By BOBBY HARRISON

Daily Journal Jackson Bureau

JACKSON - Most of the recent battles over whether to make changes to Mississippi's civil justice system have taken place in the Legislature.

But both trial attorneys who oppose substantial change and business groups who demand it recognize another key battlefield is in the Mississippi court system - and particularly the state Supreme Court.

The trial judges, primarily in circuit court, play a crucial role in the debate about Mississippi's civil justice system. Business groups and lawyers who defend against lawsuits believe trial judges in recent years have been more reluctant to rein in excessive jury awards or to dismiss cases where the evidence is flimsy.

But it is at the state Supreme Court where the ultimate battle occurs.

"When you start talking about tort reform," said Tupelo attorney Claude Clayton, "the key really is the Supreme Court. They're more important than the Legislature. The Court actually says what the statute says."

The nine-member Supreme Court, elected for eight-year terms, hears appeals of decisions rendered by trial courts. The Supreme Court's philosophical battle becomes public during regular two-year election intervals when normally one or more of the justices stand for re-election.

Otherwise, that battle is fought primarily behind closed doors with the victor emerging in decisions handed down by the nine justices.

Jerry McBride, president of the Mississippi Manufacturers Association, said of the Supreme Court justices, "They interpret Mississippi law and the decisions they make become precedents to be used in later cases. Also, they control the legal system in Mississippi. Because of these powers, it is absolutely essential to have fair and impartial justices on the Supreme Court.''

The most recent Supreme Court races in 2000 saw an infusion of large sums of money from both business and trial lawyers, with trial lawyers securing what was considered a victory in the election of Chuck Easley over incumbent Chief Justice Lenore Prather. Another similar showdown is expected this year in the re-election race of Justice Chuck McRae of Pascagoula.

In recent years, the state high court's actions or inactions have had major impact on the current debate about whether too many lawsuits result in too many big verdicts in Mississippi. Advocates of change in the civil justice system say those lawsuits and big verdicts are scaring away businesses and doctors alike.

Joinder decided

The most publicized issue that the Supreme Court decides is the joinder rule. Under Mississippi's rule, people from all over the state - and in some cases all over the nation - have been allowed to sue the same entity in one location before the same judge and jury.

McBride and others say trial attorneys - particularly out-of-state trial attorneys - have perfected the practice of finding "anti-business'' venues to file lawsuits. In rural Jefferson County, for instance, lawsuits against drug companies have begun with a local person filing a lawsuit against a drug store in the southwest Mississippi county. Then the major drug company also is brought into the lawsuit.

In some instances, pharmacist Traci Swilley has been the local person who has been sued to ensure the lawsuits against the major drug company in fen-phen, Rezulin and Propulsid cases, are heard in Jefferson County. Swilley recently declined an interview for this article, saying phone calls from the media are taking up too much of her time.

According to information compiled by attorneys for the Mississippi Manufacturers Association, more than 10,000 people are parties in lawsuits against businesses in tiny Jefferson County, which has a population of a little less than 10,000.

The court recently upheld the joinder rule by a 9-0 vote in a Marshall County case where employees from inside and outside Mississippi are suing the Illinois Central Railroad. The 9-0 ruling upholds a 5-4 decision in 2001 in American Bankers Insurance Company of Florida vs. Alexander. That case set the precedent to allow the current interpretation of the joinder rule to continue.

"The practice that what is good for one is good for all is just a rule,'' said David Clark, a Jackson attorney who has defended various businesses. "It could be changed by the Supreme Court'' and would not take legislative action.

Shane Langston of Jackson, past president of the Mississippi Trial Lawyers Association, defended the Supreme Court's interpretation of the joinder rule. He said most states have similar joinder rules.

Langston said joinder is especially important in Mississippi since the state does not allow class action lawsuits, in which a suit might be filed on behalf of a whole group of people without their knowledge. Under the joiner rule, there has to be some semblance of a relationship between the attorney and the person he is representing.

"You really have fewer multiple plaintiff cases than any state in the country,'' Langston said.

The interpretation of the joinder rule is not the only place that the court has had a recent impact in the civil justice system.

Hedonic damages

In a 6-3 opinion in May, the Supreme Court upheld what is known as "hedonic damages,'' which place a monetary award on the enjoyment of life.

Business groups say that Mississippi is one of only five states in the nation to award such damages.

"Loss of enjoyment of life is just that - the loss of the ability to enjoy life in the manner to which one has become accustomed,'' said Justice Chuck McRae writing for the majority.

But Justice Kay Cobb of Oxford countered, "While I strongly agree that all life has intrinsic value, I strongly disagree that society is served by attempting to put a dollar on a life that was not lived, and awarding the money to a third party.''

Besides the court's decisions on such issues as the joinder rule and hedonic damages, the Supreme Court justices hear appeals of the decisions of lower courts.

"One of my frustrations through all of this is that in every judicial system there will be aberrant results at the trial level,'' said Sen. Hob Bryan, D-Amory. "The way the judicial system deals with that is to take care of those results on appeal. The question is why those trial court verdicts are not appealed. The way the system corrects aberrant results is on appeal.

"I keep asking the question, but I am told defendants are scared to appeal and want to settle. But if you want to address aberrant results, you do so initially on appeal.''

Bryan reasons that it cannot be determined whether the Supreme Court might overturn or reduce some of the large verdicts on appeal unless there is an appeal.

Clark, the business defense attorney, said part of the problem is that the business must post a bond of 125 percent of the amount of the verdict in order to appeal. He said some companies cannot afford the bond. There have been cases where a losing company has agreed to settle the case for an amount less than the jury verdict instead of appealing, Clark said.

In May 2001, the Supreme Court did change the amount of bond that must be posted to appeal. Under the new rule, in appealing punitive damages only, the bond can be 125 percent or 10 percent of the net worth of the company. Unless unusual circumstances exist, the amount of the bond in appealing punitive damages would never be required to be more than $100 million.

The change in the amount of the bond would not affect the appeal of actual or economic damages.

Clark said the change is helpful for companies and is among a few spurred on by Supreme Court Chief Justice Edwin Pittman to level the civil justice playing field.

In April, the Supreme Court voted to change the rules to make it easier for a party to a lawsuit to require a judge to remove himself if he has received a "major'' campaign donation from the opposing side. The motion could be filed if the judge on the trial level received $1,000 from one of the parties to the lawsuit or $2,000 on the Court of Appeals or Supreme Court level. The motion to step aside would be subject to review by an appeals court.

"We are trying to assure judges that they are free from outside influences, and I am proud that the court has acted in the way it has acted,'' Pittman said in an April news release.

He added, "Our judges are people of high integrity, and we have a very good judicial system, but we must be vigilant in protecting our system and keeping it as good as it is.''