Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

Philip is a trial attorney based in Jackson, Mississippi with a diverse civil litigation practice.

Pennsylvania PERS Reform Shows Where This is Going

Posted in PERS Crisis

Last week the WSJ (paywall) reported on Pennsylvania’s PERS reform legislation. Not surprisingly, the reform moves toward 401(k) type retirement benefits as opposed to the soon-to-be-extinct pension system. From the article:

The compromise measure will move most future state and public school workers at least partly into 401(k)-style plans to help shore up the deeply underfunded pension system and shift market risk from taxpayers to employees….

Current and retired employees will remain under the traditional “defined benefit” pension that provides set retirement payments. The two pension systems for state and public school employees have about 863,000 active, vested and retired members. The new law won’t apply to state troopers or correctional officers….

Critics of the legislation say it would do little to address the state’s roughly $62 billion in existing pension debt.

“Pension debt is the sole reason for doing pension reform and yet, ironically and bizarrely,” the bill doesn’t address existing unfunded liabilities, Republican state Rep. John McGinnis said during a recent debate. “We’re not making history, we are repeating it.”…

Republican House Speaker Mike Turzai acknowledged the state isn’t likely to see major savings for years under the pension overhaul, but said it is time to follow the private sector into 401(k)-type retirement plans, where the market determines future benefits.

“At a certain point you’ve just got to turn off the spigot, and you’ve got to move to where the private sector’s been,” he said in a video on his website.

His office says 18 states have enacted some 401(k)-style plan for state workers, and notes that the state’s Independent Fiscal Office estimates pension payments by Pennsylvania taxpayers will account for nearly 10% of the state’s general fund budget by 2019.

My Take:

That’s where we’re headed. Everyone knows it. The longer we wait the worse it will be for current retirees and participating employees.

June Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the June 2017 issue of the Miss. Jury Verdict Reporter:

  • $6,504,451 bench verdict- Hinds County Chancery Court (Judge Wise) breach of trust case (4/13/17);
  • $5,947,879 verdict- Gulfport federal court admitted liability airport negligence case [black hawk helicopter damaged jet] (3/14/17);
  • $265,000 verdict/ 42% fault to plaintiff- Harrison County car wreck case (5/3/17);
  • defense verdict- Jackson federal court pregnancy discrimination case (5/17/17); and
  • defense verdict- Madison County slip-and-fall case (5/9/17).

My Take:

I need to get some airport negligence cases. Admitted liability. Two day trial. $6 million. That sounds pretty nice to someone who is lucky to finish a trial in a week.

But the plaintiff was wealthy. I bet they paid the plaintiff lawyers by the hour. So maybe not the big fee the verdict suggests.

I grew up no more than a mile from the tarmac at the Gulfport airport. The air national guard flew so many F-4’s out of the airport that the sounds of F-4’s taking off is the sound I most associate with my childhood. They were really loud.

Remote Work Has Arrived in the Legal World

Posted in General

The WSJ had an article [paywall] last week about  the number of Americans working remotely rising to 20% as part of an inexorable trend.

The legal world is in front of that trend. I recently saw a stat that 43% of attorneys work remotely. I would have guessed that the number is even higher.

If you consider talking on the phone and email communications working remotely–and I do–then most lawyers work remotely. The only real question is what percent of their time is spent working remotely.

A prominent Jackson plaintiff lawyer recently told me that he has been working from home for four years. It’s probably been ten years since I heard about several prominent local defense lawyers who spent many days working remotely from one of their multiple homes. Now it’s common for lawyers to mention that they spend time working remotely from home or vacation homes.

I’ve also noticed that there is no longer a stigma with being out of the office. In the old days, lawyers felt like they needed to be seen in the office all the time to prove that they were hardworking. Now, when lawyers are out of the office most other lawyers assume they are working remotely. That change in perception has freed up attorneys to work remotely even more.

As more software moves to the cloud, it’s easier to work remotely. The biggest thing that brings me to the office is my dual monitor set-up and phone headset. My fantasy equipment is portable and light-weight dual monitors that are easy to connect to a laptop like a Surface Pro. Once I get that, I can do almost all my non face-to-face work remotely.

I Feel For Trump’s Lawyers

Posted in National Politics

Last week, electoral vote.com noted that top law firms were refusing to represent President Trump. That’s smart. Trump is the worst kind of client.

First, he doesn’t listen to his lawyers.

Second, he does crazy stuff like gets mad and spouts off that he is willing to testify under oath to special counsel Robert Mueller.

Third, Trump doesn’t pay.

It’s no secret in the legal world that Trump doesn’t always pay his legal bills. There are even rumors on the street that Trump has a history of not paying Mississippi law firms.

How would you like to represent a client who doesn’t listen to you, can’t control his mouth and then blames it on you and doesn’t pay your bill? Trust me, it’s even worse than it sounds.

The top firms who declined to represent Trump just proved why they’re the top firms.

Guns in Courtrooms Still Stupid

Posted in Politics in Mississippi

Judge Primeaux wrote this week about a case pending before the Mississippi Supreme Court over whether judges can ban guns from their courtrooms.

How can that even be a question? Judges can ban phones, gum, food, shabby clothing and a host of other things from their courtrooms. But not GUNS? Gees.

Here is my post last year on this topic, which generated a lot of comments, including some by attorneys who disagree with me on this issue.

I agree with Judge Primeaux:

Whether to ban guns entirely as the chancellors did in the Fourteenth should be a judgment call by judges on the ground who are familiar with their courthouse situations, the types of cases that they handle, and the people who come before them. In our courthouses there is adequate, well-armed security. If they are ever called upon to draw their weapons to deal with a deadly situation, I would hope that they don’t have to stop to figure out which armed people are the “good guys.” That hesitation could be fatal.

Personally, I already have enough anxiety in court without worrying about getting hit by a stray bullet.

Prediction on What Happens in the Comey Hearing

Posted in National Politics

With former FBI Director James Comey scheduled to testify before Congress tomorrow, everyone wonders what will happen. Here’s my summary take.

First, Trump was right about one thing. Comey is a showboat. That may be the only thing me and Trump ever agree on.

Sidebar: Trump is a nut. And 70-year old nuts just keep getting nuttier. His presidency is the most entertaining reality show in history. Unfortunately, his foreign policy is scary–and foreign policy is where presidents count most.

I’d like to give ‘W’ a hug and tell him I’m sorry I was so hard on him and I wish he was president instead of Trump. His crack after Trump’s inauguration speech is the funniest thing a former president has ever said.

Second, over the course of the last couple of years, Comey has come off looking like a wingnut. Maybe he’s not a wingnut. But that’s the way he’s come off looking to me.

So my prediction for Thursday: Comey wingnuts it. The day will end with as many questions as it started with. And people will be frustrated with Comey.

Mark Duncan New Circuit Judge in Eighth District

Posted in Politics in Mississippi

This is kind of old news, but Governor Phil Bryant has appointed District Attorney Mark Duncan as circuit judge for the Eight Circuit Court District. Here is an MBJ article on the appointment.

Duncan replaces the retiring Judge Vernon Cotten.

Judge Duncan’s credentials are impressive. Over 800 jury trials, including lead prosecutor of Edgar Ray Killen for the murder of the three civil rights workers outside Philadelphia in 1964. His career in the DA’s office goes back to 1988.

It will be interesting to hear the civil litigation attorneys’ take on Judge Duncan after he has been on the bench for a while. I am reasonably confident he will do a good job.

I don’t have any complaints with Governor Bryant’s track record on judicial appointments. He seems to have a good process for deciding who to appoint. This is another success story for an appointed judiciary.

Thoughts From the Other Side of Voir Dire

Posted in Improving the Jury System

Last week I experienced my first voir dire as a potential juror. This post reports on the experience.

I was summoned to appear in the big courtroom at the Hinds County Courthouse at 8:30 a.m. This was my second jury summons, but the first where I made it onto a panel.

Hinds County Circuit Clerk Zack Wallace initially led the proceeding. He explained how hard it is to get people to show up for jury duty, thanked everyone for being there and told us four times to turn off our cell phones or put them on silent. Having seen how much judges relish seizing ringing cell phones, the emphasis seemed appropriate.

About 150 people (my estimate) showed up out of 500 who were summoned. Only one jury was needed for the week, so it was way more people than needed. I had an inkling that it was for a criminal trial because I couldn’t find a scheduled civil trial on any of the judge’s on-line calendars.

Judge Gowan presided and was all business. Some judges have comedy routines for voir dire. But that seems to occur more in smaller venues. I appreciated the brevity. We were dismissed by 9:30.

Judge Gowan went through the litany of reasons that excuse people from jury duty: age, habitual drunk, common gambler and the like. After Judge Gowan finished, Mr. Wallace drew names for the panels.

Knowing a bit about voir dire, I preferred to either be in panels 1-2 or not invited back for the afternoon. Naturally, I was in panel 4 and had to come back at 1:30. I can’t recall a trial where anyone from panel 4 made it onto the jury, so I figured that I was unlikely to be in play for the lawyers picking the jury.

We reported back at 1:30 p.m. in the jury assembly room. Five panels came back so there were 60-plus people there. No one was talking. A few people read books. Most people played on their phones. I saw one person napping, but most of us were saving our naps for the courtroom.

I recognized a neighbor and an employee at one of the local gyms. My neighbor is handicapped and complained about how poorly handicapped accessible the courthouse is. I’d never thought about it, but he has a point.

Before we were herded to the courtroom, no one explained what was going to happen. I thought this was a mistake.

Bailiffs lined us up and took us into the courtroom at 1:45 p.m. When we entered the courtroom, it was obvious that it was a criminal trial because I didn’t recognize any of the lawyers and there was only 1 person at the prosecutor’s table. Turns out it was a murder case being prosecuted by the Attorney General’s office.

If you’ve ever wondered the percentage of Hinds County residents own guns, it’s close to 100% based on the response to a voir dire question.

A few potential jurors admitted to knowing prospective witnesses in the case. But they said that they could be fair in response to very leading questions.

The defense attorney asked who had been a victim of a violent crime or had a family member who had been a victim of a violent crime, but without defining ‘violent crime.’ I thought that was a mistake.

The defense attorney asked me who I worked for (I put ‘self’ on questionnaire) and what kind of work I do. I did not volunteer responses to any of the other broad questions. The only question I was uncertain on responding to was the one on family members as victims of violent crimes. I have a niece who was almost abducted. The perpetrator was caught and imprisoned. Was that a violent crime? I don’t know.

We breaked between the prosecution and defense voir dire. We returned to the jury assembly room at about 3:45 p.m. Once again, there was little interaction between the prospective jurors, which I found surprising. I guess they don’t start talking until they actually make it onto the jury.

At about 5:00 p.m., the bailiff came back and called out the names of the twelve jurors and three alternates selected and released the rest of us. I did not try to analyze who was left on the jury and why people were struck. I wish I had. But it was late and I was ready to beat it out of there.

I thought the process went about as efficient as it could. I never thought the judge or attorneys were wasting time. One suggestion for improvement is for someone to explain what was happening when we reported back at 1:30 p.m. I knew, but suspect that most people did not.

The longest wait was after voir dire while the judge and attorneys picked the jury in the courtroom. I thought it would have been fine and people would have appreciated it if someone had explained the reason what appeared to jurors to be a delay.

I’ve previously written criticisms about how we pick juries without telling potential jurors anything about the facts or law of the case. Yet we ask them to commit that they can be fair and impartial even though we really haven’t told them anything about the case. There is a lot of room for improvement in this area.

Of course people say they can be fair when we don’t tell them anything about the case. We also let them know that’s the right answer. Most people don’t want the attention of saying they I can’t be fair.

I’ve been in trials where there were mini-openings before voir dire. That along with a brief explanation of the law would be helpful.

Also, this goes against the grain, but I think juries should be instructed on the law before the evidence goes in.

The judicial system is set in its ways on picking juries. It’s not horrible, but it could be improved. The institutional resistance to try to improve the jury system baffles me. We have rules committees for improving pre-trial procedure, but give almost no attention to improving trials.

All in all, my jury duty day was a worthwhile and educational experience. In addition to it being your civic duty, you might learn a thing or two that you can implement in your trial practice when you participate in jury selection from outside the rail.

PERS Update Lagniappe

Posted in PERS Crisis

A few random bits of PERS related news.

Just as a reminder, PERS is Mississippi’s Public Employees Retirement System. It’s a defined benefits pension plan. Unlike 401(k) plans and IRA’s that most private sector employees in my generation and younger are familiar with, pensions have a defined amount that has to be paid out upon retirement.

Theoretically, pension owners don’t have to worry about the stock market tanking and cutting their retirement accounts in half–something I’ve already experienced twice in my career. But the pension funds themselves now count on stock market returns to meet funding levels. So the stock market tanking can spell doom for the state budget, pension participants and taxpayers who will have to foot the bill for the shortfalls.

Mississippi’s PERS is premised on an assumed investment return of 7.5%. Many investment professional (and wingnut bloggers) believe that this assumption is way too high and unlikely to be met. Another huge problem for PERS is that more participants are retiring and drawing money out than being added and paying money in. State budget cuts and an aging population both contribute to this structural problem.

I believe PERS funding shortfalls will cause the biggest government crisis in Mississippi in my lifetime.

The crisis could arrive any day now if something happens that causes the market to drop say, 30%. Ponder that every time President Trump says or does something nutty.

Or if the stock market bumps along, the can will be kicked down the road for years. But the day of reckoning is coming. We just don’t know when.

This recent Zero Hedge post shows that Mississippi is holding its place as 8th worst funded PERS ratio.

The Pension Pulse blog had this post regarding the Big Squeeze report from from American Federation of Teachers. The report argues that excessive fees charged to pension funds is a significant factor in underfunded pensions. Specifically, the report criticizes fees charged related to alternative investments. Mississippi was not included in their analysis.

But Mississippi’s PERS is following the trend of increasing investment allocations to alternative investments in order to chase returns. Here is the investment report for the period ending March 31, 2017: PERS investment report 03.31.17.

Private equity now accounts for 6.88% of PERS’s investment allocation. This percentage has been gradually increasing for a while–the target allocation for private equity is 8%.

I don’t know enough about private equity investments to have an opinion about it as an investment in PERS. But it’s a fact that one thing PERS can do to maximize its investment returns is to make sure it’s paying the lowest management fees possible. I suspect it’s not. I can almost guarantee it. Anyone want to bet me that the government isn’t overpaying for investment management services and fees?

Getting a handle on investment fees and expenses and making sure they are as low as possible should be priority 1 for the next executive director of PERS. Priority 2 should be an open communications strategy that does not sugarcoat the looming PERS crisis.

Law Firms Getting More Proactive in Addressing Attorney Mental Health

Posted in Attorney Mental Health

Last week a Wall Street Journal article (paywall) on law firms bringing therapists into the office led to two Above the Law posts on the issue. The article notes that attorneys are more likely than other professionals to have substance abuse and other mental health issues and to commit suicide.

As Jeena Cho wrote on Above the Law:

So, let’s review. Everyone knows there’s a 6 ton elephant sitting in the room — lawyers struggle with a disproportionately high levels of stress/anxiety, depression, and substance/alcohol abuse. This information isn’t a secret. EVERYONE knows it. Likely, including the clients. Yet, law firms aren’t willing to address the problem because they fear their clients will think the lawyers are “crazy.”

Sadly, law firms tend to intervene only after an attorney’s productivity declines.

But the 2,500 lawyer firm Hogan Lovells now offers on-site psychologist for its attorneys:

“It’s been a rousing success,” said Oliver Armas, the firm’s New York managing partner. The service is open to the office’s roughly 400 employees, including junior lawyers, partners and support staff.

Here’s why more firms don’t have these programs:

Joseph Andrew, the global chairman of Dentons, said that while he applauded Hogan Lovells for having an on-site psychologist, the fear of offering such a service is that “our competitors will say we have crazy lawyers.”

Bingo. But not just competitors outside the firm. Big firms can be like the Hunger Games. Sometimes the attorney you really need to watch out for is down the hall.

Since 28% of attorneys suffer from depression, it’s an issue at every law firm with more than a few lawyers. Many times, the depression can be greatly improved with just a few visits to a therapist.

If I’m managing a big firm, I want all my attorneys to see a therapist at least once a year. I’m certain that the investment would be returned many times over in increased productivity and a better vibe around the office because people feel better.

You might not buy the notion that therapy helps. My response: what will it hurt to try? And if you tried a therapist in the past and it didn’t help, try a different one. Having the right therapist for you makes a huge difference.

I can promise that seeking help from a therapist or addressing substance abuse does not make you less of an attorney. Since I’ve been writing about attorney mental health issues, I’ve had many great lawyers thank me and tell me about their own personal experiences with attorney mental health issues. I’m talking about some of the best lawyers in Mississippi.

I believe that a therapist saved my life during a rough patch a long time ago. Not that I’d necessarily be dead now, but I would be crazy. Every year I see my doctor for an annual physical. But I don’t see my therapist every year for an annual mental check-up. I’ve got that backwards. My mental health should be the bigger priority.

As an attorney, my mental health is more important than my physical health. Maybe my managing partner can do something about that. If you manage a law firm, maybe you should do something about that for the attorneys at your firm.