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This week, most Americans who follow politics are focused on the New Hampshire Democratic primary. But plaintiffs lawyers and corporate defense attorneys would do well to also keep an eye on a different election, just beginning to take shape in Mississippi, that could have a significant impact on tort reform and civil justice in that state and beyond. State judicial elections in Mississippi have long been a battleground in the fight by business advocates to rein in big jury verdicts. And this year will be no different: Four seats on the nine-judge state high court will go before voters in November, and a federal prosecution of alleged corruption in a 2000 judicial race promises to keep the issue in the spotlight. The state elects its Supreme Court judges for eight-year terms, and the U.S. Chamber of Commerce has pumped millions of dollars into judicial races there in order to defeat judges it views as unfriendly. Trial lawyers have countered with their own hefty campaign donations. “Although we haven’t yet finally determined which state elections we will be active in, judicial elections will be an important component for us this year,” says Stanton Anderson, chief legal officer of the chamber’s Institute for Legal Reform. “And Mississippi is a problem jurisdiction for us.” The chamber ranks Mississippi’s courts worst in the nation on fairness to business interests. It contends that Mississippi judges allow high jury verdicts in negligence cases, accept theories of liability rejected in most states, and permit thousands of small claims to be tried together in tiny counties whose citizens are prejudiced against business. It is still quite early in the election process; the filing deadline is not until May. But sources on both sides of the issue say Mississippi’s Supreme Court elections are a likely target this year, just as they were in 2000 and 2002. Anderson notes that the national chamber does not itself make campaign contributions to state judicial candidates. Rather, its legal institute “partners” with local groups on voter education efforts that may include issue advocacy advertising. Those partnerships have experienced mixed success. In 2002, Justice Charles McRae, tagged by the chamber as cozy with the trial lawyers, was soundly rejected. (The judge’s 1995 plea of no contest to drunken driving, as well as his penchant for wearing leather pants and riding motorcycles, may have played a role as well.) Yet in the 2000 election, business support for then-Chief Justice Lenore Prather was thought by many to have backfired and led to her defeat. At the national level, the chamber has been making headway in the most recent phase of its lobbying efforts to overhaul the civil justice system. A class action reform bill that barely failed last year on a cloture vote will soon be taken up again by the U.S. Senate, with good prospects. On the other side, Merrida Coxwell, the president-elect of the Mississippi Trial Lawyers Association, expects to be busy in the state’s 2004 judicial elections. “Trial lawyers here don’t want to see this state overrun by big business,” says Coxwell, a partner in four-lawyer Coxwell & Associates in Jackson. Coxwell, too, says that his group does not directly make campaign contributions in judicial races. But plenty of individual trial lawyers do give to prospective judges, although they are prohibited by Mississippi law from giving more than $5,000 to any one candidate. ELECTION ON TRIAL While both sides gear up for the coming judicial elections, federal prosecutors are airing allegations about corruption in the state’s judiciary. The 2000 Mississippi judicial race between Justice Oliver Diaz and his challenger, Keith Starrett, has had an explosive aftermath: the indictment of prominent Mississippi plaintiffs lawyer Paul Minor on bribery and conspiracy charges. Diaz, who has frequently lined up on the side of tort plaintiffs, won the election. But last July, Dunn Lampton, the U.S. attorney for the Southern District of Mississippi, secured a grand jury indictment of Minor, Diaz, and two other judges on charges that Minor, an active Democrat, helped judges pay off their campaign loans in exchange for favorable treatment in court. All the defendants have pleaded not guilty. Diaz has been suspended from the bench pending the outcome of the case, which is set for trial on March 1. On Jan. 12, Minor’s lawyer, Abbe Lowell of the D.C. office of Chadbourne & Parke, filed a blistering motion denouncing the indictment as a political ploy by a Republican prosecutor who turned a blind eye to activities by other Mississippi lawyers. Lowell asked U.S. District Judge Henry Wingate to dismiss the indictment. In Mississippi, Lowell wrote, it is routine for attorneys to “give contributions, provide loan support, give campaign advice, and continue to socialize with judges before whom they practice. . . . Yet only Mr. Minor has been charged. The question is �Why?’ “ Lowell says in an interview, “Our motion points out that the U.S. Attorney’s Office selectively decided to accept some lawyers’ involvement with judges as in keeping with the way Mississippi works, and to view others’ involvement as not acceptable. Given the U.S. attorney’s background and conflicts, that is suspect and deserves a hearing.” Lampton has not yet filed a response. He declines comment, noting that the matter is in litigation. TARGETING JUDGES In Mississippi’s four races this year, the judge considered the most likely target of the chamber is James Graves Jr., who was named to a vacant seat in October 2001 by then-Gov. Ronnie Musgrove (D) and is facing the voters for the first time. (Musgrove was defeated last year by Haley Barbour, former chairman of the Republican National Committee and name partner at D.C. lobbying powerhouse Barbour Griffith & Rogers.) Although Graves has not had the chance to participate in many hot-button liability cases, business interests are likely to point to a ruling like Choctaw Maid Farms v. Hailey, a 2002 case in which Graves joined a pro-plaintiff 6-3 majority. The issue there was whether Mississippi would, for the first time, recognize so-called hedonic damages in a wrongful death case�damages that compensate third parties for the loss of the enjoyment of life by the person who was killed due to negligence. In Hailey, Mississippi became only the fifth state to endorse hedonic damages. The three dissenting justices argued that they “strongly disagree that society is served by attempting to put a dollar value on a life that was not lived, and awarding that money to a third party.” Business advocates say rulings like Hailey are typical in Mississippi. They also point to massive damage awards in cases against the makers of the fen-phen weight-loss drugs and of Propulsid, a prescription drug linked to heart problems in some patients. They also note that Mississippi law permits plaintiffs lawyers to funnel major tort cases into thinly populated counties with trial lawyers who are perceived to be pro-plaintiff. The answer, business says, is to put in new judges. A 2002 position paper done for the Chamber of Commerce by Wiley Rein & Fielding said “meaningful reform is unlikely unless and until the justices elected to the Supreme Court by the plaintiffs’ bar are replaced by the voters.” Coxwell, the Mississippi plaintiffs lawyer, disagrees. “The facts don’t support the attacks on Mississippi,” he says. “We don’t have large punitive damage awards. You’d be surprised at how low the verdicts are here.” Jackson Williams, a legislative counsel and tort-reform specialist at Public Citizen, has his own prescription for change. “The solution is a mutual disarmament,” Williams says. “Both sides need to get money and politics out of the process. It is unseemly for this to go on in connection with judicial offices.”

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