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

$635,325 Judgment in Lincoln County Wrongful Death Bench Trial

Posted in Verdicts in Mississippi

On July 23, 2015 Circuit Court Judge David Strong entered a $635,325 judgment in McCrory v. Lincoln County School District. The judgment resulted from a tort claims act bench trial in a case involving a car-school bus wreck.

Here is the Court’s Memorandum Opinion and Order.

The accident happened in 2011. The decedent, Tammy Jo Brown was traveling on a road in Wesson when she collided with a Lincoln County school bus traveling in the opposite direction. The school bus was two feet over the center line at the time of the collision. Brown died at the scene.

Brown was speeding: 68 mph in a 20 mph zone before the collision and 52 mph at the time of the collision. The school bus was also speeding: 35 mph. The bus driver saw the car approaching from two hills away, yet didn’t get into her own lane. The bus driver also didn’t show up for the trial.

The Court apportioned 90% fault to the bus driver and 10% fault to Brown. The Court assessed damages as $205,917 in economic damages and $500,000 in loss of society and companionship.

Due to Brown’s 10% fault, the damages were reduced and judgment entered in the amount of $635,325.

Defendant’s top offer to settle before trial was $230,000.

Darryl Gibbs of Chhabra & Gibbs in Jackson represented the plaintiff. Bobby Thompson with Copeland Cook in Ridgeland represented the County.

My Take:

Fascinating case.

You have a speeding school bus on the wrong side of the road and you try it because, presumably, you think that there is a good chance that most of the fault will be apportioned to the speeding lady who was in her own lane. Defendant’s pre-trial settlement offer of $230,000 was not insignificant, but it seems to assume a best case outcome for the Defendant.

With $700,000 in damages, the Defendant needs 70% or more fault apportioned to the Plaintiff to break even on the pre-trial offer. Sure that could happen, but a settlement offer needs to factor in that it might not. I would think that a Defendant on the wrong side of the road should expect to be apportioned 70-100% of the fault. That would put the valuation range at $490,000- $700,000. It probably would not take that much to settle the case. But $230,000 probably wouldn’t be tempting.

An interesting offer would have been $325,000. That’s still giving the Defendant less than 50% of the $700,000 in damages. If I’m on the defense side, I can sell that to my client as a good deal.

And it’s a harder offer for the Plaintiff to reject. First, it puts a lot of money in the Plaintiff’s pocket now. Second, it gets into the realm of possibilities where the outcome at trial could be worse.

Defendants want to make settlement offers that translate into hard decisions for Plaintiffs. In this case, offering $50,000 would have been the same as offering zero. Neither number is going to get the case settled. It’s like dealing a poker player 7-2 off-suit and hoping they go all in.

What I’m trying to figure out is whether the $230,000 offer here was any different from offering $50,000. Where was the risk for the Plaintiff in rejecting $230,000 and going to trial? I’m not saying there wasn’t any. But I don’t see it from the Memorandum Opinion.

Another interesting observation is that if the decedent was going slower and not killed, the value of the case would probably have been higher due to severe injuries and high medical bills. That arguably makes pointing the finger at the decedent for speeding a disingenuous argument.

Anyway, this would be a fun case to spitball over beers or talk through in a law school class.

$2.7 Million Verdict in Helicopter Crash Case

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

On Tuesday a federal court jury in Jackson rendered a total verdict of $2.7 million against Robinson Helicopter to plaintiffs involved in a 2009 helicopter crash in Jackson. Here is the original Complaint. 

According to the Complaint, the cause of the crash was severe vibration or “chugging.” Charles Farmer died in the crash and Larry Wells suffered severe injuries. The owner of the helicopter, Webb Group, was also a plaintiff.

The trial commenced on July 13, 2015 before District Judge Carlton Reeves. The trial lasted eleven days and ended on July 28. Here is the verdict.

The jury apportioned 70% fault to Robinson, 15% to Wells and 15% to the FAA. Damages were as follows:

  • Larry Wells: $2,525,000  ($2 million economic)
  • Donna Wells: $289,074  ($189,074 economic)
  • Connie Farmer: $700,000 ($350,000 economic)
  • Webb Group: $384,000 (all economic).

The apportionment of fault reduced the total verdict to just north of $2.7 million.

The trial was set to resume on July 29 on the issue of punitive damages. However, the parties announced a settlement. Here is the dismissal order.

Plaintiff’s counsel were Mike Pangia, Joseph Anderson, Douglas Dejarden (all from a D.C. firm), and Nick Norris and Louis Watson, Jr. from Jackson. Ben Watson from Butler Snow represented Webb Group.

David Ayers and Rusty Comley from Watkins Eager in Jackson and Tim Goetz from California represented Robinson Helicopter.

My Take:

That seems like a measured verdict given the facts of the case. If anything, the non-economic amounts seem low for a crash that was severe enough to kill one of the occupants and where the other plaintiff’s economic damages were $2 million. It would be interesting to know how much the plaintiffs requested from the jury.

The quick settlement and dismissal is fodder for plaintiff lawyers who argue that federal court is a better venue than state court because cases move faster and it’s easier to monetize a verdict.

It’s hard to imagine such a quick settlement in state court given the fact that defense lawyers still routinely claim in settlement negotiations that the Mississippi appellate courts will not affirm large verdicts. I’m not sure I agree with that assessment, but I still hear the claim and have no reason to doubt that defense lawyers are telling their clients that. True or not, as long as lawyers and clients believe that it will impact litigation in Mississippi.

Plaintiff lawyers do not hear those political-based threats from defense lawyers in federal court nearly as much as in state court, if any.

almost back…..hopefully

Posted in General

I am working today for the first time in over two weeks due to a family medical emergency.

Stuff has happened in my absence. There was a $2.7 million verdict in a federal court products case involving a helicopter and a $2.4 award in an investment arbitration proceeding. Seems like there are a few more things on my blogging plate as well.

More reports to follow.

Good Advice on Dealing with Professional Stress

Posted in General

Judge Primeaux offered some great practice advice in this recent post on his blog. The topic is dealing with stress. The post opens:

Stress takes its toll in the form of burnout, substance abuse, failing relationships, depression, and even suicide.

Judge Primeaux offers seven tips for dealing with stress in the legal profession. In addition to his list, here are two suggestions from me.

First, treat maintenance of your physical and mental health as part of your job.

Judge Primeaux once coined the most accurate one word description of practicing law that I’ve ever heard: corrosive.

It’s corrosive mentally and physically. Don’t apologize for coming in late or leaving early so you can get a workout in. You are not going to be doing anyone any good if your body breaks down.

And most of us aren’t in our 20’s anymore. Getting our bodies in shape is not a couple of week project. It takes commitment.

On the mental side, you have to find a way to check out mentally. It’s often difficult. You can wake up and realize that you’ve worked every single day for 2-3 months. Or, as in my case as I write this, haven’t taken a vacation for at least a year. That’s not ideal.

Like working out, vacations should be considered part of our job. Performance will suffer if you never check out mentally.

Yoga and meditation are also both worth considering. I’ve tried yoga lately and have found it to be great for reducing anxiety.

Second, and this one is hitting close to home for me right now, family first. Yes, there are times when you have to miss a family event due to work. But in general, if you want to have a happy life, you have to prioritize your important relationships over your legal career.

By “family” I don’t mean just your immediate family. I’m also talking about significant others, close friends–anyone who is important to you. Prioritize your career and/or making money over your personal relationships and you will wind up miserable. No matter how big your bank account is.

Why Keep a Flag That’s Bad for Business?

Posted in Politics in Mississippi

South Carolina removed the Confederate flag from state grounds last week via impassioned Republican leadership. The following video of South Carolina lawmaker Jenny Horne (R) is worth watching in its entirety:

Meanwhile in Mississippi, many Republicans have come out in favor of changing the state flag. Unfortunately, Governor Phil Bryant and Lieutenant Governor Tate Reeves want to keep the current flag.

Flag supporters ignore that the flag is bad for business.

Mississippi is struggling economically. Here is a map of the jobs recovery since the Great Recession began. Mississippi is one of the worst performing states in the nation (via Zero Hedge):

Employment13States

I’m not suggesting that the flag is a major factor in these statistics. But it can’t help when national or international companies decide whether to bring job-producing facilities to Mississippi.

As I’ve discussed before, most flag supporters are not students of history.

So who supports the current flag? People who support the flag fit into the following categories:

flag supporter pie chart

I know some of you are saying: “hey, I support the flag, and I don’t fit in any of you categories.”

Yes, you do.

People can have a lot of reasons for wanting to ditch the flag. It does not take believing that the flag includes a racist symbol, which of course, it does.

The flag is bad for business and bad for Mississippians travelling outside the state. It should be changed. Yesterday.

Breaking News: Civil War About Slavery

Posted in Politics in Mississippi

With a background as a history major, it’s frustrating to hear Civil War and Confederate flag apologists say that slavery was not the root cause of the Civil War. “It was about state’s rights,” they say. Miss. flag

They are wrong. It was about slavery. What was the state right they were fighting for? Slavery, of course.

Don’t believe me? Then go read the official Mississippi justification for secession here: Reason for Secession.

It opens:

“Our position is thoroughly identified with the institution of slavery–the greatest material interest in the world.”

It goes on to list Mississippi’s complaints about the Union threat to slavery.

Then, near the end:

“We must either submit to degradation, and to the loss of property worth four billions of money, or we must secede from the Union framed by our fathers, to secure this as well as every other species of property. For far less cause than this, our fathers separated from the Crown of England.”

$4 billion in slaves in Mississippi in 1861? That’s a lot of money. So maybe it wasn’t fought over slavery after all. Maybe boiled down all the way, the war was fought over money.

Ironically, the Confederate flag is now mostly defended by the kind of rednecks who couldn’t have afforded slaves, but would have been on the front lines of the infantry fighting to save the Man’s wealth.

It’s also ironic that the South’s wealth was destroyed more by Union armies in the war than freeing the slaves. Once Reconstruction ended in 1877, things basically returned to how they were in the slavery era. “Free” Southern blacks had to labor on the plantations for room and board.

John Barry’s book Rising Tide, about the 1927 flood, talks about one of the main efforts of the whites in power during the flood was to prevent the black labor class from leaving the Delta.

Things worked out ok for the wealthy Mississippi landowners who led the State into Secession. Not so much for the slaves and their descendants for the next 100-plus years.

Of course, don’t tell this to the Civil War apologists and flag supporters. They like their romantic narrative a lot better.

Deposition Witness Murders Clarksdale Attorney

Posted in General

Clarksdale attorney Ellis Pittman was murdered on Friday by a man who Pittman was suing and deposing at the time of the murder. From WMC:

Pittman was suing Frazier over work he had done on his home. Pittman claimed the work was shoddy and Frazier misused funds. Pittman was taking a deposition from Frazier when the shooting happened.

Clarksdale attorney and mayor Bill Luckett was Frazier’s defense attorney in the Pittman case and apparently witnessed the shooting.

My Take:

What a terrible tragedy.

As shocking as this is, we are lucky it does not happen more often. Litigants often take litigation personal. Combine taking a dispute personal with litigants who are not always mentally stable and bad things can happen.

This is a good example of why security is so tight in most courthouses in Mississippi.

It sounds like this happened so fast that Pittman would not have had time to defend himself even if he had a gun in his office. With a lot of Mississippi lawyers, and judges for that matter, there would be a gunfight if someone came after them in their office.

Here is a post on the 2012 gunfight in Greenwood attorney Lee Abraham’s office.

Flagageddon

Posted in Politics in Mississippi

Who can work with the god-awful Mississippi state flag back in the news. The flag, which voters unwisely didn’t dump in 2001, is being attacked from all corners. Miss. flag

Here’s the latest scoreboard on public officials and politicians who have weighed in on the flag:

Philip Gunn- Speaker of the House /  Dump it
Thad Cochran- U.S. Senator /  Dump it
Roger Wicker- U.S. Senator /  Dump it
Bennie Thompson- U.S. House of Rep. / Dump it
Phil Bryant- Governor /  Keep it
Tate Reeves- Lt. Governor /  Keep it
Chris McDaniel- State Senator / Keep it
Melanie Sojourner- State Senator / Keep it
Delbert Hoseman- Sec. of State / Scared to say
Haley Barbour- former Governor / Pardon it
Henry Barbour- GOP pol  / Dump it
Andy Taggart- GOP smart guy / Dump it

Jim Hood- Attorney General / Dump it

Billy Hewes- GOP Mayor of Gulfport / Dump it

Trent Lott- Former Senator; GOP when it wasn’t cool / Dump it

Judicial Temperament Not Required

Posted in Mississippi Supreme Court

On Thursday Anderson covered the latest from Lee County Chancery Court Judge Talmadge Littlejohn. The Mississippi Supreme Court suspended Judge Littlejohn thirty days without pay and imposed a public reprimand as a result of Judge Littlejohn, once again, throwing someone in jail when he should not have. Here is the Court’s opinion.

In this case, Judge Littlejohn found a litigant in contempt and ordered him incarcerated because the litigant did not comply with the judge’s order to pay $16,750 in a child support matter. The problem was that the litigant had already posted a supersedeas bond and appealed Judge Littlejohn’s order.

As far as bad rulings go, this one is a doozy. A supersedeas bond guarantees performance if the appealing party loses on appeal. It protects the winning party. Judge Littlejohn didn’t care.

From Justice Dickinson’s majority opinion:

Chancellor Littlejohn acknowledged that Brooks had posted a supersedeas bond but nevertheless held him in contempt for his failure to pay and ordered him incarcerated until he paid the entire amount of $16,750. Brooks spent three days and two nights in jail. During his incarceration, he filed an emergency appeal with this Court, and we vacated Chancellor Littlejohn’s contempt finding and ordered Brooks released.

A three justice minority felt that Judge Littlejohn’s suspension should have been with pay.

My Take:

Most people would call a suspension with pay “vacation.”

Given Judge Littlejohn’s history of jailing a lawyer for not reciting the pledge of allegiance, I’ve got to agree with the majority here. For my posts on Judge Littlejohn’s pledge of allegiance fiasco, see here, here and here.

Ballotpedia defines “judicial temperment” as:

a judge’s general attitude toward the law, litigants and other judges. According to the American Bar Association, judicial temperament means that a judge exhibits “compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.

My definition is a judge who doesn’t act like a wing-nut on the bench. Unfortunately, judicial temperament is not actually a job requirement for being a judge.

Judges have different personalities. Some are gregarious and outgoing on the bench. Others are reserved and introverted. And there are many variations in between. All these personalities work when the judge has a judicial temperament.

The vast majority of the judges in Mississippi have a good judicial temperament. Those that don’t will have their names echoing around courthouses years from now when most of us are dead. Just like the unpopular legends of years past that veteran lawyers still tell stories about during trial breaks.

Judge Littlejohn has placed himself in this category of notorious judges.

How Will Driverless Vehicles Impact Legal Industry?

Posted in General

Driverless vehicles are on the way. Seriously. And people are starting to consider how the driverless revolution will impact the economy.

My favorite financial blogger Mish Shedlock has a post today about how self-driving trucks will impact the truck driver profession. But it’s not just truck drivers who will be affected:

At $40,000 a year, the incentive to replace truck drivers with software is massive. And it will happen. Not only that, but insurance costs will drop. Most truck accidents are caused by user error: Driving too fast, driving while tired, driving intoxicated, etc. Robots don’t drink, don’t get tired, won’t drive unsafe to get to a destination faster, etc.

People keep emailing me about insurance. Many believe the cost of insurance will skyrocket. I believe accident rates will plunge, and insurance costs with it. So what happens to a lot of insurance salesmen? Claims investigators?

That hits close to home in the legal industry, as New York personal injury lawyer Eric Turkewitz discussed on his blog a while back.

Turkewitz envisions self-driving cars as a bad development for the personal injury bar. But I think it’s broader than that. googlecar

Mississippi’s post-litigation bubble taught us that if something is bad for the personal injury bar, then it’s also bad for the defense bar. Ten to fifteen years ago, many defense lawyers theorized that their practice would not be impacted by tort reform, etc. because “plaintiff lawyers will always file cases.”

It seems really naive now, but I can’t tell you how many defense lawyers back then thought that their practices would be unaffected. They even cheered on caps and changes to joinder and venue laws because it would level the playing field. Ironically, some of the most naive were the first to be pushed out the door of their defense firm. That’s not surprising when you think about it. Lawyers who don’t have their fingers on the pulse of the litigation climate are less valuable to firms than those that do.

And it wasn’t just litigators who were impacted. The litigation bust pushed many lawyers out of mass tort, consumer fraud and personal injury and into family law and criminal law. Lawyers in those fields were impacted with increased competition.

Some might theorize that the collapse of the car wreck practice area would only affect the big advertising firms and the lawyers working for the big auto insurance companies. History has taught us that’s wrong. The impact would be felt throughout the legal industry in a generally negative way.

This is just another example of how technological advances have a negative impact on current professions. That’s not new, of course. Just ask stagecoach drivers.

Industries and professions are always in a state of flux. The legal industry is becoming less immune to this fact.