IN THE SUPREME COURT OF MISSISSIPPI

CASE NO. No. 2013-IA-00181

VICKSBURG HEALTHCARE, LLC d/b/a
RIVER REGION HEALTH SYSTEM APPELLANT
VS.
CLARA DEES APPELLEE
UNOFFICIAL TRANSCRIPT OF THE SHOW CAUSE HEARING
SCHEDULED FOR 04/30/2014 at 1:30 p.m.
Notes:
This unofficial transcript was prepared by the staff of Varner Parker and Sessums, PA
Mr. Winfield arrived at 2:04 and asked for a pen and paper.
2:09 p.m. Court is in session
APPEARANCES:
PRESIDING JUSTICE MICHAEL K. RANDOLPH
ASSOCIATE JUSTICE LESLIE D. KING
ASSOCIATE JUSTICE JAMES W. KITCHENS
MICHAEL E. WINFIELD, ESQUIRE
Attorney for Appellee
CLIFFORD C. WHITNEY, ESQUIRE
Attorney for Appellant
Presiding Justice Michael K. Randolph: I think the first matter that we need to address 1
before we go to the actual show cause hearing, is that the hearing was scheduled for 1:30 2
today and it looks like it is about 2:08 and Mr. Winfield you just appeared. Is that 3
correct? 4
5
Michael E. Winfield: Yes, Your Honor. 6
7
Presiding Justice Michael K. Randolph: My fellow Justices and I want to hear from you 8
as to why, when you have been ordered to appear in the Supreme Court in the State of 9
Mississippi at 1:30 that youre not here. Or wasnt here at that time. So lets talk about 10
that first. 11
12
Exhibit "A"
E-Filed Document May 19 2014 15:36:57 2013-IA-00181-SCT Pages: 30
Michael E. Winfield: Yes, sir. I had two matters this morning in Vicksburg. One before 1
the Circuit Court and one before the Chancery Court and then I was called upon to be in 2
Canton at the school district with a teacher there. I came directly here therefrom. 3
4
Associate Justice Leslie D. King: You had a matter in Circuit Court and a matter in 5
Chancery in Vicksburg.. 6
7
Michael E. Michael E. Winfield: In Warren County, yes sir. 8
9
Associate Justice Leslie D. King: Okay. What time did you conclude those matters? 10
11
Michael E. Winfield: I would say about 11:30, 12:00 somewhere around there. 12
13
Associate Justice Leslie D. King: And then you said you were called for a matter 14
regarding a teacher in Canton? 15
16
Michael E. Winfield: Yes sir. 17
18
Associate Justice Leslie D. King: Was that something previously scheduled? 19
20
Michael E. Winfield: No. This was something she was advised of today. 21
22
Associate Justice Leslie D. King: Was this an emergency matter? 23
24
Michael E. Winfield: Yes, sir as it pertains to her it was. It was dealing with her tenure 25
with the school district. She was not given prior notice. It is something that has been 26
ongoing, but no notice was given that she needed to appear before the Superintendent 27
until I got the call today. 28
29
Associate Justice Leslie D. King: This was a scheduled hearing? 30
31
Michael E. Winfield: It was not scheduled. 32
33
Associate Justice Leslie D. King: And this individual that you were representing had no 34
prior notice of the hearing? 35
36
Michael E. Winfield: No, Your Honor. 37
38
Associate Justice Leslie D. King: What time did that hearing commence? 39
40
Michael E. Winfield: I was late getting to that...I mean...they started around 12 without 41
2
me and I just came there and immediately from there I came directly here. 1
2
Associate Justice Leslie D. King: So you started a hearing at 12:00 in Canton knowing 3
that you had a hearing at 1:30 in this Court? 4
5
Michael E. Winfield: Yes, Your Honor. 6
7
Presiding Justice Michael K. Randolph: Mr. Winfield we inquire to the members of the 8
Clerks office indicated that you may have forgot about this hearing, it is what you told 9
them. Do you (head shaking).... 10
11
Michael E. Winfield: Well, I received the Notice of it and I did not place it in my 12
calendar, but all of the events that have transpired today.... 13
14
Presiding Justice Michael K. Randolph: You werent even going to be here today if the 15
Clerks office hadnt called you? 16
17
Michael E. Winfield: Had I not been called, no Your Honor. I would not have. 18
19
Presiding Justice Michael K. Randolph: You didnt tell Justice King that. 20
21
Michael E. Winfield: No Your Honor. Thats how my day has transpired exactly as I 22
indicated. I had a Circuit Court matter and a Chancery Court matter and from there I 23
went to the Canton school district. 24
25
Presiding Justice Michael K. Randolph: You would not have been here today....since the 26
Clerk of the Court called you wanting to know where you were. 27
28
Michael E. Winfield: No you honor. I would not have. Thats correct. 29
30
Presiding Justice Michael K. Randolph: And thats because of why? 31
32
Michael E. Winfield: Thats just an oversight on my part, Your Honor. When I got the 33
notice, I received the notice. I though I put it in my calendar. Apparently I did not. 34
Because it is not in my calendar for today. 35
36
Presiding Justice Michael K. Randolph: What Judge did you appear before in Warren 37
County today? 38
39
Michael E. Winfield: Judge Barnes and Judge Chaney. 40
41
3
Associate Justice James W. Kitchens: Mr. Winfield, your client is Clara Dees? 1
2
Michael E. Winfield: Yes, Your Honor. 3
4
Associate Justice James W. Kitchens: Is Ms. Dees aware that you were ordered to be 5
here today? 6
7
Michael E. Winfield: We have not discussed that Your Honor. 8
9
Associate Justice James W. Kitchens: I take that as a, No sir? 10
11
Michael E. Winfield: No sir. 12
13
Associate Justice James W. Kitchens: Why wouldnt you let your client know that her 14
case is in considerable jeopardy for whatever reason? In this case it seems to be because 15
of your neglect. Have you talked to her since you have got this Order from the Supreme 16
Court? 17
18
Michael E. Winfield: I have spoken to her you honor... 19
20
Associate Justice James W. Kitchens: And you didnt let her know that there was a 21
hearing concerning her case over here today? 22
23
Michael E. Winfield: No Your Honor. 24
25
Associate Justice James W. Kitchens: Didnt give her the option of being here? 26
27
Michael E. Winfield: No Your Honor. I didnt advise her I had a show cause hearing 28
because I didnt think that related to the merits of her case itself. 29
30
Associate Justice James W. Kitchens: Now this thing you went to in Canton today was 31
not even before a Court, was it? 32
33
Michael E. Winfield: No Your Honor. 34
35
Associate Justice James W. Kitchens: It was the School Board, is that was it is? 36
37
Michael E. Winfield: Not the school board, the superintendent. 38
39
Associate Justice James W. Kitchens: Was it a hearing, a proceeding or just some 40
meeting somebody wanted you to attend with them? 41
4
Michael E. Winfield: I wouldnt characterize it as a hearing, I mean, I dont know. I 1
guess that would kind of be a ....... 2
3
Associate Justice James W. Kitchens: A teacher in Canton had a legal problem that 4
involved the superintendent of the school and it was a meeting that she wanted you to 5
come to. Is that right? 6
7
Michael E. Winfield: Thats correct. 8
9
Associate Justice James W. Kitchens: And when did she call you about that? 10
11
Michael E. Winfield: I could look in my phone. It was probably been about 11:30 or 12. 12
13
Associate Justice James W. Kitchens: I think if I had gotten an Order from the Supreme 14
Court ordering me to be up here and show cause about something, I would have thought 15
about that every waking moment of my life from the time I received that Order until that 16
hearing was over, but you apparently not only didnt put it on your calendar, you just 17
didnt seem to take it very seriously. Am I right or wrong about that? 18
19
Michael E. Winfield: I would disagree with you, Your Honor. 20
21
Associate Justice James W. Kitchens: Well tell me why. 22
23
Michael E. Winfield: I definitely take this matter seriously. Not only before this court but 24
any court for that matter. 25
26
Associate Justice James W. Kitchens: Im just aghast that you didnt even show up here 27
today. I mean we, we have never had, since I have been here anything like this happen 28
and I have to tell you that I am exceedingly disappointed in you. Not necessarily for your 29
sake, but for your fathers sake....... 30
31
32
RECESS 33
34
Presiding Justice Michael K. Randolph: The panel has first considered and discussed the 35
appropriate sanctions for your failure to timely appear before this Court today. Then we 36
will take up the show cause...the other issues. Justice King will be speaking for the 37
Court. 38
39
Associate Justice Leslie D. King: Mr. Winfield, on March 26 of this year this Court 40
entered and Order which required that you appear here today at 1:30 to show cause why 41
5
you should not be sanctioned for your conduct in the handling of this case. Now the court 1
did not enter that Order lightly. It looked very carefully at the history of this case and 2
it appeared that you have been somewhat delinquent in moving this case all along. When 3
you look at the prior delinquencies and the fact that you failed to appear here timely 4
today and would not have appeared here today, but for a call from the Clerks inquiring 5
as to your whereabouts. This Court is appalled and deeply offended by that conduct. The 6
Court takes this business seriously and it thinks that you as a lawyer should also take 7
seriously the business of the judicial process, as well as that of your clients. Having 8
looked at this matter, the Court feels that an appropriate sanction for your failure to 9
appear here timely today is $500 to be paid here to the Clerks office by 5:00 p.m. 10
tomorrow. The Clerk will see that an Order to that effect is entered and a copy provided 11
to you. Do you have any questions about that Mr. Winfield? 12
13
Michael E. Winfield: No, Your Honor. 14
15
16
SHOW CAUSE HEARING.... 17
18
Presiding Justice Michael K. Randolph: Mr. Winfield, the Clerk of the Court Ms. Gillis, 19
had sent a deficiency notice to you dated January 8, 2014, advising you that the Brief of 20
the Appellee was delinquent and you were directly by the Clerk of this Court to show 21
cause within 14 days from that date in accordance with Rule 2(b) of the MRAP Rules why 22
sanctions should not be imposed upon you by the Supreme Court for failing to file your 23
brief. Subsequently, other things occurred and the brief still didnt get filed. Actually you 24
were given until I think January 22 to file the show cause and you did not. So, you will 25
be asked to respond to that today. On January 21, you filed a motion for 30 day extension 26
to file a brief on behalf of your client. You failed to make and show cause why you missed 27
the prior deadline. In that same motion it was misrepresented to the Court the your brief 28
was not due until February 19, which was not true. Also, you said that you had served 29
Vicksburg Healthcare by email, they contest that and so if you have proof contrary to the 30
contest we will hear on that as well. On January 29 you filed another motion for 31
extension of time, which was worded identically to the January 21 motion. Then on 32
February 5, Justice King, seated to my left, had signed an order sort of giving the history 33
of what I just spoke of and then finding, not from the Clerk but this Justice to my left, 34
found that Dees should be given 14 days to show cause why sanctions should not be 35
imposed failure on the failure to file the brief or respond to the Clerks deficiency notice 36
and file your brief. That was dated February 3, signed by Justice King and filed with the 37
Court on February 5. This matter has come up 2 or 3 times before the Motions panel 38
which the three of us sit on in trying to deal with this situation, which culminated in an 39
Order signed by Justice Kitchens, to my right, that you had failed to....had ignored 40
Justice Kings Order. That was on I think February 26 that you filed a brief, which was 41
6
after hours and I think filed a 9 or 10:00 at night, but nonetheless filed. On February 26 1
but that brief was due on the 19
th
. At that time you were ordered to appear here today 2
at 1:30 to show cause why shouldnt be sanctioned for this obvious disdain for the Orders 3
of this Court. Let me tell you, it is nothing personal to Justice Kitchens or Justice King 4
or I, it is the Court that you owe respect to. It is not anything to us personally one way 5
or the other. We are faced with these situations and the rules are put in place in order 6
that the judicial system works and it is our job to do the best we can in making the right 7
decisions. However, the rules allow us to dismiss your clients case. Have you talked to 8
your client about that at this point yet? 9
10
Michael E. Winfield: Yes, Your Honor. 11
12
Presiding Justice Michael K. Randolph: I want you to go ahead and go to the podium so 13
we can get your responses. Do you understand under the rules of the court that your 14
clients case can just get thrown out into the trash can as a result of your misconduct? 15
16
Michael E. Winfield: I would pray that the Court would find mercy and not take the 17
extreme of sanction, uh.. 18
19
Presiding Justice Michael K. Randolph: Did you ever ask the Court when the Clerk asked 20
you, show me why you havent done what you have done and then when Justice King 21
ordered you to show me what you havent done. Then, it takes a third Order from this 22
Court for you to come in and ask for mercy. Explain it to us why you didnt respond first 23
of all to the first Notice to Show Cause. 24
25
Michael E. Winfield: Your Honor, I have not opened..... I am not saying that is wasnt 26
delivered or that it wasnt sent, but I havent opened that correspondence. The first 27
show cause that I saw and read wouldve been the final one and that is just....all I can 28
do is be candid with you, I dont have a secretary. I operate by myself.... 29
30
Presiding Justice Michael K. Randolph: Maybe you ought not to be operating.... 31
32
Michael E. Winfield: Excuse me... 33
34
Presiding Justice Michael K. Randolph: Maybe you shouldnt be operating if you cant 35
represent your clients interest. 36
37
Michael E. Winfield: Yes, sir. I am not perfect. I agree that I have not been dilatory in 38
dealing with this particular matter. 39
40
Presiding Justice Michael K. Randolph: Diligent? 41
7
Michael E. Winfield: Diligent. I do have many clients and I do think that I do a good job 1
by....maybe not 100% but I would say the majority. 2
3
Presiding Justice Michael K. Randolph: Diligent? 4
5
Associate Justice Leslie D. King: Mr. Winfield are you suggesting that you did not read 6
your mail from the Court? 7
8
Michael E. Winfield: I have not seen those notices, Your Honor. I have not. No. I have 9
not seen two or three different show cause Orders. 10
11
Associate Justice Leslie D. King: Are you saying, because I want to be crystal clear. Are 12
you saying that you did not receive them or are you saying that mail has come in to your 13
office and you have not looked at it, so you dont know whether you received them or 14
not? 15
16
Michael E. Winfield: I cant answer one way or another. I know I have not seen them. 17
No. 18
19
Associate Justice Leslie D. King: But you did receive the March 26 show cause Order in 20
the mail? 21
22
Michael E. Winfield: Yes, Your Honor. 23
24
Associate Justice Leslie D. King: And that was addressed to you at the place at which 25
you have been customarily receiving your mail. 26
27
Michael E. Winfield: Yes, Your Honor. 28
29
Associate Justice James W. Kitchens: I want to ask you a follow up and I dont mean 30
to interrupt Justice King. Mr. Winfield, I am looking at a certificate of service here that 31
actually, this came from Mr. Whitney. The first one I came to in here. This says your 32
address is 1129 Openwood Street in Vicksburg. Then it has got a post office box 1448. Are 33
those correct? 34
35
Michael E. Winfield: Not the post office box, Your Honor, but the address the physical 36
address... I no longer use that post office box, but the physical address is my address. 37
38
Associate Justice James W. Kitchens: Have you ever used box 1448? 39
40
Michael E. Winfield: Yes, Your Honor. 41
8
Associate Justice James W. Kitchens: Do you still have that box? 1
2
Michael E. Winfield: No, Your Honor. 3
4
Associate Justice James W. Kitchens: Is that in the Bar directory? 5
6
Michael E. Winfield: It still is, but I have not..... 7
8
Associate Justice James W. Kitchens: Have you notified the Bar that this is not your 9
address so lawyers that have business with you and the courts that have business with you 10
would know that is not a good address? 11
12
Michael E. Winfield: No, Your Honor. 13
14
Associate Justice James W. Kitchens: What does the post office do with mail that is 15
addressed to you at PO Box 1448? 16
17
Michael E. Winfield: They return it right back immediately. 18
19
Associate Justice James W. Kitchens: To the sender or to you? 20
21
Michael E. Winfield: To the sender. 22
23
Associate Justice James W. Kitchens: They dont bring it to you? 24
25
Michael E. Winfield: No, Your Honor. 26
27
Associate Justice James W. Kitchens: So if I send you a letter to PO Box 1448, the post 28
office as you understand is going to send it back to me? 29
30
Michael E. Winfield: Immediately. 31
32
Associate Justice James W. Kitchens: What about 1129 Openwood Street? 33
34
Michael E. Winfield: That is my address Your Honor. 35
36
Associate Justice James W. Kitchens: Is that where you live or where you work or both? 37
38
Michael E. Winfield: Both. 39
40
Associate Justice James W. Kitchens: So you are working out of a residence? 41
9
Michael E. Winfield: No, Your Honor. It is my office, but there is an apartment above it. 1
2
Associate Justice James W. Kitchens: I see. So if I wanted to send you a letter today I 3
would send it to 1129 Openwood Street? 4
5
Michael E. Winfield: Yes, Your Honor. 6
7
Associate Justice James W. Kitchens: Okay so how long have you not had this PO Box 8
1448? 9
10
Michael E. Winfield: I couldnt state with certainty... 11
12
Associate Justice James W. Kitchens: Years... 13
14
Michael E. Winfield: No, no its been less than a year. My secretary used to check it and 15
when she stopped working for me I never....it is no longer downtown in Vicksburg, which 16
was close to my office. It is over on the other side of town and I...personally I would not 17
go there so it was just an unnecessary expense. I have just done all that I can to ......... 18
19
Associate Justice James W. Kitchens: A post office box is an unnecessary expense? 20
21
Michael E. Winfield: Yes, Your Honor. I have a physical mailing address. 22
23
Associate Justice James W. Kitchens: Did you just close that box or just let the rent go 24
delinquent on it? 25
26
Michael E. Winfield: Delinquence...I just, Im...I just dont pay it anymore. 27
28
Associate Justice James W. Kitchens: But, you havent notified the Clerk of the 29
Supreme Court or the Mississippi State Bar, or any of the people that ought to be able to 30
find an attorney who is a member of the Bar as to what your mailing address is. 31
32
Michael E. Winfield: That I no longer use the post office box, no Your Honor. 33
34
Associate Justice James W. Kitchens: While we are talking about addresses, do you 35
know Clara Dees mailing address? 36
37
Michael E. Winfield: Not by heart, Your Honor. 38
39
Associate Justice James W. Kitchens: Before you leave here today, unless my colleges 40
disagree with me and I dont think that they will. I want you to give that address to the 41
10
Clerk of this Court. Clara Dees mailing address and her telephone number. 1
2
Michael E. Winfield: Yes, sir. 3
4
Associate Justice James W. Kitchens: Can you ascertain that before you leave this 5
courthouse? 6
7
Michael E. Winfield: I can call her and get it Your Honor. 8
9
Associate Justice James W. Kitchens: All right then, we want you to give us her address. 10
Thats all I have at the moment. 11
12
Associate Justice Leslie D. King: Mr. Winfield, lets talk about that post office box 13
again. You said it was on the other side of town so it was inconvenient for you to go to 14
that box to pick up your mail. Is that right? 15
16
Michael E. Winfield: Yes, Your Honor. 17
18
Associate Justice Leslie D. King: Well, did you ever give any consideration to filing a 19
change of address form with the post office so that the mail sent to that box would be 20
then sent to you at this Openwood Street address? 21
22
Michael E. Winfield: I just this past week, I did, Your Honor. Because I had a check that 23
was mailed to the address and it was sent back. But, that was Monday of this week. 24
25
Associate Justice Leslie D. King: How long has it been since you have actually...when 26
was the last time you went to that box to physically check for mail? 27
28
Michael E. Winfield: Me personally? 29
30
Associate Justice Leslie D. King: Yes. 31
32
Michael E. Winfield: I couldnt tell you, that wouldve been several years ago for me 33
personally. 34
35
Associate Justice Leslie D. King: When was the last time anybody associated with you 36
went to that box to check the mail? 37
38
Michael E. Winfield: I would say probably six or seven months. I am not sure how long 39
its been since I have had my secretary. I dont know. But, that was a..... I have done 40
everything that I can to reduce my expenses due to financial constraints. That was just 41
11
another hundred dollars I was basically wasting. I mean....its just.... 1
2
Presiding Justice Michael K. Randolph: Okay, talking about this mail stuff. So you are 3
saying you did not get the Notice from the Court? 4
5
Michael E. Winfield: I am not saying that I didnt receive it. I am saying I havent 6
opened them or read them. I cant say I did or did not receive them. I am not saying that 7
they werent mailed. 8
9
Presiding Justice Michael K. Randolph: Well did you review Ms. Dees file to see if that 10
Notice was in there before you showed up today or did you bring your file with you? 11
12
Michael E. Winfield: No, Your Honor. 13
14
Presiding Justice Michael K. Randolph: Then you indicated that you did not get a copy 15
of the February Order that Justice King signed? 16
17
Michael E. Winfield: I have not seen it, Your Honor. 18
19
Presiding Justice Michael K. Randolph: If I wrote down the first Order that you saw, it 20
was the one that was dated March 26 and filed March 27, is that right? 21
22
Michael E. Winfield: Yes, Your Honor. 23
24
Presiding Justice Michael K. Randolph: That is the one you were coming here or forgot 25
to come here today on? 26
27
Michael E. Winfield: Yes. 28
29
Presiding Justice Michael K. Randolph: Thats the first one that you saw? 30
31
Michael E. Winfield: Yes, Your Honor. 32
33
Presiding Justice Michael K. Randolph: Well, I know we didnt place you under Oath 34
today and you are an attorney, you realize you are under your attorneys oath. 35
36
Michael E. Winfield: Yes, Your Honor. 37
38
Presiding Justice Michael K. Randolph: Well I was trying to figure out, now you do some 39
email filing with this Court. Is that right? 40
41
12
Michael E. Winfield: Yes, Your Honor. Thats the only....electronic filing is the only 1
means that is allowed by the Court. 2
3
Presiding Justice Michael K. Randolph: Well, I am going to give you a chance to explain 4
it, but I am starting to wonder about your responses to me, because you e-filed a 5
document in this court on March 6. Do you recall that? 6
7
Michael E. Winfield: I mean, I dont have the dates in front of me but I would say that 8
is correct. 9
10
Presiding Justice Michael K. Randolph: Well you just told this panel of Justices that you 11
didnt even know about the show cause until late March and you responded to it on March 12
6, twenty days before that Order come out. I am sitting here reading it. Explaining to 13
the Court and asking for mercy and forgiveness and the other things. 14
15
Michael E. Winfield: Whatever date that I responded wouldve been the one that I 16
received. I responded to....I dont have the chronology in the front of me....I responded 17
to the one that I saw. They may have been the February one...I dont know which one 18
it was. 19
20
Presiding Justice Michael K. Randolph: Well you have had to seen the other one or you 21
wouldnt have known you were supposed to be here today. 22
23
Michael E. Winfield: And I saw the one to be here today, so I dont know what date that 24
was...that may have been the March one, but I responded....my correspondence was in 25
response to the one that I had seen....that may have been the February one, I am not 26
100% on which one it was and the one advising me of appearing here today I saw that, as 27
well. 28
29
Presiding Justice Michael K. Randolph: Well, what we have to encapsulate and then I 30
am going to give you an opportunity to start explaining why, the big picture. You have 31
a brief that you filed after numerous extensions and show causes that you filed to make 32
and the other side wants to strike that. So they want the case considered on their brief 33
alone. That is what they are asking for and you were told to be here today and why you 34
should not be sanctioned for your failure to comply with the Orders of the Court, why you 35
should not be sanctioned for your failure to timely file Appellees brief. Vicksburg 36
Healthcare was told to be here if they desired to show any prejudice they may have 37
suffered as a result of your actions or inactions and also any fees that were incurred, not 38
to do with the underlying case, just with this issue about your failure to timely file 39
responses. So we will hear from your now as to ......oh, one other thing I wanted to ask 40
you to reply because I want you to reply to this too. It was brought to our attention that 41
13
one of the filings here that Justice Kitchens has shown me, which is the March 6 response 1
that has a place for a signature line, it has your name and Winfield and Moran. Does Mr. 2
Moran practice with you? 3
4
Michael E. Winfield: No, Your Honor. 5
6
Presiding Justice Michael K. Randolph: Is there a Mr. Moran that is even living now? 7
8
Michael E. Winfield: He is deceased. It is just the name of the PLLC. 9
10
Presiding Justice Michael K. Randolph: Given the address that you furnished on the last 11
filing that you did to this Court shows Vicksburg, Mississippi 39183, no street address, no 12
PO box, no nothing. Just Vicksburg. Is there a reason for that? 13
14
Michael E. Winfield: Just be an error on my part. I personally typed it. It just be an 15
error on my part. 16
17
Presiding Justice Michael K. Randolph: Have you read the rules of this Court to practice 18
before this Court? 19
20
Michael E. Winfield: Yes, Your Honor. 21
22
Presiding Justice Michael K. Randolph: It was brought to our attention today in our 23
preparation for this hearing that in this particularly case number that you have never 24
even filled out an appearance form. I have a blank appearance form before me. Do you 25
ever fill out an appearance form where you tell the Clerk of the court what your Bar 26
number is and what address you can be reached at and email and all of that? 27
28
Michael E. Winfield: No, you honor. I have never, never.... 29
30
Presiding Justice Michael K. Randolph: Why wouldnt you do that? 31
32
Michael E. Winfield: I have never filled one of those out and I have submitted numerous. 33
34
Presiding Justice Michael K. Randolph: How many cases have you got pending in this 35
court? 36
37
Michael E. Winfield: I have submitted...Just this one at this time, but I submitted briefs 38
in the past, within the past year or so and I have never filled out one of those. 39
40
**Presiding Justice Michael K. Randolph: Well I suggest that you probably want to go 41
14
back and review the rules and depending on what we do here today, it may or may not 1
be necessary for you to file an appearance form in this case. That will be determined by 2
the Court before the days over. So, we have got late filings, non-shows. Tell us why. 3
4
**Michael E. Winfield: As I discussed in the response that I submitted to the Court, in my 5
request for leniency and mercy, just had a lot of things going on. A lot of things 6
happening. All I can do is apologize to the Court for my actions, but, I mean its just 7
dealing with the hardships that I have dealt with. 8
9
Associate Justice Leslie D. King: Very candid question Mr. Winfield, you talk about 10
hardships you have been dealing with. Do those hardships impact upon your capacity to 11
actually practice law right now? 12
13
***Winfield (23:14): I would say....I mean, no. I cant say that. I wont make an excuse 14
for my action. I just didnt do it. Thats..I mean, I cant blame anyone but myself. I 15
cant. 16
17
Associate Justice Leslie D. King: I am not asking you about whos to blame right now. 18
I assume that there are stresses related to these various hardships that you have spoken 19
of and I am concerned as to whether or not those stress factors are such that they impact 20
upon your ability to actually practice law at this point. 21
22
Michael E. Winfield: I would say, no, Your Honor. I do feel as though I am able to 23
practice law. I have had an enormous stress situations, I mean I image everyone does. 24
I think I have had a little more than most, just to be candid but, do I think that it makes 25
me unfit to practice? No. It does not. I do not feel that way. No. 26
27
Associate Justice Leslie D. King: I didnt say do they impact upon your ability to practice 28
law. There is a difference in saying that they impact upon your ability to practice law 29
and saying that you are unfit to practice law. 30
31
Michael E. Winfield: Yes. Yes. Am I affected by it? Yes, I am, I mean of course it effects 32
me, but I dont think that it makes me unfit. And youre right, there is a distinction 33
between the two but, am I affected? Yeah, I am. I mean of course I am. I never couldve 34
foreseen my brother being indicted and going to jail. I never couldve foreseen that I had 35
no idea at all of anything that was going on. I learned of it the night he was arrested. 36
I mean, it was no kind of warning or ...I just had no knowledge at all of any type of 37
anything going on. Me being divorced, I would say that was foreseeable because that was 38
due to my actions and I accept the responsibility and blame for that, but some of the 39
things were beyond my control. I couldve never foreseen my brothers unfortunate 40
circumstance, no. And the impact that it has had on my Mom and the impact that it has 41
15
had on his son and the impact that it has had on my son, my children. No, I could not 1
have foreseen that. It is definitely a surreal experience, but you know that way my day 2
has gone today, that is how a lot of my days end up. I was booked for two hearings this 3
morning in Vicksburg. That happens a lot of times I will be booked in two places and I 4
have someone else cover me for....you know I may have someone go to Yazoo and I may 5
be somewhere else or vice versa. Then, your last minute call of someone needing you 6
to be there, that was not scheduled, not foreseeable, not planned, but that...I find 7
myself traveling quite a bit. I am not in the office physically but I forward my phones to 8
my cell phone for I get phone calls, but yeah I travel probably about 50-60,000 miles a 9
year. In my practice, in my line of work because most of my work is not local in Vicksburg 10
so I....I do travel quite a bit, quite often. And Im just not financially able to support and 11
my secretary quit for her own personal reasons, but it was a blessing to me that she did 12
because I am not financially able to consistently pay a secretary. It is not a matter of me 13
not necessarily needing one. I am not financially able and you know what Ive been doing 14
lately is trying to reduce as many of my expenses as I possibly can. Thats, thats 15
definitely been, to some degree, a detriment. Now to be honest with you, the notices, 16
she would open the mail, you know. She would go to the post office box, the typing, the 17
mailing, those things are now things that I physically do personally. So if I didnt type my 18
address, I didnt type my address because I am the one that typed it. If something is not 19
emailed, it is because I didnt email it. If something is not scanned, its because I didnt 20
scan it. Because I personally do everything from beginning to end. And being in a small 21
town practice, the impact tort reform has had, its a challenge financially with all candor 22
to the Court to pay the $500 by 5:00 tomorrow, that will definitely be difficult for me to 23
do and I respect the Courts ruling and I understand you have a job to do and I respect 24
that and I respect this Court and I genuinely apologize to this Court for my absence. I 25
wont to say tardiness, I will say absence. Even though I am here presently, but yeah its, 26
its, its challenging, it is. Is it something that I dont feel I can do, I wouldnt say that, 27
you know. I wouldnt say that. 28
29
Presiding Justice Michael K. Randolph: Well our concern is multi-faceted. The Court was 30
given the responsibility, I guess every lawyer in this state gets to practice under the 31
auspices of the authority of this Court. We are very concerned about clients and clients 32
rights. We are concerned about attorneys that dont take care of clients. If you fail to 33
show up here, I think Justice King said it best, he was appalled by your failure to be here 34
today. All three of us were shocked by your failure to be here today and having forgot 35
about it. I guess we are old school, but if the Supreme Court ordered me to be in 36
Jackson, Mississippi at a certain time, I probably would have camped out on the steps the 37
night before. That is just the respect I hold for the Court and I guess out of fear of what 38
they could do to me and yet if you are showing that lack of ability to keeping your mind 39
on your schedule or on your Iphone or whatever about a court appearance, I have to 40
wonder about how many times you told a client you would meet them in your office at 41
16
4:00 and they show up with two kids there at the door and you are not there, then Ive 1
got to be worried about that too. If you are not going to make court appearances, why 2
would you go see a client? Especially one that might not be happy with you. That is the 3
reason Justice Kitchens was concerned about Clara Dees. If we follow the rules of Court 4
your case ought to be thrown out. Do you know that? 5
6
Michael E. Winfield: Yes, Your Honor. I do. 7
8
Presiding Justice Michael K. Randolph: Why doesnt that motivate you to do it and do 9
it right? 10
11
Michael E. Winfield: In all honesty, Your Honor. I would say, you know to some extent 12
my evaluation of the response and the outcome, because I have submitted several briefs 13
to this Court. The last one that I submitted I though was the best I could have ever 14
drafted and I didnt win that one either. Ive lost, I am about 0 and 3 with this Court. I 15
dont know if you were on the Court at the time or not, but I have submitted briefs since 16
I have begun practicing and every one that I submitted I thought was a really good brief, 17
particularly my last brief I thought was, how I didnt win that one, it was dealing with a 18
termination of parental rights and the names are redacted and changed so I couldnt tell 19
you what opinion the name was, but I did not win that one and I definitely feel as though 20
I should have won it. But, be that as it may, with me being a solo practitioner and 21
juggling you know the many aspects of that, you get into a time value thing to some 22
extend and to some degree. I just, I dont feel like I will win this case. So just, and I 23
hope that..... 24
25
Presiding Justice Michael K. Randolph: Are you talking about this case here? 26
27
Michael E. Winfield: Yes and I, I will pray that I do, but the likelihood of it is not...my 28
success and track record with the Supreme Court has not been great. 29
30
Associate Justice James W. Kitchens: Are you saying that you didnt timely file in this 31
case because you lost the last two or three cases you had up here? 32
33
Michael E. Winfield: No, I am not saying that, Your Honor. 34
35
Associate Justice James W. Kitchens: What are you trying to say? 36
37
Michael E. Winfield: Well, I mean you asked me part of the reason for me not being....I 38
mean, I think I could have made it more.....I should have made it a more of a priority.. 39
I should have and I did not. 40
41
17
Associate Justice James W. Kitchens: How many active files do you have in your office 1
now? 2
3
Michael E. Winfield: I couldnt say. 4
5
Associate Justice James W. Kitchens: Give me a ballpark. 6
7
Michael E. Winfield: Probably 70, 50 to 75, I... 8
9
Associate Justice James W. Kitchens: Civil and criminal? 10
11
Michael E. Winfield: Primarily criminal. 12
13
Associate Justice James W. Kitchens: Some people are going to jail if you screw up their 14
case? 15
16
Michael E. Winfield: I have primarily criminal cases, Your Honor. 17
18
Associate Justice James W. Kitchens: Some people are going to jail if you dont take 19
any better care of their case than you have taken of this one? 20
21
Michael E. Winfield: I dont have too many that end up in jail, Your Honor. I, Ive had 22
some. I have had some. Ive lost one murder trial, but I dont, I dont lose many. 23
24
Associate Justice James W. Kitchens: What if you have the same level of attention to 25
somebodys criminal case that you have given to this case? 26
27
Michael E. Winfield: That would not be good. 28
29
Associate Justice James W. Kitchens: Is this the only case youve screwed up or have 30
you screwed up some more? 31
32
Michael E. Winfield: Yes, Your Honor. I would say yes. 33
34
Associate Justice James W. Kitchens: This is the only one? No other civil cases and no 35
criminal cases? 36
37
Michael E. Winfield: No, Your Honor. 38
39
Associate Justice James W. Kitchens: What are you... I am still struggling with what you 40
said when you were talking to Justice Randolph just now about how you had lost some 41
18
cases up here in this Court and you thought the briefs were real good and they may have 1
been. I dont know, you can have... I mean the brightest lawyer in the world could have 2
a good brief and still lose and I think you know that, depending on what the law and the 3
facts are, but why did you think it important to tell us that you have lost several cases 4
in this Court and that somehow has something to do with this situation that were dealing 5
with this afternoon? What is the connection there? I dont get it. 6
7
Michael E. Winfield: From the time value standpoint, I would look at the return that I 8
would possibly get..... 9
10
Associate Justice James W. Kitchens: You look at the return to you in deciding how 11
much time to devote to a clients case? 12
13
Michael E. Winfield: No, Your Honor. I mean, I.... 14
15
Associate Justice James W. Kitchens: Well, thats what you just said. What do you 16
mean? (Pause) Do you rank you cases in terms of their importance based on the financial 17
benefit or potential benefit to you? 18
19
Michael E. Winfield: No..not...no. Thats not what Im saying, Your Honor. 20
21
Associate Justice James W. Kitchens: Well please tell me what you are saying because 22
thats what it sounds like. 23
24
Michael E. Winfield: What youll have often times in a small practice. 25
26
Associate Justice James W. Kitchens: Dont tell me what you have in a small practice. 27
28
Michael E. Winfield: I know you did it many years.... 29
30
Associate Justice James W. Kitchens: I live in Crystal Springs, Mississippi and practiced 31
law in a small practice for 41 years. So, I kinda know a little bit about small town 32
practice, but tell me how it is that your failings in this case are somehow related to the 33
fact, first of all, that you lost some appeals up here; and, secondly, you have to look at 34
the benefit. Thats your words not mine. What do you mean by that? 35
36
Michael E. Winfield: I just... 37
38
Associate Justice James W. Kitchens: Time value is a term you used. What does that 39
have to do with any of this? Why did you say that? 40
41
19
Michael E. Winfield: Because I dont think that...I dont think that I will succeed on 1
appeal in this case. 2
3
Associate Justice James W. Kitchens: Have you told your client that? 4
5
Michael E. Winfield: I have discussed the merits of the issue... 6
7
Associate Justice James W. Kitchens: Have you told your client that? 8
9
Michael E. Winfield: Yes, Your Honor. I have talked to to her... 10
11
Associate Justice James W. Kitchens: That you dont think you are going to succeed on 12
this case, right? 13
14
Michael E. Winfield: Yes, Your Honor. 15
16
Associate Justice James W. Kitchens: Well, a real good way to guarantee that is not to 17
file a brief, isnt it? 18
19
Michael E. Winfield: Yes, Your Honor. 20
21
Associate Justice James W. Kitchens: Mr. Winfield, are you attributing your failures to 22
the stresses in your life? 23
24
Michael E. Winfield: No, Your Honor. 25
26
Associate Justice James W. Kitchens: What are you attributing that to then? 27
28
Michael E. Winfield: Just, I have to say, poor choice, Your Honor. 29
30
Associate Justice James W. Kitchens: I cant hear you. 31
32
Michael E. Winfield: Just poor choice, Your Honor. 33
34
Associate Justice James W. Kitchens: Poor choice? Did you make a conscious choice not 35
to file this ladys brief? 36
37
Michael E. Winfield: No, Your Honor. I mean...its... I mean I had to wrestle with 38
grounds for a response in all honesty. 39
40
Associate Justice James W. Kitchens: You had to wrestle with what? 41
20
Michael E. Winfield: I didnt just instantly have a response to it. I think I did make a 1
good response when I did, but that was not something that came to me immediately. 2
The case law, and I have researched the case law on it well in advance of me submitting 3
my brief and the case law is what it is and it was what it was. 4
5
Associate Justice James W. Kitchens: How long have you been practicing law? 6
7
Michael E. Winfield: Since 2000. 8
9
Associate Justice James W. Kitchens: Since 2000, so youre in your, what 14
th
year now 10
or thereabouts? 11
12
Michael E. Winfield: Yes, Your Honor. 13
14
Associate Justice James W. Kitchens: You been sanctioned by any other courts? 15
16
Michael E. Winfield: No, Your Honor. No. 17
18
Associate Justice James W. Kitchens: Well, I am still trying to pin down what it is - - 19
and this is what you are supposed to be showing us cause about - - is why you have not 20
fulfilled your responsibilities in this case and you said you dont have any stress. Is that 21
accurate, did you say that? Its not stress in your life. Why havent you tended to this 22
case? You have received deficiency notices from this court. You have gotten orders; one 23
you said you didnt see, yet you filed a response to it. 24
25
Michael E. Winfield: And that may have been the one that I received, Your Honor. 26
27
Associate Justice James W. Kitchens: But you received the one that was issued that told 28
you to be here today, so that is two Orders we know youve seen. 29
30
Michael E. Winfield: Yes, Your Honor. 31
32
Associate Justice James W. Kitchens: And you didnt take this one very seriously it 33
doesnt seem, you have been sanctioned for that. Frankly, less of a sanction than we 34
considered. 35
36
Michael E. Winfield: Thanks, Your Honor. 37
38
Associate Justice James W. Kitchens: Well, I am not asking for your gratitude. I am 39
just really, really concerned about you and about your clients and youve got some things 40
going on in your life and I am not trying to get personal with you; I dont want to 41
21
embarrass you or anything. You should be humiliated by the way you have conducted 1
yourself - - but you know if youve got some problems in your life that are interfering 2
with your law practice, thats what the Lawyers and Judges Assistance Program is for. 3
You dont have to be an alcoholic or a drug addict to need the Lawyers and Judges 4
Assistance Program - - I dont know whether you are an alcoholic or drug addict. 5
6
Michael E. Winfield: No, Your Honor. 7
8
Associate Justice James W. Kitchens: Youve shown some symptoms. 9
10
Michael E. Winfield: No, Your Honor. 11
12
Associate Justice James W. Kitchens: But, you know we are concerned about your 13
clients and youre telling us that this is the only case that you have messed up on and 14
thats a little bit hard to believe. I am not trying to debate with you about it, but this is 15
a serious, serious situation to Ms. Dees and potentially serious to other clients of yours. 16
So, I hope you are being candid with us when you tell us you havent messed up anybody 17
elses case, but it looks like there is a pretty strong potential for it. Do you have anything 18
else you want to tell us in defense of your misconduct? 19
20
Michael E. Winfield: No, Your Honor. I apologize. My conduct is inexcusable and there 21
is no excuse for it. I apologize to the Court and with all due respect I would ask the 22
mercy of the Court. 23
24
Presiding Justice Michael K. Randolph: Well, the Court is going to hear from counsel 25
opposite in a couple of minutes, but I heard your response the same way that Justice 26
Kitchens did and I wrote down here time/value and I wonder if youre not treating your 27
law practice like that movie Money Ball and figuring out what is the most lucrative 28
anticipated lucrative case and give it top priority and then, in your mind, moving em 29
down the line and thats the attention. I only tell you what I used to tell young lawyers 30
and I, as Justice Kitchens, started out in a small office in Biloxi, Mississippi. I wasnt with 31
a large firm when I started practicing so I have faced a few weeks of short fall and having 32
to come up with money out of my pocket that didnt come from clients to pay for help. 33
I know Justice King has done likewise, so the small town thing is not an excuse. But I will 34
tell you, as you leave here today and go back and think about representing your clients, 35
what I used to tell the lawyers that worked for me, never look at the financial numbers. 36
It is not important, because if you win every case, youll be highly successful and if you 37
just devote yourself to prevailing for your client, or, in cases as you suggest now about 38
this case, that may lack merit, is to look a person in the eye and say that is a really tough 39
story you got there to tell, but youre not going to win that case and I am not going to 40
accept it. I am not going to file it. That is the hardest thing to do - is just tell people 41
22
No. Deny you work on the cases or represent the criminals, like Justice Kitchens speaks 1
of. So, Justice King, do you have any other questions or observations? 2
3
Michael E. Winfield: Could I briefly address, Your Honor? 4
5
Presiding Justice Michael K. Randolph: Certainly. 6
7
Michael E. Winfield: And I dont want to leave you with the wrong impression. I do a lot 8
of pro bono work. It is part of my financial hardship. If someone comes... I became an 9
attorney so that I could help people, just like the lady that I just left today in Canton. 10
I didnt generate any kind of profit on that fee at all, whatsoever. 11
12
Presiding Justice Michael K. Randolph: I know, but you are supposed to be representing 13
Ms. Dees today, here. Which may or may not result on fee. I am all for pro bono work 14
and we have all done that, too. But, the people that you sign a contract with, you make 15
a bond with them. In the old days we used to do it by handshakes and that is I am going 16
to do the best job I can, every minute of the day, advancing your case until the end. It 17
may be a good end, it may be a bad end, but to the end. When you make those kind of 18
commitments, then you have got to turn down those phone calls that come from Canton 19
and say, I have got clients that I have got to get their work done first. There is nothing 20
wrong with just telling someone you dont have time. You just have to do that. You 21
have got to manage your time, but you cant do it to the detriment of those people that 22
are sitting up in their houses expecting you to show up in court or file papers on their 23
behalf and they are counting on you and you cant hide behind, just an overall I am do- 24
gooder and I dont have time to... you cant do that. I am not saying dont do pro bono, 25
like I say we have all done it and it is important. A lot of people promised us they would 26
pay us and didnt pay us, too. You get those, but that is just the way it goes and thats 27
part of the territory. But, you got anything else? 28
29
Michael E. Winfield: Nothing, Your Honor. 30
31
Presiding Justice Michael K. Randolph: You may have a seat and counsel opposite if you 32
were told to be here today and I guess invited to be here today. Tell us what effect the 33
failures of...that have been addressed here today...how it effects your client and both 34
from the standpoint of I guess procedural and monetary as well. Please state your case. 35
36
Clifford C. Whitney: Thank you, Your Honor. First of all, this is not...this has been the 37
story of this case, which is the reason we are even here today. The fact that things have 38
not been done by the opposing side, including filing affidavits in response to motions for 39
summary judgment, waiting until the day of the hearing to say I have got an expert, but 40
not producing any written affidavit from that expert. We never still have gotten one till 41
23
this day. Showing up at the hearing on summary judgment with no file and then the 1
judge grants more time, which was totally contrary to the rules. My client has now spent 2
all of this money, now we get to this court and the court recognizing the significance of 3
all of what took place in the lower court has granted this interlocutory appeal, now we 4
are here. We filed our brief in October of 2013 and here we area in almost May, starting 5
tomorrow. 6
7
Presiding Justice Michael K. Randolph: It has been here a year I think. It came in May 8
that the interlocutory appeal, May 2013 was granted. 9
10
Clifford C. Whitney: That is correct I believe, Your Honor. Now, the court said that Mr. 11
Winfield had filed a brief on February 26. To this day I have never seen a brief. So, I 12
dont know what brief he filed and perhaps that brief never made it out of the court file, 13
but it has still to this day never reached me or my office. 14
15
Presiding Justice Michael K. Randolph: So the brief I am holding here that was filed at 16
2100 military time for 9:00 p.m. with the Mississippi State Capital police after hours filing 17
a brief, it is your statement that you have never got a copy of that? 18
19
Clifford C. Whitney: I have never gotten a copy of it Your Honor. And, it does not show 20
up on the docket of this Court, perhaps because the Court needed to rule...needed to 21
take up these proceedings today, I dont know about that but we made inquiry and the 22
Clerks office didnt have it and the docket of the Court didnt reflect it so. 23
24
Presiding Justice Michael K. Randolph: Are you still, or at that time I guess on the 26
th
25
of February 2014 were practicing with Varner, Parker & Sessums. 26
27
Clifford C. Whitney: Yes sir, and I still am. 28
29
Presiding Justice Michael K. Randolph: 1110 Jackson Street 30
31
Clifford C. Whitney: Yes, Your Honor. 32
33
Presiding Justice Michael K. Randolph: PO Box 1237 Vicksburg? 34
35
Clifford C. Whitney: Yes, Your Honor. 36
37
Presiding Justice Michael K. Randolph: Well, we have a certificate here that it was 38
mailed to you. 39
40
Clifford C. Whitney: Well, believe me I turned over every piece of paper in the office 41
24
to see if it had come in. We have never received a brief, nor when we contacted the 1
Clerk of this court were they able to refer us to a brief. So, that is all I know on that 2
subject. We still dont have the brief. So, here we are a year later after the appeal was 3
filed with no brief with extensive expense incurred and delay incurred in a case that 4
shouldve been granted summary judgment on back in January of 2013 when we came to 5
court on a motion for summary judgment that there was no expert in this medical 6
malpractice case. 7
8
Presiding Justice Michael K. Randolph: Youre saying there still hasnt been an affidavit 9
provided? 10
11
Clifford C. Whitney: There has still been no affidavit provided. 12
13
Presiding Justice Michael K. Randolph: If I recall right and look at the prior file was...I 14
guess maybe it is in that brief that I was looking at that notice was given of intent to file 15
suit and three days later suit was filed. Is that.... 16
17
Clifford C. Whitney: That part I am not sure of Your Honor. 18
19
Presiding Justice Michael K. Randolph: Well we didnt really want to get into an 20
underlying matter that may or may not. 21
22
Clifford C. Whitney: In terms of what counsel was saying, I receive my notices and orders 23
of this Court I get them by email so I believe the Clerk is emailing this things out. So, 24
surely Mr. Winfield gets his email. 25
26
Presiding Justice Michael K. Randolph: Is that correct. 27
28
Clerk: No sir. We do not yet email notices. They do appear on our docket, electronically. 29
30
Clifford C. Whitney: Ok, I stand corrected. 31
32
Presiding Justice Michael K. Randolph: When somebody has e-filed, do they get 33
acknowledgment that you received it? 34
35
Clerk: They get the notification of electronic filing. As long as they are registered 36
through MEC. 37
38
Clifford C. Whitney: Ok Judge, the prejudice, first of all is all of this delay in a case that 39
shouldve been thrown out at the trial court level and it has been exacerbated by all of 40
what has taken place, the court has gone over... 41
25
Presiding Justice Michael K. Randolph: Well, since the court hasnt ruled to agree or 1
disagree with you as to whether it should or should not have been, what I want you to 2
focus on is what prejudice your client has suffered as a result of the failure to timely file 3
the brief and the delays caused by that. 4
5
Clifford C. Whitney: Well the prejudice of the passage of time, which of course in any 6
case is going to adversely effect your witnesses memories dim and all of the attendant 7
problems..... 8
9
Presiding Justice Michael K. Randolph: Has anybody died or anything? 10
11
Clifford C. Whitney: Not that I am aware of. 12
13
Presiding Justice Michael K. Randolph: I mean I had to represent a doctor one time and 14
he died. He didnt stick around for the trial so I had to....but, you dont have that kind 15
of prejudice? 16
17
Clifford C. Whitney: Not that I am aware of, no sir. 18
19
Presiding Justice Michael K. Randolph: Okay so time is money, so how much money has 20
been expended in representing you client as a result of the failure to timely file a brief 21
and respond to these matters? 22
23
Clifford C. Whitney: Your Honor, I did bring with me a printout of the billing. 24
25
Presiding Justice Michael K. Randolph: Give it to the Clerk. 26
27
Clifford C. Whitney: Your Honor, this.... 28
29
Presiding Justice Michael K. Randolph: Document dated at the time 04/30/14, Exhibit 30
1 to these proceedings. A rough draft of your billing mechanisms? 31
32
Clifford C. Whitney: It is a billing summary of all...and the work that is reflected on 33
here all pertains to the various issues about these delays and these show cause and 34
pleadings that we have filed in response to the motions that were filed. In addition, ..... 35
36
Presiding Justice Michael K. Randolph: The rate on here customary in Vicksburg? 37
38
Clifford C. Whitney: Well, Your Honor, I would certainly say as an officer of the court 39
that in fact if anything, this $165 and hour is more than fair and reasonable and is 40
customary for insurance defense work in Vicksburg, MS and is consistent with that. 41
26
Presiding Justice Michael K. Randolph: Well, we saw one of those this morning from 1
Jackson and it was $225 so we will take that into consideration. 2
3
Clifford C. Whitney: All of this work was reasonable and necessary for the matters that 4
were involved in these proceedings relating to these delays. 5
6
Presiding Justice Michael K. Randolph: How much time do you have devote to it... 7
8
Clifford C. Whitney: In addition to that I have three and half hours for today, which at 9
the rate of 165 would total $577.50 plus mileage at .555 cents a mile. Thats the federal 10
rate as I understand it. That would be $55.00 for the round trip. So the total then would 11
be $632.50 for today, Your Honor plus the ... 12
13
Associate Justice James W. Kitchens: Give me that number once more please. 14
15
Clifford C. Whitney: $632.50. Then, the total of $1,953.50 is on Exhibit 1. 16
17
Presiding Justice Michael K. Randolph: Any other prejudice other than the monetary 18
prejudice? 19
20
Clifford C. Clifford C. Whitney: No, Judge, other than again just simply the effect of 21
diminishing memories of witnesses and so forth that come with the delay. Thats all. 22
Thank the Court. 23
24
RECESS 25
26
Presiding Justice Michael K. Randolph: We have had an extended conversation. Mr. 27
Winfield if you will stand up here please. As Justice Kitchens alluded to, these types of 28
hearings come very seldom. I think Justice King have probably been in Appellate Courts 29
longer than all of us. I think he indicated maybe they had one in his court years ago. We 30
are troubled that this is the third one that we have had this year and in trying to compare 31
those, quite frankly Mr. Winfield yours is the strongest demonstration of a failure of the 32
way our system is working. The panel, after consultation, feels that there has been a lack 33
of candor on your part. We are very concerned about the diligence that you have 34
exhibited in the representation of your clients. We feel like you have exhibited disrespect 35
to the court and to the institution. Again, it is not to the individuals, anyone of us can 36
take off the robe and probably dont deserve a lot of respect on anything, but it is the 37
court and the system. We are concerned about your stress that you dont have. I think 38
perhaps you misunderstood what Justice King was trying to draw out of you and you are 39
trying to defend your right to practice law as opposed to being frank about difficulties 40
that surround you that keep you from doing it to the full extent of perhaps, your abilities. 41
27
Based upon that we have come up with a couple of things. This Court will issue and Order 1
as soon as it can be prepared that you have ten days to contact the Lawyers and Judges 2
Assistance Program and, which is a voluntary program but you got ten days to contact 3
them. If you elect to participate in that program then they will furnish the Court with 4
reports of your progress in that program, which will allow you to continue practicing law. 5
Should you chose that the LJAP is not for you and you dont want to participate and dont 6
want to seek their assistance, that is your business and none of us can make you do that. 7
However, should you chose not to do that, then we are going to have a copy todays 8
proceedings sent to the Bar and have them review it for whatever purposes they want 9
and you take your chances with them as to whether you have violated any of your duties 10
as a lawyer. It is our hope that you will seek assistance, but that is your choice not mine. 11
The second thing is, the monetary thing is a rather difficult thing and you should pay 12
every penny to these other lawyers....keep their client from paying and it should come 13
out of your pocket. I would guess if I got in your pocket now it would be pretty empty. 14
You indicated that, when we came back in for the second proceeding today and the Court 15
is going to modify its earlier opinion of 5:00 tomorrow that you shall pay to this Court as 16
sanctions for your failure to appear today $500.00, but you are going to pay it to the 17
Court at $100.00 a month and those payments will begin on June 1. That will be in an 18
Order. 19
20
Michael E. Winfield: Thanks, Your Honor. 21
22
Presiding Justice Michael K. Randolph: The second thing is that I having practiced both 23
plaintiff and defense over the years and having looked at many billings and the billing 24
that is presented today by the Defendants in this matter, or the Appellants I guess, 25
Vicksburg Healthcare is fair and reasonable in all respects, but nonetheless due to your 26
financial circumstances the Court has elected to reduce that to $1500.00 as opposed to 27
now sought. That is going to be payable to the lawyers of the law firm. That is going to 28
be paid at $100 a month beginning on May 15
th
. The failure of you to make any of those 29
payments is going to result in contempt proceedings and....serious contempt 30
proceedings. If that means you cant make enough money practicing law then go flip 31
hamburgers somewhere, but you pay that money. For your client, we are going to accept 32
the brief as filed. You better make sure before you leave here today that the lawyers on 33
the other side have that brief and then that matter will take its own course. We would 34
expect that you would change the way you are doing things. Again, I am not a tech freak 35
at all but I can keep a calendar on my phone and it dont take any real skills to do that. 36
You have got e-filing now, you know how to do it, I have seen you know how to do it. So 37
secretary is, although very important, are not absolutely necessary to practice law. That 38
will be the ruling of the Court. Do either of the Judges have anything else to say? 39
40
Associate Justice James W. Kitchens: Mr. Winfield I hope this helps you. I have been 41
28
interested in you as a lawyer, as a person, I have known you and known about you for a 1
long time and sorely, deeply saddened by the necessity of this proceeding this afternoon. 2
I hope the next time we see you it will be under much more pleasant circumstances. I 3
wish you well in your life and in your practice. 4
5
Michael E. Winfield: Thanks, Your Honor. 6
7
Associate Justice Leslie D. King: I too would take the opportunity to wish you well as 8
you move forward, like the other members of this Court I knew your father for many 9
years back. I recognize that the practice of law is one of the most stressful professions 10
in which one can engage. Sometimes it is difficult to admit to oneself the depth of the 11
stress he labors under in our profession. Please take advantage of the resources available 12
to you through the Lawyers and Judges Assistance Program. That is one of the best 13
benefits of being a member of the Mississippi Bar Association. It can do a great deal for 14
you and ultimately for your family. 15
16
Michael E. Winfield: Thanks, Your Honor. 17
18
Presiding Justice Michael K. Randolph: I think that certainly the Bar can direct you 19
before you leave this building. Actually just go down this hall and downstairs I guess to 20
get to the Bar area and you need to check into that today. One of the requests of one 21
of the Justices is that a copy of this Order will be sent to the address that you furnished 22
for your client. So they will receive a copy of the Order to be entered later today. 23
Anything else from the Court? 24
25
Clifford C. Whitney: I take it that our time to file a reply. 26
27
Presiding Justice Michael K. Randolph: We will set a new briefing schedule. You need 28
to do two things, thank you. Number one is before you leave this building today I expect 29
you to go down to the Clerks office and fill out that form that has the right addresses 30
and if you have any other files either here or at the Court of Appeals, you fill out those 31
Court Appearance forms. They are very important to everybody. So get that done today 32
in this case. Then you probably dont have a copy of the brief with you so when you all 33
get back to Vicksburg. Lets do this, since counsel opposite doesnt have a copy of that 34
brief, you deliver it to them tomorrow and then go ahead and send one here because the 35
brief that you presented here has not been filed anyhow. It will be filed...we have it but 36
the Clerks office has not filed it.. 37
38
Michael E. Winfield: Do I need to do five of them again, or do I just submit one 39
tomorrow. 40
41
29
Clerk: Should be e-filed, Your Honor. 1
2
Presiding Justice Michael K. Randolph: E-filed. You show a lack of concern there, so. 3
4
Michael E. Winfield: I have the ability to do it, I just thought you know you had to bind 5
them and put them in the colored books and all of those different things. 6
7
Presiding Justice Michael K. Randolph: No when you e-file, I dont think you have to file 8
all of the additional copies. That is the beauty about e-filing. You just e-file it and I can 9
get it in my sleep and he can get it in his sleep. It will actually save you time and money 10
and other things. So you get that done tomorrow. Then, that will start the period and 11
we will include that in your Order that when his brief is filed the normal time frame will 12
kick in for you to file your response to the brief. We will look at it. You may want to go 13
back and study and make sure that is a good product before you file it. That should take 14
care of everything. 15
30