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

Now This is a real judge – public defender fight

Posted in Hinds County Circuit Court, Mississippi Supreme Court

As reported by TBA, yesterday the Mississippi Supreme Court ruled on the brouhaha between the Hinds County Public Defender’s office and Judge Jeff Weill.

Lest anyone think this was a real fight comes this ABA Journal report on a fight between a judge and public defender in Florida.

The Florida fight involved a “highly unlikable lawyer” and a judge who said:

Sit down. If you want to fight, let’s go out back and I’ll just beat your ass.

The result:

A courtroom deputy who followed Murphy and Weinstock into the hallway last year and separated them, with help from a deputy from anothefightr courtroom, said they had their hands on each other’s chests, pushing, when he got to the hallway.

The result was a $50,000 fine and 120-unpaid vacation suspension for the judge.

My Take:

The Florida combatants were clowns.

They didn’t know how to act like professionals or fight. They acted like children in both endeavors.

Yea, but it’s not the low pay that makes them happy

Posted in Law School

Here’s an article from the New York Times last week with the headline “Lawyers with Lowest Pay Report More Happiness.”

The article is unsurprising, even if the headline is a bit misleading. From the article:

Researchers who surveyed 6,200 lawyers about their jobs and health found that the factors most frequently associated with success in the legal field, such as high income or a partner-track job at a prestigious firm, had almost zero correlation with happiness and well-being. However, lawyers in public-service jobs who made the least money, like public defenders or Legal Aid attorneys, were most likely to report being happy.

So what’s the problem with the highest paying jobs:

The problem with the more prestigious jobs, said Mr. Krieger, is that they do not provide feelings of competence, autonomy or connection to others — three pillars of self-determination theory, the psychological model of human happiness on which the study was based. Public-service jobs do.

It’s a good article that touches on issues of substance abuse and suicide by lawyers.

But I don’t think the article is news for many inside the legal profession. I don’t remember when I figured out that colleagues who went in-house or to the public sector were generally happier than those they left behind in big firms, but I’ve known it for a long time.

And it’s not the lower pay that makes the non-big firm lawyers happier. It’s the job. The lower pay is the tradeoff–not the benefit.

Unfortunately, the move becomes financially difficult for many lawyers. Most salaried employees in any field increase their lifestyle until they are spending their entire salary.

It may sound ridiculous to some people, but it’s easy. Go from an 1,800 to a 4,000 s.f. house, join a country club, put the kids in private school, get a couple of premium brand cars, go to ball games in the fall, go on a couple of nice vacations every year and boom: suddenly you feel broke.

Often, the result is that lawyers who felt wealthy making $45,000 a year fresh out of law school can’t fathom how their family can live on less than $250,000 a year. [Plug in your own numbers here–the exact figures aren’t the point].

So many lawyers end up feeling trapped in their big firm/ private practice jobs.

It’s a real issue for many lawyers.

Fear and Loathing in the Legal Profession

Posted in General

If you read a lot of different sources on a given subject, you start to see patterns. One pattern I’ve noticed when reading veteran lawyers talking about practicing law is the pervasiveness of fear in the legal profession.

Most lawyers would be afraid to admit that fear is a constant companion in their practice. Probably, they wouldn’t admit this because they are afraid of exposing potential weakness. But one lawyer and one former lawyer who have mentioned fear and the law have been at the pinnacle of the profession.

First, Morgan & Morgan founder John Morgan on the role of fear in his book You Can’t Teach Hungry:

For many, the fear of failure is always with us. I have been amazed as I have read books and articles through the years of the great CEOs and entrepeneurs who confess, even during the height of their greatest success, to fearing failure and worrying about being exposed as a poser. That fear of failure is with me every single day…

Second, Richard Scruggs from his April 2015 interview and article in the Clarion-Ledger:

His mistakes arose not from a feeling of invincibility, but of fear. Fear of losing a case. Fear of embarrassment. Fear of failure.

To the casual observer, the thought of Morgan or Scruggs fearing failure at the pinnacle of their legal careers is absurd. But I have to say, I buy it.

Waiting for an important ruling

Waiting for an important ruling

Fear is a symptom of anxiety, which I’ve written about previously. I believe anxiety is pervasive in the legal profession. I am also of the opinion that it’s silently pervasive. Many people who experience feelings of anxiety do not realize that is what they are experiencing.

What is a bit counter-intuitive (at least for me), is that the anxiety gets worse the longer you practice. One lawyer who I discussed this issue with theorized that anxiety gets worse because it is cumulative over time. It’s an interesting take that rang true for me.

I now realize that, for many, success in litigation requires successfully managing anxiety and its symptoms. Scruggs is an example of what can happen when a lawyer loses control of legal-practice-induced anxiety.

But we all know plenty of other examples. They just don’t necessarily wind up in prison.

Conversely, I could name some lawyers who I would bet experience no anxiety in the middle of a big case. That just don’t care enough to get anxiety over it. I envy the mindset. But I wouldn’t want them handling my case.


Miss. Court of Appeals Reinstates Original Verdict in Smith County Car Wreck Trial

Posted in Appellate Decisions From Jury Verdicts, Mississippi Court of Appeals

Back in 2009, I mentioned a modest $100,000 plaintiff verdict in a Smith County rear-ender. The Circuit Court later granted plaintiff’s motion for a new trial. The jury rendered a $250,000 verdict at the re-trial.

The defendant appealed and argued that the trial court should not have granted the new trial. The Court of Appeals agreed.

Here is the Court’s opinion issued on February 24, 2015.

The plaintiff’s medical bills were $37,227.  The Court found that the original verdict was not so low as to shock the conscience. As a result, the Court reinstated the original verdict and rendered the case.

Judge Ishee drafted the majority opinion. Judge Irving dissented without a written opinion.

My Take:

I’m a bit surprised that the plaintiff appealed. Normally, neither side would appeal a verdict of this size in a car wreck case.

[Correction: As fleshed out in the comments, I got the procedure wrong in this take. The Defendant appealed. The Plaintiff filed a motion for new trial. I am not surprised that the Defendant appealed. I am surprised that the Plaintiff filed a motion for new trial on damages given the facts of the case and verdict. Sorry for the confusion].

If someone wants to criticize this decision, the angle would have to be on the issue of deferring to the trial court’s discretion.

A $100,000 verdict with $37,223 in meds is not even a bad result with current Mississippi juries, much less a shock the conscience verdict.

Want to Go to Law School or be a Solo? Better Call Saul!

Posted in General

I was not an early adopter of AMC’s Breaking Bad. I started watching midway through the last season. At the time, I thought it was the best TV show I had ever seen. But then when I got Netflix and went back and started watching from the beginning, I couldn’t finish the series. Every episode seemed to follow the same general story arc.

Since then, thanks to Apple TV and Amazon Fire TV, I’ve watched The Wire, House of Cards (season 1 and half of season 2), Orange is the New Black and Bosch.

Now I rank The Wire as the best TV show I’ve ever seen and give Orange is the New Black a slight edge over Breaking Bad.

Which brings me to AMC’s Breaking Bad prequel: Better Call Saul. The show follows Walt and Jesse’s lawyer (Saul Goodman) from roughly the time he passed the bar, plus some flashbacks.

First, what it gets wrong. Like perhaps all movies and TV shows, BCS portrays big firm law wrong. For instance, there are scenes where Jimmy and his brother Chuck are pitching a plaintiff case to Chuck’s big firm and there must be twenty lawyers sitting at the table. In reality, there would be maybe three. The other 17 lawyers would be off working on their own cases.

In addition, the writers couldn’t seem to decide whether Chuck’s firm is a defense firm or a plaintiff firm. It’s a defense firm looking operation with defense firm looking lawyers, including Chuck. Chuck, who is now crazy, is way too stiff and uptight to be a plaintiff lawyer. But then the firm has billboards and want Jimmy’s plaintiff case.

Not that it’s all wrong. They get the feel of big firms right.


Jimmy and his sweet ride.

Where BCS shines is on its focus of Jimmy trying to build a law practice. Bob Odenkirk is terrific as Jimmy/ Saul. Hard pressed to find clients, Jimmy finds himself spending hours with grandmothers telling him how to dispose of their worthless knick-knacks in their wills. Only to collect a fee of $100.

Or tries to contain the excitement over a prospective client offering to pay a $1 million fee to help him secede from the government only to be shattered when the client tries to pay him in paper money from his own new “republic.”

Hang up your shingle and the occasional nut-job will find you. It might not be the same type of nut as in the show. But they will not be as different as you might think.

BCS should be required viewing for prospective law students and solo practitioners.

Want to go to law school? Want to start your own law firm? Well, your story may not be as exciting as Jimmy’s, but you are going to experience a lot of the same emotions.

BCS in my favorite law show or movie since My Cousin Vinnie. I highly recommend it.

PERS Crash Warning!

Posted in Mississippi Public Employer's Retirement System (PERS)

From Bianco research, courtesy of the Big Picture Blog, is a chart that explains why PERS has one foot over the edge of the cliff and the other foot on a banana peel:



The Big Picture has more scary charts and tables.

This also explains why you probably have a higher allocation of stocks in your retirement accounts than I do.

BTW, QE is over.

And yes, I get that this does not mean that the markets will crash. Just like the hurricane heading for Gulfport might peel off towards Texas or the panhandle.

But better safe than sorry in my book.

And if the stock market does crash and PERS implodes, the pols will claim that the crash was completely unforeseeable. More like an earthquake than a hurricane. Don’t believe it. They are pressing your luck with the PERS investment allocations.

Good Stuff in Latest CABA Newsletter

Posted in General

The Capital Area Bar Association now publishes its newsletter in electronic format. Here is a link to the latest issue.

The latest issue includes:

Y’all Politics Reopens Legal Bureau

Posted in Politics in Mississippi

When I first started blogging, Y’all Politics seemed to be as much a legal blog as a political blog with its coverage of the judicial bribery scandal. One of the reasons that I decidided to focus on the civil side was that Ya’ll and NMC were doing such a good job on the criminal coverage.

Lately, its been more of a conservative political blog. Of course, there’s not as much to write about in the Mississippi legal world as there used to be.

But Y’all cranked up the legal coverage this week with coverage and commentary on Joey Langston trying to get his 2008 guilty plea overturned. People who followed that case may want to make sure Ya’ll is on their regular reading list.

There is a lot of space currently for a Mississippi blog focusing on criminal law. The general public is more interested in criminal matters than civil matters, so I imagine that someone who committed to regular posts on criminal law topics could generate a big following.

Law School Applications Down 50% from Peak

Posted in Law School

The Washington Post ran this article last week on the decline of law school enrollment. From the article:

Nearly 46,000 people have applied so far to go to an accredited U.S. law school in the most recent admissions cycle, a figure that puts applications on track to hit just short of 53,000 total. By comparison, there were a total of 77,000 applicants in 2010 and 90,000 in 2004,….

What’s a law school to do?

In response, Morant and other deans say their schools are increasing practical training for students, including more semesters of writing courses and externships. law school

Even better practical training might be courses on bar tending, waiting tables and retail sales.

What about job prospects?

Nine months after graduation, a little more than half of the class of 2013 had found full-time jobs as lawyers, down from 77 percent of 2007, according to the most recent data from the American Bar Association and the National Association for Law Placement. Those who did find jobs had starting salaries that were 8 percent below the 2009 peak, averaging $78,205 in 2013.

These people have college degrees, a law school degree, are fairly smart (at least book smart), and yet only half can find a job?

That’s terrible. And there is no way for law schools to honestly sugar coat it.

 “Law school is not a ticket to financial security,” said Kyle McEntee, a Vanderbilt University Law School graduate who helped found the group Law School Transparency. “There’s just no evidence that the people starting school now are going to end up okay, and to me that’s really concerning.”

But it’s all good, since law school graduates aren’t homeless:

“These people will be okay,” she said, comparing them with the homeless clients whom her students represent in the defense clinic at Ohio State University’s law school. “I did not find evidence of homeless law graduates in my study.”

It’s gotten pretty bad when the message for law school graduates is “be glad you aren’t homeless.”

Then over the weekend the New York Times ran this article on how bad it is for law school graduates. The article noted the debt law school graduates have:

Over all, nearly 85 percent of law graduates have taken out student loans, according to the website Law School Transparency, and 2010 law graduates accumulated debt averaging $77,364 at public law schools and $112,007 at private ones.

What none of the struggling law graduates ever seem to say is the BS line espoused by law schools that a law degree has a lot of value beyond practicing law. Some value? Sure. Value that justifies a house note sized student loan payment? Sorry, but no.


Supreme Court Reverses and Renders Silica Verdict

Posted in Appellate Decisions From Jury Verdicts, Mississippi Supreme Court

On Thursday the Mississippi Supreme Court reversed and rendered a $787,500 silica case judgement in Mine Safety Appliance Co. v. Holmes. It was a 6-3 decision with Chief Justice Waller writing the majority opinion. Here is Jane Tucker’s post that contains a summary of the decision.

This was a products case with the product at issue being a respirator. The majority determined that the plaintiff’s misuse of the respirator by never changing the filter materially changed the product’s condition after it left the defendant’s control.

The dissent cited expert testimony that it would have been impossible for the filter to be used for six years without changing the filter.

My Take:

I don’t really have a take on whether the Court got it right. The issue seems like there is a fact question in there somewhere. But trying a case where the conduct at issue happened 50 years ago is going to invite a lot of appellate scrutiny, particularly in Jefferson County.

A lot of fortunes were made litigating cases in Jefferson County in the late 1990’s and early 2000’s. And we owe a lot of our current litigation climate to it. Fishing with dynamite was the most apt description I heard of filing cases in Jefferson County in that era.

Personally, I wouldn’t want to have to file a case now in Jefferson County. If you can get your case to the jury, which is not a given, defendants can win at trial as shown here and here. This leaves defendants free-rolling in trials believing that they will be favored on the appeal. That’s a bad recipe for plaintiffs.

A lot of people will criticize this decision as another blow for litigation practices in Mississippi. And I feel certain that plaintiff lawyers will be hearing about it from defense lawyers in mediations in the coming months.

It’s easy to say that most plaintiff verdicts decided on appeal are reversed. That’s just math. Where the stats are more nebulous is on the number and value of cases that settle while on appeal.

Do some of the best plaintiff cases settle before the Court can affirm (or reverse) the verdicts?