Wednesday, April 30, 2014, the Mississippi Supreme Court will hear oral argument, sort of, in these two cases:
I say “sort of” because the Court has issued show cause orders in both cases regarding the dilatory conduct of the lawyers – the Appellant’s lawyer in the 10:30 a.m. case and the Appellee’s lawyer in the 1:30 case.
At 10:30 a.m.
Walls v. Franklin Corp – this is a direct appeal in a case alleging bad faith failure to pay workmens compensation. Here’s the Appellant’s brief.
The panel consisted of Justices Randolph, Kitchens and King. Should be required viewing for all persons considering law as a career (or just take my word for it – being a lawyer is a depressing business). The panel did not issue a ruling today.
At 1:30 p.m.
Vicksburg Healthcare v. Dees – this is an interlocutory appeal from the denial of summary judgment in a med mal case where the plaintiff is seeking damages for bed sores. The case against the nursing home went to arbitration. Vicksburg Health Care moved to dismiss based on the plaintiff’s failure to have expert testimony regarding the alleged malpractice. When the motion was denied, it filed a petition for interlocutory appeal which was granted. Here is its brief.
It is almost 2:00 and the attorney for Dees has not appeared. The weird thing is that there is no requirement that the appellee file a brief. There’s no default rule automatically reversing a case if the appellee fails to file a brief.(I’m not advising that appellees not file a brief, of course). I know from my own experience that when the appellee does not file a brief and there is oral argument, the appellee does not get to make an argument. (I was representing the appellant that time). Apparently Dees’ attorney made three requests for extensions (as explained in this order) and never filed a brief which is why her attorney was hit with a show cause order. The lesson here, then, is that if you are the appellee and you are too busy to file a brief, don’t ask for extensions. Here’s the response to the show cause order.
Dees’ attorney finally arrived. So the first question he is asked is why he was late. Not a good start. Same panel as this morning. Generally my method of fixing a screw up is to apologize, apologize, apologize. This attorney is taking the opposite tactic.
The Court recessed before starting with the show cause hearing. They came back and sanctioned him $500 for being tardy.
Another lesson – keep your address listing with the Miss. Bar current.
Lesson 3: if you’re scheduled for a show cause hearing at the Miss.S.Ct., don’t be late. And if you are late, don’t tell the Court you had an emergency meeting with a client in Canton.
The Miss.S.Ct. has always been extremely understanding when it comes to extensions for time. As far as I know, no one was ever executed in this state after having had their brief refused because it was a day late (that would be Virginia). It is one of the many reasons I would much rather practice in the Mississippi Supreme Court than the Fifth Circuit. I hope a few bad apples don’t screw it up for the rest of us.
All in all, this is painful. I may be having nightmares about this for years. It is so bad that the panel is exceedingly concerned about the attorney’s other cases. Justice Kitchens asked him whether there were people who would be going to jail if he screwed up their cases like he screwed up this one.
At 3:49 the Court recessed to deliberate. Dees’ attorney was told to stay and await a ruling.
Ruling: Around 4:30 the panel reconvened and ordered the following: the brief filed on behalf of Dees on February 26, 2014 at around 9 p.m. with the guard’s office that doesn’t appear on the docket and wasn’t served on the Appellant will be accepted. The $500 for being late to today’s hearing will be paid at $100 a month starting June 1. Dees’ attorney will also have to pay $1500 in expenses to the lawyers for the Appellant at $100 a month. Also, he is to report to the Miss. Judges and Lawyers’ Assistance Program within ten days. Since the Court cannot force him to do this, if he does not do this the Court will have the transcript of the hearing sent to the Miss. Bar to do with it as it sees fit. A copy of the order will be sent to Ms. Dees. Justice Randolph expressed some dismay at the fact that these show cause hearings used to be few and far between but that this was the third one this year.
Here’s the Order embodying the Court’s ruling. It was filed May 2, 2014.