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

Miss. Supreme Court Sharply Divided on Whether Family Tragedy Constitutes Excusable Neglect

Posted in Mississippi Supreme Court

On Thursday a divided Mississippi Supreme Court affirmed the trial court’s refusal to grant an extension to file a notice of appeal in Nunnery v. Nunnery. Here is the Court’s opinion.

Justice Coleman’s majority opinion has the perfect opening for the case:

The instant case presents a difficult factual situation and outcome. In the wake of an attorney’s family tragedy, the defendants missed their deadline for filing their notice of appeal. The chancellor denied the defendants’ request to extend the time to file the notice of appeal.

The attorney was a solo practitioner. The family tragedy was that the attorney’s brother was critically injured in a car wreck in South Carolina and died after an extended stay in an ICU. The deadline for filing the notice of appeal expired between the date of the accident and the date of the funeral.

The majority found no abuse of discretion and affirmed. Joining Justice Coleman in the majority were Justices Randolph, Lamar and Beam.

Justice Dickinson wrote a dissenting opinion joined by Justices Waller and King. Justices Maxwell and Kitchens did not participate. Miss. Supreme Court

The decision turned on whether the trial court’s decision was based on a question of fact or law. The majority deemed it a fact question–the minority a legal question.

From the dissent:

Simply put, [defendants’] counsel clearly found himself in extraordinary circumstances which were completely beyond his control. This Court sometimes forgets that our extremely high expectations for attorneys do not comport with reality–the reality that attorneys are humans and will sometimes, on rare occasion, be overwhelmed by extraordinary personal or familial circumstances which understandably take precedence over court-imposed deadlines.

But since the majority determined this was a fact question subject to the abuse of discretion standard, it affirmed.

My Take:

I hate that the Court had to decide this case. The Appellees not agreeing to the extension was a dick move. If I was in that position, I would have agreed to an Agreed Order granting the extension. I believe that most lawyers that I have litigated against would also agree to an extension in that scenario.

As for the Court’s decision itself, my life and career experience put me in the dissent’s camp. In my opinion the attorney did the right thing by dropping everything at work and putting family first in a time of crisis. I’ve been there–more than once. And if you practice law long enough, chances are, you are going to find yourself in that situation.

When a loved one is suddenly stricken by accident or injury, everything else goes by the wayside. One night you are awakened by the phone ringing. The next night you sit all night in the ICU waiting room praying to God that the phone from the unit does not ring for you. Even if you could practice law in those circumstances, you shouldn’t.

And extended illnesses are much more disruptive to practices than sudden deaths. I’ve had family members in ICU. Every patient in that unit is exceptionally sick.

One of the great things about being an attorney is that you can be a solo practitioner. But solo practitioners have no one to fall back on when tragedy strikes. It’s either pause the practice or neglect the family. It’s scary for solos like me.

If you have a terminally ill loved one and you don’t drop everything and do whatever you can for your family, you will regret it for the rest of your life. Trust me. I’ve done it the wrong way and the right way. I will not do it the wrong way again.

So I commend the Appellants’ attorney for putting family first. You did the right thing.

Could State’s Loss in HB 1523 Litigation Save Jackson’s PGA Tournament?

Posted in Politics in Mississippi

Last week the NBA moved its 2017 all-star game out of Charlotte in response to North Carolina’s passage of anti-gay laws similar to Mississippi’s HB 1523. From the New York Times article on the move:

“While we recognize that the N.B.A. cannot choose the law in every city, state and country in which we do business, we do not believe we can successfully host our All-Star festivities in Charlotte in the climate created by the current law,” a statement by the league said.

Turner Sports and ESPN, which televise NBA games, backed the move.

Although Mississippi doesn’t have to worry about losing an NBA all-star game, it does have to worry about losing other events such as the annual Sanderson Farms Classic PGA Tour tournament held at the Country Club of Jackson.

While I am not aware of the PGA Tour taking a stance on anti-LGBT laws (yet), PGA of America is threatening to pull events, as reported by Yahoo Sports. From the article:

“The PGA of America strongly opposes North Carolina HB2. It contradicts our commitment to create an inclusive and welcoming environment at our events. We remain hopeful that the law will be changed,” the organization said in a written statement.

The PGA of America is separate from the PGA Tour. But it is influential in the golf industry, hosting the PGA Championship, Ryder Cup and President’s Cup. While a PGA of America statement does not directly implicate Mississippi’s tournament run by the PGA Tour, it would be stupid to not take notice of the position taken by a leading organization in the golf industry.

This is another reason for why Mississippi needs to preserve its loss in the HB 1523 litigation. The last thing we need is the law being revived on appeal.

Even assuming that the intent of the law is not discriminatory (and it is), it should still not be enacted because of the public perception and potential negative economic repercussions. Especially since the law is unconstitutional and can’t stand up to judicial scrutiny.

It’s bad enough as it is. The current status is that the State’s reputation for suppressing civil rights has been reinforced and the state economy suffers. Can we please cut our losses as suggested by Attorney General Jim Hood?

Defense Verdict in Humphrey County 18-wheeler Accident Trial

Posted in Verdicts in Mississippi

I’ve received two recent reports of a Humphrey County defense verdict in the last couple of weeks in a case involving an 18-wheeler accident.

Word around town is that the accident resulted in paralysis of the plaintiff.

Robert Gibbs tried the case on the defense side and Ed Blackmon on the plaintiff side.

Humphrey County has a reputation as being a pretty good venue for plaintiffs, so that’s a big win for Gibbs.

I’ll post it if I receive any more details. Otherwise, look for a full report in an upcoming issue of the Miss. Jury Verdict Reporter.

Reading Between the Lines in the Clarion-Ledger’s Latest Law School Article

Posted in Law School

The Clarion-Ledger ran this Jimmy Gates commercial article about law school on Monday. The article quotes Ole Miss Law dean Deborah Bell and MC Law dean Wendy Scott.

Here are some of their comments:

Deborah Bell, interim dean of the University of Mississippi Law School, says the legal job market is certainly not what it was a decade ago — but there will always be a need for high quality legal work.

Translation:

No one is hiring now. But top shelf lawyers with 20+ years experience might get hired on a case.

“And a law degree is not just a path to law practice — some students leave law school to work in business, real estate, higher education or other professions where a law degree gives them an advantage,” Bell says.

Translation:

There are no legal jobs for graduates.

Scott says despite talk of a lawyer glut, there remains a shortage of lawyers in Mississippi, which means that too many people in Mississippi are without access to legal services.

Translation:

Welcome to MC Law’s Crazy Talk, with Dean Wendy Scott. In fairness, Bell made a similar comment. It’s not the first time I’ve heard this line either. But it’s extremely misleading when it does not include the disclaimer that they are talking about people who can’t afford to pay for a lawyer.

“Other studies suggest that not only are there unserved legal needs among our poor citizens, the justice gap is wide for working and middle class citizens as well,” Scott said. “Small business owners, people planning to start a business, working families facing foreclosure or bankruptcy, parents in jeopardy of losing their children — these are just a few examples of the kinds of legal needs that go unmet every day.”

Translation:

You can get plenty of legal work. You just won’t get paid.

Do the law schools understand that those legal needs go unmet because lawyers can’t work for free anymore than plumbers or law school professors?

You can read about this problem on the Mississippi Access to Justice Commission’s website. I don’t think you’ll read on it that the solution to the problem is more law school graduates.

Meanwhile, over at the Law 21 blog, ‘Debbie Downer’ Jordan Furlong has this post titled: The Obsolete Associate. Here’s a snippet:

Layoffs and hiring freezes at many law firms, occurring both in the immediate financial crisis and during the malaise that followed, contributed to a growing pool of unemployed and under-employed young lawyers and recent law graduates….

…All of this helps explain the stubbornly high levels of unemployment experienced by US law graduates over the past several years, numbers that have mostly held steady despite an historic drop in the number of law school applications…

Translation:

It’s not just a Mississippi problem.

Summary:

I love MC’s new strategy: “there aren’t too many lawyers–there are too few.” Brilliant. Best line since “these aren’t the droids you’re looking for.”

Overall, I thought the deans’ comments were measured if you know how to interpret them. They were negative without sounding negative. There’s plenty of legal work for those who don’t need to get paid to do it. By the way, those clients will also need you to come out of pocket to cover case expenses.

My criticism of the article was that it did not quote any recent law school graduates. Those are the people who are in the best position to comment on the current value of a law degree.

Asking the deans of the law schools is like asking the salesman at the Ford dealership if Fords are good cars. They have to say yes. Law school deans sell law degrees. What are they going to say? Don’t go to law school?

Remember When the Party Conventions Were the Only Thing On TV?

Posted in National Politics

This was an interesting opening for an article on the Republican National Convention:

Youngsters interested in politics might be surprised to know there was once a time when either you watched the national party conventions on one of three TV networks, or you didn’t see them at all.

What era is he talking about? The 90’s?

When I was a kid you either watched the national party conventions or you didn’t watch TV at all. They were on all THREE channels.

What a waste. All THREE channels showing the exact same thing. Even on the night when they were supposed to show Charlie’s Angels.

And it was b-o-r-i-n-g.

Should There Be a Mandatory Retirement Age for U.S. Supreme Court Justices?

Posted in U.S. Supreme Court

Being a U.S. Supreme Court justice is a great job. You get to keep it as long as you want, have a huge staff, are surrounded by smart people, are on a court that gets to pick the cases it decides and you get the whole summer off. Who else in the legal profession gets to take off the entire summer? No one, as far as I know.

So it’s not hard to imagine that some justices stay on the Court too long. Such as, perhaps, Justice Ruth Bader Ginsburg.

Justice Ginsburg is in the news this week for entering the mosh-pit and getting into a war of words with Donald Trump. Even Democrats aren’t pleased with Ginsburg’s commentary.

Some people don’t need to publicly comment on presidential elections. Generals in the military and Article III judges, for instance. Especially Supreme Court justices, who have been known to decide a presidential election.

So why’d she do it? Well, she’s 83. Think she would have publicly made similar comments at 63? Me neither.

What happens when age catches up to someone with a lifetime appointment?

People spend about the first 30 years of their lives learning how to keep from saying inappropriate things. Then they rock along until about age 65, when they start forgetting how to keep from saying inappropriate things.

Old people losing the governor on their mouths is a real thing. Don’t believe? Google in the neighborhood of “why do old people say inappropriate things” and get back to me.

Or, better yet, talk to colleagues who have really old parents. Ask them if their parent ever publicly says inappropriate things. I’m not saying they all do. But if you ask around, you will not have to ask that many people to find someone who has a parent who suddenly does something like repeatedly drop the ‘N’ word in a waiting room full of African-Americans. I didn’t make that up either. Or read it on the internet. That’s from a first hand account from the really embarrassed child.

And I’m not picking on Justice Ginsburg. Her buddy Justice Scalia was also running his mouth too much before he died earlier this year at age 79. Notice that you don’t see Chief Justice Roberts (age 61) or Justice Kagan (age 56) talking too much. I’m convinced it’s an age thing.

I’d like to see a mandatory retirement age for U.S. Supreme Court justices. Age 75 seems about the right age. Maybe they could take senior status or something and get assigned court of appeals cases if they want to keep working. That would be a much lower profile and reporters wouldn’t be hanging on their every word.

HB 1523 Update: Governor Bryant Appeals

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

Arielle Dreher with the Jackson Free Press reported last week that Governor Phil Bryant appealed U.S. District Judge Carlton Reeves’ decision blocking HB 1523. In addition to the appeal, Governor Bryant asks Judge Reeves to issue a stay on his preliminary injunction because Bryant is likely to succeed on appeal.

From the article:

Rob McDuff, who is representing more than 10 Mississippians who brought one of the lawsuits, Barber v. Bryant, against the State of Mississippi, said that the State already made all the arguments in Bryant’s memorandum and that Reeves rejected them.

Meanwhile, Attorney General Jim Hood is trying to explain reality on the ground:

“This is not the case to get to the Supreme Court to decide, ‘Where is the line with religious liberties?'” Hood told the Friday Forum at Koinonia Coffee House in Jackson. “The reason for the First Amendment is so that we can worship or not, and others can’t impress or force their beliefs on you, and certainly the governor can’t.”

My Take:

Seriously? Someone needs to explain to Gov. Bryant the law behind issuing preliminary injunctions. Judge Reeves has already told you that you are likely to lose. He’s not going to come back now and find the exact opposite.

Please Gov. Bryant, just stop. Go work on bringing that NASCAR track to Mississippi you promised in your first campaign.

State Has Close to 0% Chance of Getting Reversal of Judge Reeves’ HB 1523 Decision

Posted in 5th Circuit Court of Appeals, U.S. District Courts in Mississippi

Over the weekend I read Judge Reeves’ entire opinion in which he issued a preliminary injunction enjoining the enactment or enforcement of HB 1523. It’s not a good look for Governor Phil Bryant and the state’s right-wing leadership.

Here are some key and interesting points from Judge Reeves’ opinion:

  • the State can’t promote one religious theory over another (p. 1);
  • the State violates the Establishment Clause when it advances any religion (p. 2);
  • HB 1523 violates religious neutrality and equal protection (p. 2);
  • 1523 was a direct response to the Supreme Court’s decision in Obergefell (p. 5);
  • Gov. Bryant sounds like JP Coleman and Ross Barnett [ouch!] (p. 9, n.6);
  • Will Manuel says 1523 violates the Establishment Clause (p. 16);
  • 1523 intended to benefit some citizens at the expense of LGBT and unmarried people (p. 21);
  • 1523 not rationally related to a legitimate end (p. 40);
  • Christians with contrary beliefs to 1523 become second class Christians (p. 48);
  • State is inserting itself into intra-faith doctrinal disputes (p. 52);
  • 1523 is subject to strict scrutiny (p. 52);
  • 1523 does not honor religious freedom or respect equal dignity of all Mississippians (p. 60); and
  • 1523 caused Mississippi to suffer widespread condemnation and economic boycotts (p. 59).

My Take:

Point of procedure! Judge Reeves is wise to listen to Will Manuel. He majored in pre-law at Mishippi State.

This is a legacy opinion for Judge Reeves. His opinion is thorough, comprehensive and convincing. It’s easy to envision him getting promoted to the 5th Circuit at some point in the future if a slot opens with a Democrat in the White House.

The chances of reversal on appeal are remote–close to zero. Historically, Mississippi goes to the 5th Circuit Court of Appeals to lose civil rights cases. But now days the State goes ahead and loses at the District Court level.

The State needs to go to the house. This has been bad enough already.

HB 1523 Update: Gov. Bryant Looking Forward to Losing Again

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

On Thursday U.S. District Judge Carlton Reeves further gutted HB 1523 with this 60 page decision: Barber v. Bryant opinion.

I will have more on Judge Reeves’ opinion next week.

Meanwhile, according to this Jackson Free Press article Attorney General Jim Hood is not geeked up about losing the case again on appeal:

“In consideration of the individual rights of all our citizens, the state’s current budget crisis and the cost of appeal, I will have to think long and hard about spending taxpayer money to appeal the case against me. An appeal could cost the state hundreds of thousands of dollars…..Because of the huge tax breaks handed out to big corporations by these same leaders, the state is throwing mentally ill patients out on the street. This is hardly protecting the least among us as Jesus directed.”

Meanwhile, JFP reports that Gov. Ross Barnett Phil Bryant is looking forward to filing an appeal motion to lose again:

Predictably, the injunction upsets Gov. Phil Bryant, who said in a statement he looks forward to an “aggressive appeal” of the decision, the Associated Press reported.

The same article quotes Mississippi College Law School constitutional law professor Matt Steffey a describing the chances of Judge Reeves getting reversed on appeal as ‘unlikely.’

This week I took an informal poll of colleagues (some of whom are Republicans) asking their estimate on the percentage of Republican legislators and state officials (Bryant, Reeves, etc.) who know that 1523 is straight out of Mississippi’s losing Jim Crow era playbook. The general consensus was that about 25% have a clue while the other 75% are morons who think they are being clever.

Federal Court Strikes HB 1523 – Mississippi Preserves its Reputation for Bigotry

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

On Monday U.S. District Judge Carlton Reeves struck the central ‘feature’ of HB 1523, ruling that county clerks must issue marriage licenses to gay and lesbian couples. Here is Larrison Campbell’s article on Mississippi Today. Here is Judge Reeves’ Order.

The Order includes a lot of procedural noise. Here are key passages:

  • In 2016, Mississippi responded to Obergefell [U.S. Supreme Court decision recognizing constitutional right to same-sex marriage] by creating a new way to treat same-sex couples differently than opposite-sex couples (p. 12);
  • The Fifth Circuit long ago chastised our State for such “a carefully calculated campaign of delay…and masterly inactivity.” (p. 13); and
  • The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be enforced (p. 15).

My Take:

And just like that Mississippi’s 2016 Jim Crow law bites the dust. Fifty-four years after the Fifth Circuit chastised the State for doing the same sort of thing in trying to keep James Meredith out of Ole Miss. How did that work out, by the way? Meredith is a celebrated hero. The people on the other side of that fight? Not so much.

Let’s be clear. If you are a vocal 1523 supporter, fifty years from now people will view you the same way they view Ross Barnett and the other state leaders who fought to keep Ole Miss segregated. Damn poorly.

How utterly embarrassing and damaging for the State. It’s hard to fathom why a State with a huge image problem would enact a clearly unconstitutional law that reinforces the State’s image for bigotry and stupidity.

I understand that some people are bigots. And hey, it’s a free country. You get to be a bigot if you choose. But you don’t get to infringe on the rights of people who you don’t like.

What frustrates me is the stupidity. As I have noted in prior posts on 1523, the bill was bad for economic development in a state sorely in need of economic development. Saying we shot ourselves in the foot discredits people who accidentally shoot themselves in the foot. This was intentional.

The repercussions will be long-lasting. Mississippi will continue to suffer a ‘brain drain’ and will continue to have to bribe companies to locate facilities in the state. Meanwhile, states with more open minded populations and leadership will continue to pass us by. It’s disheartening.