Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

For Mississippi native son and attorney Philip Thomas, blogging about law, politics and topical issues in the state extends a conversation he’s been... More

The Imagined Racial Divide

Posted in General

The Dedmond gang hate crime murder, put into historical context by Judge Carlton Reeves, evokes tremendous sadness about the nation’s racial divide. It is a divide that is very real; and completely illusory.

Large segments of our population–white and black–believe that people of the opposite race are different from them. People often cling to this belief despite overwhelming contrary evidence. black v.s white

When people of different color do get to know one another, they see that their only difference is skin color. But rather than questioning their underlying racial beliefs, people think this one person they know is different instead of questioning their entire belief system.

Frankly, I’ve known that white people do this for most of my life. White people often maintain their racial prejudice with this line of thinking: “the black person that I got to know and is my friend is different from other black people.”

This allows people to have friends of the other race and maintain underlying prejudices. When you think about it, this makes no sense. But it undeniably happens.

For a long time I just assumed that only white people rationalized in this way. Turns out, I was wrong. I’ve learned in the last decade that black folks do the same thing.

My legal assistant is black. She’s told me on more than one occasion that friends or family who she introduced me to were surprised that I was a nice guy. They just assumed that, since I was white, I was a jerk.

A similar thing happened a few years ago when I played in a regular poker game where I was usually the only white person at the table. My friend who hosted the game later told me that the other players had agreed that I was so cool, they almost forgot I was white.

The thing is, I’m not that cool. I’m just a normal dude.

In many towns you can walk into a sports bar and see a table of black guys sitting near a table of white guys. They’d be speaking the same language, watching the same games, eating the same food, drinking the same beer, and flirting with the same waitresses.

The conversations at those two table would be EXACTLY the same. Mostly talk about the game on television, sprinkled in with complaints about work, wives, etc…

Over the course of the game, they would even talk to the dudes at the other table about the game and share in each other’s jokes about what they were watching together on television. At the end of the night, they would all go home thinking those guys at the other table were a lot different from them. Despite the fact that for the last few hours, those other guys were doing the exact same thing they were.

On Saturday the black guys might tailgate outside a JSU game. The white guys might tailgate in Starkville or Oxford. Many of them wouldn’t dream of hanging out with each other, what with all their differences and all.

We have a very real racial divide. And it’s complete bullshit.

It wouldn’t even be that big a deal if it didn’t lead to tragic results. Like in the Dedmond case. A man was killed because of imagined differences.

While it is racism, it’s not your father’s racism. Today, people who some would categorize as racist would have been viewed as liberal-commie nuts in 1960.

Why? Because they aren’t racist towards all member of the opposite race. Just the one’s they don’t know. Which other than a few people, is everyone.

It is both sad and frustrating. And it’s going to be prevalent for a long time.

Death of the Billable Hour?

Posted in General

Chase Bryan recently blogged about the billable hour system and alternative fee arrangements. A barrier to alternative fee arrangements is in-house lawyers who are afraid of change:

…a former outside lawyer and now a general counsel at a large company, expressed skepticism about alternative fee agreements. He said that everyone talks about alternative fees deals but folks rarely actually agree to engage in them. He relies on the default of hourly fee arrangements because it is familiar.

That’s consistent with my experience. I’ve proposed flat fees to corporate clients who weren’t comfortable with the concept because they had never done it before.

Corporate America is largely built on the backs of employees who do not want to rock the boat. Changing the way your outside attorneys bill would rock the boat–so companies usually maintain the status quo.

The legal industry is slow to change. I suspect that alternative billing will continue to grow, but at an extremely slow rate. Perhaps one day there will be a tipping point that speeds it up.

Another great defense-side idea that has been slow to adopt is resolution counsel who are separate from litigation counsel. I’ve seen this concept used a few times and am impressed with it. Having resolution counsel whose sole job is to try to settle the case eliminates the inherent tension between a defense lawyer’s need for work and the benefit of settlement for clients.

It’s a topic for its own post, but the concept of resolution counsel makes more sense than ever. The value of cases has dropped so much over the last 10-15 years that the exposure levels usually do not justify spending six figures to defend cases.

That made sense back when many cases settled in seven figures. Who cared if defense counsel billed $250,000 if they beat the settlement value down from $2 million to $1 million? That’s how it worked in the litigation boom.

Not so much today when those same can be resolved in the low to mid six figures. Perhaps I’ll post more of my thoughts on this topic later.

Tom Freeland’s Death Silences Influential Voice

Posted in General

News broke Saturday that Oxford attorney Tom Freeland died at age 59. An attorney in Oxford for over thirty years, Freeland became well known throughout the region as a blogger on NMissCommentor and a predecessor blog.

I never met Freeland. But his writing had a huge influence on my decision to start blogging and what subjects I chose to write–and not write–about. For instance, not writing about my own active cases was a Freeland practice that I followed.

My decision to mostly limit my blog writing to topics relevant to Mississippi civil litigation was based in part on wanting to differentiate this blog from Freeland’s more general topic universe. The trade off has been that NMC was probably a funner endeavor.

Freeland’s last blog post was a good one, pointing out the the oddity of Alabama Supreme Court Justice Roy Moore’s sua sponte ban of same sex marriages.

In an era where print media is dying, blogs like NMC are important. Although we have a handful of excellent law related blogs in Mississippi, they have not taken off to the extent that I expected six years ago.

Freeland’s death leaves a void. His voice will be missed. Even by those, like me, that only read it.

Two Thumbs Down for Logan’s Roadhouse II

Posted in Verdicts in Mississippi

Earlier this week I posted about the big Logan’s Roadhouse brawl in Hattiesburg concluding with vindication for Logan’s. Now, footage from the brawl has leaked:

My Take:

As fights go, that sucks. What is that? Some sort of UFC choke hold? Or a pro wrasslin sleeper hold?

My point is that rolling around on the floor and looking like you are trying to hump some dude is no way to get over in a fight that someone is taping on their phone. Just ask Dalton and Wade Garrett.

Better to throw a bunch of wild hay-makers that never connect.

I’ve got to give Logan’s Roadhose II two thumbs down.

Defense Verdict in Hattiesburg Federal Court Premises Liability Trial

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

Last Wednesday a Hattiesburg federal court jury rendered a defense verdict in Green v. Logan’s Roadhouse. Here is the complaint.

The plaintiff alleged that he was beaten up in a Logan’s Roadhouse and the defendant did not intervene to stop the beating.

Here is the jury’s verdict. The jury found that Logan’s was not negligent.

Ashley Ogden and Jim Smith of Jackson represented the plaintiff. Edward Bowron and Chris Meyer with Burr & Forman represented Logan’s.

Judge Keith Starrett presided in the case.

My Take:

I wonder if Logan’s Roadhouse is anything like Dalton’s Roadhouse?

February Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the verdicts detailed in the February issue of the Mississippi Jury Verdict Reporter:

  • $2,616,639 verdict- Hinds County trucking negligence case (1/22/15);
  • $862,228 verdict- Harrison County construction contract case (10/21/14);
  • $107,100 verdict- Jackson federal court employment retaliation case covered here (1/9/15);
  • $30,000 verdict- Harrison County jet-ski negligence case (12/10/14);
  • $5,058 verdict- Harrison County car wreck case 910/30/14);
  • defense verdict- Hancock County negligent security case (12/19/14); and
  • defense verdict- Jackson federal court race discrimination case (1/21/14).

My Take:

Interesting. Over half the reported verdicts are from two coastal counties.

Has Technology Become Too Big of a Headache in Law Practice?

Posted in General

Let me preface this post by stating that technological advances have made practicing law and running a law practice much easier than when I started 20 years ago. I hate to think what it would be like to go without things like scanned documents, electronic filing and practice-related software. It’s great.

But lately, I’ve noticed more and more headaches associated with modern technology. For instance, Anderson blogged last week about the issue of whether to use footnotes in briefs. It’s an issue that lawyers have strong–and often differing–opinions. Judge Griffis at the Court of Appeals has even weighed in.

For instance, Anderson doesn’t like using footnotes for citations in briefs. I do. To me, this should be a picayunish issue that no one should ever win–kind of like fonts. 

But it’s not. Apparently, for reasons Anderson explains in his post (go read it), the anti-footnoters win. Why? Because technology is making reading footnotes harder–not easier.

Unless, I guess, the IT guy is the one writing briefs. From Anderson’s post:

 So, what is to be done? One can create internal hyperlinks in a Word or WordPerfect document which will then carry over when the document is published to PDF. But that increases the file size of the PDF and thus may not pass muster with the clerk’s office (or the electronic filing software, which may strip your links). 

Another option might be to have the note appear in the text, as a note (indented and single-spaced)….

Or, as Anderson concludes, it’s probably just easier to say “to hell with that” and just stop using footnotes.

The problem for a long-time footnoter like me is old habits die hard. It’s not so much writing the brief without the citations in footnotes, but the proofing and revising. It’s much easier for me to read my briefs without cites clogging up the text.

But it’s not just footnotes. We’re also now supposed to proof our briefs on tablets, since judges like to read briefs on their tablets. Why? Because that great looking paper copy we spent so much time formatting may look like crap on a tablet.

If you’re like me, you’re scared to even start proofing briefs on tablets for fear of being pulled into a huge time-suck vortex.

I may start my briefs: “I’m begging you judge, please don’t read this on your tablet.” Or at least drop it in a footnote for old times sake.

And this is just the tip of the iceberg. It seems like everyday I have at least a hiccup with hardware, software, internet connections, or some other technology issue. Have you ever spent an hour writing a blog post and then lost it because of some glitch that wasn’t your fault? Well, it’s a wee bit frustrating.

Sometimes it’s more than a hiccup. Like in November, when my laptop’s hard drive crashed.

If you’ve never had your hard drive crash, let me fill you in. It’s worse than the hard drive crash doomsdayer’s describe. You wander around in a mourning stupor for days on end wondering whether you your precious data is going to make it. “For god’s sake Mr. IT guy, tell me straight, is it a goner?” Now I look at my server like a ticking WMD bomb.

Then you might run into things like your IT guys not backing your computer up. Or, as in my case, not remembering that they were, or where they were, backing it up. And then making comments like, “wow, we really should have been backing that up.” It comes off a bit like telling your client, “gosh, we really should have answered that complaint. Sucks for you for hiring us.”

Going in search for your missing data is an Easter egg hunt you don’t ever want to go on.

Bottom line is that for all the technology we have, it’s not working together that well. And it’s getting worse.

New Slogans for Civil Litigators

Posted in General

Courtesy of Lowering the Bar, I saw this ‘awesome’ billboard for a criminal defense lawyer:

I love it. But it got me thinking, what would be a comparable slogan for a plaintiff personal injury lawyer. Here’s what I’ve come up with so far:

  1. Just because it’s your fault doesn’t mean you can’t get paid.
  2. Just because you weren’t hurt doesn’t mean you can’t get paid.
  3. Dishonesty also pays.

And for civil defense lawyers:

  1. Just because you did it doesn’t mean your liable.
  2. Just because you did it doesn’t mean you have to pay.
  3. Just because it’s your fault doesn’t mean you owe her.
  4. Just because you did it doesn’t mean he’s not faking.
  5. Dishonesty pays for us too.

Follow Up on the Perception of Arbitration Forums

Posted in General

In my last post I mentioned that arbitration forums are often viewed as rigged for big business. Over the weekend I saw this Barron’s articled titled “The Street’s Due-Process Joke.” It’s about investor arbitration.

The cited problem is that Financial Industry Regulatory Authority (FINRA) arbitration panels are so biased that they deny investors due process. How biased? How’s this sound:

….’I’ve seen potential candidates who have never given a claimant’s award in any contested case,’ says Hugh Berkson, a partner at Hermann, Cahn & Schneider in Cleveland, and president-elect of Piaba. ‘Statistically, that is impossible—absent bias.’

The problem is pre-dispute arbitration provisions. FINRA and other biased forums do not have to try to be fair, since parties are locked into arbitration before a dispute arises. They can appoint arbitrators who have never seen a valid case, knowing that the investor will always lose.

An easy solution is to ban pre-dispute arbitration clauses. Arbitration can makes sense in some cases when it’s before a neutral arbitrator and forum. But parties should not be forced to agree to arbitration before they even start doing business together–much less have a dispute.

If people could opt out of arbitration, then FINRA would have to be fair in appointing arbitrators or all investors would opt out.

As it is now, the system is rigged. And everyone knows it. Even the courts that enforce pre-dispute arbitration provisions.

Does the Civil Justice System Need a Do Over?

Posted in General, Improving the Jury System

Lately I’ve wondered whether the civil justice system and lawyers who practice in it have it wrong. Hear me out on this.

When you get in an argument with your spouse or significant other, when it’s all over, do you care who ‘won’ the argument? No, you don’t. Or if you do, you’re in a terrible relationship. Maybe because you are a moron. 

What you care about is that you resolved the argument. Period. Victory is when hostilities cease and you want to be around each other again. Am I right?

But then in litigating disputes, it’s all about winning.

It starts with who actually becomes litigators. There are generally two categories of litigators. There are those who just fell into it because they fell into going to law school and fell into a job working for a litigation firm.

Then there are litigators who chose it. Those who planned their life around it long before they passed the bar. People like me.

I knew a wanted to be a trial lawyer by the time I was 15. I started college as a business major for kicks and giggles, but switched my major to history, something I actually liked, so I would make better grades to ensure that I would get in law school. Once I started law school there was never a doubt what I would do. I was going to litigate and ultimately try cases. Why? I didn’t know why. I just knew that’s what I wanted to do.

Now I think I know why. For the competition. I loved to compete as a kid. But when everyone else started growing in the 6th or 7th grade, I didn’t. I was out of organized sports by junior high. I was just too small–still under 5 feet and 90 lbs. when I started high school. I had to sit on a phone book to drive. I was like Owen Meany, minus the charisma.

And I hated it. I wanted to be able to compete.

So you get people like me in litigation. Runts who missed their chance to compete as kids. Ex-jocks who didn’t miss their chance, but still love to compete. It makes for some outstanding competition. I’ve had some great courtroom battles with outstanding lawyers. But we weren’t trying to resolve a dispute. We were trying to win.

You see the attitude in literature about law practice and litigation. “We’re not here to do _________. We’re here to win” you see it written again and again. It’s true. Most of us are there to ‘win.’ But is that the way it should be? Is it best for the clients?

What’s the emotional toll on parties who are embroiled in litigation for years? There is a price to pay, it’s just hard to measure. Likewise, having a conflict resolved has immeasurable benefits on the parties.

Instead of in it to win it, should we be in it to resolve it? Should victory be the resolving of the dispute–the same as in a normal relationship? More and more I am thinking that the answer is yes. Except that’s just not how the system is set up or works.

We litigate in a system tailor-made for competing, not efficiently resolving disputes.  

Once we’re into a case, we feel like we have to act like the opponent’s case is b.s. Some lawyers actually always believe the other’s side’s case is b.s. They aren’t necessarily good lawyers, since they never see the freight train coming. But they exist. On both sides of the ‘V’.

Other lawyers will privately admit that the other side might win. Just never to the judge or opposing lawyer. These are good lawyers. They often see the freight train coming and get off the tracks.

The rarest breed of lawyer are the lawyers who will openly admit to the opposing counsel that each side’s case has its pro’s and con’s and it could go either way. Lawyers in this category tend to be great lawyers who are revered by co-counsel and opposite counsel alike. Of course, it’s hard to pull off. If you’ve ever done it, you know that at first, you feel like something bad may happen because you are giving away the Colonel’s secret recipe.

But invariably, nothing bad happens. It improves communications between the lawyers and thus, the opposing sides. It distorts the notion that “we should win” and “you should lose.” Somehow, it becomes more about resolving a dispute. And once you get it there, you’ve got a much better chance of actually resolving the dispute.

But it’s hard to get there. Particularly among the ultra-competitive who become litigators.

So what’s the answer? I’m not sure. ADR may have been an attempt at creating a better system. But ADR went totally off the tracks with forced arbitration from pre-dispute adhesion contracts and arbitration forums that openly tilt for business interests (think AAA and NAF). The result is that people don’t trust ADR.

It’s almost like every case needs a neutral. Not a judge, who is an umpire and doesn’t have time to serve as a neutral. But more than a mediator, who is called in–often at the last minute–to try to help resolve a case. A neutral would be someone with no allegiance to either side who is actively working to bring the parties to a resolution whether the parties ask for it or not.

Yea, I get it. Who would pay the neutral? If this was the easy answer, I’d be telling you here’s the easy solution.

I’d just like to see people talking about these issues and discussing whether there are ways to improve the system. Nothing will change as long as everyone accepts things the way they are.