Articles Posted in Civil Law

350x.jpg

Kudos to Mississippi Secretary of State Delbert (“Dont call me Herbert”) Hosemann for seeking additional money from Morgan Keegan for defrauding Mississippians. I was reading an article today in the Clarion Ledger about the hearing and this comment caught my attention:

The proceedings before Jackson lawyer Cliff Hodge, appointed by the secretary of state as the hearing officer, is expected to last three weeks. The hearing is being held in the third-floor courtroom of the Mississippi College School of Law.”

So what’s the problem you may ask? Cliff Hodge and Secretary of State Hosemann worked together at Phelps Dunbar for years. I’m sure that this connection was disclosed to all parties before the hearing but nothing was mentioned about their connection in the article. Republicans are always accusing former Democratic Attorney General Mike Moore and current AG Jim Hood for associating their “friends” on cases so I think the issue needs to be brought out in this story. I’m sure Mr. Hodge and his firm isn’t working for free in this case but it’s on the taxpayer’s dime.

weird_car_accident_buffalo_2.jpg

The Clarion Ledger had an interesting article this morning about immunity for Mississippi police officers who are involved in automobile accidents. The article mentions one of our previous cases, Harris v. City of Jackson which you can read about here.

It is truly a shame that police officers and other state, county, and city workers have immunity for car accidents for which you and I would be held responsible. The only way to overcome this immunity is to show the Government worker caused the accident by acting with “reckless disregard” to a person’s rights. In the Harris case, the officer was speeding at 100 mph and ran a red light smashing into our client’s son who was turning on a green arrow. This was held to be “reckless disregard”.

While we are lamenting the immunity given to State employees, we are fortunate to have any recourse. Prior to the legislature enacting the Mississippi Tort Claims Act, Government employees had absolute immunity under state law for all their actions. Without the Mississippi Tort Claims Act, the Harris family would not have had any recourse for their son’s death. Federal law would not have provided any relief since police involved car accident cases under federal civil rights law require a showing that the officer acted with malice when causing a car accident. We could not show that.

nflshield.jpg

As the NFL lockout enters its 116th day, the 8th Circuit Court of Appeals handed the owners more ammunition it the bargaining process. Now, many legal analysts from around the country have predicted this outcome. But, it wasn’t because of the strength of the owner’s legal position but because the 8th Circuit is deemed to be more “business friendly” because two of three judges hearing the case were appointed by Republican presidents.

Now, let’s think about that. Isn’t it scary that Instead of looking at the merits of a case its the politics which determine the outcome? It’s scary but true. I’m not saying that the 8th Circuit judges who voted in favor of the owners did this but I do think it happens a lot in our country. I just want a judge, or judges, who call “balls and strikes” fairly. Don’t decide cases based upon your political views or how it will hurt your chances for re-election. Being a judge is tough and it requires making tough decisions.

People argue that all judges should be appointed thus removing the political party affiliation from the judiciary. This makes me laugh. The appointment process for judges n Federal courts is more of a political process than most judicial elections. What we need are judges who simply do the right thing.

Super_Size_Me_Poster.jpg

I played college baseball at West Virginia State University. I worked out and since I was young, my metabolism burned off all the late night junk food I consumed. I was 6’2″ and 198 pounds of “twisted steel and sex appeal”. Life was good. Then I moved to Mississippi for law school. I became sedentary. I was introduced to fried pickles, fried cheese (my God, they can fry cheese?!?!), fried everything. And desserts. After three (3) years of this lifestyle, I ballooned up to 230 pounds.

My story was apparently very common for a lot of Mississippians as we were named once again the Fattest State in the United States. You don’t have to spend too much time wondering about how this has happened. Simply look at all the signs proclaiming “ALL YOU CAN EAT” around the Jackson, Mississippi area. This is not a challenge people. You don’t have to really “eat all you can eat”. What’s next? Will restaurants install vomitoriums?

Obesity is a serious health issue. According to the Mississippi State Department of Health, obese people are more prone to suffer from diabetes, high blood pressure, heart problems, and certain types of cancers. How does this affect you if you are not even obese? Health care costs related to obesity was $117 billion in 2000! Half of this $117 billion was paid by taxpayers to those on public health insurance such as Medicare or Medicaid. So our money is being used to underwrite obesity health care. Private insurance companies must raise also raise premiums to pay for obesity health care costs.

competing businessmen.jpg

Clients have called our office asking the question: “When is it okay for my employer to tell me I can’t compete with my employer’s business when I quit?” To answer that question directly – not very often.

Many times in employer/employee relationships, a boss will ask their employee to sign what is commonly called a “covenant not to compete” when they are hired. The purpose of this “covenant” is to protect the employer from being burned if an employee is learning the trade from their employer and then decides to take that knowledge and open up a competing business across the street. You can see where the original business would want to protect itself in a situation like this. At least that was the reason these agreements were allowed in the first place.

What has developed has been “agreements” that restrict employees in no certain terms regarding time and area. Mississippi Courts don’t like this. In a capitalist society that encourages freedom of enterprise, the law does not favor restricting free trade and individual freedom. Our Supreme Court has been clear about this issue: Covenants not to compete are not favorites of the law. These agreements must be reasonable and specific as to the time and geographic scope of the restriction.

Your tax refund is the result of your employer withholding too much money from your paycheck. According to the statistics, the average Mississippi tax refund is close to $3000. This equals an extra $250 that could be added to your paycheck every month. Instead you gave the government an interest free loan of your money for a year.

Now is the time to review your W – 4. This is the form you filled out for your employer when you started work. The number of allowances you marked back then may not be appropriate for your situation today.

If you take zero or one allowance, your employer withholds the maximum amount of taxes. The more allowances you take, the less tax your employer withholds. In the alternative, you can specify a specific dollar amount to be withheld on line 6 of the W – 4.

imagesCA9A8REA.jpg

As thousands of residents in both Mississippi and Louisiana brace for a disaster which rivals the historic 1927 Flood, let’s hope that their insurance companies don’t inflict a second disaster by denying their insurance claims.

If you are involved in a flood, your insurance policy should advise you on the steps to take to make a claim. This Government website has a step by step procedure to follow.

If you have a flood at your business premises or commercial premises it can have a devastating affect – both structurally and financially. In these circumstances it is important to make sure you get the right compensation from your insurance company. In this short article we will look at the best way to achieve this – and hopefully keep your business afloat long after the flood has subsided.

brian_weed

A man died in the hospital a few days after a chase with law enforcement officers.. The FBI is currently investigating this incident. Now, I am not saying that any police officer did anything which caused this man’s death. However, one statement from the news story caught my interest. One of the officers was quoted as saying “I can tell you that our guys saw no one break a law out there, except for the suspect that Jackson was chasing.”

My response to that is in 16 years of handling police misconduct cases in Mississippi I have rarely, if ever, had another police officer report a fellow officer for abuse. Some call this phenomenon “the thin blue line” which represents the camaraderie of police officers. However, to others it represents a code of silence among police officers to suppress the truth.

Think about that: police officers who are sworn to uphold the law are compelled by this “thin blue line” not to tell the truth. Police officers probably justify this stance by pointing out that the person assaulted or abused was breaking the law and got what he deserved. Many citizens feel the same way. But by committing an assault, or worse, and then lying about it, aren’t the police breaking the law?

In every legal case the amount of evidence adequate for a person to win the case is called a burden of proof. There are different types of burdens of proof, depending on the type of case. In a typical civil case such as an auto accident, the burden of proof is a preponderance of the evidence. A preponderance means more likely than not. For example, if a person is suing a corporation for $1000.00 or $1,000,000.00 the burden is the same. The jury must ask based on the evidence presented is it more likely than not that the incident happened the way the plaintiff (person who files the civil action/lawsuit) claims. Another way to look at it is to assume there is an equally balanced scale. If the plaintiff tips the scale, even slightly, then under the law the plaintiff should prevail. There is no greater burden in these types of civil cases.

In some other cases like domestic cases where one party wants to prove adultery, or the State wants to permanently take child away from a parent, the side bringing the lawsuit must prove by clear and convincing evidence. Clear and convincing is a stronger level of evidence. The jury must be very sure of what the plaintiff has presented. This standard is obviously higher than a preponderance of the evidence.

The other legal burden is the strongest known in law. It is the burden that protects people from governmental power and authority. This burden represents the highest respect for freedom and liberty. This burden is the one used in criminal cases and it is beyond a reasonable doubt. In every single criminal case the prosecution must prove the person charged guilty beyond a reasonable doubt. In cases that are based on circumstantial evidence (no direct eye witness) the State must prove not only beyond a reasonable doubt but to the exclusion of every theory that is consistent with the person’s innocence. This means that if the evidence points toward guilt, but also points toward innocence, the jury must accept the theory of innocence. I remember reading the Sherlock Holmes mystery short stories and there was a great line I have never forgotten. It goes something like this: “Circumstantial evidence can point toward both guilt and innocence at the same time and with equal force, depending on the predisposition of the viewer.” Think about that for a moment. I hope you see now why the law requires doubts to be resolved in favor of the accused.

A bill has been introduced called the Democracy Restoration Act. The purpose of this law is to restore the voting rights to people who have a Federal Conviction. Currently a Federal Conviction strips a man or woman or their right to vote in Federal Elections. There are 5.3 million people who cannot vote because of a conviction. This includes minor and nonviolent offenses. I was trained in the law with the understand that our Justice System served to punish and rehabilitate. Some people argue that rehabilitation has long been forgotten, but in Federal Correctional Facilities they have many helpful programs. But what is the rationale for stopping a person from voting after he has served his sentence and paid his or her debt to society? The person is still alive and a citizen of the United States. The person still works, pays taxes, vacations, and has a family in America. Are we just not willing to forgive people? Our Nation has been guided by Christian principles yet we won’t let go the need to kick a person while they are down and then kick them some more for good measure.

Many States take away voting rights when a citizen has been convicted. Some allow those rights to be restored automatically when the person has served all punishment, including probation. Others required the person to file a Petition and jump “hoops” before they can get their voting rights restored. In Mississippi the process is not easy and by no means guaranteed. This archaic idea that we have to deny someone the right to vote because they may have done one thing wrong as a teenager or at another time in their life needs to be ended and put to rest. The negative effects of a felony conviction are the results of our history from England. I wrote a Blog earlier explaining how many of our laws and ideas are the result of our past that were brought over by the colonists. This idea that a “convict of felony” must bear life long punishment is one of those old and unnecessary ideas. One other thing needed is an expungement or expunction statute that would allow a person to clear their record if they are convicted of a nonviolent, first offense.

Hopefully these changes will come to America. There are a lot of changes we need to help our citizens put their lives back together. I like to remind people that “good people can make bad choices and mistakes. That does not make them a bad person forever.”

Contact Information