Comments on: More notes on the Double Quick constitutional arguments

By: Jane

Jane — Tue, 29 Dec 2009 13:26:12 +0000

I was unable to retreive the brief, however, I was told it was signed by Mr. Hood also. I find this article interesting. I would think tempting to cap possible awards of an injured person is difficult at best, but, “Argues strongly that there are no limits on legislative police powers here” Of course, they wouldn’t be in a police state. So where’s all the friends and family fit in? Oh, yeah, $$$$$$$$$$

By: Robert

Robert — Tue, 29 Dec 2009 09:08:24 +0000

It’s amazing to note that BUTLER SNOW & CO. even took the case to court. What’s the deal here? Let’s see. For x amounts I will defend you in a court of law. But wait. If there’s a Sh*t load of money, right out buy the court and just by pass the legal issues to some unlawful agreement.

So what’s the prob? Like one commenter said. why are a lot of the post on law drawing personal comments from me. I’d like to know if, of all the claimed bla, bla, bunch of highly thought of attorneys involved in running this state.

Was their any so called big shot attorney firm in Jackson during the mid 90′s to present to the Louisiana 10-23-96,-98 & 99, events who didn’t right out steal a part of our awards. I mean damn, couldn’t they have made an honest living in a legal battle? Or at least let the crumbs from their table hit the floor.With the amounts had it seems greed has no limit. But let’s cap those awards.

Helpful tip. If ever your looking for a personal injury attorney and find one who says ” oh no that’s not right it’s against the law they can’t do this, we’ll help you..” Then you return to find a new BMW. in his parking place the next week. That deal for help? Forget about it. It’s bull sh*t. Like claiming to being good at something you can really do.

By: Anderson

Anderson — Mon, 28 Dec 2009 23:29:47 +0000

More trivially, it’s heartening to see BUTLER SNOW file a brief with an orphaned heading (Reply at 43).

By: Anderson

Anderson — Mon, 28 Dec 2009 23:25:17 +0000

I think 11-1-60 can be read either way: “in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand dollars ($500,000.00) for noneconomic damages.” Doesn’t say *why* the trier shall not do this.

Your reading implicates the due-process violation, mine more the right-to-jury violation, it seems to me.

… Here’s a left-field idea: can the Legislature be said to limit, not the *fact* of recovery, but its *kind*? For instance, could the Legislature in theory say that non-economic damages are not redressable by monetary means, and instead require the defendant to apologize? I’m picking a far-out example, but I am not sure that the *kind* of remedy is prescribed by the law.

… Anyway, given the number of other remedy-limiting statutes cited by the defense, perhaps the pragmatic guess is that the MSSC is not going to rock the boat so much as to put all those laws into doubt.

By: NMC

NMC — Mon, 28 Dec 2009 23:06:24 +0000

The legislature isn’t saying “there can’t be damages over the cap,” it’s saying “you can’t collect on damages over the cap even if you prove you were damaged over the cap.” The legislature is effectively taking away something (the damages over the cap); only by pretending “soft damages aren’t real” can it be said otherwise.

If the legislature were saying “there can’t be damages more than the cap,” it really would be enshrining an irrebutable presumption in the statute, making a stronger argument it wasn’t constitutional.

By: Anderson

Anderson — Mon, 28 Dec 2009 22:45:42 +0000

Well, I’m certainly not ready to say that it’s a circular argument in fact, but perhaps you’ve shown that the due-process and jury-trial arguments are linked.

Effectively, the Legislature says that, for non-objective damages, it’s simply not a possible finding of fact that they exceed $500K (or $1M). The plaintiff who falls back on the “but the jury said so” argument is effectively arguing that he has a right for the jury, not the Legislature, to make that determination.

So if that analysis is correct, then the due-process argument, which you think is strong, rests in part on the right-to-jury argument, which you suggested was “very weak.” Maybe we could hear some more about why you suggested that?

By: NMC

NMC — Mon, 28 Dec 2009 22:38:12 +0000

The argument may be a tautology to a logician, but I think a lawyer would say that a verdict of over $1M does demonstrate that the plaintiff “had” damages of over $1M and had something taken away by the cap. They are, as far as the law is concerned, quite real damages because they were found to be real by the appropriate authority.

At least 15 or so years ago, the criminal cases at the Supreme Court level holding that irrebutable presumptions violated due process were quite strong. I think the arguments like that are far stronger than the separation of powers argument the plaintiff tries to put over.

By: NMC

NMC — Mon, 28 Dec 2009 22:32:50 +0000

The plaintiff makes a large deal of tracking the constitutional provision back through earlier constitutions, so he can cite some 19th century cases that are somewhat helpful to him.

By: Anderson

Anderson — Mon, 28 Dec 2009 22:28:01 +0000

second, that a cause of action had to exist at common law or at the time Mississippi became a state for the plaintiff to have a right to a jury trial

Yeah, since our constitutional right to a jury trial is guaranteed by our *1890* constitution, I would have to have that one explained to me a little further.

On the due-process issue you flagged, I think the best defense argument is that, because the capped damages are by definition “subjective,” and by implication not “objectively verifiable,” then it’s difficult to imagine how a plaintiff could prove his damages in fact exceeded the cap, so that his right was violated.

A plaintiff could argue that all the proof he needs is a jury’s finding as much, but that smells a little bit circular to me.