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

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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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Today's Clarion-Ledger contains this article about Jackson city councilman Jeff Weill considering running for the Circuit Court seat that Judge Yerger will vacate with his retirement at the end of next year. The article states:

"It's definitely on my radar," Weill said. "The current plan is to look hard at this opportunity - it's a once-in-a-decade opportunity - and to make a decision after the first of the year."

So far, Weill said his interest has been limited to a few conversations with supporters. But he said he believes he could make more of an impact from the bench on public safety, a key issue in his recent Ward 1 re-election campaign.

"I think I could do more to protect the citizenry as a judge than as a councilman," said Weill, who was re-elected in June to a four-year term on the council. "One of the things Yerger has done is move the criminal docket forward. That's a problem we have and I would like to continue the work he has done."

I can't argue with anything Weill says here, but as a Jackson resident, I would hate to see him leave the city council. I have been impressed with his demeanor and attention to detail on the council.  

Jackson attorney Ashley Ogden also plans to run for seat:

"I have an interest in Jackson's crime problem being solved and that's why I ran in the [last election]," he said. "I would expect a minimum of six to seven people running for that seat, and I'll be one of them."

Ogden will be a formidable opponent for anyone. He garnered 42% of the vote against Judge Yerger and campaigned very hard. Retired Supreme Court Chief Justice Jim Smith now works for Ogden's law firm and will probably be an asset to an Ogden campaign.

Weill is a republican and is probably the hand-picked choice of the the republican party. He has proved that he can win an election and would be a challenge to Ogden. It would not be surprising to see Judge Yerger retire early so that Governor Barbour can give Weill a head start by appointing him to fill the remainder of Yerger's term.

Republicans might not support Ogden because his law practice focuses on representing injured victims instead of insurance companies and big business. While this does not necessarily mean that Ogden would be a bad judge for big business, his background might scare them. Average citizens will love Ogden's tough on crime message and Weill will look like a copy-cat if he uses a similar theme. It promises to be an interesting race.

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A subpoena has been issued in Eaton v. Frisby commanding Bobby DeLaughter to appear for a deposition on October 2, 2009 at 9:00 a.m. at the offices of Forman Perry in Jackson. The subpoena was issued by Frisby's attorneys. The court file also indicates that Frisby is attempting to serve a subpoena on Ed Peters in South Louisiana. Finally, there is a short Order signed by Judge Yerger stating that the transcript of Peters' deposition is to be sealed. The Court will presumably also seal the transcript of DeLaughter's deposition. 

The sealing of matters in this case that are unrelated to trade secrets at issue in the litigation is questionable. I doubt that Peters' and Delaughter's depositions will have anything to do with trade secrets or the underlying facts in the case. A review of the public court file suggests that the court is sealing just about everything that has to do with Peters/ DeLaughter. Why? Who knows. I cannot find an explanation in the file. I can't say for sure that it's not there, since its a large and disorganized file. But both myself and my assistant reviewed the file and did not find an explanation for Judge Yerger's treating the Peters/ DeLaughter aspect of the case like it's espionage. 

One party in the case files just about everything under seal and has resisted attempts to unseal portions of the file. Guess which party? Yep, the party whose attorney had ex parte contact with the judge.

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NMC and others have criticized the sealing of the court file in Eaton v. Frisby. It appears that it started with an an Agreed Protective Order in 2005 that was designed to protect the confidentiality of trade secrets. That was followed by a Supplemental Protective Order later in 2005 that was also directed at trade secrets. Now most pleadings and orders are filed under seal in the case. I don't have a problem with protecting trade secrets. The problem is that protective orders designed for protecting trade secrets are routinely abused with parties designating all sorts of material as protected that are not trade secrets. A review of the docket in Eaton suggests that the parties are improperly filing documents under seal, but it's hard to say when you do not know what is in the material under the seal.

Here is a copy of a printout of the docket in the case, which lists all filings in the case until this week. This shows that many, if not most, of the pleadings and orders are now being filed under seal. I do not know why Judge Yerger is ordering the sealing of so many orders in the case, but I suspect that it has more to do with DeLaughter than trade secrets. If so, I question the correctness of sealing the orders. As a practical matter, transparency in this case is particularly important and would strengthen the public and bar's confidence in the judiciary. Judge Yerger is also closing the hearings and has reportedly kicked Clarion-Ledger reporter Jimmy Gates out of hearings. A few years ago the Ledger would have been fighting the secrecy in this case, but in today's world of struggling newspapers Gannett probably does not want to spend to money on an attorney.

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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.