All I have time for today is this link to a recent Anita Lee story in the Sun Herald (thanks to Ted Frank of Overlawyered and Point of Law for the heads up) about the Renfroe v. Rigsby case.  Not much time to comment, but the story is pretty self-explanatory.  Also, there will be no post for tomorrow, I decided it is too much of a hassle to travel with a laptop through security.  I had my fill of security hassles when I returned from Mississippi last month -- got to the airport too late to check my bag and had to carry it through security, setting off numerous puzzled looks over the cheese, sweet potato and other paraphernalia I was presented with at Starkville.  Said one TSA employee after opening my bag: "I could have guessed the rest from the X-ray, but I never would have guessed the sweet potato." I said, "Blame it on Dickie Scruggs."  Now that I am laptop free, I will consider whether the next step is feasible: traveling without shoes.  Although I wouldn't have to take them off, it might invite a different form of scrutiny. 

While I'm gone, comments will be published by Marjory Morford.  She's sharp, so don't try to sneak anything by her.

Now, let's look at what is happening with Ex rel. Rigsby, also called the False Claims Act case, also called the Qui Tam, but which I like to call, simply, the Trailer Lawyer case.  Late last week State Farm (or in the lexicon of suspected Trailer Lawyer Chip Robertson, "Snake Farm") filed a rebuttal to the latest Trailer Lawyer filings.

These filings include a brief calling State Farm's attempt to disqualify the Trailer Lawyers the last desperate act of a desperate company (actually, it sounds more like the first act of the Katrina Follies, the musical I am writing: "If this trailer's rockin', don't come a-knockin', Trailer Lawyers are busy inside, tappin' on the keyboard with the Rigsby Sisters, surfin' through the claims files till their fingers blister").   These filings also included another brief that avoided the use of the word "trailer" like it was a gift basket of pit vipers ("Sir? Special delivery from Snake Farm. Sign please").  See this prior post for more information. 

State Farm's rebuttal brief contains these paragraphs, which seems a good excerpt to kind of sum up their position (boring legal citations omitted, and some explanatory information inserted):

The Rigsbys’ [Trailer Lawyers'] response and opposition briefs confirm even more clearly why all of their counsel must be disqualified. Counsel admit that they knew of the payments to the Rigsbys soon after they began, “either in late Summer or early Fall of 2006” and knew that any payment to the Rigsbys was improper on multiple levels and violated the ethical rules. Yet, for the next year and a half Counsel made no effort to stop these payments or to disassociate themselves from Richard F. Scruggs (“Scruggs”), his law firm, or the Rigsbys. As in McIntosh v. State Farm [the case where the KLG was first disqualified by Judge Senter], Counsel’s “failure to take timely and reasonable remedial steps or to object to this arrangement amounts to a ratification of Scruggs’s actions” and warrants disqualification.

. . .

In McIntosh, this Court disqualified the remaining SKG lawyers because they were in a joint venture with Scruggs and knew or should have known about his unethical conduct, but did
nothing to stop it. In this case, all Counsel were similarly in a joint venture with Scruggs, admittedly knew of his unethical conduct, and did nothing to stop it.

Further, Counsel’s ties to the SKG are much more significant than they disclose. Chip
Robertson has in fact not only entered an appearance and served as co-counsel with Scruggs and the SKG in the appeal of Tuepker v. State Farm Fire & Casualty Co., he actually argued the appeal before the Fifth Circuit. Similarly, BFRG [Robertson's firm] served as co-counsel with Scruggs and the SKG on behalf of the McIntoshes in In re State Farm Fire & Casualty Co. This representation is especially significant, as it pertained to State Farm’s Petition for a Writ of Mandamus from this Court’s denial of State Farm’s first disqualification motion. BFRG also served as co-counsel in Cori Rigsby & Kerri Rigsby v. Gene Renfroe & Jana Renfroe. 

Here's a copy of the State Farm brief, which includes a number of exhibits, 168 pages or so in all, that I've provided here as well.     

The California Court of Appeals, Fourth District, recently decided a case, Everett v. State Farm,  involving the destruction of a home during the October 2003 wildfires near Los Angeles.  Here's a copy of the opinion.   

In the case, homeowner Agnes Everett had a State Farm policy that, when she purchased insurance from the company in 1991, had guaranteed replacement cost.  However, in 1997 State Farm stopped including guaranteed replacement cost with its policies -- a number of other insurers did the same thing, also some still offer the coverage.  It appears State Farm sent a notice to Everett with the renewal of her policy that year and every year after that the coverage was not available and she was responsible for obtaining sufficient insurance to cover increased value of her home.  This did not happen, and the home was underinsured when it burned down.  If the opinion said how much the home was actually worth, I missed it, but it was more than the $138,000 in structural loss and $76,000 in contents loss that the insurer paid.  (Everett had purchased the home in 1991 for $99,000).

Everett sued State Farm and her insurance agent, alleging breach of contract, bad faith, negligence, reformation and fraud, based on two theories -- the policy actually did provide guaranteed replacement cost because it was ambiguous about the level of coverage, and State Farm failed to provide her with sufficient notice of changes in her policy.

The Court of Appeals upheld the trial court's grant of summary judgment in favor of the insurer, and said there was nothing ambiguous about the policy.  Everett's ambiguity argument had focused on the word "replace."  The presence of this word is not consistent with any result except actual replacement of what was destroyed, which means replacement of its entire value, Everett argued.  The court disagreed. Policies must be read as a whole, and ambiguity does not grow out of one word taken in isolation.  The court said the policy made it clear that no matter what was replaced, it would only be up to the limits stated on the declarations page.

The court also said the State Farm notices were consistent were what the Legislature required, and that they clearly said that, while State Farm included an estimate based on general home value information what a theoretical level of insurance might be, the homeowner must be the one to check this out with an appraiser or otherwise and make sure enough insurance was available.  The court also said the claims involving the agent could not stand -- the policy contained an integration clause that said the policy contained the entire agreement between the parties, meaning no oral agreement, even if an agent had made one, could supersede the written terms.

An interesting case, sent to me by a reader.  If you have a case you'd like me to look at, feel free to let me know about it.  Can't promise I'll write about it, of course, but odds are pretty good I will eventually.

Feels a little odd to be writing about non-Katrina cases again.  For those who only know me from Katrina, Scruggs, Hood, Trailer Lawyer coverage, this is what I used to do all the time on this blog, and I kind of like it.  Not as fun as writing about the Trailer Lawyers, of course, but we can't dance all the time.

In my review of the docket of this case, it appears another Mississippi firm may run into problems trying to represent the McIntoshes.  The Lumpkin & Reeves firm, of Biloxi, has asked Judge Senter, in an abundance of caution, for clarification whether it can represent the plaintiffs. State Farm opposes the entry of the Biloxi firm into the case based on its participation in a deposition earlier in the case and, apparently, involvement in presenting arguments or information to the Court in conjunction with the disqualified lawyers.

Dickie Scruggs is viral right now, no doubt about it.  When he sneezed, a lot of lawyers caught a cold.  

-- This Mowbray story is about federal regulation of insurance, as opposed to the current state system. It's interesting that opponents of federal regulation claim it would amount to deregulation, which of course by that they mostly mean deregulation of rates.    

Consumer advocates counter that "optional federal charter" is code for deregulation, and there's nothing in it for policyholders. In their lobbying, deep-pocketed insurers would make sure that a federal system would resemble the most deregulated state systems, such as Illinois. Allowing companies to choose between being regulated by the states or the federal government would create a race to the bottom on regulation as the two systems would compete to attract insurers. Strong consumer-protection laws in California would be dismantled, and Florida would be powerless in its stand against insurance companies.

"I'm not opposed to a federal role, but the OFC is a bad idea because it gives the option to the insurance companies," said Hunter, who will release a study this week on the effects of different regulatory systems on consumers. "If I'm a state and I want insurance companies to choose my system, I would lower my standard. It would decimate regulation."

The kicker, Hunter said, is that [Treasury Secretary Henry] Paulson's proposal is short on details about consumer protection, but states explicitly that there would be no regulation of homeowners and auto insurance rates. He's not kidding.

"While numerous arguments have been made to justify such rate regulation, they are unpersuasive," Paulson's proposal reads. "Insurers should neither be subject to rate regulation nor be required to use any particular rate, rating element or price."

I wonder why some always assume that lack of central planning will result in consumers getting hosed.  The history of deregulation -- increased competition, in other words -- is to the contrary.  Can't say that it matters much to me either way, but it's interesting to think about.

-- Louisiana's efforts to shrink the risk profile of the state-run property insurer are bearing fruit, with new companies moving in to buy up some policies held by Citizens Property.

-- Allstate's posting of 150,000 McKinsey documents to its website wasn't enough disclosure, some are claiming.  They also want to see documents relating to hurricane catastrophe claims adjusting.  Allstate says it is reviewing to see if there are more relevant documents.

-- FEMA says it wants to change the formula by which insurers get paid for flood adjusting -- it says the formula worked well before, but resulted in a windfall for insurers for adjusting claims from Hurricanes Katrina, Rita and Wilma. 

-- Even though this is non-Mowbray, I'm also going to sneak in one Trailer Lawyer comment here.  I have no idea what the Trailer Lawyers are like in real life, they may be great people, steady as a rock, unflappable, whatever. I only comment on what I see in their public fight with State Farm, and, I'm trying to say this in a way that is not completely unkind. They need some professional public relations help.

This bombastic, chest-thumping pose they strike in pleadings and interviews with friendly newspaper reporters is not the way to go.  It's got the smell of fear to it, desperation, evasiveness, running for the tall grass. Whereas this kind of thing calls for a certain touch of Cary Grant, of David Niven, a certain grace under pressure, kind of like the characters Will Smith plays in the movies, the Trailer Lawyers give off the aura of folks in a chair fight on the set of Jerry Springer, some cross between Woody Allen and Travis Bickle, Robert DeNiro's character in Taxi Driver. ("You talking to me?").

Their selective analysis, including that incredibly ill-advised pleading where they refused to use the word "trailer," tells you that they are getting their clocks cleaned public relationswise. 

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!

-- I saw this story in the Insurance Journal that, following the Fifth Circuit's opinion in Broussard v. State Farm, the case has settled, so there won't be any new trial.    

-- This item from the Las Vegas Sun on a sudden increase in interest following an earthquake in Utah is interesting: 

Fuller said most people usually don't buy earthquake insurance because of its cost, the belief that an earthquake won't happen in Utah or that the federal government would help in an emergency.

But since Hurricane Katrina hit New Orleans in 2005, fewer people have been willing to rely on the belief in government help, Fuller said.

"I think before Katrina, people saw FEMA as the answer to getting a house rebuilt," he said. Fuller said the largest factor that keeps people from buying earthquake insurance, though, is its cost, which can double the price of homeowner insurance. Deductibles for earthquake insurance, usually set at 5 or 10 percent of the cost of rebuilding, are higher than normal home coverage

If you read the story, however, you'll see the actual numbers reported are tiny, certainly no indication of a trend. 

-- The Foti Albatross

Former Louisiana Attorney General Charles Foti is probably missed greatly by Mississippi AG Jim Hood -- Foti made him look super-competent in comparison. Another story here about cleaning up the debris of Foti. 

-- Recent anti-concurrent cause decision in federal court in Florida

My attention was called to a summary judgment opinion of the federal district court for the Northern District of Florida, in Empire Indemnity Ins. Co. v. Winsett. 

Florida uses a causation analysis in first-party property claims that is unusually precise and defined among the states, and also different from other states.  First, courts look at whether causes are independent -- such as earthquake and a lightning strike, or windstorm and wood rot -- or dependent, such as when an earthquake breaks a gas main that starts a fire. 

If the causes are dependent, the efficient proximate cause doctrine is used to determine which cause set the others in motion.  If this cause is covered, the damage will be covered. If the causes are independent, courts use what they call a concurrent cause analysis -- as long as one cause is covered, the damage is covered. 

Anti-concurrent cause language is upheld in Florida, but in this case, the court said it didn't preclude coverage. The anti-concurrent cause language was not contained as a "lead-in" to exclusions as one normally sees, but from what I can determine by reading the case, the provision was embedded in the mold exclusion itself.  The exclusion was for bodily injury or property damage due in whole or in part to fungi or bacteria in or within a building, "regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury or damage." 

The way the court analyzed this, the anti-concurrent cause language would apply only to truly concurrent causes -- those that are of independent origin. The allegations of the complaint, however, indicated dependent causes, according to the court: failure to install of vapor barrier set in motion mold growth, leading to damage to renters of property. Therefore, the court said, anti-concurrent cause language doesn't apply because the efficient proximate cause doctrine is used for dependent causes. Failure to install the vapor barrier, according to the court, was a covered cause and therefore the damage was covered.  The court also placed some significance on the fact the anti-concurrent cause language was embedded in the exclusion and was not a lead-in provision, although I fail to see why this would make a difference, and the court made no effort to explain this -- possibly because the explanation wouldn't make any sense. The significance of lead-in language is only that it applies to more than one exclusion.  One could just as well write anti-concurrent cause language into each exclusion, but it saves space to do it the other way. 

One glaring omission in the court's analysis -- what of the words "or in any sequence" in the anti-concurrent cause provision.  As those who have read my examinations of anti-concurrent cause language know, sequential damage is precisely what the court is talking about here: dependent causes that result in damage. The court gave no explanation for ignoring this policy language altogether.  Neither did the court attempt to figure out what the words meant, why they would be in the policy or what distinction was drawn with the words between concurrent and sequential damage.  The analysis could have been a lot better.

The meeting was held in a temporary housing unit due to the damage caused to so many structures by Katrina.

Temporary housing unit? How about "prefabricated improvisational dwelling"? What of "non-self-propelled mobile abode"? "Non-permanent omni-directional quarters"?  The new brief goes to extreme and silly lengths to avoid calling things by their right names. How devastating can a response be when it's afraid of the word "trailer"?

Look at this statement in the Robertson brief: 

These are the facts: After the Rigsby’s completed the document protection exercise, they immediately informed State Farm that they had accessed the State Farm database and downloaded documents. They did not try to keep their actions secret. What is also true is that while the Rigsbys had access to the databases, they never improperly accessed or exceeded their access to these systems. Their counsel never used their computers or accessed their data base.

Let's take a look at this stuff.

"Immediately informed State Farm." it says. "Immediately" in this context does not refer to, as you might expect, immediately, but instead means "some months after they admittedly had begun engaging in covert spying on behalf of Dickie Scruggs." As the November 20, 2007 deposition of Kerri Rigsby shows (page 140), the sisters fessed up only after they were ready to quit, after they realized that State Farm had just about figured out they were covertly funneling documents to Scruggs, and they did this only after they did a final frenzied "data dump" over the weekend, inviting some friends over to help them copy thousands of pages of claims files.

"Document protection exercise." The Rigsbys agreed in testimony that they illicitly took the documents. Is it any use to try to come up with some Newspeak label?  Question: when someone doesn't dare call a trailer what it is, why should anyone buy this characterization of the Rigsbys' secret taking of documents?

"They did not try to keep their actions secret." Except up until the time they were going to be caught and then they took thousands of more pages secretly, staged a walk-out, and went over to Scruggs to be paid $150,000 a year.

"[T]hey never improperly accessed or exceeded their access to these systems." Notice the word "access." If you give me a key to your house to feed your fish while you're on vacation and I go in and take your TV, did I exceed my access? Technically, no.  

Let's apply this style to a familiar story, that of the Three Little Pigs, told by the wolf:  

I politely asked to be allowed entry, as I conveyed information that extreme wind conditions were expected momentarily.  Sudden violent gusts destroyed two semi-permanent structures. I paused briefly only to take nourishment to sustain me as I hurried to warn the occupant of a nearby permanent clay-based dwelling unit.  Regrettably, my warning was ignored, and as I tried to access via a vertical entrance to contact said occupant, I was attacked with heated liquids.

Apparently, though, we finally know who Trailer Todd is: Graves admits to being in the trailer, although the Trailer Lawyer filing denies they met with the Rigsbys in the temporary housing unit in March 2007.  The Trailer Lawyers say it was April.  This looks like it contradicts the testimony of their own clients, although it is possible both Rigsby sisters were messed up on dates, basic facts, when stuff happened, what they did, what other people did, etc.  You know, the whole story.  Odd that they were both were wrong the same way, though, isn't it?      

Here's a few more things filed by the other Trailer Lawyers: Trailer Chip, Trailer Tony and Trailer Mary. 

Robertson declaration.

DeWitt declaration.

Winter declaration.

All of this seems to say they didn't "instruct or encourage" the Rigsbys to do what they did.  Why, according to the Trailer Lawyers, they know nothing at all! (Lack of awareness -- not exactly the trait one looks for in a lawyer). They just happened to be passing through and sought shelter in the trailer, er mobile home, I mean, semi-stationary vehicular habitat, I mean, temporary housing unit -- well, you know what I mean -- because it was time for Days of Our Lives and they hoped to find a TV, a bag of Doritos and a six-pack of Schlitz for refreshment!  

Here is a copy of the article as it appeared recently. 

Some malfunction of the Dunn Carney servers, as of the moment I write this, has lost me my connection to Microsoft Outlook.  Therefore, I cannot retrieve right now from my friends at LexisNexis the exact language of the copyright notice I was supposed to include with this reprint.  Nor can I access the other articles that appear in the current edition of the quarterly publication New Appleman on Insurance: Critical Issues in Insurance Law, which I said I would talk about. 

So I will wing, for the time being, the copyright notice:

Copyright © Matthew Bender & Company, Inc., a member of the LexisNexis Group. Republished with permission from New Appleman on Insurance: Current Critical Issues in Insurance Law. All rights reserved. 

I think that's it, it's the one I've used before.  I'll fix the rest when my e-mail access is restored.  Again, thanks to the good people at LexisNexis, who have always treated me well, for whom I have high regard, and who know how close to my heart are these anti-concurrent articles over which I have struggled and suffered. Incidentally, are there any others out there like me, who like to use the who/whom distinction whenever possible?  I remember working hard in grade school to master this, and no matter that "whom" has passed into obscurity, I'm not letting all that effort go for naught.

UPDATE:  On Friday, Judge L.T. Senter Jr. gave a further opinion in the Dickinson v. Nationwide case I mentioned earlier, the one in which he endorsed the anti-concurrent cause methodology and analysis I have explained in these articles.  The new opinion is a denial of Nationwide's motion for reconsideration and denial of its motion for an interlocutory appeal to the Fifth Circuit.  For non-lawyers, interlocutory means before the case is done.  Another very clear and precise ruling from Judge Senter.  His focus on what the "loss" is under the policy is exactly right, and in reading this opinion and comparing it to other court opinions on anti-concurrent cause, you can see how this methodology cleans up the analysis and gives it direction. I hope all courts will eventually adopt this way of analyzing anti-concurrent cause. Here's a copy of the opinion.  

Pressure pushing down on me
Pressing down on you no man ask for
Under pressure
That burns a building down
Splits a family in two
Puts people on streets

. . . . .

Its the terror of knowing
What this world is about
Watching some good friends
Screaming let me out
Pray tomorrow takes me higher
Pressure on people

. . . . .

This is our last dance
This is our last dance
This is ourselves under pressure
Under pressure pressure

(I also link to this version with Bowie and Annie Lennox, not as spirited as the first one, but it's worth it to see these two great performers together).  A very good song, so good one could ask whether the lyrics rise to the level of poetry.  I say: certainly, if poetry expresses, in shorthand and without the conventions of expository prose, some truth about human experience.   "The terror of knowing what this world is about," is what it says.  Means different things to different people in different circumstances, but we've all been there, haven't we? Litigation is machinery that tears people's lives up, lawyers and litigants and witnesses, it can rip the soul right out of you if you're not careful. Pressure. Pressure on people. 

Before we look at the story, one more thought to brace us for the journey. Do you remember in Dickens' David Copperfield, the opening, those great, great words? "Whether I shall turn out to be the hero of my own story, or whether that station will be held by any one else, these pages must show."  Perfect beginning, perfect words. Aren't we all tempted to see ourselves as the hero of our own story? But as David Copperfield implies, this determination is not up to us -- it is something "these pages must show." There is also something ominous in those words: they foreshadow that the narrator will be both subject and object, a mere bit player in scenes of his own life.  Even  though we may write a page in the book of life, we delude ourselves by thinking we determine life's course.  Life mocks our attempts to control it, and we act as a Sorcerer's Apprentice, releasing forces whose power we only dimly realize.  And as the opening of Copperfield suggests, in your own story, in my story, in our story, we may turn out not to be the hero, and what's worse, our story may not necessarily be all about us.  We forget this, but we would do well not to forget it.   

Now let's look at the Sun Herald story.  First, let's look at this excerpt:

The sisters said they were naive in February 2006 when they first reported in a meeting with policyholders' attorney Dickie Scruggs what they called underhanded tactics at the State Farm Catastrophe Office.

"It was a tough decision, but we just needed help and needed somebody to stop what was going on," Kerri Rigsby said. "We didn't know what we were getting into at the time.

"I would do it again. I wouldn't recommend it to anybody else. We just definitely didn't know what to do. I guess, in my wildest fantasy, I thought that Dick (Scruggs) would just fix it."

As it turns out, they didn't know what they were getting into with Scruggs or State Farm.

With Scruggs, they unwittingly stepped into a political, legal and ethical minefield.

And let's note this later section of the story:

The Rigsbys hoped to remain anonymous when they went to Scruggs, taking with them records from State Farm files. They had begun saving and copying the records in the fall of 2005. As events unfolded, they say they realized anonymity would be impossible.

How plausible is this? The way the story says it, they first "reported" to Scruggs in February 2006. Yet the story also says they began saving and copying records in the fall of 2005.  Did they do this solely on their own?  Did Scruggs ask them to do so, directly or indirectly? These are important questions, for their testimony under oath has been they did not meet with and form an attorney-client relationship with Scruggs until February 2006.  Yet knowing how adverse almost all people are to "begin saving and copying records," one must inquire further about the reason they would go counter to this fundamental and recurrent feature of human psychology, especially since their conduct just happened to match with Scruggs' agenda and litigation plans, and they just happened to meet secretly with Scruggs and the Trailer Lawyers, and they just happened to illicitly access State Farm computer files in the exact order of a list of Scruggs' plaintiffs. 

These questions are not answered or addressed in the story, and the story does not tell us why they are not. In that these questions are central to the litigation mess the sisters find themselves in and about which they complain, one might expect these questions to be explored in the story, but again, they were not. 

Let's go forward just one more yard here, by taking a look at another piece of the story:

The sisters said they acted on their own when, over a weekend in June 2006, they downloaded thousands of pages of records from State Farm computers. They used a State Farm engineering roster and a Scruggs client list to decide what records to download.

"I knew that as soon as we did the data dump, we would lose our jobs," Cori Rigsby said. "I knew we would lose our careers."

The "acted on their own," is what it says. There is more than one connotation to this phrase.  We know some friends helped them out in the physical tasks of the data dump, so the statement is not literally true and therefore might be taken to mean they continue to claim they did not perform the data dump at the direction of Scruggs or others. But the phrase does not even quite say that.  We know AG Jim Hood's office sent someone to pick this stuff up right after it was copied.  How did he hear about it? But more than that, do you see the limiting perspective of the phrase "acted on their own"?  It stops short of addressing its own implications, and therefore does not reveal all that stuff that might be uncomfortable to talk about.  For example, the phrase can also be taken to mean merely that their conduct was volitional and that Scruggs was not physically involved in the tasks themselves.  It is quite difficult to picture a scenario where the Rigsbys decided, solely on their own, to copy thousands of pages of documents that were later used in litigation as purported support for their allegations.

Again, human nature is not to engage in a potentially fruitless frenzy of weekend activity involving playing with thousands of pages of paper.  This type of behavior is more typical of some larger plan. In that it has become manifest that a larger plan involving the Rigsbys had been activated some time prior to this, that this plan was carried on covertly, and that this activity has been found to create ethical problems justifying the disqualification of lawyers and the Rigsbys as witnesses, it is legitimate to inquire further as to the meaning and credibility of "acted on their own."  How does the data dump tie in to the accessing of the State Farm servers during the March 11 Trailer Summit, attendance at which is a point of hot contention at present? 

Also, staying on this point for the moment, what of the Lee Harrell deposition, in which he testified that Scruggs claimed, in a December 2005 meeting with Harrell and Insurance Commissioner George Dale, that he had corporate insiders at State Farm and was going to work this just like he and Mike Moore worked the tobacco litigation? The question, once again, is what of this testimony?

In that there is no apparent motive for Lee Harrell to make up this meeting or what was said in it, let us assume for purposes of argument that this testimony has credibility.  Who were these insiders? In the time since December 2005, no other State Farm "insiders" have surfaced, and we would surely have seen them by this point if there were any others.  So the logical inference is that Scruggs' reference was to the Rigsby sisters.  Remember two facts -- they say they began copying and keeping records in the fall of 2005, and they say they did not "report" to Scruggs until February 2006. There are several discrepancies here then that justify further inquiry.  I don't need to belabor it, you can see if for yourself.

Let's switch gears just a bit.  Although in this story the Rigsbys seem to be generally aligned with Scruggs, there is the germinating seed of a new narrative:

"I knew that as soon as we did the data dump, we would lose our jobs," Cori Rigsby said. "I knew we would lose our careers."

They told State Farm executives the following Monday what they had done and were soon out of work. Scruggs followed his tobacco playbook, offering them consulting salaries of $150,000 each to come to work for him on policyholder cases. He also planned to use them as witnesses in those cases.

The sisters had no familiarity with attorneys' rules of conduct. To pay witnesses is unethical.

Again, following his tobacco game plan, Scruggs took the Rigsbys to the media and pursued political options to pressure State Farm. 

Let's just accept this at face value, these statements, because our purpose is to examine them for an indication of where the Rigsby narrative will lead next.  They aren't quite making Scruggs the fall guy for their problems yet, but the door is open. They were "naive," they "had no familiarity with attorneys' rules of conduct," they didn't realize that "to pay witnesses is unethical." You will notice that the obverse side of the coin -- that in order for it to be unethical for lawyers to pay witnesses, it must be unethical for witnesses to accept money from lawyers -- is not addressed.  That seems to be the direction they are traveling -- maintaining that what they did was according to sincere belief, but that to the degree what they did was illegal or unethical, they were led into it by Scruggs and his "playbook."  I think, but I do not know for sure, that Scruggs is still paying for lawyers for the sisters.

This road has some bumps and twists and turns, because they have testified that, contrary to the implication of Scruggs' alleged statement to Harrell and Dale, they were not working with Scruggs before February 2006.  So there are some hard and fast facts they have testified to, and their own testimony under oath can't be blamed on Scruggs.  The fluidity of the narrative, in other words, has some limits which they themselves have prescribed.  Let me be clear: I make no judgment or representation as to the truth of their statements.  I merely note things that don't make sense as the facts are currently known. 

Let's look at another thing from the story, the last line, which says:

During countless hours of questions from corporate attorneys, Kerri Rigsby said at one point they produced an 8-by-10 photo of her dog, Payton, and asked about him.

Now, let's try to make sense of this.  The hours of the depositions in fact are not countless, because one could count them -- the time of beginning and concluding are noted in the transcript of the depositions.  But why the questions about the dog? Was this some frivolous harassment?  ("Who do you think would win in a fight between a T-Rex and King Kong? Who put the "Ram" in the Ramalama Ding Dong? Please, listen closely to my question and answer that question.") 

The questions about the dog appear to me to be aimed at the hypothesis explained below.  In the May 1, 2007 deposition of Kerri Rigsby, this questioning, beginning on page 36 and continuing to about page 46, appears designed to explore additional living expenses paid under the State Farm policy of the Rigsbys' mother, who was uprooted by Katrina damage.  To collect additional living expenses under the contract, you must have additional living expenses. And when living with a family member, you must provide a tax ID number or Social Security number of the family member.  Kerri, according to her testimony, executed a lease agreement with her mother for $2,800 a month so her mother could collect these expenses, and said: 

Absolutely. I wasn't going to let her live there for free. (Page 39, lines 21-22).

The money collected, however, appears from the testimony not to have gone directly to Kerri Rigsby but into an account for something called Payton Properties -- recall that Payton is the name of her dog, and recall also that there exists an 8 by 10 photo of the dog that was produced at the deposition.  The account, it seems, was not for the dog, however, despite the name of the company. It was, however, named after the dog, of this we can be sure.

Kerri testified this company did not have a tax ID number and was not registered with the state.  Kerri testified she did it this way because this was the advice of the lady at the bank -- "note to self, must resolve not to follow advice blindly from whomever offers it".  Kerri testified that Payton Properties was synonymous with Kerri and Kerri only.  Her state of being therefore was unique to the personhood of Kerri Rigsby herself and did not extend to members of the animal kingdom.  Again, the account was not set up for the benefit of the dog, although it was named for the dog.  The testimony does not reveal if the dog received incidental benefits from the use of its name, such as perhaps a Milk Bone, extra kibble or additional petting and kind words. But some things seem clear: the dog was not the actual holder of the account and the dog did not control or share in the money, nor did the dog exercise authority over the company bearing its name.  

Additionally, I suspect the point in asking about the taxpayer status of Payton Properties -- remember, named after but not controlled by the dog, so the dog cannot be blamed here, nor does it appear the dog provided advice in any respect -- and whether this sub rosa company's income was reported to the Internal Revenue Service and whether $2,800 per month was a fair market value for the lease. In other words, the hypothesis being explored was whether the insurance claim was inflated to channel money to Kerri Rigsby which was then not reported as income.  This much is apparent to me in reading the transcript, and would be to anyone else who cares to read it as well.  I don't know the truth of the hypothesis, but the existence of the hypothesis was the reason for the questions, not idle curiosity about the dog, whom you will remember, was named Payton, and of whom at least one 8 by 10 photograph exists.  

Now, when someone gives an interview, if they make it seem like big bad lawyers are picking on their puppy and this turns out not to be a complete version of events -- whoops, forgot to mention that unregistered company created to accept insurance dough -- one begins to suspect a few other things about the statements made in the interview as well.  Of course, the dog thing is just a line in the Sun Herald story, so we don't know exactly what Kerri Rigsby said about the dog or the questions that led to the statements.  The implication of the line in the story, however, is that Kerri Rigsby stated an outrageous example of the harassing character of deposition questioning. From the evidence of the transcript, I would have to disagree with that assessment. 

Incidentally, all the Rigsby depositions I have are available at this post.  For free, too.

Randy Maniloff has done a service by taking a close look at some of these cases and how the coverage issues in them shake out.  Here's a copy of a good article he wrote on the subject for a recent edition of Mealey's.  Didn't ask him how many times he had to wash his hands during the course and scope of writing this piece.