But why, Dickie?

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Last evening, I was frustrated to return to the computer and discover that while I was making supper, David Rossmiller had been making his first visit to folo. David, I’m sorry I missed you in real time, but you’re always welcome back, and I hope you’ll return often. folo is blessed with some very astute and well-informed commenters who’d love to mull various facets of U.S. v. Scruggs and its background cases and players with you.

Well, after missing David himself, I got a chance to settle in for a good look at his Saturday post and its core word, “why.” I hope y’all have had or will have time to go read and sift the whole thing, but if not, here are some highlights . . .

The most fascinating question, the one at the heart of U.S. v. Scruggs, is really psychological rather than legal or financial. Rossmiller repeats the phrasing of it featured in folo-friend Walter Olson’s article for the Wall Street Journal yesterday:

“It just boggles the mind,” said one Mississippi trial lawyer quoted in the Los Angeles Times about the indictment of tort lawyer Richard “Dickie” Scruggs last week on charges of backing the attempted bribery of a state judge. “Here is a man who has had an enormous amount of success, who reached a level very few attorneys, if any, have reached. Why would he risk everything over a legal dispute over attorneys’ fees?” [emph. mine]

David links to pdfs of several pleadings in that dispute, known in court as Jones v. Scruggs, from the complaint (now recently amended to reflect developments since Nov. 28, 2007, of course) through the Defendants’ reply re plaintiff’s supplemental brief.

That last pleading — more specifically, the exhibits attached to it — present another whopping why: WHY in the everlovin’ blue-eyed worl’ would Dickie Scruggs and his counsel provide the opposition with such documents as this email (later sent as a letter) from a plaintiff in Jones v. Scruggs:

From: Steven Funderburg [mailto:sfunderburg@jfsplawfirm.com]
Sent: Sunday, March 04, 2007 5:20 PM
To: ‘Dick Scruggs’
Subject: PERSONAL AND CONFIDENTIAL

Mr. Scruggs,

I’m just sending this to you because it is nobody else’s business. …

I was … proud when you asked Johnny and the firm to become involved with you in the Katrina litigation. The people on the Coast needed (and need) help and we were honored to be asked to work with the group. We trusted YOU completely because we didn’t know Don Barrett or David Nutt or Sparky Lovelace. But we knew you and we knew you would treat us fairly.

We were wrong about you: You let Don Barrett talk you into doing something evil for money. Johnny and I never meant to harm you in any way. To be sure, we disagreed about being told that all of the legal work we did was only worth 4% while the other venturers spit 96% but we admitted that we could be wrong. That’s why we wanted to work out the dispute or go to a neutral third party. We honestly did not know what the “value” of our work was but we never wanted to question the validity of anyone else’s either. We told each other that the arbitrator may come back with 1% and that would be o.k. if in the grand scheme of things the arbitrator thought that was fair.

You and Don and David and Sparky decided that not only would you not arbitrate, you would tell us what we would get and if we didn’t take it you would kick us out and give us nothing. You sat there and let Don Barrett say that to John and me. You went along with it. I have looked in the mirror all weekend and tried to figure out how I could be so stupid. John and I DEFENDED you in fee dispute litigation for God’s sake. We DEFENDED you when people said you were greedy, or were a back-stabber, or a liar, or anything else. Good Lord we trusted you as a friend. Well…good job. You have developed a good routine. It worked. But go to your grave knowing that you have shaken my belief in everything I hold dear. I did not believe that people like you really existed. I am ashamed and will always be ashamed of having defended you and protected you. You are a man without honor and you should know that about yourself. You betrayed your friends without even a phone call. You never even tried to work it out with John or me. You just sat there and let Barrett do the talking. Whether you believe it or not, neither Don Barrett nor David Nutt would have stayed up nights worrying about you. I doubt they give a damn about you or your family. You all deserve one another.

Steve Funderburg

Besides the obvious problem of showing the court something as damning in tone as that, to do so is supremely unhelpful in a litigation-technical sense. Rossmiller explains:

… A number of readers have communicated with me raising questions about how Jones can seek to establish a pattern and practice of Scruggs cheating other lawyers out of attorney fees when this effort would involve, in part, discussing a case in which Jones had an attorney-client relationship with Scruggs. … [E]veryone agrees that the attorney client privilege belongs solely to the client, and only the client can waive it.

One way in which waiver can occur is where the client places the privileged communications or the relationship “at issue.” Courts have various explanations of the at-issue doctrine — some would find the fact that the communications are a necessary part of deciding the dispute at hand to satisfy the doctrine — but almost any court can find a waiver where the client himself explores or reveals the communications.

So, barring some mistake in the labelling of the documents as being from Scruggs instead of Jones, beats the hell outta Rossmiller why Team Scruggs wanted to let that one get loose in public. And you know, “getting loose in public” may well be the issue that triggered this whole attempt to bribe Judge Lackey (whether Tim Balducci’s alone, as John Keker must argue, or Balducci-and-friends’, as the government alleges) in the first place. Rossmiller again:

Why try bribery to get the case into arbitration when Jones, it is evident from looking at the documents, had repeatedly demanded arbitration pursuant to the joint venture contract before filing suit? Jones’ answer in the pleadings is that once the lawsuit was filed — perhaps Scruggs and the others did not truly believe Jones would file suit and instead believed he would back down and take either the original $1 million offered, the lesser $600,000 offered later, or perhaps even less — the potential for bad publicity and punitive damages from the tort claims in the lawsuit led to a re-evaluation. This re-evaluation must have been relatively quick, because the lawsuit was filed March 15, 2007, and the defendants filed a motion to compel arbitration April 10. In addition, prosecutors have alleged the purported bribery scheme involving Scruggs began around March 28.

Quite possibly, it was as simple as just good ol’ let’s-keep-these-bodies-buried-y’all. But now Rossmiller too looks for a larger, more psycho-active motive . . .

Another possible explanation is this: what if Scruggs thought that Jones, not a member of the inner circle of the SKG (good grief, he didn’t even have his own private jet!) just needed to be taught a lesson about power and who is fit to wield it in this world? What if? Under such a view, the alleged bribery might be seen as an expedient, perhaps regrettable, perhaps not, to support and re-inforce the natural order, a kind of historical determinism in which the little things like alleged bribes are all subsumed in inevitability. What if?

I haven’t watched Dickie Scruggs nearly as long or as closely as many of you reading this, so your guesses may be better than mine. But the more I learn about the guy, the more plausible David Rossmiller’s what-if becomes. The strange strategic and tactical choices I’ve seen Dickie making — both contemporary, since I’ve been paying good attention, and historic, as reflected in the documents now coming available — really do make me wonder whether his whole career hasn’t been a matter not of masterly lawyering but mere ravenous hubris.

lotus

UPDATE: Aha. Even the incomplete skim I’ve given it so far tells me that this story in today’s Clarion-Ledger belongs here. Feds probe Hinds case under scrutiny, about the Luckey case, includes not only a (different) passage from the Funderburg letter quoted above but this:

… A search warrant executed Monday at the Booneville law office of Joey Langston, where Balducci previously worked, sought documents related to the Hinds County case as well as documents regarding payments to Jackson lawyer Ed Peters, who played no known role in the case. In 2001, Peters retired as Hinds County district attorney.

Bobby DeLaughter, the circuit judge in the Hinds County case and an assistant DA under Peters, said he’s not surprised the FBI is looking at the case because of Balducci’s statement.

“It doesn’t bother me,” the judge said. “If I were the prosecutor, I would do the same thing.”

He said he welcomes the scrutiny because “I know I didn’t take a bribe.” …