Category: Legal Ethics

Scruggs defendants file Rebuttal in support of Motion to Dismiss Young v Scruggs

They sought it with thimbles, they sought it with care;
They pursued it with forks and hope;
They threatened its life with a railway-share;
They charmed it with smiles and soap

Even with the pleadings reported in The Barriester’s Dream – Plaintiffs’ Oppose Scruggs’ Motion to Dismiss, Scruggs refused the role of  Snark in this latest filing in Young v Scruggs, Defendants’ Rebuttal Brief in Support of their Motion to Dismiss:

Plaintiffs’ RICO claims do not fail because of a technical misstep; they fail because the series of events alleged in the Complaint and the RICO Statement do not rise to the level of a RICO violation which entitles Plaintiffs to that statute’s special remedies.

The brief states, There is no magic language Plaintiffs can add to their pleadings to create a RICO cause of action. Believe me, there is also no magic language to make a discussion of law related to serving Richard Scruggs with process interesting reading.  The rest, however, is interesting reading and an apt reminder that RICO is not something you just toss out to get your case in federal court.

Defendants Scruggs et al make three clear arguments for dismissing Plaintiffs’ RICO claims: Continue reading “Scruggs defendants file Rebuttal in support of Motion to Dismiss Young v Scruggs”

Robohms issue reality check in motions filed today! Robohm v State Farm

The subject policy contains language commonly referred to as the “Anti-Concurrent Causation Provision” or “Weather Conditions” exclusion which State Farm has characterized as preventing any recovery for wind damage when the insured property also sustains damage caused by another weather condition… The Mississippi Supreme Court has rejected the argument that the anti-concurrent clause is not ambiguous or not enforceable. The Mississippi Supreme Court held, in Corban v. United Services Automobile Assn., 20 So.3d at ,-r,-r 32, 40-41, that the anti-concurrent clause was ambiguous and unenforceable to the extent that it purported to exclude any wind loss if it occurred separately from and in any sequence to excluded water loss.

State Farm has already argued this exact issue before the United States District Court for the Southern District of Mississippi in another identical Hurricane Katrina related case this month. (See Memorandum Opinion in Charles Spansel and Janet Spansel v. State Farm Fire and Casualty Company…) In Spansel, the District Court found that “State Farm has not shown it is entitled to summary judgment on this portion (anti-concurrent clause) of the declaratory judgment claim”. In light of this ruling and others like it, the doctrine of collateral estoppels prohibits State Farm from contending here that the contract for insurance is not ambiguous as to any perceived anti-concurrent clause.

Plaintiffs’ Motion for Declaratory Judgment, one of five motions the Robohms filed on the 19th of January, was followed on the docket by State Farm’s Motion for Summary Judgment or in the alternative Partial Summary Judgment and supporting Memorandum:

Plaintiffs’ claim for declaratory judgment fails because…it is at odds with Mississippi Supreme Court precedent establishing that the water damage exclusion in the applicable policy unambiguously excludes damage from storm surge and that the anti-concurrent causation clause excludes damage caused by wind and flood acting concurrently. See Corban v. United Servs. Auto. Ass’n, 20 So. 3d 601,614-15 (Miss. 2009).

Buckle up, folks. We’re going to the other end of the Coast – 423 East Beach Drive, Ocean Springs – and way back to see what this case is about before discussing the other motions filed yesterday.  Continue reading “Robohms issue reality check in motions filed today! Robohm v State Farm”

The Barriester’s Dream – Plaintiffs’ Oppose Scruggs’ Motion to Dismiss

He dreamed that he stood in a shadowy Court,
Where the Snark, with a glass in its eye,
Dressed in gown, bands, and wig, was defending a pig
On the charge of deserting its sty.

Plaintiffs Lee Young and Charles Mikhail, Young v Scruggs, have filed a because-we-say-it-isn’t-so-Opposition to Scruggs’ Motion to Dismiss. Admittedly, I’m not an attorney, so I may err in thinking a judge should not be asked to grade papers and give them back for correction; but… Continue reading “The Barriester’s Dream – Plaintiffs’ Oppose Scruggs’ Motion to Dismiss”

Why do people confess to crimes they didn’t commit? (a repost from SLABBED archives)

Prosecutors wield tremendous power, which is kept in check by a set of unique ethical obligations. In explaining why prosecutors sometimes fail to honor these multiple and arguably divergent obligations, scholars tend to fall into two schools of thought.

The first school focuses upon institutional incentives that promote abuses of power. These scholars implicitly treat the prosecutor as a rational actor who decides whether to comply with a rule based on an assessment of the expected costs and benefits of doing so.

The second school focuses upon bounded human rationality, drawing on the teachings of cognitive science to argue that prosecutors transgress not because of sinister motives, but because they labor under the same cognitive limitations that all humans do.

… Research on the psychological effects of accountability demonstrates that when people are judged primarily for their ability to persuade others of their position, they are susceptible to defensive bolstering at the expense of objectivity.

With these thoughts from A Situationist View of Criminal Prosecutors in mind, we turn to  The Situation of False Confessions: Continue reading “Why do people confess to crimes they didn’t commit? (a repost from SLABBED archives)”

Scruggs files a nothing here, move on Motion to Dismiss Young v Scruggs

After reading Eastland’s response for Patterson in the Wilson v Scruggs RICO case, it is difficult to disagree with the legal arguments of the Motion to Dismiss that Dick Scruggs filed in  Young v Scruggs; for example:

Plaintiffs’ pleadings fail to state a claim upon which relief can be granted under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Plaintiffs have failed to allege that Defendants engaged in a pattern of racketeering activity. Even if proven, Plaintiff’s allegations could not establish that any predicate acts posed a threat of continued criminal activity, as all of the alleged predicate acts mentioned in Plaintiffs’ Complaint are related to a single, discrete, otherwise lawful transaction.

The Memorandum Brief in Support of Motion to Dismiss provides background and more about the basis for the Motion:

This case relates to Plaintiffs’ demands for money from Defendants Richard F. Scruggs and SMBD, Inc., their employer, under an attorney fee agreement signed in July 1999. Plaintiffs seek damages for Defendants’ decision in July 2005 to charge Plaintiffs with responsibility for satisfying a portion of a federal court judgment rendered against Defendants. Plaintiffs also seek damages for the residual effect of Defendants’ payment of certain legal fees to a law firm which represented Defendants in another litigated matter.

Plaintiffs pursue their quests for money under a variety of legal theories, including RICO, breach of contract and breach of fiduciary duty. This Court should dismiss some or all of Plaintiffs’ claims. First, Plaintiffs have failed to sufficiently serve process on Richard Scruggs. Second, Plaintiffs have failed to state a RICO claim upon which relief can be granted. With dismissal of the RICO claims, this Court should decline to retain supplemental jurisdiction over the remaining state law claims. Even if this Court does retain jurisdiction, the applicable statute of limitations bars Plaintiffs’ claims related to the July 2005 decision to allocate responsibility to Plaintiffs for satisfying a portion of the federal court judgment. Continue reading “Scruggs files a nothing here, move on Motion to Dismiss Young v Scruggs”

Honest Services (part 2) – a Supremely interesting commentary

“ The prosecutor has more power over life, liberty, and reputation than any other person in America.”

United States Attorney General and Supreme Court Jus tice Robert H. Jackson

Former Mississippi Supreme Court Justice Oliver Diaz provided a supremely interesting commentary on his  “up close and personal” experience  with the honest services law and federal prosecutors, USA v Minor et al,  in a review of the Kings of Torts published in the  Northside Sun, a popular Jackson weekly .

We are left to wonder why the court records were not sufficient to support the author’s positions and opinions? Why do they resort to unsworn statements and unproven allegations?

Specifically, why did the authors feel compelled to state as fact that I lived in a condominium owned by Paul Minor free of charge when prosecutors offered no proof of this because they discovered that it was not true? Why did they describe an event involving Paul Minor at a hotel bar, when court testimony clearly showed the event did not occur? Continue reading “Honest Services (part 2) – a Supremely interesting commentary”

Honest Services (part 1) – a Supremely interesting concept

An anti-corruption law that has been central to the convictions of numerous public officials and corporate executives in recent years could be at risk of being struck down or narrowed after it was met with extreme skepticism by the U.S. Supreme Court yesterday.

TPM reported on the arguments before the Court and the Court’s reaction:

The Supreme Court yesterday [Tuesday, December 8, 2009] heard arguments in two separate cases related to the law — one involving [Conrad] Black, who was convicted of defrauding his company, and the other involving Bruce Weyhrauch, the Alaska GOP legislator convicted for failing to disclose that he had solicited business from an oil-services company with business before the legislature. According to the New York Times, justices from both the court’s liberal and conservative wings showed outright hostility to the law, suggesting that they saw it as overly vague. Continue reading “Honest Services (part 1) – a Supremely interesting concept”

Is there a doctor in the court? Patterson

…if this Court does find Wilson’s Amended Complaint deficient in any respect Wilson respectfully prays that he be given opportunity to amend his complaint to cure whatsoever deficiencies the Court might find.

While team Wilson was praying Judge Hittner would prescribe a cure, Defendant Steve Patterson’s attorney, Hiram Eastland, filed a Rebuttal declaring the deficiencies fatal.

Plaintiff’s opposition fails to resolve any of the shortcomings addressed in Mr.Patterson’s Motion to Dismiss. From denying the existence of a heightened pleading standard for fraud, to reiterating the same legally insufficient factual allegations, Wilson can point to nothing that would save his complaint from dismissal.

After finding there was “nothing that would save” Wilson’s complaint, Eastland eviscerated Wilson’s Opposition to Patterson’s Motion for Dismissal.

Plaintiff has failed to shed any new light on his Amended Complaint that would allow it to endure against Mr. Patterson. All of the fatal flaws that are reiterated in this reply exist for a reason: this is simply not a RICO case.

Eastland’s arguments, while specific to Patterson, have implications for other defendants and/or other litigation,, particularly those where the distinction between unethical and unlawful conduct has been blurred : Continue reading “Is there a doctor in the court? Patterson”

Recuse in the Scruggs news

A coincidence, perhaps? Northern district Judge Shannon Aycock (Wilson v Scruggs) and southern district Judge Sul Ozerden (Young v Scruggs) each recused from a case involving Dick Scruggs in Orders dated October 15, 2009.

Wilson v Scruggs was filed in federal court in North Mississippi and assigned to Judge Neil Biggers.  Shortly after Scruggs’ co-defendant Steve Patterson filed his Motion to Dismiss, Judge Biggers recused and the case was reassigned to Judge Shannon Aycock.

However, Judge Aycock filed a Waiver of Judicial Disqualification with the Clerk:

Unless a waiver is obtained from all parties and all counsel, Judge Aycock intends to disqualify in this proceeding because of these circumstances:

Judge Aycock’s Courtroom Deputy, Ginger McDaniel Sullivan, worked as a
paralegal with the Wm. Roberts Wilson, Jr. P.A., law firm in Jackson, Mississippi, from June 2001 to February 2005. In that position, Sullivan worked under the direction of William Roberts Wilson, Jr., Charles M. Merkel, III, and Roberts Wilson, Jr. During her employment, Sullivan was familiar with and worked on issues in the lawsuit Wilson vs. Scruggs, et al, First Judicial District of Hinds County Circuit Court. This litigation was pending when she began her employment and was not resolved as of the date she left the firm…

If a waiver is not received from all parties and all counsel, this Notice and any responses will be kept under seal by the clerk and not shown to the judge, nor will the judge be informed of the identity of any party or lawyer who declined to waive the disqualification. If the disqualification is not waived, the case will be reassigned to another judge.

Apparently waivers were not received from all parties as Judge Aycock recused and issued a related Order dated October 15, 2009. Continue reading “Recuse in the Scruggs news”

The Price We Pay For “Pro-Business” Courts

As I’ve said in prior posts, I firmly believe Americans can no longer claim we’re “a government of laws not of men” as John Adams, our 2nd US President once pronounced. Adams’ words came to epitomize the venerable “rule of law” in America. In his era, the critical debate was “rule of law” vs. “rule of man.” The prospect that America might become “a government of men not of laws,” is exactly what Adams and our founders feared most, and warned us to stay away from. In their day, “rule of man” referred to the British King George III, who . . . well, just take a look for yourself:

In 1776, the year of our Declaration of Independence, Thomas Paine anonymously wrote a pamphlet titled Common Sense which stated: “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” Adams, a contemporary of Paine, expounded on Paine’s Common Sense, and made sure the Massachusetts Constitution of 1780 included the words “a government of laws not of men.”

In Adams’ and Paine’s day, the King was law, and he served no one except himself. Today, billionaire monopolies are the “King makers.” By purchasing our legislatures, individual judges and elected officials, they bastardize “the rule of law.” Their aim is make America a government of men, not law. This is what happens every day in Latin America, and why we call them “third world.” If we acquiesce, and accept their bastardization of America’s founding premise, we’re right back where we started in 1776. Put another way:

we cannot let this ↓ Continue reading “The Price We Pay For “Pro-Business” Courts”