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

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NMC had a good post last week about the Mississippi Supreme Court's Order requesting briefing on the waiver issue in Sears v. Learmonth. This is the case where the 5^th Circuit asked the Court to decide whether Mississippi's cap on non-economic damages is constitutional. That was the sole question that went to the Court.

But the Court appears hung up on the fact that the jury's verdict did not separate economic and non-economic damages and the District Court accepted a stipulation on the damages components. NMC writes:

So I’m going to express two different kinds of surprise, in the form of a question:  Why would an appeals court not accept this stipulation by the parties?  And, once the federal court has accepted the stipulation, what business is it of the state court, on certification of a different question altogether, to question that?

I’m taking this to mean they really, really don’t want to reach the question of constitutionality of the caps.

Good questions and a logical conclusion based on the posture of the case. Also interesting is Anderson's comment on NMC's post wondering why the Court even accepted the question if—as it appears—it wants to avoid answering it.

Here is my prior post on the Court's request for additional briefing. 

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Fellow bloggers NMC and Bardwell agree: Hinds County Circuit Judge Malcolm Harrison should have done a better job explaining his ruling in favor of the proposed November 2011 “personhood” ballot initiative. Bardwell states:

Specifically, the tenacity with which the court dodges the case's central question is downright astonishing.

Neither NMC nor Bardwell mention an underlying factor that could have weighed heavily on why judge Harrison ruled in the manner that he did: he is involved in a contested judicial election that is less than one week away.

There are only a few contested circuit court judge elections in the entire state. Judge Harrison was appointed by Governor Barbour to replace Bobby De Laughter and faces a challenge from Jackson lawyer Bill Gowan.

The personhood initiative involves all kinds of controversial constitutional issues that evoke strong feelings among many people. To me, it was unfair for Judge Harrison to draw the case. The case should have gone to Judge Yerger (who is retiring) or Judges Green or Kidd (who do not have opponents). Ultimately, everyone knows this issue will be decided by the Mississippi Supreme Court. The case is in the Circuit Court only because there has to be an appealed case for the Supreme Court to decide.

It was a no win situation for Judge Harrison and he was going to be under the microscope and criticized no matter what he did.

The moral of the story for me is not that Judge Harrison is lazy or dodges central issues. The moral of the story is that this is an example of why we should have appointed judges in Mississippi—so elections have no influence or appearance of influence on court rulings. People who thinks that the fact Mississippi's state court judges have to run for election and re-election does not impact rulings are kidding themselves.

Incidentally, Judge Harrison is receiving high marks from lawyers on both the plaintiff and defense side. Both plaintiff and defense lawyers are finding his rulings to be balanced and fair. This is a hard tight-rope for judges to walk and most state court judges cannot do it.

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Blogs were burning up on Friday over this blog post by a California law professor (Eugene Volokh) that suggested that 5^th Circuit nominee and current Miss. S. Ct. Justice James Graves (who is African-American) is racist. Volokh's blog has a national following.

In support of the theory, Volokh contrasted Graves' voting record on several appeals In which Graves did not explain the reason for his votes. Volokh states:

Unfortunately, Justice Graves did not offer any explanation for his different conclusions about the hostile-to-gays speech and the hostile-to-whites speech. Nor did her offer any explanation for the different approaches that the opinions he joined used in those cases.

Will Bardwell believes that the attack is part of a Republican attack on Graves, whose Senate confirmation hearing is on Wednesday.

Bardwell may be right, but it's an odd attack. Following Graves' nomination to the 5^th  Circuit, Gov. Haley Barbour, and Senators Thad Cochran and Roger Wicker all endorsed Graves' nomination. All three are Republicans who have little or nothing to gain from supporting Graves.

I do not believe that Graves is racist

Graves is a black judge who was elected to the Miss. S. Ct. in a majority white district in a race against a white candidate who many people thought played the race card. He did it by convincing many white Republicans to vote for him. That's already impressive. It would be amazing if Graves pulled that off while secretly hating white people.

I can't recall hearing any lawyer who appeared in front of Graves theorize that he is a racist. I can't say that about every African-American judge in Mississippi. When Graves was a Circuit Court judge, the lawyers who had to fear him were those making bad arguments.  

Volokh's article quotes no one from Mississippi and there is nothing in the article to suggest that someone from Mississippi told him that Graves may be racist. Of course, someone fed the story to Volokh.

Appellate Judges Should Explain their Votes

While I have not heard Justice Graves criticized as a racist, I have heard criticism about his frequent dissents without written opinions. I've also heard that it could become an issue in his confirmation process. It appears that it has, though not in a way that anyone I know foresaw.   

The “I told you so” award goes to Tom Freeland, who has long complained about unexplained dissents. Here is Freeland's reaction the Volokh's article, which concludes:

There is a direct virtue to a judge’s explaining their vote beyond telling the public and the parties:  Expressing aloud what one thinks is a great way of testing whether one is right.  I really see the problem here as voting-without-explaining, a problem that is not limited to Justice Graves on that court, and that started before he ever arrived there.

And if judges fail to explain the reason for their vote, it leaves an opening for someone to explain it for them. While I believe that Volokh is wrong, Graves opened himself up to the criticism by not explaining his votes.

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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.