On Thursday a unanimous Mississippi Supreme Court reversed and remanded a 2009 Rankin County defense verdict based on the trial court’s refusal to allow attorneys representing different wrongful death beneficiaries to separately question witnesses during trial. Here is the Court’s opinion in Dooley v. Byrd.
The case involved the death of two-year-old Jonathan Dooley, who was killed when the car driven by his mother collided with a trailer owned by the defendants. The facts of how the accident happened were disputed and not germane to the Court’s opinion. (I know… “the G.D. Germans got nothing to do with it”—Sheriff Buford T. Justice).
Dooley had 5 wrongful death beneficiaries. Jackson lawyers Don Evans and Jim Smith (former Chief Justice of the Miss. Supreme Court) represented 3 of the beneficiaries, including Jonathan’s mother. William Fulgham represented the other two beneficiaries, including Jonathan’s father.
Apparently, Jonathan’s parents were separated or already divorced at the time of the accident and there was no love lost between them.
At trial, the two sets of lawyers had different theories and strategies. Rankin County Circuit Judge Samac Richardson (now retired) allowed each set of attorneys to give opening statements. The opinion states:
However, peace was short-lived when, in the second day of trial, Dewey requested the court’s permission to question Byrd after Leah had completed her examination of him.
The trial court refused, instructing plaintiffs’ counsel to work together in presenting their case.
Supreme Court’s Decision:
The Court agreed that plaintiffs’ counsel should have been allowed to separately question witnesses. The Court also determined that there was reversible error in the jury instructions. As a result, the Court reversed the judgment and remanded the case for a new trial.
Chief Justice Waller wrote the Court’s opinion. Justices Kitchens and King did not participate.
It will be interesting to see if there are any repercussions from this opinion in other cases. For instance, will some aligned wrongful death beneficiary-plaintiffs show up with different attorneys for the strategic reason of getting two bites of the apple with respect to trial participation? How big of a mess will it be when the beneficiaries have different lawyers and can’t get on the same page?
Double teaming already happens on the defense side all the time in cases with multiple defendants. You see defense lawyers play "good cop, bad cop" in the name of separate defendants. However, it’s been my impression that double-teaming at trial has limited benefit and probably is a waste of time.
It will be interesting to see how this decision impacts how plaintiff lawyers try wrongful death cases. In this case it seems like it caused a big mess due to the different theories.
Incidentally, if this is the right case that I am thinking of I heard that Don Evans and Jim Smith weren’t getting along at trial either—even though they represented the same beneficiaries.