Mississippi Litigation Review & Commentary

Ill. Central Railroad Gets Plaintiff's Verdict in Natchez Asbestos Fraud Trial

Philip Thomas — Tue, 09 Mar 2010 10:58:30 -0600

There was a plaintiff’s verdict yesterday in federal court in Natchez in favor of Ill. Central RR against McComb lawyers William Guy and Thomas Brock. The trial involved the claims in two cases. Here are the Amended Complaints in the Turner case and the Harried case. Ill. Central sued the lawyers and their clients, but the clients obtained a defense verdict at trial.

The Complaints alleged that the individual defendants were plaintiffs in the big Cosey Jefferson County asbestos case that was filed in 1995 in which there was a massive plaintiff verdict around ten years ago. It was one of the verdicts that led to tort reform in Mississippi.

The defendants sued Ill. Central in 2001 in Jefferson County asserting an FELA claim related to exposure to asbestos. The defendants failed to disclose to Ill. Central that they were plaintiffs in the Cosey case and settled their claims with Ill. Central for $90,000 and $120,000 respectively. The individual defendants testified that the lawyers (Guy and Brock) were aware of their prior asbestos claims in Cosey.

Ill. Central sued the lawyers and their clients for fraud. I believe that the verdict was for the $90,000 and $120,000 previously paid by Ill. Central, but a judgment is not on file yet, so I am not sure.

I also do not know what happened in the punitives phase. I hope to report more on this verdict later.

Danny Mulholland and Tanya Ellis with Forman Perry represented Ill. Central. John Corlew and Kathy Smith of Jackson represented the defendant lawyers. Wayne Dowdy of McComb represented the individuals. Judge David Bramlette presided over the trial.

MS Attorneys: Please Report Civil Verdicts

Philip Thomas — Tue, 09 Mar 2010 07:00:05 -0600

Wouldn't it be great to have a resource that reports on many civil verdicts in the State of Mississippi? This blog could serve as that resource if more verdicts are reported to me.

Over the last year, I have reported on many verdicts. But my ability to report verdicts is limited to the verdicts that I hear about.

If you hear about a verdict in a Mississippi case, please send me an email about it. In addition to the result, I like information on the facts of the case, venue, judge, attorneys and other interesting information about the case. I typically do not reveal sources on the verdicts that I write about.

It's not unusual for me to hear about a trial going on somewhere in the state, but to not get enough information on it to report the result. Please help build the content on this blog by reporting verdict results.

Please report verdicts by sending me an email or submitting the information on the contact form on my firm web site.

Using Expected Value (EV) Calculations to Determine Settlement Value of a Case

Philip Thomas — Mon, 08 Mar 2010 07:00:19 -0600

Litigators can learn a lot about evaluating the settlement value of a case from mathematicians and poker players. Typically, litigators evaluating the settlement value of a case think about factors such as the liability facts, damages, venue and skill of opposing counsel. These factors swim around the lawyer’s brain and the the lawyer spits out an estimated settlement value without really spending time to identify the various possible outcomes and the probability of each outcome occuring.

Poker players and professional gamblers speak in terms of Expected Value (EV) and try to base their decisions on the decision that yields the maximum EV.

Lawyers could do a better job of determining the settlement value of a case by using these factors and their judgment to determine the probability of various identified outcomes and then calculating the Expected Value (EV) of the case.

Explanation of Expected Value (EV)

Expected Value (EV) is a math calculation used to describe the long-term average outcome of a given scenario. Wikipedia has a good section on expected value.

Here is a simple explanation: if you flip a coin and someone gives you $1 every time it lands on heads and zero when it lands on tails, then the expected value of each coin flip for you is 50 cents, since half the time you will get zero and half the time you will get $1.

The calculation looks like this: (1/2 x 1) + (1/2 x 0) = .5. If you don’t trust my math, you can use this on-line expected value calculator.

EV calculations can be useful in evaluating the settlement value of a case.

Example of Expected Value in a Liquidated Damages Case

Say there is a lawsuit pending with purely economic damages of $100,000. The defendant agrees on the damage amount, but denies liability. If the parties also agree that there is a 50% chance that the plaintiff will win at trial, then the expected value of the case is $50,000: (1/2 x 100,000) + (1/2 x 0) = 50,000. That is not an opinion, that is math. In that situation, the case should settle for $50,000.

Expected Value Calculation in Personal Injury Cases

Let’s say you have a personal injury case. The plaintiff has decided to ask the jury to award $300,000 in damages. The defendant denies liability. The defendant also contends that if the jury does find for the plaintiff, then a reasonable verdict would be $50,000. To calculate the EV in this case you need to use your skills as a lawyer to decide on the probability of various outcomes at trial.

This could look something like this:

Defense verdict- $0: 50%

Plaintiff verdict– $300,000: 10%

Plaintiff verdict– $50,000: 10%

Plaintiff verdict– $100,000: 10%

Plaintiff verdict– $200,000: 10%

Plaintiff verdict– $250,000: 10%

Expected Value = $90,000. (using EV calculator).

While I am not advocating basing all settlement decisions on the calculated expected value, I am suggesting that using the calculation would allow lawyers to make more informed recommendations to their clients regarding settlement.

But it's Not that Simple

These examples assume that the expected value for the plaintiff is the same as for the defendant. That is, the defendant’s loss equals the plaintiff’s gain. In litigation, however, that is not the case due to the affect of attorney’s fees and case expenses. I will look at how these factors impact settlement values in a later post.

Book Review: Litigation Logic- A Practical Guide to Effective Argument, by Paul Bosanac

Philip Thomas — Fri, 05 Mar 2010 07:00:44 -0600

Litigation Logic– A Practical Guide to Effective Argument is an interesting book. As stated in the introduction:

This book is dedicated to presenting informal fallacies through legal arguments…

The product description on Amazon is:

Learning to use, and defend against, informal fallacies are the keys to effective argument. This one-of-a-kind book examines informal fallacies and features a three-page Legal Logic Flow Chart to help identify the appropriate informal fallacy and counter them. Through the flow chart this book provides two legal examples on which to practice using the chart. This book is ideal for any lawyer who wants to craft a flawless argument.

The focus of the book is principles of logic utilized in legal arguments.

The book defines informal fallacies as arguments that are flawed, but not in a technical sense. Examples include personal attacks, appealing to bias and prejudice and something you occasionally see in Mississippi courtrooms: appeals to regionalism. The book goes into detail indentfying improper arguments and provides examples from mostly U.S. Supreme Court cases.

I view this book as an academic book as opposed to a practical guide that will be used by trial attorneys. Litigators should know what arguments are improper, but little time is devoted to the subject in law school or bar review exams. This book would be very useful as required reading in law school trial practice and ethics classes. In fact, a law school ethics course that uses this book as a text would be more useful than traditional approaches to ethics courses that are based on case books.

I disagree that the book is ideal for any lawyer who wants to craft a flawless argument. I view it as a theory type book and not a practice book. It is a good book that is worth reading, but it is not going to provide a roadmap for arguing cases.

Attack on Tort Reform as "Ingeniously Marketed" is on the Money

Philip Thomas — Thu, 04 Mar 2010 07:00:25 -0600

In an article for the Atlantic, legal analyst Andrew Cohen calls tort reform anti-democratic, but ingeniously marketed by corporate America:

Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.

Personal experience in talking with clients and prospective jurors in voir dire during trials makes me conclude that average citizens do not understand tort reform. Most people think that tort reform addresses frivolous lawsuits instead of lawsuits involving the worst possible conduct. People do not understand that:

It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:

The straw man fallacy is an argument that so alters a position that the result is easier to attack than the original and yet claims that it has provided grounds for attacking the original.

Corporate America claims that tort reform is the solution for frivolous lawsuits. But "frivolous lawsuits" is their straw man. They use frivolous lawsuits as their straw man because what they really desire is their offered solution: damages caps that reduce their liability for wrongdoing.

Why do tort reform’s proponents push a solution that does not apply to the “problem” of frivolous lawsuits? Because frivolous lawsuits is not really the problem for corporate America. They can squash a frivolous lawsuit like a bug. What they can’t squash without damages caps is their liability exposure for terrible conduct such as covering up a product’s dangerous defect. And they know that the public wouldn’t go along with it if the public knew the truth.

The reason that people do not understand tort reform is because proponents of tort reform do not want them to. Tort reform proponents invariably talk about merit-less lawsuits when selling tort reform.

So they pull a bait and switch using a frivolous lawsuits straw man. They talk about despicable trial lawyers and frivolous lawsuits and push through damages caps that don’t even address their stated “problem.” It’s a ploy—but it’s a smart one to get what they want.

Losing Sucks

Philip Thomas — Wed, 03 Mar 2010 07:00:05 -0600

You heard me. Losing a trial sucks. On multiple levels. Sorry if you don't like my vocabulary.

Even worse, a win does not even out a loss. Tennis great Andre Agassi described it as well as anyone that I've heard even though he was talking about tennis and not trials:

Now that I've won a slam, I know something that very few people on earth are permitted to know. A win doesn't feel as good as a loss feels bad, and the good feeling doesn't last as long as the bad. Not even close.

Shortly after I started my first job as a lawyer I heard veteran trial lawyer Natie Caraway say basically the same thing. It took personal experience winning and losing trials to understand it.

For me a loss on appeal does not feel bad as a loss at a trial. And the loss of a bench trial does not feel as bad as the loss of a jury trial. The loss of a jury trial feels the worst because you hang it all on the line for twelve people who you don't know and you are shattered when you find out that you could not convince them. And if you believe in your clients case--and most lawyers do--you think that the jury got it wrong. That makes it worse.

I have no answer for the best way to deal with a loss. But I agree with Chicago lawyer John Tucker on this point:

Courtroom lawyers and people who play sports are engaged in an endeavor where there is a winner and loser of every contest, and no matter how good they are, sometimes they lose.In fact, in both endeavors it is often true that the better they are the harder their contests and the more often they will lose. You don't have to like it-in fact, you had better not-but you won't last long if you don't learn to get over it, or at least put it far enough behind you to go on to the next case.

Some lawyers lose a big trial and never recover. They are habitually afraid to re-enter the courtroom for fear of losing again. The best lawyers get over it and seek the adrenalin rush of going back in and putting it all on the line again.

Mississippi Nursing Home Owners Fighting Requirement For Liability Insurance

Philip Thomas — Mon, 01 Mar 2010 09:13:20 -0600

Sid Salter with the Clarion-Ledger penned this story yesterday about the efforts of Mississippi nursing home owners to defeat a bill pending in the legislature that would require nursing homes to carry $500,000 in liability insurance coverage. My understanding is that the bill passed in the House of Representatives. There is a rumor circulating that Senate Insurance Chair Buck Clarke has been instructed to let the bill die in his committee by the powers that be. That would be horrible for all Mississippians.

Putting a Loved One in a Nursing Home is a Decision Many Mississippians are Faced with Every Day

Like many Mississippians, Salter had to put his parents in nursing homes when their failing health left them unable to care for themselves and in need of more care than family members could provide. This is very common and it could happen to anyone. If you have elderly parents who are not wealthy and you have a job so that you can not provide 24–hour care, then it can happen to you. Salter recognizes that his parents were lucky because they received good care, but that is not always the case:

My folks were fortunate. The people we paid to care for them when we could no longer care for them treated them with respect and compassion.

That's the way it is in most of Mississippi's nursing homes, but not in all of them.

Nursing home abuse happens in Mississippi like it happens in the rest of the country - physical abuse, sexual abuse and financial abuse. There are over 15,500 Mississippians in 184 Mississippi skilled nursing facilities.

Like Salter, I know what it is like to have a parent who needs constant care. You may say that you would never put your loved one in a nursing home. But until you see what it means for someone to need 24–hour care, you really don’t know what you are talking about.

You can read my thoughts on choosing a nursing home for a loved one here.

Many Mississippi Nursing Homes Carry Little or No Liability Insurance

Most Mississippi nursing homes provide consistently good care to their residents. Many carry adequate liability coverage that is available to compensate victims when the care is not good and causes injury. But there are many Mississippi nursing homes with little or no insurance. Even worse, it is the nursing homes without insurance that provide the worst care.

I represent victims of nursing home abuse and neglect and their families. Most calls that I receive about a potential case involve a small group of nursing homes. Even worse, it is these repeat offenders who carry no liability coverage or only enough to pay their defense attorneys in defending a case.

Exposing the Litigation Strategy of the Nursing Homes with Little or No Insurance

Not carrying liability insurance is not a financial necessity. Nursing homes are very profitable. It is a defense strategy to avoid being held accountable. When threatened with a suit, the first thing these nursing homes do is write a letter to the victim’s lawyer stating that there is either no insurance, or only enough to pay the defense lawyers. If liability is clear, the nursing homes then make an unfair low-ball settlement offer and insinuate that the nursing home will file bankruptcy if you obtain a big verdict in court.

This creates a no win situation for the victims—and the nursing home owners know it.

Nursing Homes are Very Profitable

Don’t believe nursing home operators when they say that they cannot afford liability insurance. I have seen financial statements from nursing homes. A 100 bed facility that has a Medicare and Medicaid pay source for most of its patients (this applies to most Mississippi nursing homes) can make a $1 million profit in one year. That profit is drained from the nursing home's books by the owners, leaving the facility with no assets on paper that could be recovered in a lawsuit.

There is a Hidden Incentive for Nursing Homes to Provide Bad Care After the First 100 Days

Mississippi is the poorest state in the nation. That means that for many people, Medicare and Medicaid are the only pay sources for nursing home care. That is a good news– bad news situation. The good news is that Medicare eligible patients typically get a lot of therapy during the first 100 days of their stay in a nursing home because the home can bill individual care items to Medicare.

The bad news is that after 100 days in a nursing home Medicare eligibility expires. Medicaid pays the same rate no matter how much therapy and other care the nursing home provides. This often results in everyone getting therapy for 100 days and no one getting therapy after 100 days.

Many residents’ health declines after improving during the first 100 day period because they start receiving less care. If a resident’s health declines and they die, it allows the nursing home to replace the low-rate Medicaid resident with a high-rate Medicare resident. Nursing homes with a lot of new Medicare residents will make a lot more money that homes with fewer Medicare residents. This creates a profit incentive for nursing homes if their long-time residents die.

Again, most nursing homes and their employees provide the best care that they can for as long as they can. But for the cold-hearted greedy owners, there are financial reasons to not provide quality care for all their residents.

Liability insurance balances the playing field.

Liability Insurance Increases Accountability

Mississippi requires us to carry liability insurance if we drive on the roads. That way, if our negligence causes a wreck, then we can be held accountable to the victim. The same should apply to nursing home owners and operators. If it’s fair that we all have to carry car insurance, then it’s fair that they all have to carry liability insurance. Sid Salter said it well:

But it seems that some Mississippi nursing homes don't carry enough liability insurance to cover those damage caps if a vulnerable elderly person is injured, mistreated or abused while in their care.

House Bill 536 requires non-government nursing homes to carry the same $500,000 in liability coverage that government nursing homes carry under the Tort Claims Act. But insurance company and nursing home lobbyists are working overtime to kill the bill. Why?

The nursing homes and the insurance companies got the "tort reform" caps they sought. Now, the elderly deserve some accountability from those same entities with the passage of HB 536.

Mississippi's elderly need less tort reform, not more.

Is the Majority in Wright v. Royal Carpet Really the Majority?

Philip Thomas — Fri, 26 Feb 2010 10:41:37 -0600

WIll Bardwell raises a great point on the Wright v. Royal Carpet decision that I wrote about earlier today:

Ultimately, though, it may be much ado about nothing, because technically speaking, I'm not sure that the decision creates binding precedent. The Court's opinion drew only five votes -- not a majority of the Court -- and one of its members, Judge Irving, joined in result only. Judge Maxwell's separate opinion, on the other hand, pulled a total of five full votes (why that doesn't make it the "majority" opinion, I don't know). Suffice it to say, though, that a majority of Court's members declined to concur in the lead opinion's reasoning.

I didn't notice the vote counting issue when I read the opinion. The concurrence, which I mistakenly refer to as the dissent in my post, had five votes. The majority opinion included Judge Irving who concurred in result only. But the concurring judges also concurred in the result. It's how they got there that's in dispute.

And it looks like the concurring opinion is really the majority. I'm missing something on the vote counting at the Court of Appeals.

Miss. Court of Appeals Rules that a Party who Lost Motion in Limine Waives Objection by Mentioning the Evidence at Trial

Philip Thomas — Fri, 26 Feb 2010 07:00:36 -0600

In a 5–4 [correction: 4-5-1] decision in Wright v. Royal Carpet Services, the Mississippi Court of Appeals ruled on Tuesday that a party who loses a motion in limine waives their objection to the admission of the disputed evidence by being the first to refer to the evidence at trial. The case was an appeal from a defense verdict in the Lowndes County Circuit Court. The plaintiff alleged in the case that the defendant was responsible for mold that developed in her house.

The issue of whether the majority is really the majority is discussed here.

Before trial, the plaintiff moved to exclude evidence of liability insurance under the collateral source rule. The trial court denied the motion because the issue was relevant to the defendant’s defense that plaintiff failed to mitigate her damages. All nine judges agreed that this ruling by the trial court was proper and I have no criticism of it.

But the five judge majority ruled that plaintiff waived the issue on appeal by being the first to raise the subject of insurance at trial. Judge Roberts wrote for the majority and was joined by Judges Myers, Griffis, Ishee and Irving (in result only with no separate opinion). The Court ruled that Quinn v. State, 873 So. 2d 1033 (Miss. App. 2003) was on point and that the issue was “procedurally barred by her failure to raise a contemporaneous objection at trial.”

Judge Maxwell dissented in an opinion joined by Judges King, Lee, Barnes and Carlton. The dissent cited several Mississippi Supreme Court cases that held that where a judge has already ruled on the evidence, a party does not waive an objection by being the first to mention it at trial in order to attempt to take the sting out of the evidence. The dissent characterized the situation as one where the trial court makes an adverse ruling on the motion in limine and the party adjusts their trial strategy by introducing the evidence to limit its ill effects on the jury.

The dissent states:

I believe Wright was entitled to play the hand the court dealt her and that she is not procedurally barred from asserting these issues on appeal.

I agree with the dissent.

First, Quin is not “on point.” Quin did not deal with a situation where a party did not object at trial to the admissibility of evidence where the court had ruled it admissible in ruling on a motion in limine. Quin dealt with the opposite. In Quin, the State violated a motion in limine ruling at trial and the court found that the defendant waived the issue by not objecting at trial:

The State did in fact violate the motion in limine regarding the amount of money Quinn had on her person by specifically questioning Brister about the matter. However, the record is devoid of any objection by Quinn when such question was asked of Brister. Therefore we find that an issue that is not properly brought to the attention of the trial court by appropriate timely objection is waived. Carr v. State, 655 So. 2d 824, 832 (Miss. 1995). The supreme court has repeatedly held that "if no contemporaneous objection is made, the error, if any, is waived." Id.

There was no violation of a motion in limine in Wright. Instead, plaintiff adjusted her trial strategy to account for the court’s prior ruling.

Second, the dissent’s position has superior support in the case law than does the majority’s position. The majority cites one case that arguably does not apply at all. The dissent cites several Mississippi Supreme Court cases that support the dissent’s view.

Third, the majority ignores “reality on the ground” in the courtroom. it has been my experience that trial judges get annoyed fast when lawyers repeatedly object on the same issue. Trial judges seem to consider the issue to be preserved for appeal once an objection has been made and an adverse ruling issued. A motion in limine that has been ruled on should count as lodging an objection and in my experience, it has. I have seen plenty of times when a lawyer stands up and asks: “judge, I lost on my motion in limine, I don’t have to keep objecting do I?” Invariably the answer is “no—your objection is noted in the record” and usually the opposing attorney is shaking his/her head in agreement. Lawyers should not have to keep objecting repeatedly for fear of waiving the objection. It slows trials down and annoys both the judge and jury.

Finally, a valid reason for filing a motion in limine is to determine what evidence will be in play at trial. The party that loses should be entitled to adjust their trial strategy to account for the ruling. A party being the first to mention damning evidence is a trial strategy that is routinely taught in trial practice courses and practiced in the courtroom. According to the Court of Appeals, you cannot do it in Mississippi because if you do, you have waived your objection to the evidence.

That doesn’t seem fair. I agree with the dissent’s analogy that at that point, you are simply playing the hand that you are dealt.

I would like to hear what other trial attorneys think about this decision.

Lawyers Still Falling for E-mail Collection Scam

Philip Thomas — Thu, 25 Feb 2010 07:00:57 -0600

The ABA Journal reported on Monday that two more law firms have fallen for an e-mail collection scam targeting lawyers:

Two law firms in Honolulu were scammed out of $500,000 in an e-mail scheme that's apparently targeting the legal community.

During the past six weeks, six different law firms have been targeted, according to the FBI, which issued a warning today (PDF). Two of the six fell for the scheme and lost a total of $500,000.

The FBI reports that the scam begins with e-mail contact from a prospective client who is seeking legal representation in a civil matter, such as a divorce. The supposed client sends the law firm a cashier’s check for a retainer in an amount far exceeding the firm's rate.

When the law firm responds that the client has overpaid, the client requests and the unsuspecting firm sends a wire transfer with the refund. It's after the refund that duped firms learned that the cashier's checks are counterfeit.

As I discussed last June, the Mississippi bar warned Mississippi lawyers about these scams last year. As far as I know, no Mississippi lawyers have fallen for the scam.

But I continue to receive several e-mails every week attempting to get me to fall for the scam. I estimate that I receive about five of these e-mails a week. If they were legitimate I could make a killing by focusing my practice on collecting debts for Asian companies.

Here is the text of an email that I received three times within minutes on Saturday:

BaiLi Hose Co.,Ltd

No.790 NingAn Road,Hengshui,

Hebei Province Hengshui Hebei

053000 China

Attention: Counsel,

We the management of BaiLi Hose Co.,Ltd ,require your legal representation for our American Customers. BaiLi Hose Co.,Ltd, a manufacturer and supplier of chemical, we are been owed payment on a shipment that we made to a customer in America in June 2008 and now seeking advice and possible representation in litigation against the non-paying company.

We are of the opinion that the ability to consolidate payments from America will eradicate delays due to inter-continental monetary transaction between the Asia and America. We understand that a proper Attorney Client Retainer will provide the necessary authorization and we are most inclined to commence talks as soon as possible.

Your consideration of our request is highly anticipated and we look forward to your prompt response.

Sincerely,

Chen Yang,

Managing Director.

chenyang9@live.com

I also recall receiving the version of the scam e-mail claiming to be from a person seeking to collect on alimony or child support payments in “you state.” The scammers also bait the line by filling out the contact form on my blog.

Almost none of the e-mails are personalized, and are addressed to "counsel." At the top left where the recipients address should be listed, they list a bogus sender address instead. The scammers do not even go to the trouble of listing the state that I am in. I can probably expect to receive more of these e-mails now that Sid Salter has explained what a moron I am.

While I am not surprised that there have been unsuspecting lawyers who fell for the scam, it is surprising that the scam is still working given the publicity that it’s received in the legal community.

Mississippi Not the Only State Where Judiciary Clashing with Other Branches of Government Over Budget Issues

Philip Thomas — Tue, 23 Feb 2010 17:26:13 -0600

I recently posted about the Mississippi Supreme Court’s Order preventing Governor Barbour from cutting the judiciary’s budget. Looks like Mississippi is not the only state with these types of issues. As reported yesterday on the WSJ Law Blog, the New York Court of Appeals rendered a decision on the related issue of judicial pay:

In a 5-to-1 decision, the Court of Appeals found that the legislative and executive branches illegally pegged judges’ pay raises to unrelated legislation. As such, the actions violated the separation of powers doctrine under the New York state constitution. Click here for the NYT article; here for the opinion.

Mississippi state court judges are underpaid at every level of the judiciary. But with the state in a budget crisis, it will be hard for judges to get a needed pay raise and any raises will probably not be to needed levels. It will be interesting to see whether at some point the judiciary tries to order their own raises.

State Auditor Pickering Denies Politically Motivated Lawsuit Against Attorney General Jim Hood Based on Politics

Philip Thomas — Tue, 23 Feb 2010 07:00:15 -0600

Former State Auditor and current Lieutenant Governor Phil Bryant’s (R) lawsuit that challenged the payment of attorney’s fees to lawyers who Attorney General Jim Hood (D) hired to sue MCI is clearly politically motivated. So naturally current Auditor Stacey Pickering (R) denied that the suit is politically motivated, as reported in the Clarion-Ledger on Saturday:

[Hood’s attorney Fred] Krutz said he thinks the auditor's office waited two years to go after the attorneys fees because the case is politically motivated.

"It was always about politics," he said.

Pickering denies that's the case. "It is our belief that precedent is on our side," he said. "Any money recovered would be public funds."

Pickering is a politician. Most people assume that most acts by politicians are politically motivated. The odds that Bryant’s lawsuit against Hood was politically motivated are somewhere north of 99%.

The MCI case resulted in $100 million in cash and $7 million in property paid to Mississippi. Former Mississippi attorney Joey Langston’s law firm received a $14 million attorney’s fee in the case, which MCI paid.

Hinds County Circuit Court Judge Winston Kidd threw the case out last week finding that:

Since the subject attorney's fees were not paid by the state and did not come out of any state funds, this Court finds that there is absolutely nothing improper or illegal about MCI's payment of attorney's fees to the Langston Law Firm," Kidd's ruling states.

I previously criticized aspects of Hood’s hiring outside counsel, particularly his hiring Texas lawyers who made a huge campaign contribution to Hood. But Hood is right in this case. The argument that a lawyer already hired and paid must give the fee back is thin. Even thinner is the argument that it’s the Legislature’s job to dole out the fee. The Legislature’s job is to pass laws—not administer attorney’s fees in a lawsuit.

If Bryant and Pickering do not like the system, then they should lobby the Legislature to change it—not file grandstanding lawsuits that cost the taxpayers money.

How much money? Both Hood and Pickering hired outside counsel in this case, who are paid by taxpayers—not MCI. Pickering’s lawyers alone cost the State $340,000 for a loss—with Pickering promising to take his gamesmanship to the Mississippi Supreme Court. The appeal will cost the State an additional six figures in attorney's fees.

There is a big difference from the outside counsel fee in the MCI case and in Bryant/ Pickering's lawsuit:

In the MCI case taxpayers paid nothing for outside counsel.
In the Bryant/ Pickering case taxpayers paid hundreds of thousands for outside counsel.
In the MCI case Mississippi won.
Bryant/ Pickering lost their case.
The MCI case made valid claims against a crooked corporation.
Bryant/ Pickering's case made novel claims that lost.

In the MCI case, Hood hired a Mississippi law firm that recovered $107 million for Mississippi from a crooked corporation. Hats off to Jim Hood on this one. I’m sure that money has come in handy over the last view years given the State’s terrible budget crisis.

Pickering needs to stop the taxpayer bleeding and shut this lawsuit down.

Voters who are tired of the political gamesmanship need to remember this episode when Bryant runs for governor and Pickering runs for whatever he decides to run for next.

Miss. Supreme Court Holds One Year Statute of Limitations Applies to Intentional Infliction of Emotional Distress Claim Even Though Claim Not Listed in Applicable Statute

Philip Thomas — Mon, 22 Feb 2010 07:00:52 -0600

In a 5–4 decision on Thursday, the Mississippi Supreme Court issued its opinion in Jones v. Fluor, holding that a one-year statute of limitations applies to the claim of intentional infliction of emotional distress. Justice Pierce wrote the Court’s opinion and was joined by Chief Justice Waller and Justices Carlson, Randolph and Chandler.

Here is the Clarion-Ledger article on the case, which got the number of votes wrong (6–3).

The applicable statute is Miss. Code Ann. 15–1–35, which lists a one year deadline for filing actions for “assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels…”

The statute does not say that there is also a one year statute of limitations for actions “like these”, but that is what the court found.

Justice Dickinson dissented and was joined by Justices Lamar, and Kitchens. Justice Kitchens wrote a separate dissent joined by Justice Graves and Justice Dickinson, in part.

Justice Dickinson’s dissent states that intentional infliction of emotional distress “clearly is not subject to the one-year statute of limitations” because the statute “specifically lists the intentional torts to which it applies.” The dissent also observes:

It requires no analysis or particular legal insight to observe that the tort of intentional infliction of emotional distress is not included in the language chosen by the Legislature.

Justice Dickinson’s dissent is very persuasive. I’m surprised that his opinion was not for a unanimous court.

My biggest criticism of the majority’s holding is that it makes life difficult for lawyers. If the majority can read words that are not there into this statute, then it can do it in other statutes. It is not fair to lawyers or their clients that they have to figure out what language the Court believes should be in a statute, but isn’t.

I don’t have a problem with there being a one year deadline for intentional infliction of emotional distress actions. Typically, it is just a throw-in claim with the real claim at issue in a case. But if it’s going to be a one year deadline, then the statute should list the claim. It does not and Justice Dickinson is dead on.

Justices Kitchens and Graves opined that the defendant waived the statute of limitations defense.

The Court is slowly developing an irreconcilably inconsistent body of law on the issue of waiver of affirmative defenses. In some cases the court finds a waiver based on the passing of a certain amount of time. In other cases, it finds no waiver for similar or longer amounts of time. Efforts to distinguish the different cases are un-persuasive. It appears that what the Court is really doing is basing its waiver decisions on subjective feelings about who should win the case. I’m not saying that is what the Court is actually doing. But that is how it’s starting to look—and that’s a problem.

Verdicts in High-Speed Pursuit Cases May Cause City of Jackson to Stop Chasing Suspected Criminals

Philip Thomas — Fri, 19 Feb 2010 07:00:06 -0600

Thursday’s Clarion-Ledger reports on a $700,000 verdict entered by Hinds County Circuit Court Judge Winston Kidd on February 5 in a bench trial against the City of Jackson.

The case involved a fatal car wreck in Jackson involving a suspect who was running from Jackson police officers. The suspect crashed into the plaintiffs. One person was killed and the other two injured. Judge Kidd awarded $500,000 to the estate of the deceased and $100,000 to each of the survivors. The city argued that the officer stopped the pursuit before the crash. The case was tried in April 2008. Warren Martin represented the plaintiffs.

Jackson City Attorney Pieter Teeuwissen stated that the city will appeal because the Tort Claims Act caps the total possible recovery at $500,000:

City Attorney Pieter Teeuwissen said the city will appeal, in part because the judgment appears to exceed the amount of damages that can be levied against a Mississippi city. State law states that "damages against a governmental entity .... arising out of a single occurrence" are capped at $500,000.

I have not researched the law to analyze this issue. I suspect that Teeuwissen is right, since the Tort Claims Act stacks the deck in favor of governmental entities. That being said, I agree that the way Judge Kidd applied the cap should be the law.

Other recent verdicts in pursuit cases against the city include:

In September, Hinds County Circuit Judge Swan Yerger handed down a $500,000 verdict against the city in the case of WLBT Channel 3 meteorologist Eric Law and his wife, Kristina, both of whom were seriously injured when struck by a suspect fleeing police in 2006.
In May, Special Hinds County Circuit Judge William Coleman order the city to pay $400,000 in damages for its part in a chase that began in Raymond and ended when Alice Marie Wilson struck a vehicle driven by Alice Faye Clausell, killing her and injuring her two daughters.

The city’s response to these verdicts may be to stop chasing suspected criminals:

Teeuwissen said he is concerned about the way judges have been treating these cases. Such large awards against the city may force the Jackson Police Department to abandon pursuits because the city cannot afford it, he said.

And that could hamper the city's ability to fight crime, he said.

"If these cases are upheld we are heading to a point where you can't have a pursuit in an urban area. If that is the case you can imagine the effect it will have on crime," he said. "You may have to tell your officers, 'We don't want you thinking in the field and making split-second decisions on whether this suspect is worth pursuing.' "

I don’t have the answer to this dilemma. The police need to be able to pursue suspects, but pursuits need to be carried out in a way where innocent bystanders are not injured.

A&O Update: Wahab and Co-conspirators Owe $16.5 Million in W Financial Litigation

Philip Thomas — Thu, 18 Feb 2010 08:53:09 -0600

The Texas Federal Court Judge who held Adley and Sarah Wahab in contempt has entered a final judgment of over $16.5 million against Wahab, W Financial, Michael Wallens, Sr. and Michael Wallens, Jr. Here is the Final Judgment.

Here is a photo of Wahab.

The judgment finds the four defendants jointly and severally liable for $14,506,449 in profits and interest from their improper conduct. In addition, the Court fined each defendant $500,000 in civil penalties.The court gave the defendants ten days to pay the fine and thirty days to pay the principal amount.

I’m not sure what will happen to the Defendants when they do not pay, but I suspect that the judge may hold them in contempt and order them jailed.

Just days before entering the judgment the court entered this order revising its October order holding Adley Wahab in civil contempt for making unauthorized transfers of assets. Wahab got caught moving his assets to off-shore accounts and probably planned to flee the county. The court ordered Wahab to surrender his passport to the SEC. The court issues a warrant for Wahab’s arrest and stated that Wahab “holds the keys to his prison” because he can get out of jail by complying with the court’s order.

I predict that any freedom that Wahab gains will be short lived. He’s going to be hanging out with the likes of Bernie Madoff and Martin Frankel for a long time.

Finally, here is the text of an email that I received on June 10, 2009 from Andrew T. McKinney, an attorney in Houston, Texas:

Dear Mr. Thomas: if you had taken the time to investigate, even superficially, your factual assertions and speculations—defamatory assertions and speculations--you would know that Mr. Wahab is not an owner of A&O Life Funds LP or any related or affiliated entity. Mr. Wahab sold his interest in A&O Life in the late summer of 2007. Two material points in connection with that sale are: (1) the funds in escrow were audited and verified by the purchaser, prior to sale, and found to be exactly as represented and (2) a subsequent, post-sale audit was conducted and all funds represented to be in place, in fact were in place. These two facts conclusively absolve Mr. Wahab of any post-sale wrongdoing since he has had no ongoing managerial or other ‘control’ role with A&O Life Funds LP. You are invited to withdraw any and all comments about Adley Wahab on your website or plan to litigate this matter in Mr. Wahab’s home town off Houston, Texas.

Andrew T. McKinney IV

McKinney & Cooper, L.L.P.

Three Riverway, Suite 500

Houston, Texas 77056

Toll Free: 1(866) 928-8215

Telephone: (713) 623-6868

Facsimile: (713) 623-8222

e-mail: mckinney@mckinneycooper.com

I did not withdraw my comments about Wahab and my suspicions about him being a crook have been confirmed.

Mr. McKinney claims to be knowledgeable about Wahab and A&O. A&O investors with questions about their investment should consider contacting Mr. McKinney with their questions.

Finally, disgruntled A&O investors continue to contact my office with questions about the scandal and the possibility of my firm representing them. I do not represent investors in A&O litigation and am not going to. I covered the A&O scandal on my blog in order to bring exposure to the scandal and provide information to the victims.

I have repeatedly stated my opinion that if you are a victim who lost money in the scandal, you are going to have to find someone other than Wahab and his co-conspirators to sue. For most people this means suing the person who sold you the investment. If that person is continuing to tell you that this will all work out, then they are lying to you. If you want to recover any money you are going to have to sue that person for selling you an innappropriate investment.

When began covering A&O on this blog I was afraid that A&O was still preying on its victims by luring in new investors. With state and federal authorities investigating and national media convering the scandal, my coverage of the scandal will continue to be sporadic.

Justice James Graves Remains 5th Circuit Front-Runner

Philip Thomas — Wed, 17 Feb 2010 07:00:44 -0600

It has been five months since 5^th Circuit Judge Rhesa Barksdale announced that he was taking senior status, giving President Obama a slot to fill on the 5^th Circuit Court of Appeals. After initial speculation that the position would be filled by someone from Texas or Louisiana, word leaked that the President would fill the position with an African-American Mississippian.

Mississippi Supreme Court Justice James Graves immediately emerged as the favorite for the nomination, as discussed in this post. Other names mentioned for the nomination at one time or another in legal circles include:

Hinds County Circuit Court Judge Winston Kidd,
Hinds County Chancery Court Judge Denise Owens,
former Hinds County Circuit Court Judge Robert Gibbs,
Jackson attorney Doug Minor,
Assistant U.S. Attorney Felicia Adams,
Circuit Court Judge Margaret Carey-McRae,
Jackson attorney Walter Johnson, and
Jackson attorney and presumptive District Court nominee Carlton Reeves.

I believe that the White House has interviewed at least several people on this list.

Speculation continues to center on Justice Graves as the front-runner for the nomination. He is the only person on the list with appellate court experience, in addition to previously serving as a trial judge in Hinds County Circuit Court. Justice Graves is rumored to have the support of individual(s) with close ties to the White House Counsel’s Office.

Although Justice Graves may not have universal support in conservative circles, he is rumored to have the tacit approval of Governor Haley Barbour, who would like to appoint an African-American to the Mississippi Supreme Court to strengthen his 2012 presidential bid. Governor Barbour is effectively running for President now, which should be kept in mind when viewing his political moves.

One thing the Governor needs to do before the official campaign starts is to repair his glaring deficiency in appointing minorities to judge positions, as discussed here and here. Since criticism of Barbour ‘s minority appointment record became public last year he quietly appointed several African-American judges, including appointing Macolm Harrison to fill the seat of Bobby DeLaughter. If Justice Graves is confirmed for the 5^th Circuit, Governor Barbour will get to name his replacement on the Mississippi Supreme Court. Appointing an African-American to the Supreme Court would go a long way to blunt the criticism of Barbour’s record on minority appointments.

One thing that appears certain is that the White House better get moving if it intends to fill Judge Barksdale’s seat. There is less than two years until the Iowa caucuses. But the 2012 presidential race will kick off a year before that—meaning that we are less than a year from formal announcements from Republican presidential candidates. Doesn’t that sound like fun? Presidential election campaigning less than a year away?

Once the presidential election cycle begins confirmation of judicial nominees in the Senate takes a back-seat to campaigning and political gamesmanship. At some point, the Republicans will stall votes on all nominees in hopes of regaining the White House. Look for that point to be at least a year before the election in 2012.

This means that the clock is ticking for President Obama to fill federal court vacancies. And with Supreme Court Justices Stephens and Ginsberg expected to step down this year or next year at the latest, the White House will focus on filling those vacancies.

President Obama needs to nominate someone for the 5^th Circuit soon and press for a Senate vote this year. Failure to do so could result in a lost opportunity to add diversity to the Court and would be a black-eye for the Obama administration. It has been known for close to a year that Judge Barksdale would be taking senior status and he made his formal announcement in September. It's inexcusable that it has taken the White House this long to name a replacement--and we're still waiting.

Marshall Ramsey's Take on Jim Hood vs. Big Business is Awesome

Philip Thomas — Tue, 16 Feb 2010 09:27:46 -0600

Don't miss Marshall Ramsey's dead-on cartoon of the Jim Hood vs. Big Business rivalry that was discussed in this article in the Sunday Clarion-Ledger.

The article was a weak effort. It quoted a Texas lawyer who made millions after being hired by Hood to represent Mississippi and a Chamber employee whose job it is to beat the drum for big business and rail against anyone like Jim Hood who stands up to business interests. The article did not quote anyone who even pretends to be objective on the issue.

Here is Ramsey's cartoon from today's paper:

One More Question for Michael Guest: Why Didn't you Prosecute Ed Peters?

Philip Thomas — Tue, 16 Feb 2010 07:00:35 -0600

You can ask Madison-Rankin DA Michael Guest one question—what would it be? If you’re like me, it would be why hasn’t he prosecuted Ed Peters for conspiring to bribe Bobby DeLaughter?

But if you’re Clarion-Ledger columnist Sid Salter, it would be questions like “what’s your favorite color?” Here is Salter’s Sunday morning with Michael Guest. Questions included soft-balls such as “what attracted you to the job of District Attorney” and “tell us about your childhood.”

Inexplicably, Salter did not ask Guest why he did not bring charges against Ed Peters for conspiracy. Peters, Joey Langston, Steve Patterson and Tim Balducci met at the Jackson or Madison airport to discuss the bribing Judge Bobby DeLaughter. Both the Jackson and Madison airports are in Guest’s jurisdiction.

Federal authorities granted Peters immunity for his cooperation with respect to federal charges. But Guest could have asserted state charges against Peters (and others). His failure to do so is one of the mysteries of the judicial bribery scandal. It would have been nice if Salter had asked him about it.

Update: Recent Ford Trial was Second Hung Jury in Jasper County Case

Philip Thomas — Mon, 15 Feb 2010 13:15:08 -0600

Last week I reported a hung jury in a Jones County Ford Motor Co. trial. The case was actually tried in the Paulding district of Jasper County. Jones County Circuit Judge Billy Joe Landrum presided over the trial because Judge Robert Evans recused himself from the case.

This was the second trial for this case. The first trial was in 2004 and resulted in a mistrial for one of the two plaintiffs and a hung jury for the other.

The basis for the case was the 2001 Ford Explorer accident that resulted in the death of professional baseball prospect Brian Cole of Meridian. Here is a New York Times article about Cole following the accident. Cole was considered the New York Mets’ third best major league prospect at the time of the accident and played for the club’s double-A minor league affiliate.

In the lawsuit, the plaintiff based Cole’s lost wages on the assumption that Cole would have been a regular all-star in the majors—a questionable assumption based on Cole’s minor league statistics. The plaintiffs asked for $140 million in damages.

The case was originally tried in 2004 for three weeks with Judge Evans presiding. Plaintiff lawyers included Wayne Ferrell, Jim Nobles and Texas lawyers.

For the 2010 re-trial, plaintiffs added Tab Turner to the attorney roster. Both sides had many attorneys in the courtroom. The second trial lasted two weeks and resulted in a hung jury for both of the two plaintiffs.

Barry Ford and other Baker Donelson lawyers were involved in both trials on the defense side. Ford typically also brings in out-of-state lawyers to try cases in Mississippi.

It would not be surprising to see this case tried for a third time. The plaintiffs probably have expenses in the case in the six-figure range, which will make settlement difficult. In addition, Ford is not afraid to try cases in tough jurisdictions like Paulding.

Hung Jury in Jones County Ford Motor Co. Trial

Philip Thomas — Fri, 12 Feb 2010 08:55:57 -0600

On Thursday Circuit Judge Billy Joe Landrum declared a mistrial after a Jones County Circuit Court jury was unable to reach a verdict in a products liability trial against Ford Motor Co. The trial lasted for several weeks.

Baker Donelson and out-of-state lawyers represented Ford. I do not yet know who represented the plaintiffs or the alleged defect at issue.