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

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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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Don't miss Marshall Ramsey's dead-on cartoon of the Jim Hood vs. Big Business rivalry that was discussed in this article in the Sunday Clarion-Ledger.

The article was a weak effort. It quoted a Texas lawyer who made millions after being hired by Hood to represent Mississippi and a Chamber employee whose job it is to beat the drum for big business and rail against anyone like Jim Hood who stands up to business interests. The article did not quote anyone who even pretends to be objective on the issue.

Here is Ramsey's cartoon from today's paper:

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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.