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Notes from a trial that didn't happen

By By Suzanne Monk / managing editor
July 20, 2003
So, the big Wilkes &McHugh lawsuit settled out of court last week the first of eight complaints filed by the Florida law firm, and three Mississippi firms, against Benchmark Health Care of Marion.
Wilkes &McHugh specializes in nursing home litigation and has targeted Mississippi as a new expansion area.
The lawsuit had been scheduled to go to trial July 28 and, as late as last week, settlement negotiations had broken down in a nasty flurry of paperwork. I'm not surprised this one never made it to a jury; there had been too many references in the court file to Benchmark's insurance coverage.
But, a trial in this case would have included some interesting debates on law and procedure.
Videotaped testimony
Wilkes &McHugh attorney Mary Perry did not want to call Benchmark owner Guy Howard as a witness at least not in person. She did not want him to take the stand and answer questions. Instead, Perry wanted to play the jury a videotape of an earlier deposition.
While this is not unheard of, it is not common. When it happens, it's usually because the witness is unavailable for some reason.
But why, Circuit Judge Larry Roberts asked during a pre-trial hearing, would you want to play a videotape of the defendant's testimony when he's sitting right there in the courtroom?
Because, Perry argued, it would have presented a more accurate picture of the defendant.
Her point was that it's one thing for a defendant to put on his Sunday best and mind his manners in the courtroom and quite another for jurors to see him exhibit "bad behavior" during a lengthy deposition with attorneys from the other side.
Might you be able to show a different side of the defendant? Yes, sure. But it's disingenuous at best to suggest that videotape somehow presents a truer picture than live testimony. Both, I imagine, would show extremes.
And, if "bad behavior" is what you're going for, do you make sure to provoke it during the deposition?
Supreme Court appeal
Another issue before Judge Roberts was whether it was proper to name Howard and the other defendants individually in the lawsuit. The judge had declined to rule on the question prior to trial.
One of the reasons to incorporate is to throw up a firewall between your personal assets and your company's assets.
The defense had asked the judge to restrict the named defendants to Benchmark, the corporation, alone dismissing Howard and his co-defendants from individual liability. In this, the defense cited precedents in circuit courts in Oktibbeha, Copiah and Hinds counties in which trial judges had done just that.
That motion was still before Judge Roberts when an "interlocutory appeal" on the same issue was filed with the Mississippi Supreme Court in a later Benchmark lawsuit.
An interlocutory appeal asks the justices to halt all movement at the trial court level while they decide the question, but this appeal was denied.
However, if the high court had agreed to hear the appeal in the later case, the earlier one would probably have been rescheduled again because it involves the same point of law. One side or the other would have asked for a delay, and a cautious trial judge might not risk being reversed when he can wait for the Supreme Court to rule on the matter before him.
What's next?
There are lots of other nursing home lawsuits in Lauderdale County. At last count, seven more against Benchmark, three against Meridian Community Living Center and one against Riley Nursing Center.
We could see a Wilkes &McHugh lawsuit go to trial before it's all over for reasons that are a mix of principles and business.
If you're the nation's leading law firm representing clients suing nursing homes, you need a few big jury awards to show folks as you expand into new states. Not many, I mean you certainly don't want everything to go to trial, it takes too long.
And the problem with out-of-court settlements is that you are never allowed to talk about how much the defendant has agreed to pay.
The truth is Wilkes &McHugh needs a couple of big wins in Mississippi.

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