Insurance Coverage Blog

A good way to finish out the week -- once again it's Trailer Time, where we catch up on another episode of the Trailer Lawyer News, with that beloved and familiar cast of characters: the Rigsby Sisters, Dickie Scruggs, Trailer Todd, Trailer Tony, Trailer Chip and Trailer Mary, and of course, Snake Farm. 

Remember Hemingway's saying that courage is grace under pressure? Well, I'm not sure what he would call these Trailer Lawyer briefs that have been filed in the False Claims Act case, Ex rel. Rigsby, but they do not appear to exhibit grace under fire.  The tone of these Trailer Lawyers briefs is a little too desperate, a little too florid, a little too tricky, a little too defensive, a little too offensive.

Here's the latest, wherein Trailer Todd Graves' firm blows its stack in print.  When you start reading one of their briefs, it's like Fibber McGee opening up that hall closet.  On this site, you can find a link to listen to a version of opening the closet from the old Fibber McGee and Molly radio show. I think I must have heard or seen 50 different versions of the closet door opening, and it still makes me laugh every single time, with all that junk spilling out.

Let's take a look at the most recent Trailer Talk:

Having made scurrilous and unsubstantiated accusations of wrongdoing against former United States Attorney Todd P. Graves and the law firm of Graves Bartle & Marcus LLC (“GBM”) in its recently-filed motion to disqualify, State Farm Fire and Casualty Company (“State Farm”) now seeks to preclude Mr. Graves from personally appearing before this court to defend himself. These are the desperate actions of a desperate company.

There is no basis for denying Mr. Graves pro hac vice admission to this Court. There is no basis for disqualifying Mr. Graves and GBM from continuing to represent the Government’s interests in this matter. There is not a wisp of evidence that Mr. Graves or any other GBM attorney violated the Mississippi Rules of Professional Conduct or any other ethical standards by which they may be judged. GBM did not access State Farm’s confidential databases, GBM did not make any improper payments to Cori and Kerri Rigsby, and GBM was not associated with the Scruggs Katrina Group or any successor entity.

Question: what interests of the government do they represent?  Hasn't the government declined to get involved in this lawsuit?

Look at the last thing to spill out of the closet, I mean, the last paragraph:

So this unfortunate side show can finally be brought to an end, Relators respectfully request that the Court convene a hearing on these matters. State Farm should be ordered to come forward with any evidence it possesses to show that Relators’ counsel engaged in any conduct warranting disqualification under the applicable ethical standards. If State Farm fails to come forward with such evidence, sanctions should be imposed on both the company and its attorneys Jeffrey A. Walker, Robert C. Galloway, E. Barney Robinson III and Benjamin M. Watson.

Bring it to an end? Come on, what are you trying to do, spoil our fun? 

Incidentally, what this is all about is Graves applied for pro hac vice admission in this case, and State Farm opposed it in this pleading. I left the explanation of the substance until last, because the entertainment value is what really matters here, for our purposes.  See you for the next episode of the Trailer Lawyer News, when it will be Trailer Time once more. In the meantime, don't open that closet door!

The thing that gets me about the comments and court filings from Trailers Chip 'n Todd is their gall in constantly trying to characterize State Farm as shady, wicked and "desperate." I'm not saying that State Farm is the Mother Teresa of the insurance world, but it's been shown to have done exactly nothing wrong yet. (And can we all agree it's not looking good for the folks who are hangin' with the Rigsbys?) Chip 'n Todd's continuing stream of outraged hyperbole just isn't convincing. To me, the pot is calling the kettle black just a little too much here to pass the sniff test. P.S., Chip: this case is this case -- its's NOT the one you point to in your filing, the one that allegedly has State Farm "smarting." Nice try, but where I come from, we call that sort of trick sleight of hand.

Didn't KLG get irate and recommend sactions right before they were disqualified?

The emotional dribble from Chip N' Todd has zero impact on me. By the way, can we get back to the issue at hand and whether Chip N' Todd's discovery methods are illegal and violate the Constiutiion of the United States of America?

Ironic

In my humble opinion, it's the laws imposing criminal sanctions for theft that should be more daunting to the Trailer Lawyers than the U.S. Constitution, which they may also have trampled, but without anticipation of time spent in the slammer, and forfeiture of a law license.

David, can you answer this question for me? How is it legally possible for the Mobilehome Moguldom (Graves, DeWitt, Robertson, and Winter) to each file separate declaratory statements indicating that none have ever worked for, worked with, or even been associated with SKG and yet still proclaim attorney/client privilege to the trailer talk sessions? If they were never working with, working for, or even associated with SKG, wouldn't Dickie Scruggs', and Zach Scruggs' presence at Sandpiper Summit I and II respectively constitute ex parte communication? I mean, if I were allowed to be in that trailer even though I have never worked for, worked with, or even been associated with any of the four trailer lawyers wouldn't they be unable to claim attorney/client privilege? I'm not a lawyer, so maybe this is legally possible despite not being logically possible to me. I yield to you great Winnebago Wizard.

When Tony details his "innocent" part in the email theft as merely dragging the file from the Rigsby laptop on to his USB drive as a favor because she didn't have here own USB drive or know how to use one, I can't help but laugh. "...But your honor I am innocent. She made the decision to kill her husband. She bought all the bullets, but just didn't have a gun. So since I was in the room, I helpfully offered my gun for her to use, but since she had never fired a gun before I simply assisted by pointing the gun at her husband and pulling the trigger. How can you find me guilty of anything for my merely helpful acts? And besides, there was no label on any of those bullets indicating that they should not be fired at her husband. Could you please arrest her husband now?" And this guy is a lawyer you say? How can he submit that with a straight face?

Snafu, in answer to your prior question, the Trailer Lawyers can have attorney-client privilege with the Rigsbys, just as any number of lawyers could, without being part of SKG. Scruggs was also their lawyer and he was there, the privilege is held by the client and the presence of all the client's lawyers does not affect the analysis of privilege.

As this makes clear, however, the Trailer Lawyers were so obviously working with Scruggs that it makes no sense to debate it, and I have ignored the Trailer Lawyer nonsense about not being a successor to SKG. They only say that because Senter's order disqualifies successors to SKG. But since the allegation is they participated and benefitted from wrongful taking of documents at least to the extent of SKG, they should also be disqualified. Look at the last paragraph of Senter's opinion disqualifying SKG, he says documents can't be used unless obtained by ordinary means of discovery. As this indicates, there is a problem with the illicit taking of documents and breaking the rules, and claiming that these things are sanctioned by some holy False Claims Act mission is far-fetched if not downright insultingly dumb.

Thanks David. Couple more questions... Were there any non-lawyers there that would void privilege? Also, since the Trailer Lawyers argue that stealing documents is not OK for regular cases, but is OK for them because it is a Qui Tam case; Shouldn't they have excused any non-Qui Tam lawyers during the thumb drive exercise for fear of having them be a party to unethical theft related to their non-Qui Tam cases? :)

Entertained: I enjoyed the Jedi mind trick. Since State Farm has not done anything wrong, why haven't they won a single case?

It's difficult to imagine that Todd Graves was ever appointed a U.S. Attorney.

Rossmiller: Is a "wisp" of evidence less than a "scintilla" of evidence? Just checking to be sure I haven't missed some legal standard.

Thanks.

Moore's Cowbell - It doesn't take a Jedi mind trick to understand the only case State Farm lost was overturned on appeal.

More cowbell: Jury nullification.

Thick/Wow: Sorry, SF just settled the Broussard case, and it is highly confidential. Call John Banahan and ask how many he has won. Also ask about "offer of judgement". In both cases, Nada.

David: I think the real fatal admission the Graves crew make is when they admit they knew about the payments (they say they thought they were legit. Too bad). Judge Senter's 2nd disqual. order clearly says that the lawyer knowing about the payments and not doing anything about them is fatal. Done deal. I think the payments are prob. more key to Senter's thinking than the doc. dump. This also has the merit of avoiding the (to me bogus) arguments about "seizing evidence." So my bet is Senter's order will very succinctly note the payment issue, kick 'em out, and that's that.

Question: what interests of the government do they represent? Hasn't the government declined to get involved in this lawsuit?

The Government's investigation has not been completed, as certain potentially relevant information has not become available. As such, the United Stats is not able to decide, as of the Court's deadline, whether to proceed with the action. Accordingly, the United States hereby notifies the Court that it is not intervening at this time.
(Docket # 56)
Had the government declined to intervene, it would have filed a notice of non-intervention, not a notice of no decision.
3 Regardless of whether the government opts to control or intervene in a case, the False Claims Act requires that actions `be brought in the name of the Government. 31 U.S.C. § 3730(b)(1).
Thus . . . the United States is a real party in interest even if it does not control the False Claims Act suit. See United States ex rel. Milam v. University of Texas M.D. Anderson Cancer Center, 961 F.2d 46, 48-49 (4th Cir. 1992).

Cowbell ~ Would it not be fair to say that the odds are stacked against any insurance company in a jury trial? That was my sole point. The fact that a case settled is nothing new. I doubt calls to Mr. Banahan would be returned so I don't know where you are going there.

NMC, tell me where they admit they knew about the payments and where they say they were legit, because in their response to disqualify they deny this!

Second, there have been no payments to fact witnesses (or anyone else) in this case (or in any other case) by or on behalf of BFRG or GBM:
a. Relators are not fact witnesses, but clients and Relators standing in the shoes of the federal Government.
b. No payments have been made to Relators by BFRG or GBM.
Third, as previously stated, the fact of ratification by BFRG of payments by SKG does not exist. Indeed, BFRG expressly disavowed the payments when it learned of them after the fact because the ethical rules prohibit payments to clients. See, Ms. R.P.C. 1.8(e) (Robertson at ¶ 16).
Fourth, there was no unethical conduct because:
a. confidential meetings between clients and their attorneys are protected by the attorney-client privilege, a privilege that does not flow to fact witnesses.
b. Neither BFRG nor GBM attorneys ever accessed any State Farm database.
There being no factual basis for State Farm’s motion and assertions of unethical conduct, the Motion to Disqualify BFRG and GBM should be denied.

Bull, take a look at the affidavit of Edward "Chip" Robertson. He affirms he knew of the payments in "late Summer or early Fall". He says he assumed they were proper and did not contribute to them. If their response denies they knew of payments, they are at war with themselves within their own documents.

My guess is that they would view disqualification as a blessing right now if that is all that occurs.

Is there a significant difference between "accessing a database" and taking material stored on the hard drive? If its wrong to access a database, does it become ok to see the same material once its stored on a laptop hard drive?

I have yet to see any insurance companies who provide email that don't say it is the company's and to be used only for company business and pursuant to the company's guidelines and regulations. Is that no longer relevant once the emails are stored on a laptop?

I suspect that somewhere deep down inside, Todd would be relieved if he got bounced from Rigsby. It probably looks to him like a long, hard, expensive road to a very uncertain payoff.

He was sold a bill of goods by Scruggs, Hood, Moore, et al and he knows it. If he gets tossed for something Scruggs did, he gets to walk away cheaply and say it wasn't his fault.

Robertson says: When I learned of the SKG agreements to pay the Rigsbys, I informed SKG that neither I, nor BFRG, could make any payments of any kind for any purpose to either Kerri or Cori Rigsby because they were clients of BFRG and that Missouri law expressly prohibited payment or provision of any financial assistance to a client of a law firm by the law firm.

Neither I nor my law firm had the authority or legal connection with SKG that would permit ratification of payments by SKG to the [sic] Kerri or Cori Rigsby.

BS, was your intention to answer your question from your May 4, 2008 11:25 PM post?

3rdSouth: assuming you were in absentia on the more local and regional coverages a mere 2-3 months ago, you are entitled a bit of catch-up vis-a-vis a certain bellesouth. assuming, once more, that the bellesouth here is indeed one and the same with another bellesouth, you can be assured that she is as serious as a heart attack and that she absolutely believes every flawed and fatal word she utters. this other bellesouth pulled off a feat heretofor unseen by this and other observers. in posthaste record time - we're talking days, man - someone called bellesouth arrived on the scene under banners heralding the courtroom blogging cause celeb for all things judicial in the good magnolia state; then - in painful public view, crashed and burned in a self-inflicted meltdown of epic blogosphere proportions. THINK:
glenn close in fatal attraction.

the surprise here is the generosity of certain hosts, continuing to offer a platform to a voice of delusion and denial. those who reside and dwell in this fantasy land will wake up any day now and breathe a sigh of relief after realizing that richard "dickie" scruggs would never cop to a felony anywhere outside of their very bad dream.