have seen financial statements from nursing homes. A 100 bed facility that has a Medicare and Medicaid pay source for most of its patients (this applies to most Mississippi nursing homes) can make a $1 million profit in one year. That profit is drained from the nursing home's books by the owners, leaving the facility with no assets on paper that could be recovered in a lawsuit.

There is a Hidden Incentive for Nursing Homes to Provide Bad Care After the First 100 Days

Mississippi is the poorest state in the nation. That means that for many people, Medicare and Medicaid are the only pay sources for nursing home care. That is a good news– bad news situation. The good news is that Medicare eligible patients typically get a lot of therapy during the first 100 days of their stay in a nursing home because the home can bill individual care items to Medicare.

The bad news is that after 100 days in a nursing home Medicare eligibility expires. Medicaid pays the same rate no matter how much therapy and other care the nursing home provides. This often results in everyone getting therapy for 100 days and no one getting therapy after 100 days.

Many residents’ health declines after improving during the first 100 day period because they start receiving less care. If a resident’s health declines and they die, it allows the nursing home to replace the low-rate Medicaid resident with a high-rate Medicare resident. Nursing homes with a lot of new Medicare residents will make a lot more money that homes with fewer Medicare residents. This creates a profit incentive for nursing homes if their long-time residents die.

Again, most nursing homes and their employees provide the best care that they can for as long as they can. But for the cold-hearted greedy owners, there are financial reasons to not provide quality care for all their residents.

Liability insurance balances the playing field.

Liability Insurance Increases Accountability

Mississippi requires us to carry liability insurance if we drive on the roads. That way, if our negligence causes a wreck, then we can be held accountable to the victim. The same should apply to nursing home owners and operators. If it’s fair that we all have to carry car insurance, then it’s fair that they all have to carry liability insurance. Sid Salter said it well:

But it seems that some Mississippi nursing homes don't carry enough liability insurance to cover those damage caps if a vulnerable elderly person is injured, mistreated or abused while in their care.

House Bill 536 requires non-government nursing homes to carry the same $500,000 in liability coverage that government nursing homes carry under the Tort Claims Act. But insurance company and nursing home lobbyists are working overtime to kill the bill. Why?

The nursing homes and the insurance companies got the "tort reform" caps they sought. Now, the elderly deserve some accountability from those same entities with the passage of HB 536.

Mississippi's elderly need less tort reform, not more. 

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I recently posted about the Mississippi Supreme Court’s Order preventing Governor Barbour from cutting the judiciary’s budget. Looks like Mississippi is not the only state with these types of issues. As reported yesterday on the WSJ Law Blog, the New York Court of Appeals rendered a decision on the related issue of judicial pay:

In a 5-to-1 decision, the Court of Appeals found that the legislative and executive branches illegally pegged judges’ pay raises to unrelated legislation. As such, the actions violated the separation of powers doctrine under the New York state constitution. Click here for the NYT article; here for the opinion.

Mississippi state court judges are underpaid at every level of the judiciary. But with the state in a budget crisis, it will be hard for judges to get a needed pay raise and any raises will probably not be to needed levels. It will be interesting to see whether at some point the judiciary tries to order their own raises.

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 Former State Auditor and current Lieutenant Governor Phil Bryant’s (R) lawsuit that challenged the payment of attorney’s fees to lawyers who Attorney General Jim Hood (D) hired to sue MCI is clearly politically motivated. So naturally current Auditor Stacey Pickering (R) denied that the suit is politically motivated, as reported in the Clarion-Ledger on Saturday:

[Hood’s attorney Fred] Krutz said he thinks the auditor's office waited two years to go after the attorneys fees because the case is politically motivated.

"It was always about politics," he said.

Pickering denies that's the case. "It is our belief that precedent is on our side," he said. "Any money recovered would be public funds."

Pickering is a politician. Most people assume that most acts by politicians are politically motivated. The odds that Bryant’s lawsuit against Hood was politically motivated are somewhere north of 99%.

The MCI case resulted in $100 million in cash and $7 million in property paid to Mississippi. Former Mississippi attorney Joey Langston’s law firm received a $14 million attorney’s fee in the case, which MCI paid. 

Hinds County Circuit Court Judge Winston Kidd threw the case out last week finding that:

Since the subject attorney's fees were not paid by the state and did not come out of any state funds, this Court finds that there is absolutely nothing improper or illegal about MCI's payment of attorney's fees to the Langston Law Firm," Kidd's ruling states.

I previously criticized aspects of Hood’s hiring outside counsel, particularly his hiring Texas lawyers who made a huge campaign contribution to Hood. But Hood is right in this case. The argument that a lawyer already hired and paid must give the fee back is thin. Even thinner is the argument that it’s the Legislature’s job to dole out the fee. The Legislature’s job is to pass laws—not administer attorney’s fees in a lawsuit.

If Bryant and Pickering do not like the system, then they should lobby the Legislature to change it—not file grandstanding lawsuits that cost the taxpayers money.

How much money? Both Hood and Pickering hired outside counsel in this case, who are paid by taxpayers—not MCI. Pickering’s lawyers alone cost the State $340,000 for a loss—with Pickering promising to take his gamesmanship to the Mississippi Supreme Court. The appeal will cost the State an additional six figures in attorney's fees. 

There is a big difference from the outside counsel fee in the MCI case and in Bryant/ Pickering's lawsuit:

• In the MCI case taxpayers paid nothing for outside counsel.
• In the Bryant/ Pickering case taxpayers paid hundreds of thousands for outside counsel.
• In the MCI case Mississippi won.
• Bryant/ Pickering lost their case.
• The MCI case made valid claims against a crooked corporation.
• Bryant/ Pickering's case made novel claims that lost.   

In the MCI case, Hood hired a Mississippi law firm that recovered $107 million for Mississippi from a crooked corporation. Hats off to Jim Hood on this one. I’m sure that money has come in handy over the last view years given the State’s terrible budget crisis.

Pickering needs to stop the taxpayer bleeding and shut this lawsuit down.

Voters who are tired of the political gamesmanship need to remember this episode when Bryant runs for governor and Pickering runs for whatever he decides to run for next.

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Last week Attorney General Jim Hood announced an $18.5 million settlement with Eli Lilly & Co. based on the company’s improper marketing of Zyprexa in Mississippi. Here is an L.A. Times article about the settlement.

In this post in December, I described a ruling in the case for Eli Lilly as basically throwing out the case. I was wrong. In retrospect, my opinion on the decision was influenced by posts on blogs that are cheerleaders for the pharmaceutical industry. 

These blogs are good sources of information regarding the latest decisions in pharmaceutical cases. The problem is that they offer no objectivity. They are typically written by lawyers who are industry honks who want to look like true believers for the industry in order get hired in more cases. Every decision is either a big win for the industry or wrongly decided by a stupid judge. In the future, I will try to do a better job of using these blogs for information on recent decisions while ignoring the commentary.

Here are amounts recovered by some of the other states who settled Zyprexa cases:

• Idaho– $13 million
• Utah- $24 million
• West Virginia– $22 million
• Connecticut– $25.1 million
• South Carolina– $45 million

There is no doubt that the ruling hurt Mississippi’s claim and reduced the state’s recovery in the case. But the ruling was not a disaster for Mississippi.

It still looks bad for Jim Hood that one of the firms handling the case was a Texas firm (Bailey Perrin) that donated $75,000 to Hood. That looks like a pay-for-play situation. The Texas firm and a Mississippi firm (McCraney Montagnet & Quin) will divide a $3.7 million attorney fee in the case.

But with Mississippi in a budget crisis and Governor Barbour cutting the budget regularly, General Hood will not have to apologize for adding revenue to state coffers.    

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On Friday a unanimous Mississippi Supreme Court entered this Order that prevents Governor Barbour from further reducing judicial appropriations as part of budget cuts caused by dismal revenue collections by the State. Since Friday I’ve eagerly awaited the Governor’s response, which came today in a meeting between Governor Barbour and the Clarion-Ledger’s editorial board [who knew they still had one?]:

  "It's not the way I read that statute," Barbour said, "but there's no use appealing it to the Supreme Court, would be my view."

At least the Governor has kept his sense of humor during the budget crisis.

As far as the Supreme Court’s Order, I side with the Court. That should not be surprising, since I work in the judicial arena. If the Governor can cut the judicial branch’s budget what would prevent a Governor deciding that we don’t need the judicial branch and cutting its budget to zero?

And the Court’s Order shows that the Court recognizes the severity of the State’s budget crisis:

….the appellate and trial courts of this state are fully aware of the economic difficulties facing our state and its people.

The Court goes on to state that it has and will continue to do all that it can to reduce expenditures without compromising its constitutional mandate to administer justice fairly and efficiently. The judicial branch cannot do that without adequate funding.

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Plaintiff’s attorneys are seeking an $8.3 million attorney’s fee following a $40 million settlement between Microsoft and the State of Mississippi stemming from allegations that Microsoft monopolized the personal computer market in Mississippi. Here is a copy of the Petition to Approve Fees. The amount of the attorney's fee must be approved by the trial court in the case.

Plaintiff’s counsel who stand to benefit in the case are Brent Hazzard of Jackson, Susman Godfrey of Houston, Boies Schiller of New York, Precious Martin of Jackson, John Gadow of Jackson and Richard Schwartz of Jackson.

The Petition states that the requested fee represents 7.5% of the total gross settlement. According to the Petition, Plaintiff’s counsel paid over $1.7 million in out-of-pocket expenses over the course of the litigation and expended millions of dollars worth of attorney time in the case. Mississippi State Auditor Stacey Pickering filed an objection to the fee claiming that a special legislative appropriation is required to pay Plaintiff’s counsel the fee specified in their contract with Attorney General Hood.

The dispute seems to be political. A 7.5% contingency fee is not a big fee. Mississippi Republicans have been critical of A.G. actions going back to the days of Governor Fordice trying to stop the tobacco litigation asserted by Attorney General Mike Moore. It would be interesting to see what would happen if a Republican became Attorney General. Would Republicans continue to criticize the A.G. hiring outside counsel to represent the State? Or would the criticism end and the only real difference be the political affiliation of the outside lawyers being hired by the A.G. to represent the State?    

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You can flush a toilet again in Jackson this week as the City has emerged from last week’s water crisis caused by freezing temperatures and bad pipes. The talk has now shifted to the City’s decaying infrastructure and what should be done to prevent the next water crisis. Being skeptical of the City’s ability to replace the existing water system, I would rather see Jackson planning for the next disaster.

There was a needless delay in getting water restored last week because Mayor Johnson decided to go at it alone for a couple of days before getting help from other area municipalities. That shouldn’t happen next time the pipes break. Jackson should have an agreement with other area municipalities where the cities agree to send in crews when one city is overwhelmed by breaks, such as happened to Jackson last week.

Next, leaders of Jackson and other area cities should plan for other disasters that will happen sooner or later. Will will see a bad tornado in Central Mississippi in the next 30 years. Wherever it hits the local government will need help. Why not make plans for that contingency now? The same goes for floods (Jackson is over-due for one), ice storms, etc…

Time is of the essence in a time of crisis, and just having a list with the phone numbers for everyone to call for help will save time. In addition, it will help to have help quickly on the way from other cities who were not hit by the disaster.

Jackson may not be able to fix the bad water pipes, but it can learn from the water crisis how to better deal with the next crisis.

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When a crisis hits you find out what kind of leadership you have. In the aftermath of Hurricane Katrina Mississippi Governor Haley Barbour passed the leadership test. In contrast, Louisiana’s leadership failed and were not up to the task.

With Jackson in a water crisis its citizens are finding out that like Louisiana’s leaders after Katrina, Jackson Mayor Harvey Johnson is not up to the task. There are literally out-houses on Capital Street (see picture) and throughout Jackson as businesses try to stay open without plumbing. But most restaurants, all schools and many other businesses must stay closed.

Meanwhile, Mayor Harvey Johnson continues to refuse to hire private contractors to help:

Johnson said the city has taken quotes from private contractors, but so far the city has elected to go with its own crews and the help supplied by other governments. The mayor repeated his analogy comparing the crisis to other natural disasters.

"If we had ice on the ground, people would be much more understanding," he said. "We have a disaster. It's just not one you can see."

Johnson said citizens need to understand the damage to the water system requires a great deal of resources from the city, "one of which is time."

Yesterday Jackson had only four crews making repairs. With the help from other cities the number climbed to ten. That’s nowhere near enough, particularly since there are private crews ready to step in.

Johnson’s analogy to an ice storm is half right. People would understand, but they would also see power company crews from all over the nation in the city fixing the problem. People would know that Entergy was doing everything possible to fix the problem. Here, Harvey Johnson is telling us that he is not doing everything possible. People are mad not because they can't see the problem, people are mad because they can see that not enough is being done to fix the problem. Johnson just doesn't get it on multiple levels.

Closed businesses means a loss of sales tax revenue for Jackson. Not hiring private contractors does not save Jackson money. It costs Jackson money. Even worse, it causes people to not trust Mayor Johnson:

 Try telling [Johnson's B.S.] to west Jackson retiree Chrestene James, 66, who was one of many to see the last drop of water trickle away Monday morning, leaving her household of five dry.

"This is a mess. This is a mess," she said. "We can't even take a deep freeze. I'm disgusted."

 

We can’t take a deep freeze and we can’t do what it takes to fix a disaster. Pitiful leadership. Just pitiful. 

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Business in Jackson is at a stand-still today because of the water crisis. The City’s reaction to the crisis reinforces public scepticism about the City’s leadership. Today's Clarion-Ledger states:

 Four city crews, augmented by workers from other departments, were working in 12-hour shifts - and [Mayor Harvey] Johnson said he was evaluating prices from private contractors that likely will have to be hired. Johnson said he could not estimate how long it would take or what it will cost to fix the breaks.

Four crews? Water lines are broken all over the City and we have four crews on it? While Harvey Johnson thinks about getting more help? Words cannot describe how ridiculous that is.

The City of Jackson needs to follow the example of utility companies after storms and call in all available outside help to fix the broken water lines. That’s what you do in these situations. You don’t perform a study to see how cheaply you can get the job done. The City not being operational costs the City sales tax revenue and causes the City leadership to lose the confidence of the people. That further fuels the exodus from Jackson.

If Harvey Johnson ran a power company, people would still be waiting to get their lights on after Katrina. 

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NMC had a great observation over the weekend on Jerry Mitchell’s Clarion-Ledger stories on Bobby DeLaughter:

The story has no news in it (except possibly the note that DeLaughter has not responded to the state bar’s petition to disbar him) and a lot of comment from Matt Steffey, who observes “Fundamentally Bobby DeLaughter is a good public servant who made some serious criminal mistakes.” The article also states: “Steffey said he foresees DeLaughter working for a law firm as a jury consultant, strategist, arbitrator, mediator or the like.”  I really have the sense that Mitchell is using Steffey as the reliable voice (as in always available to say what Mitchell wants in the story) for his feeling that DeLaughter’s prosecution of Evers should define DeLaughter, and not the pattern of corruption with Ed Peters as a judge.

Meanwhile, I find Steffey’s prediction that DeLaughter will find work as a jury consultant, strategist, arbitrator or mediator to be very naive. Here are several reasons for why I believe that Steffey is wrong:

1. I find it difficult to believe that any law firm will hire DeLaughter for any reason. He is going to be a disbarred pariah in the legal industry when he gets out of jail.
2. DeLaughter is not qualified to be a jury consultant. Professional jury consultants typically have a university education and research experience in fields such as psychology, sociology or behavioral sciences. In addition, in most Mississippi venues a local person who “knows everyone” is more valuable than a professional consultant.
3. I’m not sure what a “strategist” is, but it sounds like practicing law. DeLaughter will not be able to practice law.
4. Arbitration is on the decline. But even if it was not, who would agree to DeLaughter arbitrating their case? Plaintiff lawyers already have to deal with the perception by many of their clients that the legal system is crooked and corporations and other powerful litigants routinely “pay off” someone to get a favorable ruling. I can’t see plaintiff lawyers attempting to convince their clients to let DeLaughter decide their dispute. The same applies to defense lawyers, but for slightly different reasons. Insurance companies and corporations are much less likely than individual plaintiffs to believe that someone in the legal system has been “paid off.” But this does not mean that they blindly trust the system. Also, adjusters and in-house counsel are always thinking about how they can defend a decision within the company. Agreeing to allow DeLaughter to arbitrate a dispute would not be a decision that these individuals would feel comfortable defending to their superiors.
5. DeLaughter can’t be a mediator in a court ordered mediation, since the Mississippi Supreme Court requires court ordered mediators to be members of the Bar. As far as non-court ordered mediators, why would anyone hire DeLaughter? There are more mediators in Mississippi than there are mediations to go around, including many retired judges. I don’t see DeLaughter getting hired to mediate before retired judges such as Judge Charles Pickering or Judge Frank Vollor, not to mention established mediators such as Larry Latham, Bobby Sneed or Anne Veazey. 
6. The legal community is not willing to accept that DeLaughter was a good public servant who made a couple of mistakes. The problem with this is that we do not know if it was a couple of mistakes or a long pattern of corrupt conduct. And even if it was only a couple of mistakes, DeLaughter exercised such poor judgment in making the mistakes that I do not see him ever regaing the trust of the legal community.     

I can see DeLaughter writing books after his release. It’s Never Too Late was a good read and DeLaughter has a lot of interesting life experiences from which to draw.   

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Attorney General Jim Hood filed this motion to amend his complaint in a case against numerous manufacturers of vitamins for conspiracy and price-fixing. A copy of the proposed amended complaint is attached to the motion. The case is pending in the plaintiff “hotbed” of Rankin County Chancery Court.

According to the Complaint, the manufacturers already paid substantial fines to the federal government. Other states filed similar cases and many have settled, as reported here.

The Complaint alleges that over a many-year period the manufacturers of vitamins conspired to fix prices in violation of antitrust and other laws. The Complaint seeks to recoup money paid by Mississippians. Maybe they can get free vitamins thrown into the deal, like when Kramer got free coffee to settle his case on Seinfeld.

Hood hired several Mississippi lawyers to pursue the case, including Richard Schwartz, Brent Hazzard, Precious Martin, Lee Abraham and John Gadow.

It sounds like the kind of case that is very interesting if you are actually involved in it, but boring when you are not. Sort of like a complex commercial case.  

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Last night Ya’ll Politics reported a ruling by a New York federal judge that basically threw out Attorney General Jim Hood’s lawsuit against Eli Lilly & Co. over off-label marketing of the anti-psychotic drug Zyprexa. Ya'll linked this report from Legal Newsline. Here is the actual 117 page opinion in the case.

This looks like a disaster for General Hood. First, Mississippi loses and collects nothing while other states settled similar claims and made substantial recoveries:

“Of the 12 states that did not settle their claims against Eli Lilly in a 33-state, $62-million agreement five have already made their settlements official and others have tentative agreements. The states that have settled are:

-Connecticut settled for $25.1 million;

-West Virginia settled for more than $22 million ($6.75 went to outside counsel hired by state Attorney General Darrell McGraw);

-Idaho settled its case for $13 million ($2.5 went to outside counsel hired by state Attorney General Lawrence Wasden);

-Utah settled for $24 million (more than $4 million went to outside counsel hired by state Attorney General Mark Shurtleff); and

-South Carolina settled for $45 million (more than $6.5 million went to outside counsel hired by state Attorney General Henry McMaster).

Eli Lilly has paid $1.4 billion to settle federal civil and criminal claims stemming from alleged off-label marketing.

The payment also benefited the Medicaid programs of more than 30 states that collectively received approximately $362 million.”

Eli Lilly hemorrhaged money to settle the Zyprexa claims and Mississippi, with its budget in ruins, gets nothing.

Second, as if the loss was not bad enough, the article revealed that Hood’s hand-picked outside counsel donated substantial money to Hood:

Bailey Perrin, which donated $75,000 to Hood, is also representing the states of Arkansas, Pennsylvania and Louisiana.

$75,000??? From a law firm in Texas? Why in the world, other than the obvious reason, would a law firm in Texas be donating $75,000 to the Mississippi Attorney General? Did they also donate $75,000 to the A.G.’s in Arkansas, Pennsylvania and Louisiana?

According to the Court’s opinion, Mississippi was also represented by William Quinn of Booneville (now Ridgeland). Quinn was working for Joey Langston at the time of Langston’s downfall and is generally credited for master minding the State’s claim against Worldcom that resulted in a $14 million fee for Langston.  

This is more ammunition for Hood’s critics in general, and the critics of the State’s system of allowing the A.G. to hire and pay outside counsel in particular.

I do not have a problem with the A.G. hiring outside counsel, in theory. But a Texas firm who donated $75,000 to Hood? Let’s be honest—that does not look good. There are plenty of good lawyers in Mississippi who could represent the State and need the work. But there is probably a shortage of non-incarcerated (former) Mississippi lawyers who donated $75,000 to Hood.

Hood is going to end up giving his critics enough ammunition to get the State Legislature to enact a law that restricts the A.G.’s ability to hire outside counsel.  

As for Hood’s political future, there are no threats on the horizon to his position as A.G. But for a higher office such as governor, the $75,000 donation from Texas lawyers may do more harm than good.  

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Accidents caused by drivers text messaging or talking on cell phones is a growing problem in the United States. In Ohio a bus driver was convicted of vehicular homicide after running over a pedestrian in a cross walk while talking on her cell phone. Here is a website containing pictures and stories of accidents caused by drivers on cell phones. The website includes lawyer advertisements. I have no affiliation with it.

We know that drivers on cell phones drive as badly as drunk drivers. Conclusions of a study by the University of Utah include:

"We found that people are as impaired when they drive and talk on a cell phone as they are when they drive intoxicated at the legal blood-alcohol limit” of 0.08 percent, which is the minimum level that defines illegal drunken driving in most U.S. states, says study co-author Frank Drews, an assistant professor of psychology. “If legislators really want to address driver distraction, then they should consider outlawing cell phone use while driving.”

The Utah study concluded that cell phone users were 5.36 times more likely to be in an accident.

My personal observations driving around Jackson is that talking on cell phones and texting are both problems, with texting being the bigger of the two. I have seen a lot of young people driving and texting who stopped paying attention while focusing on a text message. This effectively put a blind person behind the wheel of a moving car. I see more young men doing this than women.

My observations of people talking on cell phones have been a little different. The problem appears to be primarily with people who do not have a hands-free device and drive with one hand cradling the phone. People driving like this appear to develop tunnel vision and do not look all around them while turning or switching lanes. This causes them to turn into the paths of other vehicles. Often they are oblivious to the fact that they almost caused a wreck. I see more middle age women doing this than men.

Currently only six states ban all drivers from talking on handheld cell phones when driving. Nineteen states ban text messaging for all drivers. Here is a link to a chart showing the status of the law in all states.

As usual, Mississippi is not a leader in this area. What seems to happen in other states is that state legislatures do nothing to address the issue until there is a horrific high-profile accident that kills one or more people. Then there is a public outcry and the legislature enacts laws that ban texting and/or using handheld phones while driving. 

Mississippi's legislature convenes in January and should get ahead of this growing problem by enacting bans on both text messaging and driving and using handheld cell phones and driving. This would make our roads safer for everyone.   

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Over the past few months several people asked me if I thought that Jackson Mayor Harvey Johnson would name Pieter Teeuwissen City Attorney. My response was probably not, since the City of Jackson is not known for making the smartest decisions and Mayor Johnson is the person who allowed the Braves to go to Pearl instead of downtown Jackson. But Jackson got one right yesterday when the City Council unanimously approved Teeuwissen as City Attorney, as reported by the Clarion-Ledger.  

Teeuwissen spent the last several years running the City's litigation department. He inherited a department in disarray with a reputation for losing lawsuits filed against the City. Teeuwissen installed a motivated team of lawyers who reduced the backlog of cases against the City and significantly improved the results in cases against the City. 

From a political standpoint Teeuwissen's most impressive feat was his ability to effectively serve in the City's legal department during the Melton administration. In addition to being the subject of state and federal criminal prosecutions, Melton was a wing-nut who did not get along with several members of the City Council. Melton's personality could have easily bled into the legal department and resulted in the exodus of Teeuwissen. Instead, he stayed and was trusted by the Council.   

Teeuwissen will now supervise approximately fifteen lawyers in the Office of the City Attorney.    

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Governor Barbour appointed Malcolm Harrison Circuit Court Judge for Hinds County today to fill the term of Judge Bobby DeLaughter. Harrison is currently the County Attorney for Hinds County. Here is Harrison's bio:

Hinds County Attorney, S. Malcolm O. Harrison is a native of Jackson, Mississippi and graduated with honors from Jackson State University in 1991. Attorney Harrison attended Cumberland School of Law, Samford University in Birmingham, Alabama graduating in 1994 with his Juris Doctor degree. Attorney Harrison was admitted to the Mississippi Bar, April of 1995. Attorney Harrison is licensed to practice law in all Courts in the State of Mississippi, including the Supreme Court of Mississippi as well as the Fifth Circuit Court of Appeals in Louisiana.

Attorney Harrison is a member of several legal associations including, the American Bar Association, Mississippi Bar Association, Magnolia Bar Association, Mississippi Trial Lawyers Association, and American Trial Lawyers Association.

Attorney Harrison is involved and holds many offices in civic organizations, including Leadership Jackson; City of Jackson, Mayor's Youth Initiative, NAACP; Salvation Army; Trustee Board Member, Farish Street Missionary Baptist Church; 7th District Scholarship Chairman; Omega Psi Phi Fraternity, Inc.; T.C. Almore Lodge #242 F&AM; and Jackson State University, National Alumni Association.

On November 2,1999, Attorney Harrison was elected County Attorney for Hinds County Attorney for Hinds County, Mississippi. Attorney Harrison was the first African American elected County Attorney for Hinds County, Mississippi. Attorney Harrison also serves as the City Prosecuting Attorney for Bolton, Mississippi.

Attorney Harrison is married to the former Tammiko Walker and they have two sons, Khari and Kiland.

You can read my prior posts speculating about Harrison getting this seat here. I view this as a smart appointment by Barbour, who appears to be positioning himself for a possible presidential bid. He recently came under criticism for not appointing African-American judges, which I discussed here. Look for Barbour to appoint more black judges over the next couple of years in order to repair his image on this issue.

Harrison will probably have opposition in the next election, but he stands a good chance to retain the seat if he campaigns hard.

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The Clarion-Ledger is reporting that:

Longtime federal prosecutor Don Burkhalter has been selected interim United States Attorney for the Southern District of Mississippi.

U.S. Attorney General Eric Holder announced the selection today.

 

Burkhalter replaces Stan Harris, who had been acting U.S. Attorney for the Southern District of Mississippi. Harris had been serving since Dunn Lampton retired in January.

 

Harris, a member of the Mississippi Army National Guard, was deployed to Iraq as a member of the 155th Brigade Combat Team.

 

The White House has not said when President Barack Obama will name U.S. attorneys for the northern and southern districts in Mississippi.

 

Burkhalter served in the Department of Justice in Washington, D.C. for more than 10 years and in the United States Attorney’s office in Jackson for more than 20 years.

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The Clarion-Ledger is reporting that acting U.S. Attorney for the Southern District Stan Harris will be deployed to Iraq next week. No word on who will replace Harris as acting U.S. Attorney. Perhaps head of the criminal division and Gulfport native John Dowdy?

Let's hope the White House will not have a say in appointing the new acting head of the office. If it does we may be in for a long wait, since the White House can't get it's act together enough to appoint the permanent U.S. Attorneys in either the Southern or Northern Districts. It's like Jackson Mayor Harvey Johnson has gone to Washington. 

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In August I posted about a Clarion-Ledger article discussing Governor Barbour's failure to appoint a single African-American judge to the state court judiciary since taking office in 2004. According to this new article in the Jackson Advocate, Barbour's record in minority appointments to the state judiciary is now 0-24. To put it in perspective, if Barbour's next appointment is African-American it will raise his batting average for minority appointments from 0% to 4%.

The African-American population in Mississippi is 37%. In order for Barbour to raise his appointment batting average to over 37%, he will need to appoint fifteen African-Americans in a row without a single white. Needles to say, that is not going to happen.

There are currently two open positions in Mississippi where Barbour will make an appointment: Judge DeLaughter's seat in Hinds County Circuit Court and the late Judge Middleton's seat in the Chancery Court for the Seventeenth District (Claiborne, Jefferson, Adams and Wilkinson counties). Appoint two African-Americans here and Barbour can raise his average to 7.6%. While 2 out of 26 is still ridiculously low, it would not have the same ring as zero. 

It does not take a rocket scientist to see that Barbour is positioning himself for a presidential run. But his record on minority judicial appointments will be fodder for those voices, many from within conservative circles, who say that a white Mississippian cannot be elected president. While I disagree with that general statement, I do agree that a white Mississippian who can be portrayed as stuck in the 1960's cannot be elected president. 

I'm not a big Haley Barbour fan, but it would be pretty cool to see a Mississippian president. Governor Barbour has some work to do on his minority appointments if it's going to be President Barbour.  

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Last Friday former Gulfport mayor Brent Warr pleaded guilty to one count of making a fraudulent claim after Hurricane Katrina. Here is the Sun-Herald article on the plea. But the guilty plea looks like a good deal for Warr:

Under the plea agreement, prosecutors dropped 19 other charges against Brent Warr and all 20 against his wife, Laura. Brent Warr was sentenced to three years probation and was ordered to pay $9,558 in restitution.

So no jail time for Warr and the government drops 39 of 40 charges against Warr and his wife. This was obviously a great deal for the Warrs--a huge win. The Warrs should be very happy with the job that their attorney, Joe Sam Owen of Gulfport, did in negotiating this deal.

When the government indicted the Warrs last spring I criticized it in this post. At the time, I had determined that the public on the Coast sympathized with the Warrs and felt like the government basically entrapped them by encouraging home owners to make claims even if they weren't sure they were eligible. For the government to basically let the Warrs take a walk, it looks like they had second thoughts about the wisdom of the prosecution and the chances for a win before a jury that would have been sympathetic to the Warrs.

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Point of Law has this post about Governor Barbour speaking about the judicial bribery scandal in Mississippi. The original question appeared to be about tort reform, but Barbour worked in the scandal:

BARBOUR: I don't think it was related to the tort reform, but as you know, some of the more prominent plaintiffs' lawyers in my state got into trouble. ...

I hate it. It's bad for the court system, it's bad for everybody. One of the things I really believe is, the public has to think the legal system is on the up and up. I mean, that's just really, really important.

Once in my career, I was the deputy chairman of the International Democrat Union, which despite its name - Democrat and Union - is the organization of conservative parties of the world that President Reagan started with Mrs. Thatcher and Chancellor Kohl. And I was struck by how much people in other parts of the world realized the importance of the rule of law in America. And it is not that way everywhere. There are advanced countries that are very prosperous that don't have nearly the confidence, faith and commitment to the rule of law that we do.

And for us, an advantage for us is the little guy generally believes that the court system is on the up and up.

All of sudden we get judges getting convicted of taking bribes and lawyers, good lawyers - they may have been plaintiffs' lawyers and they may be on the other side from me, and politically and everything else - but they're good lawyers. To me it's sad, 'cause it's bad for what we all ultimately want in America, and we do want the rule of law, and we want a system that let's us progress. 

But the tort reform battle and the actual enactment of tort reform I don't think had any role in that. It was other stuff. Most of the litigation had actually started before.

MEESE: I understand that. I have always felt that, to some extent at least, the tremendous amount of money that came to be involved, and the way that the trial lawyers were holding their seminars and dealing themselves, led to the arrogance that led to people like Dickie Scruggs and Bill Lerach to have the bribes and so on...that the money in effect was so great for these trial lawyers that it almost corrupted the system and that's what led to some of these things that we've talked about.

BARBOUR: It's maybe a monetary takeoff on "Power corrupts and absolute power corrupts absolutely."

I don't always agree with Barbour, but he is dead on with his comments that it is important that the public believe in the integrity of the judicial system. The same applies for the bar. As a litigator, I realize that my client will not always win. But it is imperative that we be able to trust the process. Of course, according to DOJ there is no public interest in the judicial bribery scandal.

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A few weeks ago I made a Freedom of Information Act request to the Department of Justice seeking a copy of the government's immunity agreement with Ed Peters. DOJ refused my request. Here is a copy of DOJ's refusal letter. According to the DOJ, I am not entitled to the information because Peters did not consent and there was no showing that the public disclosure outweighs Peters' privacy interests. My request letter to the DOJ did not identify a public interest for the disclosure. My limited research on  the topic, however, suggests that this is not the type of private information that the privacy act was designed to protect. In addition, it's my understanding that the government should produce the information with the private information redacted.

The suggestion  that the public in not interested in the Peters immunity deal is a joke. I suspect that the DOJ does not want to produce the agreement because it is embarrassed that DOJ granted Peters immunity. My informal reading of public opinion both in and outside the bar is that Peters should have been prosecuted.

Rather than go straight to an appeal I am going to try to clean up DOJ's objections by submitting another request. If that request is denied I will appeal. In the meantime, if anyone already has the Peters immunity deal and is willing to share it with me I would appreciate it.

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Matt Eichelberger at Ipse Blogit has this outstanding post taking issue with Governor Barbour's latest tort reform scare tactic that I wrote about here.  Eichelberger notes:

Now, having practiced in the civil arena before, I can assure you that pre-suit notice, in reality, does nothing more to help settle a case than the filing of a complaint does. It's just a trap to ensnare unwary citizens and keep them from getting justice when they are harmed by a state actor. Period.

and:

Here are the number of physicians in Mississippi by year from 1998 through 2007:

1998 - 5,133
1999 - 5,232
2000 - 5,399
2001 - 5,544
2002 - 5,680
2003 - 5,820
***TORT REFORM ENACTED***
2004 - 5,872
2005 - 5,872
2006 - 5,890
2007 - 5,961

Anyone notice anything odd? For all the hue and cry from tort reform proponents about doctors leaving Mississippi and the health care crisis that would ensue, we had growth in the number of physicians in Mississippi during the 6 years leading up to tort reform, and in fact, we have had less growth since tort reform.

Meanwhile, yesterday the Clarion-Ledger proved what a joke it is as a newspaper with this editorial, which takes Barbour's bait hook, line and sinker, without being able to explain why Barbour is right. Having a good outdoors writer, cartoonist and sports writer does not make a good newspaper.

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The Clarion-Ledger reported in this story on Monday about Governor Barbour's attempt to politically scare the Mississippi Supreme Court into reversing a near-unanimous opinion. Here is the Governor's amicus brief filed with the Mississippi Supreme Court. Here is the Supreme Court's opinion in Price v. Clark. As an initial comment, the Court's decision in Price that filing a lawsuit tolls the running of the statute of limitations was clearly correct and is consistent with the laws of civil procedure in states throughout the nation. The Court's decision in Price has nothing to do with the merits of the case. The defendants can still win on the merits through a summary judgment motion or as the result of a trial.

The shocking aspect of the Governor's brief is the fact that the Governor admits that the real purpose of the pre-suit notice requirement is to impose a penalty on plaintiffs who do not successfully navigate the pre-suit notice mine field:

The Legislature cannot have intended to establish a pre-suit notice requirement but virtually no penalty for non-compliance.

This is a bombshell. The Governor of Mississippi is stating that the state's tort reform laws contain a designed trap to eliminate cases on behalf of unsophisticated plaintiffs who do not properly jump through a set of hoops before filing suit. That was not supposed to be a reason for the notice requirements. Previously, the only reason given to justify the pre-suit notice requirements was that it would give a defendant a chance to investigate a case and settle it before incurring the expense of defending the lawsuit. This reason was already suspect, since defendants never actually try to settle a case after receiving notice, but before suit is filed. Representative Ed Blackmon correctly observed in  the Ledger's article:

The current law requires people who are injured to provide parties certain information with the hopes of settlement before litigation is filed, he said. "I don't know of a single case settled during that time. It's once in a blue moon."

What's happening instead, he said, is Mississippi is reverting to "the dark days when it was a crap shoot whether parties could even get in the courthouse."

What really happens is medical defendants wait to see if the plaintiff navigates the pre-suit notice mine field. In many instances, the defense starts the case by filing a ridiculous motion to dismiss asserting a twisted and absurd reason that the statutory notice provisions were not complied with. The pre-suit notice requirements are complicated and trip up competent lawyers. Regular people who try to assert a lawsuit on their on behalf don't have a prayer. Only after the initial motion to dismiss is resolved will a defendant even think about trying to settle the case--regardless of the merits of the case.  

Now we know as a result of Governor Barbour's brief that the real reason for pre-suit notice requirements in Mississippi is to obtain dismissal of cases with merit. Indeed, a case without merit is destined to be thrown out by the court anyway. This is sordid and wrong. Justice is supposed to be blind and everyone is supposed to have a fair shot in the court system. Govenor Barbour, on the other hand, wants the deck stacked in favor of insurance companies and big business.   

As I discussed in this post back in March, the Supreme Court's changes to multi-party joinder laws had a huge impact in reducing the number of cases against doctors where the doctors should not have been named as defendants. The other major factor with tort reform was the caps on non-economic damages. Pre-suit notice provisions were not a factor at all in reducing lawsuits. They have simply become a mechanism for cases with merit to be dismissed--a mechanism that Govenor Barbour wants to preserve.

If the Supreme Court revisits its decision in Price it should rule that the pre-suit notice requirements are unconstitutional and unenforceable. As support for its ruling the Court should point to the statement in Governor Barbour's brief.

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Ipse Blogit is reporting rumors than Phillip Gunn has withdrawn his name for consideration Judge DeLaughter's seat in Hinds County Circuit Court and that the appointment will be an already sitting judge in Hinds County. Kingfish posted a comment to the story that Chancellor Dwayne Thomas is considering a run for the position.

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On August 14 Judge Wingate entered an Order Appointing Merit Selection Panel for the Magistrate Judge position that is open as a result of Judge Sumner retiring. Here is the Order. the Chairman of the Panel is Maison Heidelberg of Ridgeland. Other lawyer members of the panel are Amy Ryan- Woodville; Robert Latham- Natchez; Robert Allen- Brookhaven; Skipper Samson- Gulfport; Michael McWilliams- Jackson; Doug Minor- Jackson; Steve Montagnet- Ridgeland; James Heidelberg- Pascagoula; Paul Franke- Gulfport; Bill Liston III- Jackson; Rob McDuff- North Congress St.,  Jackson; and Latoya Merritt; Jackson. The panel included two non-lawyer: Dr. William Ashford (Jackson opthamologist); and Katie McCarstle- Natchez. It's my understanding that all the Southern District judges had input on the panel subject to approval by Judge Wingate.

It is generally expected among the bar that there will be hundreds of applicants for the position. I do not recall the exact number that I heard applied for the seat that Judge Parker filled, but it was over a hundred. The federal magistrate seat pays more than state court judge positions and many people expect a lot of state court judges to apply. The Order states that the panel is "to assist the court in identifying and recommending the applicants who are best qualified to fill said position." My understanding of the process is that the panel narrows the field to five finalists with the Southern District Judges making the final decision.

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The Clarion-Ledger contained two stories on Sunday about the controversial decision by the federal government to grant Ed Peters immunity in the judicial bribery scandal involving Judge Bobby DeLaughter. One is an opinion piece stating that Peters got off easy. The other article  mentions the fact that Peters could still face prosecution, stating:

But that doesn't mean Peters won't be charged in other districts for his alleged wrongdoings in other cases DeLaughter heard, Mississippi College School of Law professor Matt Steffey said. "Many people are justly concerned that Mr. Peters and Mr. Peters alone escaped criminal liability."

But at this point it appears that Peters will escape prosecution. The article quotes Hinds County D.A. Robert Smith as stating that he will not prosecute Peters:

Hinds County District Attorney Robert Shuler Smith said his office wouldn't investigate Peters because it's been a federal issue. "They've never called me and asked for our help," Smith said.

Smith said there was not a conflict of interest because of his relationship with Peters, who publicly endorsed Smith for district attorney. The two once were seen eating lunch together in Hattiesburg earlier this year. Smith said Peters was giving him advice on running a DA's office.

That's weak. Smith might as well just admit that he feels indebted to Peters. Smith is letting Peters take a walk not only in Scruggs v. Wilson, but also in Eaton v. Frisby if the facts in the government's 404(b) motion in the DeLaughter case are true. Here is NMC's discussion of that issue. Peters was prepared to testify that he conspired with DeLaughter in Eaton.

As for Mississippi Attorney General Jim Hood:

A spokesperson for Attorney General Jim Hood neither confirmed nor denied an investigation by Hood's office.

Many of Hood's prosecutions have been of the shoot first and ask questions later variety. Given this tendency to rush in, I doubt that Hood will prosecute at this late date. His office just will not come out and admit it.

That leaves one person not mentioned in the article who could prosecute Peters: Rankin-Madison County District Attorney Michael Guest. According to Tim Balducci, Peters, Steve Patterson, Joey Langston and Balducci met at the Jackson or Madison airport to discuss Peters' communications with Judge DeLaughter about Scruggs v. Wilson. Both airports are in Guest's jurisdiction. While I am no criminal law expert, it sounds like a conspiracy was committed in Guest's jurisdiction. It is unclear why Guest, who is a Republican, would not be eager to prosecute in this high profile case. It is unclear whether Guest has a personal relationship with Peters or if pressure has been put on Guest to not prosecute in the case. At this point, it looks like Guest is the last hope for those who would like to see Peters held accountable for his role in the scandal. Clarksdale attorney Charlie Merkel expresses the sentiments of many when he states:

"I hope [the investigation] goes forward, and I hope the rest of the culprits get nailed, but I am not optimistic that will happen."

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The U.S Census Bureau web site states that thirty-seven percent of Mississippians are black. According to this article in Sunday's Clarion-Ledger, Governor Barbour has appointed twenty state court judges in his tenure with all twenty being white. That's a really bad statistic for a man positioning himself for a presidential run. The Republican Party's Southern Strategy appears dead after the last presidential election. Getting most of the white votes in the South isn't enough anymore. Anyone who wants to be president is going to need to pick up minority votes somewhere. With a stat like this, blacks are out as potential Barbour supporters. And are Hispanics going to think that Barbour will be a good president for them with a stat like this? Probably not. This is the type of statistic that will get major national media attention should Barbour run for president. I am on record as stating that Barbour has a legitimate shot in 2012, but stuff like this could kill him.

With disgraced Judge Bobby DeLaughter's seat now open Barbour could begin to rectify this horrible record by appointing a black lawyer to fill DeLaughter's seat. But the leading candidates rumored to be on Barbour's list are all white. Given the importance of the seat it would be shocking if Barbour appointed a black to the position and would be the clearest signal yet that Barbour is positioning himself for a 2012 presidential bid.

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Main Justice has an article today about the Northern District U.S. Attorney position that once appeared certain to be going to Christi McCoy. Here is the article. The article does not really shed much light on the situation other than suggesting that McCoy is still a possibility for the job, which I am hearing is not the case. The article does mention that Patsy Brumfield, who originally disputed Ya'll Politics' report that McCoy would not be nominated, now admits that there are problems:

But even Brumfield, who originally refuted reports that McCoy’s candidacy had run off the rails, has concluded that “something” is amiss. But what?

The article states that Curtis Ivy is campaigning for the position and that it could still go to McCoy. It's my understanding that McCoy ran into fatal problems unrelated to Joey Langston in the screening process and is out. I also understand that Ivy is trying to get the position, but is no shoe-in at this point even though other names have not emerged.

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Saturday's Clarion-Ledger contains this article about possible appointees for the Circuit Court Judge seat formerly held by Bobby DeLaughter. The article mentions Rep. Phillip Gunn and Judges Bill Skinner and Bill Gowan as possible replacements. Ipse Blogit has this position going to Gunn if he wants it. Ipse Blogit probably has much better sources on this than the Ledger.

Sunday's Clarion-Ledger has this article about the status of the judicial bribery probe and the Eaton v. Frisby case. While the probe may not be over, I have trouble believing that it is going anywhere. The original indictments of Scruggs and company were handed down quickly. With all of those guys cooperating it's hard to believe that it would take this long for more indictments. Everyone thought that there would be more lawyers indicted in the fen phen probe, but there never were. The judicial bribery probe looks similar as far as dying a slow death.

The most interesting part of the article were the quotes of Eaton senior vice president of communications Don McGrath. McGrath denies that Ed Peters was brought into the case to improplery influence Ed Peters:

"There are a lot of false statements in here," said Don McGrath, senior vice president of communications for Eaton, said of the document. "In no way did we ask Ed Peters to imply or ask or insinuate that he would do anything improper in trying to influence Judge DeLaughter or any other judge."

Asked why Eaton decided to hire Peters, a longtime prosecutor, McGrath replied, "There are few Mississippi trial lawyers that have as much experience as Ed Peters."

As for Peters not being listed with the other attorneys of record, McGrath explained that not everyone who works on a lawsuit gets mentioned. "There's no requirement to list everybody working on the case," he said.

I don't buy any of this. First, there is not one lawyer in the Jackson area who would believe that Peters' job on the case was to do anything other than influence DeLaughter. If Eaton's objective was for Peters to "properly" influence DeLaughter, that is a slippery slope. The fact that Peters never filed an entry of appearance, which is standard when a new lawyer enters a case, suggests that the intent was to improperly influence DeLaughter. Otherwise, how would DeLaughter know that Peters was even in the case, since he never appeared?

Second, the justification that Eaton hired Peters because of his trial experience is hogwash. If that was true, Peters would have been trying civil cases all over the state instead of focusing his civil practice on airport meetings sandwiched around lunch with the judge at Shoney's. If McGrath cannot do any better than this he needs to keep his mouth shut.

Third, although there is no requirement to mention everyone working on a case, why exactly did Eaton not disclose that Peters was on the case? The fact that it's not required sounds more like a defense than a real reason. Peters was involved in the case and apparently talked DeLaughter into replacing Jack Dunbar as special master. Peters went so far as to call Larry Latham to see if he would be willing to serve as special master, but later left a cryptic message with Latham to not mention his name. To Latham's credit, he immediately reported this. This leaves the question of what Eaton and its lawyers knew about all this.

According to Tim Balducci's testimony about Scruggs v. Wilson, Peters did not get hired and then never communicate back with the people who hired him. In the Scruggs case, Peters communicated his every move back to the Scruggs team. Why would it have been any different in Eaton? Why would Peters have taken it upon himself to get the special master replaced after a bad ruling?  And would he have done it without consulting with the other Eaton lawyers on the case? In my opinion, the answer is no. The bottom line is that the more information that emerges, the worse it looks for Eaton.

I intend to write more about this later, but there should be a rule or law in Mississippi that prohibits the hiring of a lawyer because of the lawyer's personal relationship with the presiding judge. There is currently no such prohibition.   

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According to Matt Eichelberger at Ipse Blogit , Rep. Phillip Gunn of Clinton will be appointed to fill Judge DeLaughter's unexpired term. This would be a smart choice by Governor Barbour. Gunn has a good reputation as a lawyer and politician. He would presumably get a ton of votes in the Clinton area when he has to run against a challenger.

It's my understanding the Malcolm Harrison is viewed by many to be the favorite to take the seat in an open election. A Gunn v. Harrison match-up would be an important race that attracts a lot of attention and money. Racial demographics in the district will be important. The plus side is that either of these two would probably make a fine circuit judge.

Meanwhile, there has been no announcement of who may run against presumptive favorite Ashley Ogden to fill Judge Yerger's seat when he steps down. Barbour will probably fill Yerger's position before an election with someone like Jeff Weill who the Republicans think has a chance to win an election. Ogden will be the favorite if he campaigns as aggressively has in his past campaign. Ogden's plans are unclear, however, and his Take Back Jackson web site appears to have expired. 

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In my last post I talked about how bad it looked for Judge Bobby DeLaughter in his upcoming criminal trial. I was not alone in this assessment andtoday's announcement that DeLaughter will enter a guilty plea to lying to the FBI is not surprising. In fact, it would have been shocking if DeLaughter had not pleaded guilty given the lineup of former lawyers who were lined up to admit that they bribed DeLaughter.

DeLaughter's downfall is, in my mind, the worst part of the entire judicial bribery scandal. The trials of Whitfield and Teel were arguably political and everyone involved always denied any impropriety. But in the DeLaughter case everyone involved except for Trent Lott has admitted to wrongdoing. Before this mess started there were many lawyers who held DeLaughter in high esteem. I respected DeLaughter and have previously mentioned the fact that I thought his book Never Too Later was well done. I was not enamored with DeLaughter on the bench because I thought he was too unpredictable. That perception now casts a cloud over his entire judgeship. Many lawyers who lost on a questionable ruling by DeLaughter will wonder if there was any behind the scenes impropriety. At a minimum, DeLaughter's judgment, the very foundation of a judge, now appears flawed. 

If DeLaughter wants to truly make amends he should publicly come clean on any and all impropriety involving he and Ed Peters. It's hard to believe that DeLaughter and Peters got caught on the only case that they ever improperly conspired on. And while I am sure that DeLaughter still maintains that he didn't conspire with Peters in Scruggs v. Wilson, it is clear that at a minimum he allowed himself to be controlled by Peters. DeLaughter should publicly disclose every case that he and Peters discussed while DeLaughter was a judge. The files of those cases should be examined for any unusual rulings. 

The judicial bribery scandal has been a huge black eye for the Mississippi judicial system including the lawyers and judges in that system. If DeLaughter's plea brings the scandal to a close neither the public nor the legal community will believe that all the bad actors and illegal conduct has been exposed. So far the only person to publicly come clean is Tim Balducci and that is only because someone obtained a copy of his deposition in the Eaton v. Frisby case that was supposed to be sealed. We hear that all the lawyers in jail and Peters (who should be in jail) are cooperating with the government. But that does little to restore the public's faith in the judicial system because the government does not publicly disclose its investigation, which proceeds at a glacial pace. We need depositions or similar mechanisms to force all the principals in the Lackey and DeLaughter bribery scandals to publicly disclose everything that they know. If there are other lawyers or judges who committed illegal conduct, then they should be exposed, prosecuted and disbarred. We do not need this thing ending without knowing whether this was the tip of the iceberg or the whole iceberg.

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The Leisha Pickering alienation of affection lawsuit is bringing attention to this little used cause of action. The theory is without question alive and well in Mississippi. In August 2008 the Mississippi Supreme Court issued its opinion in Pierce v. Cook, a case that involved claims for alienation of affection and intentional infliction of emotional distress. A Rankin County jury rendered a $1.5 million verdict for the plaintiff and the Supreme Court affirmed. The Court listed the elements of an alienation of affection claim as:

1. wrongful conduct of the Defendant;

2. loss of affection or consortium and

3. causal connection between the conduct and loss.

The plaintiff's burden of proof is preponderance of the evidence--not a higher standard such as clear and convincing evidence.

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Earlier this week Alan Lange at Ya'll Politics reported that Christi McCoy is no longer in the running for the appointment for U.S. Attorney for the Northern District. As mentioned in this earlier post, Patsy Brumfield at the N.E. Daily Journal disagreed. I did not opine on the issue in my earlier post, but I am now going on the record saying that Lange is right and that McCoy will not be appointed. I have two sources who both told me that McCoy's nomination hit an insurmountable snag. My sources are less certain that Curtis Ivy will be appointed for the slot, but he does appear to be in the running.  

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As reported by the Clarion-Ledger and at Ipse Blogit, Leisha Pickering, otherwise known as Mrs. Chip Pickering, is suing Elizabeth Creekmore Byrd for alienation of affection. This is a cause of action where you sue the person your spouse had an affair with for busting up your marriage. The action is not recognized in many states, but is in Mississippi. The Mississippi Supreme Court recently affirmed a large jury verdict against a lawyer in one of these cases. You can read the Complaint at this Ipse Blogit post and read Matt Eichelberger's comments on the Complaint at this post.

Leisha Pickering is represented by former Mississippi Supreme Court Justices Chuck McRae and Oliver Diaz. The case is pending in Hinds County Circuit Court before Judge William Coleman, who is presiding over the cases that would have otherwise been assigned to Judge DeLaughter. The Defendant's family owns Cellular South, so she apparently has the money to satisfy a judgment. Alienation of affection lawsuits are typically only filed against wealthy individuals, since liability insurance policies do not provide coverage. You see a lot of doctors and lawyers getting sued under the theory. There have been rumors over the years of prominent attorneys and executives settling alienation claims, including a former CEO who is now in jail.

You would expect this case to be settled quietly. But divorces and the related fall out are messy, so if Leisha Pickering is out for blood rather than money, then this will be one of the most watched trials in the history of the State of Mississippi. Cameras are allowed in the courtroom in state court so the whole proceeding will probably be televised. Mississippi media is largely ignoring major litigation such as Eaton v. Frisby and the Colson Litigation. But you can bet that they will cover this case, since scandal sells.

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The big news yesterday was Governor Barbour's appointment of Gulfport resident and native John Gargiulo to fill the Circuit Judge seat vacated by the retiring Judge Jerry Terry. Here is the Sun-Herald's article on the appointment, which I speculated on in this post in May when Judge Terry announced his retirement. The article states:

Gargiulo attended college on a full ROTC scholarship before graduating from law school and joining a private practice in 1998. He has been a prosecutor with the District Attorney’s Office for nine years.

The following bio was attached to the article:

Age: 42

Hometown: Gulfport

Education: Graduate of St. Stanislaus, University of Southern Mississippi and Ole Miss

Experience: Assistant district attorney for Harrison, Hancock and Stone counties since 2000; private law practice of Bryant Clark Dukes in 1998.

Background: National Guard lieutenant colonel; served in U.S. Air Force as an intelligence officer for five years

Family: He and his wife, Lisa, have twin sons, Andrew and Jordan, 17, and a daughter, Katherine, 14.

It's also my understating that he was deployed in Operation Desert Storm. I am the same age as Gargiulo, but did not know him growing up (other than knowing who he was) because we lived in different neighborhoods and went to different schools. He has an excellent reputation on the Coast and will have no problem getting elected to a full term for the seat. Gargiulo is at least the second 1985 high school graduate from Gulfport to become a judge, joining U.S. District Judge Sul Ozerden.  

The other big story yesterday was the disagreement between Alan Lange at Ya'll Politics and Patsy Brumfield at the N.E. Daily Journal on whether Christi McCoy will still be appointed U.S. Attorney for the Northern District. Lange says that McCoy is out, Brumfield disagrees. Tom Freeland has the latest in this post. I do not have an opinion one way or the other right now, but I do know that Brumfield has mentioned names for the Southern District post after pretty much everyone around here agreed they were out of the running.  This makes me question whether Lange has information that has not yet reached Brumfield.

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Ya'll Politics has this post this morning stating that Christi McCoy is out as the U.S. Attorney appointment for the Northern District and that the Curtis Ivy of Oxford is in. According to Ya'll: 

Today a source with insider knowledge tells YallPolitics McCoy's "deep" ties with Joey Langston, and other issues, stalled her possible nomination. The source then went on to say Curtis Ivy, who has been a contender since the beginning, is highly regarded by many involved.

YP could not independently confirm Ivy's chances, or whether McCoy's ties actually prevented her from becoming the U.S. Attorney, however the source has been spot on with many other issues, and finds him credible enough to worthy this post.
 

Ivy is an African-American assistant U.S. Attorney in the Northern District who has a good reputation. In June, it was widely reported that McCoy's name was already submitted to the White House. I discussed it in this post. If McCoy is out, it is a recent development that apparently was based on a decision made by the White House. Of course, the White House could make such a decision based on anticipated Republican opposition after floating the name to Republican Congressional leaders.

It has long been presumed that one of Mississippi's U.S. Attorney seats would go to a white and the other to an African-American. With McCoy being white, speculation in the Southern District focused on Natchez attorney Deborah McDonald. One question now is that if Ivy is in in the North, does it open the door in the South for someone like Cliff Johnson. There will be a lot of speculation on these issues in the coming days. 

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Ipse Blogit has this post today speculating on possible candidates to run for the Hinds County Circuit Court Judge seat held by soon to be retiring Judge Swan Yerger. The following potential candidates are listed:

Ashley Ogden - successful trial attorney; ran a close second last time; campaign website already up

Special Circuit Judge William Gowan - currently sitting as a special circuit court judge in Hinds County under the DOJ's Jackson Enforcement Team ("JET") grant

Joe Nosef - former Chief of Staff for Gov. Barbour

Wilson Carroll - former GOP candidate for Hinds County DA

Jeff Weill - current Jackson City Councilman from Ward 1
 

That is an interesting list. Ogden almost unseated Judge Yerger in the last election. Weill has proved that he can get elected, but I am not sure of his credentials to be a trial judge. Nosef has prior campaign experience, but as far as I know, virtually no litigation experience.  Gowan could tout his experience as a judge in Hinds County. As a former DA candidate, Caroll could run on a tough-on crime platform. Of course, Ogden has taken ownership of that plank. I do not believe that all of the above will run. If they do, it will probably be good for Ogden, who figures to be the favorite no matter what. 

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The Clarion-Ledger contained a story this week on the deposition of Tim Balducci in the Eaton v. Frisby case. Balducci was deposed in prison in June and the Clarion-Ledger obtained a copy of the deposition, despite the fact that the case was supposed to be sealed. The focus of the story was how Balducci's testimony will impact the upcoming criminal trial of Judge Bobby DeLaughter. According to Balducci, Judge DeLaughter became upset when he did not get a federal judge appointment after issuing rulings favorable to Richard Scruggs in the Scruggs v. Wilson litigation.

The Ledger ignored the large question of how Balducci's testimony will impact the huge Eaton v. Frisby case and the careers of some of the attorneys in that case. If it is determined that Ed Peters attempted to improperly influence Judge DeLaughter in the Eaton case, it could lead to state or federal criminal charges against Peters and others who he acted in concert with. It could also lead to the dismissal of the case and sanctions by the Court or Mississippi Bar against the lawyers who participated in any wrongdoing. The Eaton case is just as significant as the DeLaughter trial and the Clarion-Ledger should not ignore it.   

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The Clarion-Ledger has a story today on former Mississippi Supreme Court Justice Oliver Diaz's defamation lawsuit against former U.S. attorney Dunn Lampton. The case focuses on the government's investigation and prosecution of Diaz and his wife Jennifer while Lampton was U.S. Attorney for the southern district of Mississippi.

Oliver Diaz was acquitted of all charges in two trials and there was pretty much universal agreement in the legal community that the charges were extremely weak. In fact, many people believe that Paul Minor was not convicted in his first trial because he was tried with Diaz and the charges against Diaz were so weak. The fact that Diaz was charged also made the charges against Minor look more politically motivated than they otherwise would have.

The story was better covered yesterday on local blogs, including NMSCommentor.  Mr. and Mrs. Diaz are represented by former Supreme Court Justice Chuck McRae. You have to figure that the lawsuit, which was technically initiated by Lampton's cousin, is about more than money.

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Two characterizations Saturday of Brant Brantley, outgoing Director of the Mississippi Commission on Judicial Performance, could not have been more different. According to the Clarion-Ledger in this article:

A man Mississippi judges fear to see in their courtrooms is stepping down as head of the watchdog group that investigates judicial wrongdoing.

In contrast, Jackson blogger the Kingfish disagreed in a post on his Jackson Jambalaya blog:

Fear? If anything they laugh at Brantley as his lax treatment of wayward judges is well-known in the legal community. It is a rare day indeed when Brantley prosecutes someone who is not a justice court judge. Brantley's modus operandi is to discipline a judge after someone else has done the same and forced his hand.

I don't always agree with Kingfish, but he has a way with words and does some excellent reporting on his blog.

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This article in the Northeast Mississippi Daily Journal confirms that Rep. Bennie Thompson submitted to President Obama Christi McCoy as the next U.S. Attorney for the Northern District of Mississippi. McCoy is originally from Booneville and practices in Oxford.

The article mentions Forest attorney Constance Slaughter-Harvey as the potential nominee in the Southern District. That would be interesting, since Slaughter-Harvey is rumored to have removed her name from consideration. More recently, Deborah McDonald of Natchez is rumored to be the leading candidate.

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Several recent newspaper articles and columns speculate on a possible Haley Barbour presidential run in 2012. Here are links to an A.P. article, a short Washington Post article, and a David Hampton column in the Sunday edition of the Clarion-Ledger. The Washington Post story contains the following quote:

As one GOP operative who forwarded today's invitation to the Sleuth put it, "Here's Haley Barbour making some 2012 moves. When you start going to Iowa and New Hampshire, the writing's on the wall."

Speculation is growing about whether Barbour could win the Republican nomination in 2012 and, if so, whether he could win the general election. While I am not laying the odds on either happening, he looks like a viable candidate for several reasons. First, look at history. Jimmy Carter, Bill Clinton and Barack Obama all arguably came more out of nowhere to win the presidency than Barbour would. Barbour looks more plugged in with his party than Carter or Clinton and faces less competition than Obama in getting the nomination.

My second point is Barbour himself. People criticize his heavy southern drawl, but unlike our last two term president, no one ever says that he sounds or is stupid. He is smart and interviews well. He looked and acted like a leader in the days following Katrina--unlike Louisiana and federal leadership.  

Third, look at the competition. Palin? Gingrich? Romney? You can make just as good a case against everyone else as against Barbour. 

Finally, look at how the parties select their nominees. It's a crap shoot. Win Iowa and New Hampshire and everyone else winds up broke and goes home. McCain looked dead as the nominee for months and then he wiped out the field. Most states don't even have a real say in the nomination. Last year the democratic primary was the first time I can remember it not being over by the time Mississippians got to vote.

The nomination process is like a football game decided mid-way through the first quarter. Arkansas State might score an early touchdown and take the lead over Florida, but the game isn't called with Arkansas State declared the winner. But that's basically how the nomination process works. If Haley Barbour--or anyone else--is winning early, then they can win the nomination. And while it's true that not anyone can be in the lead early, Barbour is among the people who can be. So I don't see how you can discount Barbour as a real possibility.  

Win the nomination and Barbour can win the presidency. The 2012 general election will likely be about the nation's feelings about the Obama presidency. The Republican nominee will not matter nearly as much as how the nation feels about Obama.   

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According to an article in today's Sun Herald:

U.S. Rep. Bennie Thompson’s office has made nominations for U.S. attorney positions in Mississippi and awaits action from President Barack Obama, who must fill a large number of open slots.

Thompson’s office wouldn’t provide any details of who was recommended. The recommendations were made to the president between January and March. For now, they wait on word from Washington, where those recommendations are being vetted.

The story referred to speculation on blogs regarding the candidates for the southern district nomination, citing Jackson attorney Kathy Nester, Natchez attorney Deborah McDonald and Jackson attorney Dorsey Carson as the potential nominees for the southern district slot. A Thompson staffer confirmed that the process is still in the early phase.

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The Clarion-Ledger is reporting that Hinds County Circuit Judge Swan Yerger will not run for reelection when his current term expires on December 31, 2010.

Judge Yerger is 74 years old and has served on the bench since 1997. There have been rumors over the last few months that Judge Yerger would retire at the end of this year, which would allow Governor Barbour to appoint a replacement to serve until the next election. Judge Yerger currently presides over the Eaton v. Frisby trade secrets case, which is probably the biggest case currently pending in any Mississippi state court. Perhaps Judge Yerger plans to stay on the bench through 2010 so that  he can preside over the trial of that case.

Speculation will be rampant over who will run for the seat in 2010. The early favorite would have to be successful Jackson plaintiff attorney Ashley Ogden. Ogden ran against Yerger in the last election and almost won. Rumors around town are that Ogden already plans to run for the seat. Ogden is young and energetic and would be a formidable opponent  for any candidate. Republican interests would fear Ogden due to his plaintiff lawyer background. Ogden's firm web site is called Take Back Jackson and suggests that he never stopped campaigning for the seat. Former Mississippi Supreme Court Chief Justice Jim Smith is now associated with Ogden's firm. The conservative Smith's active support in a campaign would be a huge benefit to Ogden's chances.  

There is no doubt that Judge Yerger's retirement and the looming election to replace him will be a huge story in 2010.  

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The Clarion-Ledger is reporting that Governor Barbour has appointed James Chaney Jr. of Vicksburg to fill the term of retiring Circuit Court Judge Frank Vollor.

Vollor's retired on Sunday after two decades on the bench.

Chaney will serve the remainder of the term through December 2010. He will be one of two judges in the Ninth Circuit District, which includes Warren, Issaquena and Sharkey counties.

The 56-year-old Chaney has served as attorney for the Vicksburg Warren School District since 1987.

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It has now been over four months since President Obama's inauguration. But the President has yet to make his appointments in Mississippi for U.S. Attorneys, U.S. marshals and the vacant federal district judge position. Here is a link to a National Law Journal Article that discusses the appointment process for U.S. Attorneys.

There are a total of ninety-three U.S. Attorney positions in the nation. According to the article, state Democrat leaders have made forty recommendations for U.S. Attorneys to the White House with only six appointments so far. Of the forty recommended, the Justice Department has conducted required screening interviews of only twenty. A former Bush administration official explained that the process takes a long time to complete:

Fulbright & Jaworski partner Michael Battle, former director of EOUSA during the Bush administration, said the speed of the process depends on the layers of local-level vetting, as well as the mechanism for identifying potential candidates, which varies by state. "It takes the better part of six, eight, 10 months, as the White House gets more comfortable with doing this," said Battle. "It just takes time."

Based on this statement, it could be this fall before the appointments of Mississippi's two U.S. Attorney and marshal slots.

As for the district judgeship position that is presumably going to Jackson attorney Carlton Reeves, the article sheds indirect light on the process. The article states that the White House rejected Republican pleas to be included in the appointment process in states like Mississippi that have two Republican senators. This suggests that Senators Cochran and Wicker will not be involved in the process and, therefore, unable to block the appointment of a Democrat such as Carlton Reeves. It seems likely that Democrat leaders have already recommended Reeves and that the vetting process is underway. With a summer recess looming for Congress, however, Reeves will probably not take the bench until sometime this fall at the earliest. 

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The Sun Herald is reporting that Circuit Court Judge Jerry Terry has announced his retirement effective June 30. Judge Terry is seventy-five years old and has served on the bench for twenty-two years. He served in the second circuit, which included Harrison, Hancock and Stone Counties.

Governor Barbour will appoint a replacement to fill the remainder of Judge Terry's term, which expires at the end of 2010. Harrison County Assistant District Attorney John Gargiulo might be on the list of canidates to replace Judge Terry.

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The Saturday edition of the Wall Street Journal contained an article on the rise and fall of silica litigation. WSJ writer Kimberly Strassel credits U.S. Silica CEO (and former attorney) John Ulizio with single-handedly exposing silica litigation as a fraud. The truth is more complicated and a lot different.

Plaintiffs began filing silica cases in Mississippi in approximately late 2001. By 2003, there were hundreds of cases on file in Mississippi involving thousands of plaintiffs. Mississippi's jackpot justice era was dying by this time, but mass tort plaintiff lawyers did not yet know it.

In the typical silica cases many plaintiffs sued many defendants under Mississippi's formerly liberal joinder rules. At its height, there were in the neighborhood of fifty defendants sued in most silica cases, from national manufacturers to local paint and hardware stores. Many depositions were held where there were thirty or more defense lawyers appearing, all representing a different client. Even more lawyers attended MDL hearings in Corpus Christi, Texas, where the courtroom was packed with lawyers. Most of the lawyers were from Mississippi, since it was where the majority of the cases were filed.

Keeping the numerous clients and attorneys on the same page was like herding cats. The law firms that appeared to take the lead in this difficult task were (in no particular order): Forman Perry, Brunini, Bradley Arant and Dogan and Wilkinson. There was a defense steering committee with five attorneys on it. I can't recall who they all were, but they all made significant contributions. The one lawyer who I saw doing the most to organize defense meetings where cooperation and coordination was discussed was Cheri Green at Brunini.

U.S. Silica's Mississippi counsel was Watkins Eager. I never saw them organizing or presiding over joint defense meetings, boisterously urging joint defense positions, or otherwise trying to keep all the defendants on the same page. I've never heard of John Ulizio. When I bounced his name off a lawyer who was more involved in silica litigation than me, he hadn't either. 

To be fair, Mr. Ulizio deflected credit in the article, but Strasell inferred that he was being modest. Unfortunately, Strasell either confused honesty with modesty or the entire piece was a disguised promotional piece. Here are some of the story's hilights, along with my response:

 Mr. Ulizio is a humble guy, and gruffly waves off suggestions that he or his company played any special role in this victory. He ascribes the Texas success to all the defendants equally, as well as the willingness of insurers to join the battle, and to enlist top-notch attorneys. But that is to ignore the knowledge and the backbone Mr. Ulizio and U.S. Silica brought to this fight.

Response: Sorry Ms. Strassel, Ulizio is being honest--not modest. While it might be an over-simplification to equally credit all defendants, the defense success would not have been possible without most of the defendants mostly agreeing on major defense issues. U.S. Silica was not the driving force behind these decisions. There was no one driving force, and whatever role that U.S. Silica played, it was not the lead role in the litigation.

Another of Mr. Ulizio's rules was "to treat cases like real cases," a tactic that would prove important in the later Texas litigation. "There is temptation amongst defendants to treat these as a claims process. We tried not to do that, even in cases we settled. We tried to treat each as a real case, where you take depositions, you have people who know what they are doing asking the questions, you demand real medical evidence," he says.

 Response: This passage infers that Ulizio and U.S. Silica took the lead in deposing the doctors who diagnosed the plaintiffs with silicosis. I don't believe that is true. I did not attend those depositions, but it's my understanding that Fred Krutz and Danny Mulholland at Forman Perry took the lead in the depositions. I don't believe those guys would have let another firm's client tell them what to do. I also note that Ulizio admited that U.S. Silica settled some cases. Many defendants never paid a penny, including my clients.

He didn't settle: He went public. Private companies tend not to air their litigation laundry, but the silica CEO talked to the media, detailed his lawsuit figures, ginned up coverage of the lawyers' tactics. The growing story emboldened other defendants to fight back. U.S. Silica also pushed hard, behind the scenes, to depose, investigate and fight.

Response: I'm not sure where Ulizio "went public." I didn't see U.S. Silica pushing other defendants behind the scenes and I do not believe that they were. Nothing U.S. Silica did emboldened other defendants. Everything that happened in the litigation would have happened if U.S. Silica was never a party.

Mr. Ulizio nonetheless credits a lot of the victory to luck, and mistakes by the other side. "The real advantage was simply that asbestos had preceded us, and the plaintiffs' side overreached. They had asbestos plaintiffs who were diagnosed with asbestosis but not silicosis, rediagnosed with silicosis but not asbestosis, by the same doctor, with the same X-ray. They laid the seeds for their own destruction."

Response: Luck didn't have that much to do with it. It was hundreds of weak cases, good lawyering on the defense side and many defendants having a back bone at the same time. The insurance companies that I represented decided to reject the plaintiffs' mass nuisance value settlement demand. Other corporate defendants and insurance companies reached similar decisions on their own. No one from U.S. Silica called us and encouraged our decision. A few defendants settled and some (or at least their lawyers) appeared to be cooperating with the plaintiffs' attorneys.  

The defendants had already made one bold move, receiving permission to aggregate the suits in front of Judge Jack. It raised the stakes, but in retrospect it was what also allowed defendants to connect the nefarious doctor-lawyer dots. "It was very important to the effort, because it allowed us to see the pattern, and present that pattern to the judge," he says.

Response: Filing the motion to create the MDL was initially controversial and second guessed. Some attorneys hoped that the MDL would would be assigned to a Mississippi judge, since that is where the most cases were pending. I'm not sure how the case came to be assigned to Judge Jack, but it was a big surprise and she was an unknown commodity. Defendants were not initially thrilled with the assignment and probably initially regretted the MDL. The Jackson lawyer who I heard pushed the idea hardest at the beginning was at Forman Perry and I'm pretty sure he did not represent U.S. Silica. As the litigation progressed, Judge Jack grew on the Defendants. Judge Jack was smart, quick witted and had a sharp tongue in hearings that often evoked laugher at the expense of an unlucky attorney. Fred Krutz was often on the receiving end, but he took it with humor and that appeared to make Judge Jack like him. 

Even with all that, Mr. Ulizio feared they'd lose. "There was no reason to believe Judge Jack would be as good as she was before she was as good as she was," he says. "One of the dirty little secrets of this litigation is that it didn't have to turn out the way it did. All's well that end's well is the cliché, right? First it's got to end well."

Response: Ulizio is on the money here. Early in the MDL defense lawyers didn't like Judge Jack and the plaintiff lawyers did. That changed in a big way, but the defendants were scared of her for a while. 

Conclusion: Lawyers have a tendecy to over emphasize their role in determining the outcome of a case, but here a reporter did it. Don't get me wrong, lawyers can and do win and lose cases. But lawyers are playing the hand (case facts) that they are dealt. The facts of the case almost always have more to do with the outcome than the lawyers. Silica litigation failed because a small fraction of the thousands of silica plaintiffs actually suffered from silicosis. There was great lawyering on the defense side by counsel representing many courageous clients. But to the extent that there was a hero in the litigation, it was clearly Judge Jack.  

Judge Jack took an active roll in the litigation to the point of ordering depositions to take place in her courtroom with her presiding. This is an unusual approach for a United States District Judge. Judge Jack issued a 250 page opinion that exposed the litigation. It was Judge Jack who wrote:

But it is apparent that truth and justice had very little to do with these diagnoses–-otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants.

It is Judge Jack's story that should be told in the Wall Street Journal.

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The Clarion-Ledger had the following blurb today stating that Judge Vollor is stepping down after twenty years on the bench:

Circuit Judge Frank Vollor of Vicksburg will retire May 31 after 20 years on the bench.

Vollor, 60, said he is stepping down for economic reasons. Gov. Haley Barbour will appoint someone to fill the unexpired term, which ends in December 2010.

Judge Vollor's circuit includes Warren, Issaquena and Sharkey counties. Judge Isadore Patrick is also a Circuit Judge for the circuit.

With twenty years of service Judge Vollor, is eligible for full state retirement benefits. He can collect those benefits while also working in private practice. I do not know what his plans are, but as an experienced and respected trial court judge he can probably work all he wants as a mediator.

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Whatever Mississippi Public Safety Director Steve Simpson did to the guys at folo, it didn't justify a post with this picture in it. I'm not sure who the competition was for King of the Biloxi St. Patrick's Day parade, but there can't be too many people willing to wear that outfit. I guess all the leprechaun suits were already rented out.

Why am I writing about this? Because Steve Simpson is rumored to be a possible 2010 challenger to the Supreme Court seat currently held by Justice Dickinson. Simpson is a former Circuit Court judge in Harrison County. I'm not sure locking up the Irish vote will command the respect on the Coast that it would in someplace like Boston.  

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On Thursday the Northeast Mississippi Daily Journal had a story about the two vacant U.S. attorney positions in Mississippi. The story named only two potential appointees: Forest attorney Costance Slaughter-Harvey and Oxford attorney Christi McCoy. Booneville attorney Ron Michael has removed his name from consideration.

I thought that Slaughter-Harvey had also removed her name from consideration. Natchez attorney Deborah McDonald is said to be a candidate, as is Jackson attorney Cliff Johnson. It is believed that at least one (and perhaps both) of the appointments will go to a minority attorney. Johnson and McCoy are white. McDonald and Slaughter-Harvey are African-American.   

It is unknown when President Obama will make the appointments.

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According to the Neshoba Democrat , Mississippi Democratic Party Chair Jamie Franks identified Jackson attorney Carlton Reeves as the likely appointee for the United States District Judge position formerly held by Judge William Barbour. Judge Barbour still serves on the bench, but has taken senior status. Franks was speaking at a Federalist Society luncheon.

According to Franks, a committee consisting of himself, Rep. Bennie Thompson, Rep. Gene Taylor, Rep. Travis Childers, Attorney General Hood and Speaker Billy McCoy would or already have made recommendations to President Obama for judicial appointments.

Franks said Republicans should remember that the Democrats won, and any federal judge nominees are not going to look like Northern District Court Judges Mike Mills or Sharion Aycock, but more like attorney Carlton Reeves. When asked if Reeves was just a random example, Franks only laughed.

Reeves has been the front runner for the open district judge seat since election day. A graduate of Jackson State and the University of Virginia School of Law, Reeves has experience in the Justice Department and private practice. He is a longtime supporter of Bennie Thompson and is highly respected within the Mississippi Bar, even by individuals who do not agree with his politics. If nominated and confirmed, Reeves would join Bush appointees Dan Jordan and Sul Ozerden as Southern District judges in their early to mid-40's who could easily serve on the bench for the next twenty-five or thirty years.     

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I don't think Judge DeLaughter will make it back to the bench in the wake of the judicial bribery scandal. Speculation is growing as to who Governor Barbour will appoint to replace DeLaughter. The pool of potential candidates is huge for two reasons:

1. half the lawyers in the state live in the Jackson area; and
2. private practice is not as lucrative as it once was, expanding the pool of individuals who would be willing to work for the position's salary.

The leading contender may be Hinds County Court Judge Bill Skinner. If Barbour wants to appoint a female to the position, he could look to Amanda Jones (currently serving on Barbour's staff) or Jackson attorneys Rebecca Wiggs or Cheri Green. Having two Judge Greens in Hinds County would create chaos for lawyers who can barely show up in the right courtroom as it is. 

Other potential appointees with ties to the republican party include Paul Hurst, Joe Nosef and Dave Fulcher. Governor Barbour might even take a look at Jackson lawyers Trent Walker and Pieter Teeuwissen, who both recently completed stints as special circuit court judges.  Walker could end up running for the seat during the next election cycle or Skinner's county court seat should Skinner get the appointment.

Some individuals who would be on the list of potential candidates are out because they do not live in Hinds County. Examples include Cynthia Speetjens and Cory Wilson. Carlton Reeves is not on the list because he is rumored to be in line for the open federal district court appointment. Likewise for Cliff Johnson who is a candidate for one of the U.S. attorney slots in Mississippi. There are also many highly qualified individuals in private practice who probably would not be able to accept an appointment due to the pay cut that they would have to take. If you are a lawyer with kids in private school, I probably would not list you as a candidate for that reason alone. 

One thing to keep in mind is that in appointing judges, Barbour has historically been concerned with appointing someone who can win an election. This may be a bigger factor for Barbour than appointing someone who is ultra conservative. Hopefully people will post comments with other potential candidates.

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As reported in the Clarion-Ledger on January 29, 2009, the City of Jackson settled a sexual harassment lawsuit filed by a female firefighter and three former firefighters. The case was originally tried in 2007 and resulted in a $757,000 verdict for the plaintiffs. Judge Henry Wingate threw out the verdict citing jury error and attorney misconduct.   Here is Judge Wingate's opinion, which is worth the read.

Judge Wingate was not impressed by one plaintiff who testified on cross-examination that the money for her car payment came directly from God who placed it into her account every month. Frankly, I thought this was a little cheap on God's part. Couldn't God have delivered the car without a note, or at least paid it all off at one time?

Judge Wingate was also unhappy with plaintiffs counsel's trial conduct. Basically, Judge Wingate would tell counsel to stop doing something and counsel continued anyway. Judge Wingate indicated that he did not believe that any disrespect to the court was intentional. From the small amount of the trial that I saw it seemed that plaintiffs' counsel were inexperienced in the courtroom and flustered by the pressure. 

In any event, the parties' settlement provides that Judge Wingate will decide the amount of the attorney's fees recovered by plaintiffs' counsel. Obviously not an ideal situation for attorneys who Judge Wingate was unhappy with at trial.