I want to start by noting that the opinions expressed in pleadings quoted in this post do not represent the opinions of the author of this post or the owner of this blog.
Yesterday, I wrote about an odd docket entry from the Mississippi Supreme Court, seeming to relate to a motion for a rehearing on a case where the mandate had gone down in December of 2007. What was clear from the court’s orders was that the issue had come up about whether to issue a write of mandamus to the trial court to rule on a costs bill on the case.
The court seemed to be saying it was taking the appellee’s pleading as a third motion for rehearing, prohibited by the rules. It struck language from the appellee’s pleading
The Court further finds that this motion for rehearing filed by counsel for the appellees contains language showing disrespect for this Court. Pursuant to Rule 40(c) of the Mississippi Rules of Appellate Procedure, the Court finds that this motion for rehearing should be stricken. The motion for rehearing filed by counsel for appellees is hereby stricken. Graves, P.J., does not join the order because he is of the opinion that the motion for rehearing should not be stricken.
Well, now I’ve read the Response, and things are a lot clearer. First, they are arguing over a cost bill of almost $500K! (I’m hearing that a lot of this represents the premium for a supersedeas bond purchased by Prudential). Second, most of the response isn’t about the cost bill at all but really is another attempt to bring seek a rehearing and argue that the original decision from 2007 was wrong. The response explicitly suggests that the reason the trial court would not rule on the cost bond is that he did not wish to “lend his hand to the” Supreme Court’s opinion.
But beyond that, the language of the Response is scorching. It is full of adjectives and other language like “pernicious” “distorted” “perverted” “very wrong” “distort” “fabrication” “egregious mistake” “pick… out of thin air” “incomprehensible but unconscionable” “misstatements and perversions” “egregious wrong” “manipulate the facts…”
(Most are directed to the opinion of the court, some elsewhere– there’s also “an unconscionable cost bill” and the “ourageous cost bill”).
I understand the logic of the Response; the argument that it makes (that this opinion is outrageously wrong and its basis is a distortion of the facts in the record) would not in itself be subject to being stricken. I think a lawyer has a right and obligation to tell a court it is wrong in plain language when the lawyer’s client’s interest demand it. But… uh…
I’ll open comments for discussion.
I’m trying to decide whether to post the response and am really hesitant. Add to the discussion: Surely there’s no problem in me republishing a pleading filed with the court…
I’ve decided to go ahead and put it online. Response by Stewarts to Writ of Mandamus
NMC: It is public record, although difficult to find. I do not see a problem with it. Post it.
This is America. Post it.
I just did.
Jim Craig provided a link in the other thread. I have read the Response and believe that it is way over the top. While I admire Alston’s passion, and agree with his negative opinion re the Court’s previous decision (written by Easley, someone who I personally know from previous dealings to be an idiot and less than honorable), I don’t think he did his clients or the Bar/state he serves any favors with this type of verbal assault upon the MS Supreme Court in a filed court document. It is one thing to express one’s opinion on a blog, in public discourse, etc., but yet another to interject the same into a filing with the highest state Court (or any MS Court, for that matter). I am certain that if it were not for the Supreme Court’s respect for Alston’s years of experience and honorable service, he would have been sanctioned by the MS Supreme Court. Most any other lawyer in MS who did the same thing would have been sanctioned. He should feel fortunate that he wasn’t and that the offending portions of the pleading were stricken from the record.
Aside from the inappropriateness of the manner of delivery, I find little to disagree with in Alston’s assessment of the situation. Had he said this on this blog, I would have provided a big harummpff in agreement. Like I said above, I truly admire his passion. At a time when government and court actions are eroding our traditional constitutional rights at an alarming pace, many of us are going to have to be more outspoken and passionate in our objections to such actions. Apathy leads to tyranny. Personally, I don’t intend to be a silent victim.
I’m hearing that a lot of this represents the premium for a supersedeas bond purchased by Prudential).
If so, a cautionary example to Plaintiffs: agree to waive the supersedeas bond, esp. against a defendant like Prudential that is probably going to be good for the $$$.
… What’s amazing about the Motion, besides its language, is that 3 other attorneys allowed their names to be put beneath the signature line, and not one said, “Okay, you can file it, but not with my name on it.”
… Also, the trial court may not appreciate the inference that it “refuses to lend its hand to the unconstitutional and pernicious Opinion of this Court.” At least, if *I* were the trial court, I would have a letter on the way expressly disavowing any such implication.
it looks like the other 3 attorneys did not sign onto this response. they are listed as counsel for the appellees only on the 2 attached exhibits. the response is only signed by mr. alston.
“Also, the trial court may not appreciate the inference that it “refuses to lend its hand to the unconstitutional and pernicious Opinion of this Court.” At least, if *I* were the trial court, I would have a letter on the way expressly disavowing any such implication.”
I agree. It did seem a bit presumptious on Alston’s part to suggest to the Court why the Trial Judge had not ruled —especially if there was no improper ex parte contact with the trial judge about the matter, as indicated by Alston. How does he know what the trial judge was thinking?
Well, it certainly is much clearer now. As I am in full agreement with Mr. Alston in this matter I find it some what odd, but nothing being bi polar wouldn’t explain. Just my opinion, as I quote. ” Our entire system of justice is meaningless if a superior court can simply disregard a verdict of a jury and manipulate the facts to support an opinion contrary to that of the jury.
Look it’s no different when a lower court does the same. I know I’ve been vocal over our little events before the court. If the best we can do is post documents till the courts are citizen/victim friendly it’s a matter of filing something each year and waiting. All this is interesting though. I’ve started a new site just to store the total documents on. I’m going to place a News report in a minute showing a jury decision ( if it’s OK ) which suffered the very allegations made here. Only it’s Mr. Alston against the court ruling for all the very reasons he states the court is wrong here. It was in Re: the Gaylord chemical release and has statements by Jackson attorney Dennis Sweet.
The trials for years were said to use 20 plaintiffs at trial. Yet when Vicksburg’s offer of settlement was made we maintained awards and were excluded from trial which held 17. Our site is new may be 1 or 2 documents at present. A test run.I’ll get some help loading it and post it for any one interested.
it looks like the other 3 attorneys did not sign onto this response. they are listed as counsel for the appellees only on the 2 attached exhibits. the response is only signed by mr. alston.
I believe that if your name’s on the pleading, it’s yours. It’s rare for more than 1 att’y representing the same party to sign a pleading, but I hadn’t heard that they thereby avoided any responsibility for its content.
Anyone knowledgeable on that question?
Just forgetting I wasn’t logged on this site with the target site. Boy I’m sloooow. During this jury decision Vicksburg whose offer used us to collect. Vicksburg Chemical was represented by Brunini, Gratham, Grower & Hewes. After a failed trial and filing of bankruptcy by Vicksburg Chemical Alex and Sheldon Alston appear as counsel for now Vicksburg now along with their representation of Gaylord Chemical.
They somehow caused the jury trial verdict to disappear as well control the settlement awards and are rarely denied any request.
http://www.futurequest.wordpress.com
Mr. Alston needs to move on with his life. It’s really sad to watch this continuing spectacle. I think he made his point when he wrote the Clarion Ledger article, and it’s really sad to see someone taking up as their personal crusade a cause in which they lost $10 million or whatever in attorneys’ fees. There have been all kinds of arguably unjust Supreme Court decisions in Mr. Alston’s lengthy career. But the only one which led him to start this sad crusade was the one which emptied his own pockets. Give me a break.
Anderson, their names are on the lower court exhibit, not the Supreme Court filing.
Wasn’t Mr. Alston the one who brought to light the fact that over the course of the past few years, prior to the last election, the MS Supreme Court had not let a civil monetary verdict for a Plaintiff stand?
NMC, admittedly, I’m stuck in this comment section and can’t back-page to see why you had your panties in a wad about posting it in the 1st place; but, imo, posting an OPEN, UNSEALED, OF RECORD legal pleading is, simply, a NO-BRAINER. Mr. Alston is getting on up there in years, is he not? Wasn’t he a long-time partner at BGGH? Just curious as to whether he’s working out of the HOUSE ABOUT NOW…or whether BGGH has moved over to Poplar Blvd. Maybe he can afford to spend his golden years waging bloody war with that bastion of ‘stand up for the little guy,’ a/k/a the Miss. Supreme Court. Remember that nasty affair between a certain LANGSTON law firm in Jackson and the State’s high court over matters of ‘respect for the court’ and such. I’d thought the said Langston firm would’ve incurred some permanent fallout from that little donnybrook. Yet, it looks like they’ve just sunk a ton of $$ in a total renovation of their downtown JXN offices. Are looks deceiving, or what?
fly, I’m not sure what you’re asking me.
One thing is clear, though. You post as “fly” and I post under my own name with clients who come before this court.
Damn, you right, NMC. Quite sloppy of me. And my congratulations to his co-counsel for not joining him.
NMC: what does that bullsh** have to do with the price of tea in China? If you don’t know what I’m asking, fine. Just tell me, then ask. Is that so frigging hard? A pattern is emerging here. The words ‘superiority’ and ‘condescension’ come to mind. Hey, it’s your gig. If that’s how you want to treat me, so be it.
i was right first, Anderson. give me my props here, please. kidding. matters not. it’s a shame mr. alston wrote like he did in his response. i’m guessing that he must be thinking that, as long as he’s on his way out the door, he might as well say what he really thinks. however, that type of language where he essentially accuses the court of being deceitful is not constructive. in my limited experience, you can get the same point across without that type of language. otherwise, it’s clear you’re on a personal crusade.
Wow.
Well, I read the motion by Mr. Alston. I’m glad you posted a link to it. I’m glad he wrote it.
Some suggest he should’ve tempered it a bit.
Well, if he had done that – if he had tempered the language enough so that the Mississippi Supreme Court wouldn’t have felt the need to strike some language from it – then, there would most likely not have been the interest in it – that is now stirred up.
Since there was impassioned language, and since there was this apparent need from the Mississippi Supreme Court Justices (all but Graves – who now may very well be on my short list of new favorite Justices) to strike language they didn’t like, and since that action captured the interest of nmisscommentor …. all that captured my attention.
Without all that happening, namely the passionate and blistering plea by Mr. Alston calling injustice by its real name (that name, not being a child of God), how would I know — or how would anybody else in the generally uninformed public know — about it?
Sometimes the ugly has to be stirred up, so that it can be washed away.
Anger has its place, sometimes. Not all the time.
This time though, it served a good purpose I do believe.
Shelby – I like your thoughts at 7:20 this a.m.
As broad and diverse as the English language is, I’m thinking someone, at this level, could convey their message and still maintain the proper respect required of addressing the top court of the State
JDBerry- no doubt, you are absolutely right. He could’ve been more respectful with different words. But his motion would not have been any more persuasive (or any less)… his motion was pre-determined to fall on deaf ears anyway.
This motion was not for the Mississippi Supreme Court. This motion was for those would truly read it and comprehend it.
Me, being one of those persons.
Others like me – hopefully will read it and learn something about how things are “not quite working” in Mississippi the way they should.
Perhaps in the future, things will work out a bit better because of the experience – all because of the wording he chose for this motion.
Will a U.S. Supreme Court Justice read it? Chances would be slightly against it if the language had been tempered.
Shelby, did you read the original Supreme Court opinion? You seem to just be taking Alston’s word for it that we are facing some kind of huge injustice here. The original opinion represents an entirely valid interpretation and application of the law. Yes, you could argue the other way as well, but I can think of many pro-plaintiff opinions the Supreme Court issued during the Chuck McRae era that represented a far more unfair result in the opposite direction. This is just a lawyer who saw a $10 million contingency fee vanish and is utterly incapable of coming to grips with it and moving on with his life.
Southman – could be you are right.
The issue here tho, is really about the language he chose. We could argue all day (or days) whether he was right or whether the other side was right as far as the valid interpretation and application of the law.
But what we can agree on is that he said exactly what he meant to say, and it was an effective message. Not necessarily effective in the sense that he must be absolutely correct – but in the sense that “here’s why I think I’m absolutely correct.”
He’s used strong language to convey his message – “I’m royally pissed at you and here’s why.”
And yes, I did read the original opinion.
Props all yours, Jax. I plead FADD — Friday Attention Deficit Disorder.
… Shelby, I for one don’t want a legal system where attorneys routinely slather the Court with insults and pejoratives in pleadings. Argue the law or else hush, is what lawyers should do.
Tolerating crap like Alston’s sets a precedent. Next time they issue a show-cause order for someone’s insulting the Court, that person’s # 1 defense will be, “you didn’t sanction Alex Alston — do we have the rule of law in this state, or does this Court merely act by whim?”
It’s a mistake to let that go. Even if they just slap his wrist ($500 sanction or whatever), at least the Court is demanding to be treated with the same respect it extends. I don’t want the Court calling my arguments “perverted” in a written opinion, and I’m not going to say that about their opinions either, in my briefs. (We have the internet for all that.)
… “Effective,” in the legal context, means “getting your clients the result they want.” It doesn’t mean “expressing yourself.” There IS no self for a good lawyer. I hope Alston’ll apologize to the Court and remember who’s supposed to come first: his clients, present and future.
Anderson – you too, make a very valid point. I don’t know that I’m entirely against sanctions for him, although I don’t see that has happened.
This tho – now involves the kids purportedly having to pay half a million dollars.
This is not just about some plaintiff’s attorney who might be grieving a loss of fee income. It is also, and now more importantely, about some people (who are represented by that attorney) who look like they have to pay Prudential when they were expecting it to be the other way around.
They surely expect their lawyer to go to bat for them. I would expect that – and I’m betting you would too.
I haven’t seen evidence that Mr. Alston has a long habit of this type language in his motions to the Court. Perhaps I am wrong. If he has that habit, then yep – that would be a serious problem indeed.
Respect is needed, most definitely. For the client most assuredly, and the client in this case surely doesn’t want to pay the person they sued in the first place for not having paid them.
I do not agree that young upstarts (or older ones) need to take up this “precedent” of Alston’s. But I do agree that lawyers need to passionately represent their clients – especially ones that are asked to pay this kind of dough in this type of case with these facts.
I do understand the frustration – and clearly, this case warranted some of that – for the kids who now owe a sh(*&^ load of dough.
I would have expected more … much more … from Alex Alston. He’s a better and a more seasoned lawyer than that pleading suggests. Or maybe not. I’ve learned not to expect much from our S. Ct, and they never disappoint. The court seems to be spiraling downward in judicial acumen, intellectualism, scholarship, and—especially—leadership. That’s a shame, but I guess that’s the best we Mississippians can do.
My momma used to (OK, still) tells me that when I use vulgar language to make a valid point that my language causes me to lose the argument, regardless of the validity of my argument.
Ignoring the disrespectful language, Alston’s most convincing argument, to me, is the date when the contract was consumated. Alston states that on Aug. 31, 1999, Stewart signed some papers and paid $20K. Did Prudential cash the check? If they did, did they later return the $20K to his estate, and when? Later, Alston states that the SC stated that a document that would constitute acceptance was signed on Sep. 10, 1999, however, Dr. Stewart was comatose at the time! Hmmm? Alston goes on to state that in the the Aug 31, 1999 document, Stewart states “this contract” meets his needs. Was it a contract executed on Aug. 31, 1999, or not? Stewart seems to have the opinion that he signed and consumated a contract on Aug. 31, else he would have used the phrase “proposed contract”, or something similar.
I would love to read the original Supreme Court opinion, if someone could post a link to that. Thanks in advance.
here is the original opinion authored by Chuck Easley. i hope you guys can ope it from this link
http://www.mssc.state.ms.us/Images/Opinions/CO44454.pdf
that’s “open” this link.
The opinion was also in the original post about this oddity.
Will someone explain to me what made Fly turn so assholish?
Everyone, i don’t pretend to have the knowledge and experience of a seasoned attorney such as Alex Alston. Nor the knowledge and experience of other attorneys who post on this blog.
My career began in 2004 at the lawfirm of Coxwell & Associaties and prior to that i had clerked for a year with them. The entire time i practiced in Jackson we did personal injury work and criminal defense.
Mr. Alston’s letters in the Clarionledger were impeccable, regarding the facts of how the Court had ruled constantly to overturn jury verdicts in civil cases in the years before this last Supreme Court election. His research was sound and his reputation bolstered his findings. He is a true advocate of his client from my take.
I would be more concerned if I thought what he wrote was not true, which is not a challenge I have heard yet. Could he have used different words? Sure, but as one other participant noted, Shelby at 9:23 a.m., would we all be discussing this had he not chosen the words that he did?
While i was living in Jackson i had the opportunity to sit in on some of the testimony during the trial against Prudential. it was very compelling in favor of the Plaintiff and I can only imagine Mr. Alston’s current frustration.
“A little rebellion now and then….is a medicine necessary for the sound health of government.” Thomas Jefferson
Having read the opinion again re-confirms my view that Alston is way off base in describing the court’s opinion as “pernicious” and “unconstitutional.” Only two justices dissented to the result- Diaz and Graves – and they were very reliable votes for plaintiffs in civil cases. There are, in fact, moderate justices on the court and they sided with the majority. Plus, the issue of whether a contract was formed is largely a legal one as to which a jury’s verdict should not necessarily be seen as some sacred writ.
A valid argument can be made for the dissenting opinion, but I still find the majority more persuasive.
Southman, I’m going to express a slightly different thought.
I’ve read the opinions at least twice. I think a real weakness in dissents on that court in the past is expressing disagreement without making it clear enough what was wrong. Alston’s brief has the same quality– tells the court off but isn’t clear why. I want something more about the record. That said I haven’t seen any of the briefs on the appeal proper.
The dissents from Kiitchens and Dickinson in the Osborne case are more what I’d like to see.
Another probllem- the ability of a judge to be misleading about facts. Alston says that occurred without convincing me how.
Posted by iPhone
What everyone is missing is that Mr. Alston’s firm or former one is a big reason the Court is like it is. I have never understood how these idiotic defense lawyers would bill their files yet never consider how tort reform and judges with political agenda’s, specifically our governor’s, would not hurt them. I do believe the phrase i am looking for is “paybacks are a bitch” or you could say “How about ex-Chief Justice Jim Smith doing car wrecks at Ashley Ogden’s? (Seriously, how the hell can a plaintiff lawyer give that sell out a job?)
I’ll add this to the rest of the mayhem. After pleading with the court’s for relief, again of our settled claims, the court dismissed. When we took attorneys to court for what they did we were warned. Should we continue we would be cited and have to pay attorneys fees. Hey babe there were hundreds of millions settled on our claims used to purchase the Ms. courts. In our opinion you have all already pay yourself s more than your worth. In fact when you stole form us you we at the height of your pride no.
It is those elaborate past actions of Mr.Alston which empowers his like of respect of others. If he’s close to ending his career may be he can find an abusive nursing home where the like of respect can reach his understanding.
I have never understood how these idiotic defense lawyers would bill their files yet never consider how tort reform and judges with political agenda’s, specifically our governor’s, would not hurt them.
Some defense lawyers, at least, were cautious enough to warn their peers that “tort reform” would dry up some business.
Haven’t seen it in my line of work, I must admit. I believe the answer to damage caps has been “file more suits.”
I don’t think you can place all the blame for tort reform on defense attorneys. Let’s face it, there were a lot of sleazy plaintiff’s attorneys taking advantage of the “magic jurisdictions” with bullshit lawsuits. The silicosis lawsuits are but one example. Plenty of the asbestos suits were bullshit too. I remember in particular the $150 million awarded to 6 plaintiffs in Holmes County. None of the plaintiffs in that case could attribute missing a single day of work to their alleged asbestosis. Although the case was reversed on appeal, at least one of the defendants, an employee-owned spinoff of Armstrong, declared bankruptcy because it couldn’t afford the appeal bond. I just think maybe the plaintiff’s bar should have done a better job of policing its own.
Anderson,
I am not doubting you, but i don’t know of one aspect of law that has increased in filing lawsuits since tort reform has passed. Most of the big plaintiff lawyers have scaled back or quit. Then you factor into the absence of out of state cases, i don’t see how a number of suits could have increased. But would you tell me what field out of curiosity. betting it is nursing homes.
Jane,
this has nothing to do with tort reform. This is about one attorney and his firm being careful what they wished for. Whether tort reform was needed or not is not relevant to this discussion. What is relevant is that if you allow a judiciary with a conservative agenda that is too scared of the governor to cross him (Trent Lott’s special election case) to govern, then don’t complain about their decisions on your cases. All that you described could have been taken care of by moderate judges on the supreme court. I think David Chandler and Bubba Pierce are steps in the right direction.
I am not doubting you, but i don’t know of one aspect of law that has increased in filing lawsuits since tort reform has passed.
I admit that anecdote is not the singular of data. And you would win that bet. Any thoughts on why that’s the growth sector?
Yeah, i would say that you have a lot of unskilled litigators that still have some money to run a law firm, but do not have the knowledge to be creative. So, they look for the “home run” and that would be car wrecks, nursing homes and premise liability cases. the car wrecks are a limited commodity, but are still being filed mostly by the richie schwartz or don evans. While the bigger players might be getting the cases, the number will not go up. The same with the premises cases. (premises are being advertised for, so that number might go up.) Nursing home is something you can keep in state court and is a pretty simple case due to the long history of case law. Once you get the briefs and expert, you don’t need that much. Also, you are addressing a subject that most people do not want to acknowledge. We get old and everyone does not take care of their families. The interesting fact will be if certain plaintiff attorneys force nursing homes out of certain communities. Or how the arbitration agreements will work on those issues. I am sure the Supreme Court will start moving toward the center due to the recession in the legal field and to prevent the Smith/Kitchens factor from happening to them.
Interesting, Hot Rod, and sounds plausible to me. More & more old people going into nursing homes = more & more litigation. (This would seem to be a ripe field for experimenting with a no-fault system, btw, horror tho it would be to my billable hours.)
Tho I would query this:
Nursing home is something you can keep in state court and is a pretty simple case due to the long history of case law.
I’m constantly struck by how many unresolved issues there are in nursing-home malpractice law in Miss. — lots of law on M.D.’s, less on nursing homes. I still find myself fielding issues that should’ve been knocked down years ago. Do nursing homes become fiduciaries of their residents? Is care provided by non-nursing staff subject to “ordinary negligence” suits rather than med-mal? Etc.
The insurance agent cashed the $20,000 check the day that he received it . He also issued a fax saying here is your policy number , ill be bringing the policy to you in the next couple of weeks. Underwriter testified that , THE POLICY WAS ISSUED BUT WITHDRAWN BECAUSE OF HIS DEATH. The family new that the punitive damages was excessive, but never thought that they would now be having to pay almost $500,000 to Prudential . Why did we have a jury trial with a unanimous decision ? I have first hand knowledge of this case and im not a lawyer , It was almost like the court never read the trial record , based on the opnion written by easley . You want a copy of the records ill be more than happy to send you a copy.