Tort Reform Earthquake at the Clarion Ledger: Mississippi Supreme Court, The Best Money Can Buy

I was always a fan of the TV series Connections which would begin a historical odyssey of an event in the past and trace it’s impacts to a modern invention. Though not quite so rigorous we’ve taken a journey on slabbed exploring features of the insurance industry and it’s impacts across society, especially here in the post Katrina GO Zone. While I’ve always maintained our story is bigger one man in Dickie Scruggs I am reminded of the connections between the players here today such as Lisanby attorneys Don Barrett and Tom Thrash and State Farm to a debate over the judiciary and it’s impartiality when it comes to dispensing justice.

This story is frankly bigger than one post and includes stops across a variety of media from Slate Magaine to the New York Times. Slabbed’s first stop on this connection continuum began with Slate and it’s story of State Farm money at work in the Illinois Supreme Court.

Today I still find a certain irony this issue surfaced on the Op-Ed page of the Clarion Ledger Sunday in the aftermath of Dickie Scruggs being sentenced to 5 years in the pokey for bribing Judge Lackey. Of the many things Mr Scruggs said over the course of his career, “Magic Jurisdiction” was likely the phrase most often repeated. I never held his speech against him though as he was simply stating a fact, one that was also a problem in administering fair justice to all.

Yet four and a half years later unmistakable signs are appearing that Mississippi’s System of Justice, especially at the Supreme Court is still a bought and paid for proposition. The paymasters have indeed changed from trial lawyers to insurers, doctors and big business but the effect is the same in the denial of equal justice for all. We start with some excerpts of the column that started this earthquake and critical examination of what we have done by corporate defense lawyer Alex Alston:

Mississippi Supreme Court Chief Justice Jim Smith, speaking recently to various business groups, stated emphatically that the court strives to be fair and impartial to large corporations and insurance companies. That is commendable.

But what about the victims of corporate fraud and negligence? Can this Supreme Court be fair to them? Apparently not.

If you are a victim of personal injury, malpractice or corporate fraud, you have almost no chance of having a jury verdict in your favor affirmed by the state Supreme Court.

In the past, the Supreme Court rarely overturned a jury verdict, especially if it was based on a dispute over a factual issue. That day is gone. During the past 4 1/2 years, according to my research, an astonishing 88 percent of all jury verdicts in favor of the wronged victims have been reversed by the state Supreme Court.

But what about the jury trials won by defendants, in which the victim takes an appeal to correct an error? Here, again, the numbers are staggering.

Over the same 4 1/2-year-period, a plaintiff’s success rate in reversing a jury verdict for the defendant is an astonishing zero.

The defendant corporation, hospital, or insurance company prevailed in 100 percent of these cases. It is difficult to imagine victims of negligence and fraud losing 100 percent of the time, but that is the way it is in the state Supreme Court in a plaintiff’s appeal.

Mr Alston’s column continues:

How can it be that during the last 4 1/2 years powerful corporations, hospitals, and insurance companies have prevailed in the state Supreme Court in nearly every case? Can an injured plaintiff ever be right?

Perhaps it is because we elect our Supreme Court justices. In the 2002 election, insurance companies, large corporations, and doctors poured millions of dollars into the campaign coffers of most of the justices. One of the new judges that year alone received over a million dollars from these sources.

Can anyone truly doubt that judges will, either consciously or unconsciously, favor those who have contributed substantially to their campaigns.

In the upcoming election, large corporations, which statistically are more likely to be named as defendants, will not forget those justices who ruled in their favor against an injured or defrauded plaintiff, and no doubt substantial contributions will flow to these faithful.

Is there anything we can do? Yes, we can get involved in the election.

Beware of any judge running on a campaign that he or she is going to “slam the jailhouse door on criminals” or is going to be “tough on crime.” As Luther Munford stated in his May 24 guest column (“The Mississippi Supreme Court already is ‘tough on crime’”), “the court already has that one covered” with the Supreme Court affirming 93 percent of all criminal cases.

When I read the column Sunday I paused to consider the implication that Mississippi juries get it right all the time when a business interest prevails at the trial court level and the overwhelming majority of the time when it send someone to prison but miss 88% of the time when finding for individual plaintiffs. And while there is a kernel of truth in many of the explanations for the disparity none of the ones I’ve seen from those sympathetic to big business completely make sense. In fact what my lying eyes tell me from looking at the stats blown up against the pro business explanations remind me of the LBJ quote that is the motto of the We Saw That Blog:

Boys, I may not know much, but I know chicken shit from chicken salad

Evidently the editorial board at the Clarion Ledger shares the concern. From what I gather they lead the media charge for tort reform but now they openly wonder if we’ve gone was too far:

The reforms spearheaded by Gov. Musgrove, and extended under Gov. Barbour, are paying off. But Alston’s commentary today raises concerns that perhaps a political environment exists in Mississippi in which the tort reform pendulum has swung too far.

When Supreme Court justices must raise as much as $1 million to win election or re-election and most of the money comes either from trial lawyers or from the business/medical community, the potential for judicial mischief runs high.

Electing appellate judges is an antiquated, outdated proposition. Both sides – plaintiffs’ attorneys and the business/medical community – have too much riding on the outcome of cases not to spend big bucks on these campaigns. Left out and ignored, however, are the poor, the voiceless and those who don’t have enough money for political action committees or lobbyists.

If, as Alston claims, the court is ruling against Mississippi juries 88 percent of the time when they reach verdicts against corporate defendants in favor of victims and that appeals of jury verdicts in favor of corporations and medical interests by victims fail 100 percent of the time, something is systemically and fundamentally wrong.

These numbers call into question the validity of whether Mississippians are truly getting justice from juries of their peers – or whether the broken judicial election system is condemning Mississippians to the best appellate justice that money can buy.

Mississippians are also taking the time to vote in the Clarion Ledger weekly online poll (non scientific) in very heavy numbers and the response from the public is overwhelmingly tort reform has gone too far. Some of the story comments are priceless and IMHO strike at the heart of the perceived integrity of the Mississippi Supreme Court:

…….we already have two candidates for Supreme Court Justice in November that are heavily backed by the anti-people forces. They are Randy (Bubba) Pierce in the south and Jim Smith in the central. If you own an oil rig or an insurance company, vote for them. If you are one of the other 3 million Mississippians who would like to know their courts would give them a fair shot if they are wronged, vote for the other guys

…..I like justice friendly judges better than plaintiff or business friendly judges. a 100% victory rate on such cases is unheard of. as for the lack of cert for a business defendant, I do not recall the last time that happened

I don’t think anyone here is antibusiness. I know I certainly am not. However, if a big business wrongs an individual, shouldn’t that individual have rights? Shouldn’t that individual have the opportunity to be heard by a group of people not predisposed to rule against him? The numbers show that the courthouse door is slowly being closed to all but the wealthy. Who will be left to stand up for our citizens that are middle class or poor?

Again, I think that all anyone ask is that the court be impartial towards either side – plaintiff and defendant. I think that a relevant question to ask yourself might be this:

If it is my wife, child or other loved one that has been severely hurt or killed (or possibly everything you own taken away during Katrina) at the hands of big business, am I comfortable that my family will have a fair trial and be on a level playing field with a large company in front of our current supreme court?

Try to answer that question honestly with an open mind and not as an advocate of big business. In its current state, I know I would be very concerned if it was my family.

The motto on the supreme court building should be changed to SHOW ME THE MONEY!

IMHO the winds of change are blowing across this great state and indeed this entire nation. The concept of justice is one that is inherent to all of us as embodied in fundamental legal principles such as appellate courts deciding points of law rather than being the ultimate trier of facts. All of us who vote need to remember our judicial system exists for every Mississippian and the concept of justice is one of fundamental fairness that we need to define for ourselves rather than letting a group of outsiders with big money to spend like the National Chamber of Commerce define for us.

sop