I attended the oral argument in Sears v. Learmonth yesterday at the Mississippi Supreme Court. I counted approximately 50 people in attendance—mostly plaintiff lawyers. Given the importance of the decision, I thought that every firm in Jackson hosting summer clerks would be there with their clerks. Perhaps they did not want it to look like they support caps.

The argument lasted 90 minutes. Lawyers for both sides did a good job. Kevin Hamilton of Meridian and Robert Peck of Washington argued for the plaintiff with Peck getting the most time. Frank Citera from Chicago argued for the defense.

Justice Dickinson was the most active Justice in questioning the lawyers. By my count he interrupted lawyers from both sides 6–7 times to ask a question. His key question to plaintiff was: why is this different from tort claims or workers comp where the legislature has removed something from the jury?

A key question by Justice Dickinson to the defense was: doesn’t the constitutional right to trial by jury mean more than the form of the trial?

Other justices and my ballpark count of their number of interruptions with questions (some interruptions involved a series of questions):

  • Waller: 6 (3 each side)
  •  Carlson:  2 (1 plaintiff, 2 defense)
  • Randolph: 3 (all plaintiff)
  • Pierce: 3 (2 plaintiff, 1 defense)
  • Chandler: 3 (1 plaintiff, 2 defense)
  • Lamar: 1 (plaintiff)
  • Kitchens: 2 (defense)
  • King: 0.

My guess is that Justice Dickinson is the justice who most enjoys oral argument.

Justice Randolph cited statistics that of the states that have considered caps, 18 found them constitutional and 4 unconstitutional (Alabama, Oregon, Georgia and Washington).

Justice Chandler challenged defense counsel to cite something that found that there was a society benefit from the caps. Defense counsel couldn’t.

Justice Carlson asked defense counsel if he could name a single case where the non-economic damages were too high and the trial court, court of appeals and supreme court all refused to lower the damages. Citera couldn’t name one, and fell back into the practice of vague references to large verdicts in the jackpot justice days that were settled post-trial or reversed on appeal: Uh…..asbestos…….uh…….silica. Yea, Yea, silica. I remember hearing about a lot of silica nonsense.

Citera stated that he believed that in enacting the caps, the legislature responded to a perceived problem. I agree. But the perceived problem (jury verdicts too high) was not the real problem (venue and joinder problems as discussed here). Stated simply, the policy argument for caps is that we need them because some businesses think they need them—not because they really need them.

Great. We’re stuck with tort reform because its proponents have brain washed a segment of society.

It’s a night-light rationale. We don’t leave the hall light on because our young kids really need it on. We leave it on because they think they need it on and it’s not worth fighting them over.

I’ve given a lot of thought to whether I would make a prediction based on what I saw. I’ve decided that I will, but without identifying what I thought tipped the Court’s hand. I will write it down and may discuss it after the Court issues an opinion.

My Prediction:

The caps stand.