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

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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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The Clarion-Ledger ran this article on Monday about the upcoming elections to fill the seats of retiring Judge Yerger (Hinds County Circuit) and Barnett (Hinds County County). The article was largely a repeat from an October article that quoted Ashley Ogden and Jeff Weill stating that they would probably run for Judge Yerger’s seat. I wrote about and Ogden v. Weill race here.

On the County Court side, Jackson attorneys Trent Walker and Melvin Priester have qualified for Judge Barnett’s seat. Walker is a Brandon native and Jackson State graduate who lives in South Jackson. He has extensive experience on both the plaintiff and defense side in civil litigation as well as in the criminal defense arena. He recently obtained an acquittal in a murder trial in North Mississippi that sounded a little like the trial in My Cousin Vinnie. He currently works for Schwartz and Associates in Jackson.

Priester is a special circuit court judge and practices law in Jackson.

The Ledger article does not identify the date of the election or the deadline for qualifying for the races. I believe—and I am not certain about this—that the qualifying deadline is in May and the non-partisan elections are in November.

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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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The Saturday Clarion-Ledger was legal themed with three articles covering legal issues. There was this article about Big Law paying would-be associates to perform public interest work instead of starting work at the firm, which doesn't have work for new associates due to the recession. These are great programs for several reasons. Money starved non-profits and public policy firms get free legal work. The new lawyers get valuable experience and exposure to the poor and and mistreated that most would not otherwise obtain. The bad news is that this is a terrible sign for the legal industry in general and current law students in particular. For the legal industry it indicates how little work big firms have. For law students, if Big Law is paying new lawyers to work somewhere else, then the job market must be terrible.   

Another article was this article about this week's Mississippi Court of Appeals decision in which the Court ruled that a railroad did not have standing to challenge an adoption by a former employee who sued the company.

The longest article was this Jerry Mitchell article about the Mississippi Supreme Court reversing Judge DeLaughter's grant of summary judgment for attorneys Gene Tullos and Crymes Pittman. The article contained this statement:

Since that plea, the high court has upheld nearly all of DeLaughter's rulings in criminal and civil cases.

That did not seem right when I read the article. It did not seem right to Tom Freeland either, who wrote this post about it at NMC and commented:

Since the first of August, the Mississippi Supreme Court has published opinions in four cases appealed from rulings by Judge DeLaughter.  All four were reversed; it’s a small sample size, but the court hasn’t upheld a single one of DeLaughter’s rulings since the plea.   His rulings have faired better in the Court of Appeals– three affirmances, two in civil cases (one of the affirmances was a pro se criminal appeal).  Going back to when the cloud first formed over his head in December of 2007, there were two reversals and six affirmances by the Supreme Court, which is more what you’d expect.

I’m having trouble counting four reversals, no affirmances as “upholding nearly all of DeLaughter’s rulings…” since the plea.

Agreed. I try to read the Court's hand-down decisions every Thursday. My general impression, without going back and doing the research, was that Judge DeLaughter was usually affirmed before the judicial bribery scandal and has been usually reversed since the scandal. Perhaps that is just a coincidence. But perhaps it is not. Overnight, DeLaughter went from a very respected judge to a judge whose every ruling is suspect. It's only natural for the Court to take a harder look at DeLaughter's decisions.

As for the underlying Tullos case, it should be kept in mind that the Court's reversal was on procedural grounds and did not address the merits of the case. Both Tullos and Pittman commented for the Clarion-Ledger article and appear to have solid defenses. I think it was smart for Tullos and Pittman to comment to Mitchell to get their side of the story out to the public. I do not understand why more people who are parties in high profile cases do not get their story into to public domain.

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The Clarion-Ledger website contains the A.P. story on the $2.1 million verdict against Goodyear Tire and Rubber Co. that I discussed in an earlier post. While the AP correctly stated the facts of the case, it misstated the ruling of the Mississippi Court of Appeals.

The statement that I have trouble with is the following:

The young men’s families — and a jury — blamed the accident on a faulty tire on the Chevrolet Camaro rather than excessive speed and the beer the men had been drinking.

The Mississippi Court of Appeals agreed this week and upheld a $2.1 million verdict against Goodyear Tire and Rubber Co. and Big 10 Tire Co.

The Court of Appeals neither agreed nor disagreed with the jury's verdict. Instead, the Court considered the issues raised on appeal by Goodyear and found that there was no reversible error. The Court was required by law to give deference to the jury's decision and could only reverse if there was no evidence to support the prevailing party and reasonable jurors could not have ruled in the prevailing parties' favor. Since the jury found for the plaintiffs, the Court was required to consider the evidence in the light most favorable to the plaintiffs.  Applying this standard, the Court found that the jury's decision was supported by sufficient credible evidence to support the verdict.

The Court could not and did not simply read the trial transcript and decide whether the Court thought that the jury got it right. Appellate judges do not substitute their assessment of the evidence for the jury's assessment. The Court's fifty-six page opinion cited substantial evidence that supported the jury's verdict. If the Court had found reversible error, it likely would have been related to jury instructions or other procedural rulings by the trial court. This would have resulted in a new trial, not a judgment in favor of Goodyear. It would be nice to see the news media recognize this important distinction.