I don’t think Judge DeLaughter will make it back to the bench in the wake of the judicial bribery scandal. Speculation is growing as to who Governor Barbour will appoint to replace DeLaughter. The pool of potential candidates is huge for two reasons:

1. half the lawyers in the state live in the Jackson area; and
2. private practice is not as lucrative as it once was, expanding the pool of individuals who would be willing to work for the position’s salary.

The leading contender may be Hinds County Court Judge Bill Skinner. If Barbour wants to appoint a female to the position, he could look to Amanda Jones (currently serving on Barbour’s staff) or Jackson attorneys Rebecca Wiggs or Cheri Green. Having two Judge Greens in Hinds County would create chaos for lawyers who can barely show up in the right courtroom as it is.

Other potential appointees with ties to the republican party include Paul Hurst, Joe Nosef and Dave Fulcher. Governor Barbour might even take a look at Jackson lawyers Trent Walker and Pieter Teeuwissen, who both recently completed stints as special circuit court judges. Walker could end up running for the seat during the next election cycle or Skinner’s county court seat should Skinner get the appointment.

Some individuals who would be on the list of potential candidates are out because they do not live in Hinds County. Examples include Cynthia Speetjens and Cory Wilson. Carlton Reeves is not on the list because he is rumored to be in line for the open federal district court appointment. Likewise for Cliff Johnson who is a candidate for one of the U.S. attorney slots in Mississippi. There are also many highly qualified individuals in private practice who probably would not be able to accept an appointment due to the pay cut that they would have to take. If you are a lawyer with kids in private school, I probably would not list you as a candidate for that reason alone.

One thing to keep in mind is that in appointing judges, Barbour has historically been concerned with appointing someone who can win an election. This may be a bigger factor for Barbour than appointing someone who is ultra conservative. Hopefully people will post comments with other potential candidates.

As reported in the Clarion-Ledger on January 29, 2009, the City of Jackson settled a sexual harassment lawsuit filed by a female firefighter and three former firefighters. The case was originally tried in 2007 and resulted in a $757,000 verdict for the plaintiffs. Judge Henry Wingate threw out the verdict citing jury error and attorney misconduct. Here is Judge Wingate’s opinion, which is worth the read.

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?

Judge Wingate was also unhappy with plaintiffs counsel’s trial conduct. Basically, Judge Wingate would tell counsel to stop doing something and counsel continued anyway. Judge Wingate indicated that he did not believe that any disrespect to the court was intentional. From the small amount of the trial that I saw it seemed that plaintiffs’ counsel were inexperienced in the courtroom and flustered by the pressure.

In any event, the parties’ settlement provides that Judge Wingate will decide the amount of the attorney’s fees recovered by plaintiffs’ counsel. Obviously not an ideal situation for attorneys who Judge Wingate was unhappy with at trial.

The indictment of Gulfport mayor Brent Warr and his wife, Laura, brings widespread attention to questionable criminal prosecutions of Gulf Coast homeowners for allegedly making fraudulent claims for government benefits to repair homes destroyed by Hurricane Katrina. The government alleges that the Warrs’ claim was fraudulent because it was not made on their primary residence. The Warrs bought the house in 2004, renovated it, and were in the process of moving in when Katrina hit in 2005.

As reported in the February 8, 2009 edition of the Sun Herald, the outcome could be decided by a determination of which home was the Warrs’ “primary residence.” The problem with having a criminal case decided on this question is that, according to the Sun Herald, there is no accepted definition of “primary residence.” For instance:

Court testimony in a previous case indicates neither MDA nor FEMA regulations define what constitutes a “primary residence.”

Gerald Bordelon, a special agent who investigates Katrina fraud for the State Auditor’s Office, testified in another federal court case about homeowner-grant qualifications.

Bordelon said “primary residence” was a “fluid” term. He added, “It is based on a totality of the circumstances.”

The Warrs have the highest profile of many Coast residents subject to federal prosecution based on the justice department’s questionable interpretation of a fluid term with no set definition. Making matters worse, some people now claim that FEMA and other government agencies encouraged Coast residents to apply for benefits if there was any doubt as to whether they were eligible. DOJ is now taking the opposite approach, however, and prosecuting all close cases.

Attorney General Holder and the Justice Department leadership under President Obama should re-evaluate all homeowner Katrina-fraud cases. In cases such as the Warrs where the question is close, all charges should be dismissed. The department should also concentrate its investigations on fraud claims involving government contractors who fraudulently bilked millions, if not billions, from the government. Doesn’t that make more sense than going after homeowners whose lives were destroyed by Katrina?

In Briere v. South Central Regional Medical Center a unanimous Mississippi Supreme Court reversed the trial court’s dismissal of a wrongful death action because an earlier filed action was voluntarily dismissed and the wrongful death statute states that there can be only one wrongful death action. Here is the key language:

We clarify Long and hold that the wrongful-death statute does not require that a second suit be dismissed solely because it was, at some point, pending at the same time as a previously filed suit.

The Court also rejected Defendants’ claim that the pre-suit notice letter was inadequate because it did not adequately describe the Plaintiff’s claims. Here is the key language:

We hold that Briere’s first notice letter complied with the notice requirements of the

MTCA. The broad language in the first letter put SCRMC on notice of all of the claims of which Briere was aware at the time. If suit already had been filed, Briere certainly would have been able to amend her complaint to include the new information, pursuant to Mississippi Rule of Civil Procedure 15.

I have seen a trend in the last year or two of Defendants pushing Long v. McKinney and pre-suit notice arguments beyond logic. Some of these “creative” defense claims are now being decided and rejected by the Court.

In AFLAC v. Ellison the Mississippi Supreme Court reversed the Circuit Court of Smith County and ordered venue transferred from Smith County to Rankin County. Justice Dickinson wrote for the majority, joined by Justices Waller, Carlson, Lamar and Pierce. The Court analyzed the case under Miss. Code Ann. 11-11-3. The majority’s decision turned on the following passage:

It is undisputed that the Atkinsons (who are defendants) reside in Rankin County, and that AFLAC’s principal place of business is outside Mississippi. Thus, pursuant to the plain language of the statute, the action must be commenced in Rankin County, unless Ellison can show that a “substantial act or omission” or a “substantial event causing the injury” occurred in Smith County. However, in searching the record for activity which occurred in Smith County, we find only that Ellison was in Smith County when he was informed of the denial of insurance benefits.

The plaintiff being in Smith County when he got the bad news wasn’t enough. AFLAC is doing cart-wheels all the way to Brandon.

Justice Graves wrote an interesting concurrence stating that the doctrine of stare decisis required the Court to transfer the case to Rankin County. Justice Graves reached his decision despite the fact that he believed that the two cases that set the precedent were wrongly decided.

Justice Randolph dissented along with Justices Kitchens and Chandler. The dissent argued that the in-state defendants waived the venue issue by not asserting it as an affirmative defense. AFLAC, as the out-of-state defendant, lacked standing to assert improper venue because the defense belonged to the in-state defendants and not AFLAC.

I’m going to have to go with Justice Graves on this one. Why reinvent the wheel when there are two prior decisions that mandate reversal?

I don’t like the dissent’s position. If it were the law it would lead to venue shopping. Plaintiffs would cut side deals with in-state defendants to not assert improper venue. This would be especially prone to happen in insurance cases where the agent-company relationship is not always cozy. This would put the AFLAC’s of the world shut out of federal court, stuck in the plaintiff’s home county and side ways with a co-defendant.

Is it just me, or have Randolph and Dickinson been disagreeing a lot lately?

In the late 1990’s and early 2000’s there was a cottage industry of life insurance sales practice litigation in Mississippi. The cases were commonly referred to as “vanishing premium” cases because most plaintiffs alleged that the selling agent promised that premiums would vanish in a set number of years, but didn’t.

To a large extent the Court’s opinion in Stephens v. Equitable, 850 So. 2d 78 (Miss. 2003) killed vanishing premium litigation in Mississippi. Stephens held that the policy contract was inconsistent with the vanishing premium sales pitch so that the statute of limitations began running when the plaintiff bought the policy–usually years before suit was filed. After Stephens, many cases were either dismissed under the statute of limitations or settled cheaply.

On December 11, 2008 the Court reversed the Court of Appeals and retracted from Stephens in Wilbourn v. Equitable. The Court agreed with Judge Chandler’s dissent in the Court of Appeals that argued that Stephens was distinguishable. Judge Chandler observed that the statute of limitations analysis was complex and not susceptible to being decided based on a selective quotation of the policy. The Court agreed and replaced a bright line analysis under Stephens with a murky, fact intensive analysis under Wilbourn.

It remains to be seen whether Wilbourn will revive sales practice litigation in Mississippi. But one thing is certain. Between 2003 and 2008 many cases were dismissed under Stephens that would not have been dismissed under Wilbourn.

It was a split decision in the Court’s Thursday opinion in Waggoner v. Williamson. In the decision a divided court reversed a grant of summary judgment in a malpractice case against prominent plaintiff’s lawyer Ed Williamson and remanded the case for a jury trial.

The plaintiff sued his former attorneys after netting nearly $1.5 million in a 2001 fen phen settlement. The plaintiff claims to have not known that his case was part of an aggregate settlement of $73.5 million–apparently on behalf of 45 clients. Plaintiff’s portion of the aggregate settlement was $3 million.

The majority reasoned that there was a fact question as to adequate disclosure under plaintiff’s breach of fiduciary duty claim. In the majority were Justices Carlson, Waller, Dickinson, Randolph and Lamar.

Justice Pierce wrote a concurring opinion joined by Justices Chandler and Waller (in part). Justice Kitchens wrote a dissenting opinion joined by Justice Graves.

None of the opinions state what many lawyers who read this opinion are thinking. The plaintiff was lucky to recover $3 million and net $1.5 million for injuries that left him well enough to give a deposition in his case against his lawyers. The settlement value of fen phen cases and many other types of cases in Mississippi declined substantially shortly after the plaintiff settled this case. This fact rightfully did not factor into the court’s analysis. But perhaps it should have factored into plaintiff’s decision to sue his former lawyers.

In Killhullen v. Kansas City Southern Railway the Miss. Supreme Court unanimously reversed both the trial court and Court of Appeals granting summary judgment based on KCS’s Daubert challenge of Plaintiff’s expert. This was a crossing accident case. Plaintiff’s expert was a registered professional engineer who made calculations regarding field of vision issues.

The Court rejected KCS’s argument that the expert must be an “accident reconstructionist”:

In rejecting Halfacre’s affidavit due to his lack of “specialized knowledge, training or expertise in the field of accident reconstruction[,]” this Court finds that the circuit court abused its discretion. Given his applied engineering expertise, classification as an accident reconstructionist was not necessary…

This was a sensible decision by the Court. If the issues involve physics, the fact that the expert is not an “accident reconstructionist” should not matter.

I once lost a Daubert challenge of an accident reconstructionist and had to watch him re-create the accident for the jury with a couple of toy matchbox cars. If I had known that was ok, I would have had the 5-year old across the street as my expert.

The blog folo has a nice analysis of Mississippi Supreme Court decisions since Justices Pierce, Chandler and Kitchens replaced Justices Diaz, Easley and Smith. Here is a link.

It’s a little early to declare a big change on the Court, but Justice Dickinson’s dissent in four divided opinions is interesting. My take on the November elections is that the results should send a message to the Court that justices who can be portrayed as having extreme views in favor of any side are subject to losing re-election campaigns. The public expects judges to be unbiased. Justices who always vote for the business interest or always vote against the business interest are not popular with the electorate. All members of the Court will need balanced voting records in order to withstand election challenges by canidates who are not burdened with a voting record on the Court.

In 2008 the Mississippi College Law Review published the results of its 2008 Judicial Administration Project. You can access the the results of the study here.

The study examined Mississippi Supreme Court opinions in civil cases starting on January 1, 2004. During this time period the Court reversed twice as many plaintiff verdicts (176) as defense verdicts (86). In addition, the Court affirmed 43% of verdicts for plaintiffs (134 of 310) compared to 69% of the verdicts for defendants (195 of 281). Interestingly, trial court judges and juries were more balanced than the Supreme Court, rendering 310 verdicts for the plaintiff and 281 for the defense.

The study contained the following important disclaimer:

Take note that this chart displays the disposition of ALL civil cases. It does not reflect the court’s dispositions on any particular topic. Instead, it includes everything from contract disputes to domestic issues to will contests. Procedural matters, including appeals from summary judgment and motions to dismiss, are likewise incorporated.

Because the study included all civil actions and was not limited to jury verdicts involving a business interest against an individual, it does not squarely address the controversy raised by former Mississippi Bar President and highly respected Jackson lawyer, Alex Alston. According to Alston, in the 4 1/2 years prior to June 2008 the Mississippi Supreme Court reversed 88% of jury verdicts that favored wronged victims. During the same time period, the Court reversed 0% of jury verdicts that favored big business.

The MC study does not refute Alston’s criticisms and suggests that Alston had a valid point. Hopefully, the Law Review will continue its analysis to further explore these important questions. The civil justice system does not efficiently resolve disputes when either side has reason to believe that the deck will be stacked in its favor on appeal.