I saw this story on my PDA yesterday but didn’t link to it because it was only a few paragraphs of a "breaking" story and I couldn’t tell what was going on, which makes commenting difficult. I figured there would be a more complete story later, and I was right.
This story, by Steve Korris of Legal Newsline, talks about a ruling by Judge Coleman, the new judge in the fee dispute case that led to the alleged plot to bribe Judge Lackey, Jones, Funderburg v. Scruggs. Judge Coleman ruled yesterday that he has the authority to default Scruggs and issue a judgment against him if a later evidentiary hearing shows he tried to bribe Lackey. What’s more, the ruling says that the other defendants, the other member firms of the former Scruggs Katrina Group (now known as "the new and improved Katrina Litigation Group: 100 percent Scruggs-free!") can be held vicariously liable for his conduct and also defaulted. Hey, as the saying went in the Old West, ride with an outlaw, die with an outlaw.
A copy of the ruling is linked to in the story, but links to other sites don’t always stay good for a long time, so I’ll link to it here on my own server so it stays a part of our record. The evidentiary hearing will be held after Scruggs’ plea or trial. If he pleads or is convicted, it won’t be much of a hearing. If he is found innocent, it doesn’t necessarily determine the outcome of the hearing, however — the civil standard of proof is lower, although one would suspect for allegations of fraud on the court the standard should not be a mere preponderance but the heightened clear and convincing evidence standard. My evidence professor at Michigan, the great John Reed, once quantified the difference between preponderance, clear and convincing and beyond a reasonable doubt as 51 percent, 85 percent and 95 percent certainty. It was just an exercise to show the difference, I’m not sure he would want anyone to hold him to those figures, but it seems like an acceptable formulation.
The arguments reported in the story against the position the judge eventually took appear to be that the case has to proceed to arbitration no matter what, because this is what the joint venture agreement said. This seems far-fetched. Even if Scruggs and the SKG did not waive arbitration by refusing it, as Jones claims, if a judge can’t take the hickory to people who try to bribe the court, the court has no inherent powers and is not an arm of justice, it is nothing but a forum for hot air and sweet potatoes vendors.