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

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One of the first posts on this blog was this post in February 2009 about the issue of attorney's fees and expenses in the City of Jackson Firefighters sexual harassment case to be decided by Judge Henry Wingate. Judge Wingate issued his ruling yesterday. Here is the 41 page Order.

Background:

The City lost the trial, but Judge Wingate ordered a new trial in this order due to attorney misconduct by plaintiffs' counsel at trial. Basically, plaintiff's counsel could not follow instructions from the judge during trial. That or they chose not to, which I do not believe based on what I saw.

As I stated in my original post on this case, I watched a bit of the trial and thought that plaintiffs' counsel suffered from a severe case of deer-in-the-headlights due to inexperience. I suspect that their heart rates were so high from nervousness that they could not process Judge Wingate's evidentiary rulings and adjust on the fly.

 Judge Wingate was still unhappy about a lying plaintiff, which I described in my last post:

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?

In the latest order, Judge Wingate quotes some of the testimony by the lying plaintiff:

Q: And who pays that [car] note?

A: By the the grace of God, supernaturally, it's paid every month.

Q: So you pay it yourself?

A: No. Supernaturally, it's paid for every month. 

Q: [Say what?]

A: When I say 'supernaturally', I mean money come up in my account every month to pay it because the lord is the one who blessed me with it.

The jury awarded this lady $160,000. It appears that Judge Wingate still cannot believe it.

The Ruling on the Motion for Attorney's Fees: 

After Judge Wingate ordered the new trial, the parties settled for $250,000 and agreed that the Court would decide the issue of attorney's fees.

Plaintiffs sought $1,237,812.26 in attorney's fees and expenses. Judge Wingate awarded $263,901.78, which was 21% of the request. The Court got there by reducing the requested rate, cutting some of the hours and reducing the remaining hours to 40% due to the result of the case.

My Take:

Judge Wingate's ruling was a win for the City of Jackson, which stood to lose another million dollars in the case. But what I really find interesting is the lying plaintiff.

Lawyers like to believe that if they can prove that the opposing party is lying, then the impeaching lawyer's side will win the case. That is probably true a lot of the time. But this case shows that it is not always true. Here, a plaintiff lied and won anyway.

This means that a case is not won just because you prove that a witness lied. It is also probably a testament to the power of confirmation bias. People view issues and disputes with pre-conceived opinions and notions and discount evidence that it inconsistent with their pre-conceived views. This is a big factor in it being so hard to get a plaintiff's verdict in many Mississippi counties. The jury in this case probably concluded that the fact that one of the plaintiffs lied was not important and focused on the evidence that supported plaintiffs' case.

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Here is the Clarion-Ledger's article on Carlton Reeves' confirmation as a U.S. District Judge for the Southern District of Mississippi. The Senate confirmed Reeves in a voice vote on Sunday.

This has been a long time coming to say the least. The fact that Reeves would get the position after President Obama won two years ago was common knowledge.

The fact that it took two years for the confirmation to happen was due to a combination of inefficiency in the Obama administration combined with Republican foot dragging in the Senate. The former is harder to stomach than the latter, since Republicans consider blocking Obama's agenda part of their job. Obama's administration has just been indefensibly slow with making appointments and pushing them through.

Hopefully, the confirmation will mean increased efficiency in the Southern District. Some cases will presumably be reassigned to Reeves from other judges. That should allow for faster rulings. That would please a lot of lawyers and parties who sometimes have to wait a long time for rulings.

It's my understanding that Judge Louis Guirola, Jr. is now the Chief Judge in the Southern District. I am also hearing that Judge Henry Wingate will not be taking senior status anytime soon.

Reeves will be missed on North Congress Street. He arrived at work early, stayed late and came in a lot on the weekends. I am sure that Judge Reeves will bring that work ethic to the bench. If anyone needs a Pigott Reeves Johnson Law Firm sign, I can probably get you a deal on one.

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Last week the Clarion-Ledger reported on a $205,506 federal court jury verdict for Melissa Ross, who alleged that she was wrongfully fired from the Mississippi School for the Deaf because she is black. The jury awarded Ross $40,506 for back pay and $165,000 for pain and suffering/ mental anguish/ loss of enjoyment of life/ emotional pain. Here is the Form of the Verdict on file with the Court.

 The C-L article states:

According to the lawsuit, Ross was hired at the deaf school as a special education teacher for Family Consumer Science. She was not proficient in sign language but was trying to improve, according to the lawsuit.

In a 2007 complaint to the Equal Employment Opportunity Commission, Ross said she was hired in August 2006 and was promoted with a raise in February 2007. But in May 2007, she was given a bad evaluation because she was not proficient in sign language and was told she would be fired that July, according to the complaint.

In the complaint, Ross pointed out six black teachers were fired effective July 2007.

The Department of Education was successful in getting some of the claims thrown out in a motion for partial summary judgment. Here is the Court’s Order on that motion.

Michael Brown of Jackson represented the plaintiff. Peter Cleveland with the Miss. Attorney General’s office represented the Department of Education.

The case was in the Jackson Division and was tried before Judge Henry Wingate.

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Last Monday I reported that Keith Ball has been selected as the new Magistrate Judge for the Southern District. I had heard the news the previous Friday from someone who was not on the Magistrate Selection Panel.

Then last Wednesday I heard that one of the Southern District Judges was telling lawyers that no announcement had been made on the selection yet. 

But the Clarion-Ledger reported this morning that Judge Wingate confirmed that Keith Ball is the choice:

 U.S. District Judge Henry Wingate, chief judge for the Southern District, on Monday confirmed Ball's selection.

On another note, I saw a comment on another blog that Judge Winston Kidd's name has been submitted for the vacant 5th Circuit Court of Appeals seat. I'm not sure what the person meant by "submitted", but I do not believe it to be true unless he meant that Judge Kidd was one of many potential candidates submitted to the White House for consideration. 

It's my understanding that the White House is still in the vetting process and has not decided on a nominee.  The slow pace of President Obama filling judicial vacancies continues to receive national attention. The White House attorneys in charge of the selection and vetting process are leaving their posts soon, which threatens to further slow the process.

Every so often I am asked my opinion of what it might mean that there has been no announcement for the vacant Southern District Court or 5th Circuit positions. I do not believe that much should be read into it. The White House is just slow in this area. I would not read anything else into it until most of the other open slots around the country are filled with ours still open.

There could be announcements soon, or not for a long time. I don't think anyone really knows which it will be.

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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.