About the Author
Will Bardwell is a practicing attorney in Jackson and formerly blogged at the now-defunct WillBardwell.com, where he wrote about politics, meatloaf, football, Gene Hackman, and other assorted topics. However, not unlike his 1993 Saturn Coupe, his old blog fell apart not long after he finished law school. His current blogging effort focuses primarily on law and life in Mississippi, with the likely but only occasional dalliance into Bruce Springsteen music. E-mail Will.
Attorney @ Blog
Doing the Math on Dissenting Opinions
As a former appellate court clerk with a soft spot for dissenters, a new paper published by a University of Chicago Law program is of more than a little interest.
"Why (and When) Judges Dissent: A Theoretical and Empirical Analysis" (h/t How Appealing) gets a little "thinky" at times, combining judges' psychologies and guiding principles into a mathematical formula (seriously), but the conclusion is this: dissents come at a cost to their authors and to their corresponding majorities, both economic and personal. And, according to the authors (among whom is the venerable Judge Richard Posner, first-ballot Hall of Famer from the Seventh Circuit), the closer the personal relationships found at a given court, the less likely a judge is to take out his dissenting pen.
The chief illustration offered by the paper is the severance of the old Fifth Circuit. The writers found that when the humongous Fifth Circuit was divided into two smaller courts, the modern-day Fifth and Eleventh Circuits, the rate of dissents plummeted. At the time of the split, the Fifth Circuit generated a dissent once every 20 cases or so. Today, the Fifth and Eleventh Circuits combine for a dissent rate of less than one per 100.
It's certainly an interesting read if you're in appellate practice or, more generally, if you're just a nerd.
Melendez-Diaz Coming to Mississippi?
This is admittedly speculative, but by appearances, the Mississippi Supreme Court may be grappling with how to live with hearsay in the post-Melendez-Diaz world.
Melendez-Diaz v. Massachusetts, as U.S. Supreme Court watchers will recall, was last year's ruling that elaborated on the 2004 Crawford v. Washington decision and held that a criminal defendant enjoys a Sixth Amendment right to confront any analyst that prepares forensic reports introduced at trial.
Crawford popped up in the Mississippi Supreme Court's decision nearly a year ago in Birkhead v. State, but only briefly, and the opinion's reliance on a case overturned by Crawford seems inconsistent with the high court's rulings -- particularly as reiterated by Melendez-Diaz, which came out a few months after Birkhead.
Remarkably, the motion for rehearing on Birkhead has been pending before the Mississippi Supreme Court for a full 11 months now -- two months longer than the Court would have been afforded in the context of a direct appeal. Birkhead's attorneys advised the Court of the Melendez-Diaz decision in June, and no further activity has been detailed on the docket since.
The issue may now be before the Court in another case as well. By a vote of 8-1, the justices granted certiorari on Thursday in a case called Robinson v. State, in which the Mississippi Court of Appeals rebuffed a Sixth Amendment argument about three weeks before Melendez-Diaz hit the streets.
The Mississippi high court has yet to discuss Melendez-Diaz at length, but it may be getting ready to change that.
Cap Held Unconstitutional in Illinois
Although the Mississippi Supreme Court rarely pays great credence to out-of-state precedent, its ongoing consideration of caps on quality-of-life damages merits mention that the Illinois Supreme Court has struck down its state's cap as unconstitutional.
The Wall Street Journal's Law Blog reports that at least three other state high courts (in addition to Mississippi's, which isn't mentioned in the post) currently are considering caps on non-economic damages. I'm not familiar with those cases, but Thursday's 4-2 decision in Lebron v. Gottlieb Memorial Hospital goes straight to the central issue before the Mississippi Supreme Court: whether the cap oversteps the bounds in place under the notion of separation of powers.
Defendants stress that the General Assembly has the authority to change the common law, which the General Assembly has regularly exercised, and that invalidating [the cap] undermines that authority and calls into question this court’s precedents upholding statutes that limit a plaintiff’s damages.The issue is not whether the General Assembly may change the common law. As we [have] recognized . . . , the General Assembly’s authority to alter the common law and change or limit available remedies is well grounded in the jurisprudence of this state. The General Assembly’s authority, however, is not absolute; it must be exercised within constitutional bounds. Here, the legislature’s attempt in [the cap] to limit common law damages in medical malpractice actions runs afoul of the separation of powers clause.
Lebron, Nos. 105741, 105745 cons. at *20 (Ill. Feb. 4, 2010) (citations and quotations omitted).
Tip o' the hat to an attentive Attorney @ Blog reader.
Budget Order Turns State House into a Mad House
Molly Parker of The Clarion-Ledger catches up in today's paper with key figures in the fray caused by last week's Mississippi Supreme Court order forbidding Gov. Barbour to cut the judiciary's budget.
The short version is this: what has happened is what one should've expected to happen. The executive branch is full of people wondering about the scope and force of the Court's order and trying to figure out how to proceed with the project of trimming the state's budget.
My main man Prof. Ron Rychlak also chimes in, echoing what most folks immediately concluded: an appeal, for all practical purposes, is out of the question.
Ultimately, the questions left unanswered provide a good lesson in the imprudence of advisory opinions -- which I think anyone, Barbour supporter or not, would have to agree is what we're dealing with here.
Misplaced Modifier of the Session
Courtesy of AP super-reporter Emily Wagster Pettus' Facebook status:
Unfortunate title of a bill pending in the Mississippi Legislature: "Hunting; provide for a hunting season for terminally ill children." ... Sounds like one of those bad headlines on Leno.
A quick search reveals that she is referring to House Bill 1070.
A MSSC Brief is Worth 15,000 Words
One wonders (well, I wonder) whether the U.S. Supreme Court's upcoming rule change regarding the length of merits briefs will spur a similar reflection by the Mississippi Supreme Court.
The Blog of the Legal Times reports that the high court will limit merits briefs to a length of 6,000 words, effective February 16. Depending on how often you're starting a new paragraph, that's a little less than 20 pages of normal, 12-point, double-spaced copy. By contrast, though, Rule 28(g) of the Mississippi Rules of Appellate Procedure limits principal briefs to a length of 50 pages, which -- again, depending on your affinity for the return key -- is somewhere north of 15,000 words. In other words, the Mississippi Supreme Court's space limits allow for briefs some 250 percent the length of U.S. Supreme Court briefs.
Now, in the interests of due consideration, there's a perfectly good reason that the state high court ought to allow more briefing than the U.S. Supreme Court: because the Mississippi Supremes consider more issues. Your average SCOTUS appeal addresses two or three issues. On the other hand, a complicated case from state court -- say, a death-penalty case -- might present more than a dozen assignments of error. And unlike the nation's high court, which focuses centrally on legal issues, the Mississippi Supreme Court regularly conducts record-intensive inquiries into the facts of cases. Arguments detailing the peculiar facts of any given case naturally will add a great deal of length to any brief.
Of course, as the BLT recounts, Chief Justice Roberts once noted that he'd never read a brief so good that it left him wishing for more. And he's right; they're not called "briefs" because they ought to break your foot if you drop them. Still, any MSSC reexamination would need to account for the fundamental differences between appeals to the two courts. And honestly, a change to Rule 28(g) probably would be, for the most part, a solution in search of a problem. Over the course of the year that I worked as a clerk at the Mississippi Supreme Court, I read maybe two or three briefs that approached 50 pages. Most briefs ran somewhere in the neighborhood of 20 pages, which is pretty close to the U.S. Supreme Court's new limit.
Still, the less reading the state court's justices have to do, the quicker they can render decisions in individual cases. And any rule that would hone appellate arguments while expediting finality would do more good than bad.
UPDATE (Thursday @ 9:45 a.m.) -- A loyal and astute Attorney @ Blog reader suggests that the Federal Rules of Appellate Procedure probably serve as a better comparison, given the frequency with which the circuit courts of appeals review factual findings. Rule 28.1 of the Federal Rules of Appellate Procedure limits principal briefs to 30 pages or 14,000 words for an appellant and 35 pages or 16,500 words for an appellee.
Quiet Day at COA
Tuesday's handdown at the Mississippi Court of Appeals delivered all the heart-pounding excitement of an Ingmar Bergman flick.
The judges handed down two opinions, a PERS case (as far as I'm concerned, once you've read one, you've read 'em all, from a legal standpoint) and a premises-liability case between a hotel guest and a casino. Neither is terribly riveting, although the latter, Stanley v. Boyd Tunica, Inc., serves as a fairly helpful refresher in the basics of premises liability, if that's your thing.
Philip Thomas' View from the Top of the Hill
Though I am hesitant to beat a dead horse, Philip Thomas' analysis of last week's Hill v. Mills decision over at Mississippi Litigation Review (a Ye Olde Blogroll standby, for the record) is worth a read. His discussion is lengthy, but we agree that the Court seems to have had a fundamental misunderstanding of the Daubert standard.
Either way, of course, it represents a shift in Rule 702 jurisprudence. So, not unlike Thomas' write-up, it merits attention.
H.B. 878: Legislating Unfairness on Appeals
Faithful Attorney @ Blog readers will have pieced together the cause-and-effect relationship between this blog's general focus on appellate practice and the lack of attention paid toward bills pending at the Mississippi Legislature, but at least one amendment nevertheless merits this scribe's scrutiny.
House Bill 878 is a disaster waiting to happen. The measure, sponsored by Rep. Philip Gunn of Clinton, would cap appeals bonds at $1 million for any corporation fitting the definition of a "small business" and $25 million for any other appellant. In the post-Tort Reform era, the latter limit rarely, if ever, will amount to a hill of beans. But the $1 million limit presents a real problem.
First, for laymen, a quick lesson in appellate practice. Typically, when a party loses in trial court, she can stay the judgment of the trial court during the appeals process by posting an appeal bond in the amount of the judgment. This is called an appeal with supersedeas. Essentially, it's the losing party's way of posting collateral; think of it as the legal equivalent of Kramer putting up David Berkowitz's mailbag in that episode of "Seinfeld" where he took to gambling on airport arrivals.
Under H.B. 878, though, Kramer potentially would have to put up only a fraction of Berkowitz's mailbag, so to speak. The problem with that result is obvious: if XYZ Corp. is held liable to the tune of $3 million but only has to put up $1 million in an appeal bond, then they proceed with litigation for a year or more without any guarantee made to anyone regarding their fitness to pay the full judgment.
And that's to say nothing of the fundamental unfairness of allowing businesses to appeal judgments on the cheap without extending the same favor to individuals.
The bill currently sits in Judiciary A. Here's hoping it stays there.
Eight Angry Men (and One Angry Woman)
Per my man Matt Eichelberger at Ipse Blogit, and as confirmed by a loyal Attorney @ Blog reader who just got off the horn with the clerk's office, all hell is about to break loose on High Street in Jackson.
In the thick of the biggest budget battle that anyone can remember, the Mississippi Supreme Court today issued an order declaring that the executive branch is without authority to cut the judiciary's budget. To call the move "gutsy" would be a conservative appraisal.
I have all sorts of questions about the order. Among them...
- Is this order advisory? If so, does it matter?
- If the order is violated, then who would sue whom?
- Where does venue lie?
- Where would the appeal go?
- Is there a single sitting judge anywhere in the state who wouldn't have to recuse?
- Should Justice Randolph even bother saving a spot on his mantle for Governor Barbour's Christmas card this year?
Thoughts?
UPDATE (2:21 p.m.) -- The order is available here, courtesy of the aforementioned loyal reader.
Great Moments in Mississippi Legal Writing
Speaking of Rule 702, Thursday's Hill v. Mills decision offers as good a reason as any to revisit my favorite expert-witness pull quote of all time:
"No expert is Daubert-proof. As science, like the law, evolves over time, one generation's expert is another's quack." Edmonds v. State, 955 So. 2d 787, ¶46 (Miss. 2007) (Diaz, P.J., specially concurring).
Sovereign Enmity
Today's edition of The Los Angeles Times offers some insight into the quiet scuffle between President Obama and Justice Alito at Wednesday's State of the Union, which appears to be just the latest episode in a standing grudge between the two.
The clash between Alito and Obama has some history behind it.Four years ago, then-Sen. Obama was one of 42 Democrats who opposed Alito's confirmation. He described Alito as a well-qualified judge, but one who "consistently sides on behalf of the powerful against the powerless or on behalf of a corporation against upholding Americans' individual rights."A year later, Alito wrote the court's 5-4 decision in the Lilly Ledbetter case, which threw out a sex-bias verdict in favor of an Alabama woman. Obama repeatedly criticized the ruling during his campaign, and as president signed a law to undo it.Last year, a few days before Obama's inauguration, he and Vice President-elect Joe Biden visited the Supreme Court at the invitation of Chief Justice John G. Roberts Jr. All of the justices were there for the friendly meeting, with the notable exception of Alito.
You can read the entire story here.
Want to Put on an Expert? Go to Hill
Regardless of whether you think the Mississippi Supreme Court's treatment of Miss. Rule of Evidence 702 in Thursday's Hill v. Mills decision was correct, one can't help but conclude that it places a big, big land mine in front of trial litigants.
Among other issues, the Court held that a plaintiff's expert was not properly qualified to offer expert testimony because, ultimately, his conclusions were challenged by an opposing expert. The facts were more complicated than just that, of course (as they always are). The expert in this case offered a medical opinion with no available support in academic literature, and his opinion was contradicted by a defense expert who claimed the support of a hoard of treatises. The plaintiff's expert offered no retort, and the Court therefore held 7-2, as a matter of law, that the plaintiff's expert could not testify.
From page 17 of the Court's opinion:
We restate for emphasis that, when the reliability of an expert’s opinion is attacked with credible evidence that the opinion is not accepted within the scientific community, the proponent of the opinion under attack should provide at least a minimal defense supporting the reliability of the opinion. The proponent of the expert cannot sit on the side lines and assume the trial court will ignore the unrebutted evidence and find the expert’s opinion reliable. Were we automatically to allow introduction of expert opinions which are based upon nothing more than personal experience in cases where those opinions are contradicted in the scientific literature, we would effectively render Rule 702 and Daubert a nullity.
Hill at ¶41 (citations omitted).
This is a case with bad facts, but fundamentally, my problem with the decision is that it wades (if not swims neck-deep) into the merits of the expert's opinion. Clearly he was inadequately prepared for the oncoming attack toward his conclusion. But if, as Justice Chandler argues in dissent, an expert is adequately qualified and offers an opinion based on the experience warranting that qualification, then the question of whether he's a quack is a question that should be left to the jury.
More fundamentally, though, the case seems to introduce what Justice Chandler calls a "burden-shifting scheme upon Daubert's reliability prong." And that's the biggest problem with this ruling. As a matter of law, Rule 702 doesn't (or, at least, it didn't) impose on courts the duty to weigh conflicting testimony and to decide whether one witness' testimony invalidates another's. That's a basic jury duty.
Come After Justice Alito
I was stunned, as many were, to see Justice Alito react at all on Wednesday night to President Obama's critique of the Supreme Court's recent Citizens United case. A simple shaking of the head would have been newsworthy enough, but to see a sitting Supreme Court justice clearly mouth the words "not true" was downright shocking.
And somehow, the episode felt hauntingly familiar. I just couldn't figure out where I'd seen the same rebuke play out before.
Fifth Circuit Coming to Town
This sounds like fun. From The Clarion-Ledger...
A federal appeals court will spend three days in Mississippi in March to hear arguments in 13 cases and to visit with law school students.Judges from the 5th U.S. Circuit Court of Appeals in New Orleans will be at the Mississippi College School of Law in Jackson for two days March 1-2. On the other day, March 3, the panel will hear cases at the federal courthouse in Jackson.
