Friday, June 26, 2009

Taking Offense: The Mississippi Supreme Court and an Angry Advocate

You may remember that in 2007 (with rehearing denied in early 2008), the Mississippi Supreme Court overturned, by a 7-2 vote, a $36.4 million verdict against Prudential Insurance Company of America. The case created a major controversy, and was most likely the reason why Alex A. Alston, Jr., former President of the Bar and attorney for the Plaintiff policyholders (or non-policyholders, after the Court's opinion) wrote the column for the Clarion-Ledger that was a major factor in the defeat of former Chief Justice Jim Smith.

It turns out that Prudential is trying to extract the proverbial pound of flesh from the Stewart family -- to the tune of $500,000. Earlier this year, Circuit Judge Kidd had not decided whether the costs alleged by Prudential can be properly taxed. Taxing of costs, after a loss on appeal, can include the cost of the bond that must be posted by the Defendant to prevent a jury verdict from being collected pending appeal. That can be a substantial cost.

So the Mississippi Supreme Court was asked to issue an order (called "mandamus") to require Judge Kidd to rule on Prudential's cost bill. In response, Mr. Alston (who, I should say for the record, is a long and good friend of this writer) filed a "motion for rehearing" asking the Supreme Court (now lacking Justice Easley, who wrote the original opinion, and of course Chief Justice Smith) to change its opinion of a year ago.

Yesterday, the Supreme Court, in a terse opinion that called the motion for rehearing "frivolous," denied the Stewart family's motion. The Court's opinion went so far to say that the motion "contains language showing disrespect for this Court. Such language serves no purpose, is no aid to this Court, and is of no service to the clients in whose behalf it was used."

Prudential Order Denying Third Motion for Rehearing

Here is the Stewart family's motion. I will let you judge for yourself, but it strikes me as fairly strident, and not likely to induce any other members of the Court to change either their votes on the Stewart case or their rules against belated motions to reconsider past opinions and rulings.

Prudential v Stewart 3rd Motion for Rehearing

My Two Cents: Mr. Alston's righteous indignation at the Court's ruling was justified. But he had won all he could when he convinced the electorate to change the composition of the Court. That was a bright, shining example of the positive effect of allowing the people to select judges. I doubt that a more reasoned use of language would have gained a different result. But the Court could never have countenanced such an attack on its former rulings and members, so the motion as written was bound to lose. An advocate has to overcome obstacles to rulings in his/her client's favor -- not create them.

More Spock, and less Kirk, makes a more effective lawyer. Alex Alston's long and storied career proves that. This time, he let his heart overrule his head. But as FDR reminded us, "the immortal Dante tells us that divine justice weighs the sins of the cold-blooded and the sins of the warm-hearted on different scales." This was the sin of a warm-hearted hero.


Anonymous said...

I like your "more spock less kirk"analogy. I would have said more Melanie Wilkes less Scarlett O'Hara....

Anonymous said...

That motion is a barnstormer. It's interesting to me that Presiding Justice Graves did not concur in denying the motion only to the extent he did not believe the motion itself should be struck.

Thank-you for posting the pleading itself--I had only read the order posted by the Court, and very much wanted to read the motion.

--David McCarty