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.

Jackson Jambalya Examines Latest PERS Filings

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

The PERS annual report was recently presented at a public meeting and Kingfish was the only media in attendance. Here is his latest PERS post. The report includes PERS’ latest annual report.

In summary, Kingfish reports that the problems with PERS are getting worse. The number of retirees drawing from the system is growing at a faster rate than new state employees join the system. Meanwhile, investment returns continue to not come close to meeting the assumptions made to justify the current contribution and payout rates. Funding of the system is now below 60%.

Meanwhile, this Real Vision TV report via Business Insider calls underfunded government pensions a time bomb for the U.S. economy. Keep in mind that we are talking about state and local governments that, unlike the federal government, don’t operate on budget deficits and can’t print money.

I will have more commentary on the latest PERS report in a future post.

Clarion Ledger Looks at ‘Nonpartisan’ Judicial Elections–Concludes Appellate Judges Should be Appointed

Posted in Improving the Jury System, Politics in Mississippi

On Sunday Clarion Ledger reporter Jerry Mitchell examined Mississippi’s partisan ‘nonpartisan’ judicial elections. The article concluded with this happy thought from legal pioneer and former Mississippi Supreme Court Justice Reuben Anderson:

Former Mississippi Supreme Court Justice Reuben Anderson also favors appointing judges and wishes Mississippi could select judges similar to the federal system.

He called the state’s system of electing judges “a broke system, but I’m not optimistic it will ever change.”

It’s true. All of it. [Sorry, I’ve been watching The Force Awakens].

Here is a summary of stats from the article:

  • 75% of people believe that campaign contributions influence court decisions
  • 50% of judges believe that campaign contributions influence court decisions
  • 100% of the former Mississippi Supreme Court Justices quoted in the story lamented the current system.

The stat regarding 50% of judges believing that contributions influence decisions is–by far–the most disturbing. Imagine if 50% of NFL referees believed that gifts or the like influenced calls. Stephen A. Smith would get so hot on ESPN that his hair would catch on fire.

But when that’s the perception of the judicial system by judges? It wasn’t even followed up on in Mitchell’s article.

One of the focal points of the article was the attack ads against Justice Jim Kitchens in the latest Supreme Court elections. $1 million was spent on the ads funded by the Koch brothers, tobacco lobby and other anti-plaintiff interests. It’s hard to figure out why these groups bothered for at least two reasons.

First, Justice Kitchens has been a moderate justice who often votes for the defendant in unanimous opinions in civil cases. What big and important 5-4 decisions have there been where Justice Kitchens’ vote made the difference? I can’t think of any.

Second, there isn’t anything going on in state court litigation in Mississippi that explains the interest from outside groups. Not only are major civil cases not making it to the Supreme Court–they aren’t getting filed. This leaves me wondering whether the organizations contributing the money for the ads are getting fleeced by people who make money in the political ad industry.

If it’s your job to raise and spend money on judicial races around the country, are you going to shut your operation down because the organizations who you are raising money from aren’t really threatened by state court litigation? Probably not.

I agree that the appointment of judges is also political. But Article III judges in the federal system only face the politics of appointment one time. Once appointed, they don’t have to worry about the Koch Brothers coming after them because of a decision. That’s a big difference from the current elected system for state court judges.

November Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the November 2016 issue of the Miss. Jury Verdict Reporter:

  • $8.5 million verdict/ 40% fault to defendant- Gulfport federal court crane accident case covered here (10/20/16);
  • $261,621 verdict/ 80% fault to defendant- Clay County truck negligence case (10/6/16);
  • $20,000 verdict / 30% fault to defendant- Pearl River County car wreck case (7/22/16);
  • $15,000 verdict- Lamar County slip-and-fall case covered here (10/11/16);
  • $70,000 verdict = defense judgment- Warren County car wreck UM case where plaintiff had to recover more than $85,000 at trial to exceed offset floor; (10/8/16);
  • defense verdict- Hinds County medical malpractice trial (10/20/16); and
  • defense verdict- Rankin County medical malpractice trial (10/17/16).

My Take:

Nothing unusual except for the big verdict in the crane case.

The facts of the medical malpractice cases illustrate how hard it is for plaintiffs to win med-mal trials. In one case the plaintiff was the estate of a local doctor who had unsuccessful neck surgery followed by multiple failed ‘repair’ surgeries. The plaintiff’s expert was a preeminent local surgeon. Venue was in Hinds County. Defense verdict.

The other case involved a retained needle in a surgery that plaintiff discovered years later. Retained needle cases used to be layups for plaintiffs.

Fewer Companies Results in Shrinking Legal Market

Posted in General

I recently came across this Above the Law post by Michael McDonald about the shrinking legal market.

McDonald points out that there are 35% (3,500) fewer publicly traded companies in the U.S. than there were in 1997. This hurts the legal economy because there are fewer potential clients.

All but the mega-firms suffer:

The result is that it’s probably harder today to be a mid-sized or moderately large law firm than it used to be. And that trend is unlikely to reverse. Given that trend, it’s also likely that the legal industry will become more bifurcated over time – a hundred or so very large law firms and many small law firms, with few midsized firms in the middle. That structure has important implications for the profitability of a legal career in the future.

I strongly suspect that this trend has hurt Mississippi law firms. It’s yet another factor (of many) that makes it increasingly difficult to sustain a law firm in the state.

Arbitration Reform is Toast

Posted in National Politics, Tort Reform, U.S. District Courts in Mississippi

When I last talked about the ban of arbitration clauses in nursing home admission agreements, the political climate suggested that this was a first step in broader reform of consumer arbitration. What a difference a few weeks makes.

As reported by the ABA last week, on Monday District Judge Mike Mills entered a preliminary injunction blocking implementation of the rule. Then on Tuesday, Trump won.

Here is Judge Mills’ Order.

At this point, the lawsuit before Judge Mills is probably just a bragging rights case. With the new President comes a new administration and new policy. The Trump administration will probably revoke the ban.

I take nothing back I’ve said about my opinion that a day is coming when pre-dispute consumer arbitration agreements will not be enforceable. But that day is much further away than it was last Monday.

Look for the Republican Congress and President to attempt to completely dismantle the civil justice system. This is not something we’ve had to worry about for the last eight years. But it’s bed-wetting time for the litigation industry.

Anyone working in mass tort–plaintiff or defense–should be particularly afraid. Big firm associates working on mass tort defense should begin thinking about Plan B in case new laws effectively eliminate their practice area. Mass tort will not, however, be the only impacted practice area. If the Chamber gets their entire wish list the courthouse will be closed to individuals who can’t afford to pay a lawyer except, perhaps, in fender bender cases.

A Civil Litigator’s Take on the Comey Letters to Congress Regarding Clinton Emails

Posted in National Politics

FBI Director James Comey’s letters to Congress regarding the ‘new’ Hillary Clinton emails sucked. Let me explain.

I’ve done a bit of email discovery in my practice. It can be rewarding when you put together a complicated case by organizing the emails into a chronology.

Occasionally, you will find a ‘smoking gun’ email. Usually, however, individual emails are building blocks that need to be put together to get to a clear picture of what happened.

The best word to describe the process is ‘tedious.’

One of the reasons that reviewing emails is tedious is that you often see the same email(s) multiple times. If there are replies back and forth in the same email string, you see each reply as a separate document/ email.

Plus, you often obtain emails from multiple sources. So you see multiple copies of the emails you already saw multiple times in reply strings.

Once you’ve tapped a good source, a new source is likely going to produce mostly (or all) emails that you have already seen. It’s usually going to involve reviewing the same emails you have already seen again.

There is a 100% chance that the FBI knows this. So learning that there are emails on another computer in a case where you’ve already reviewed thousands of emails is probably not going to be a big deal.

Previously, the FBI reviewed tens of thousands of Clinton emails.  So when the FBI discovers the existence of Huma Abedin emails to or from Hillary on a computer being searched in connection with the investigation of Abedin’s soon to be ex-husband Anthony Wiener, their first reaction is NOT going to be that they’ve discovered the ‘case cracker.’

Instead, their first reaction is likely to be: “great. Now we have to review a whole bunch of emails we’ve already reviewed again.” But Comey didn’t explain that in his letters to Congress.

Here is a link to Comey’s first letter.

Here is a link to Comey’s second letter.

Comey’s first letter implied that the new emails were going to be the ‘case cracker.’ Comey’s second letter did not come back and explain why they weren’t and why they were unlikely to ever be.

If Comey was going to lob a hand grenade into a presidential election, he should have written better letters–like with some explanation and context. The way Comey did it suggested that the ‘case cracker’ was going to be on Weiner’s computer. The FBI knew that this was highly unlikely to be the case.

I don’t know what Comey’s political intent was–if any. I just know that his letters were poorly phrased if he didn’t have politics on his mind.

Hosemann’s Head-Scratcher on Greenville Church Burning

Posted in Politics in Mississippi, U.S. Supreme Court

Last week a black church in Greenville was burned and “Vote Trump” spray painted on the side of the brick building. NPR reports that the FBI has opened a civil rights investigation into the crime.

Comments from most Mississippi political leaders was on point:

“Gov. Phil Bryant, a Republican who has been campaigning for Donald Trump, said ‘we expect a suspect will be identified and brought to justice.’

” ‘First, anyone who burns a place of worship will answer to almighty God for this crime against people of faith. But they should also answer to man’s law,’ Bryant said in a statement.

“U.S. Rep. Bennie Thompson, a Democrat whose district includes Greenville, said the fire and graffiti ‘harkens back to a much darker day in Mississippi.’

” ‘The political message of the vandalism is obviously an attempt to sway public opinion regarding the upcoming election,’ he wrote in a statement. ‘I encourage all citizens not to be deterred by this cowardly act and exercise your right to vote at the ballot box.

And then there is Secretary of State Delbert Hosemann’s comment:

“Mississippi’s top elections official, Secretary of State Delbert Hosemann, a Republican, said people shouldn’t jump to the conclusion that the church was vandalized for political reasons. Initial reports suggest ‘this is not of a political nature,’ he told WDAM-TV.”

Here is a link that contains the WDAM clip. Hosemann does not offer another theory in the clip.

My Take:

Unforced error by Hosemann.

The fact that the FBI opened a civil rights investigation refutes Hosemann’s statement.

There are scenarios I can imagine that would make the “Vote Trump” spray paint an act of misdirection. But if Hosemann is suggesting that, he should explain. Otherwise, he makes himself look goofy.

Sun Herald Urges Bryant to Drop HB 1523 Appeal

Posted in 5th Circuit Court of Appeals, Politics in Mississippi

In an editorial published on Thursday, the Sun Herald urged Governor Phil Bryant to drop his appeal of District Judge Carlton Reeves’ ruling that HB 1523 (the religious objections law) is unconstitutional.

In addition to urging the Governor to dismiss the appeal, the editorial notes the differences in how the law plays in North Mississippi vs. South Mississippi:

The whole process brought a lot of negative attention to Mississippi, and once again highlights an-all-too-familiar values divide between South Mississippi and North Mississippi.

Pursing this appeal plays well for Bryant in North Mississippi. But in South Mississippi, not so much. People here, we believe, see this for what it is: blatant discrimination that must end.

My Take:

Bryant has had an uneventful term as governor. He will largely be remembered for his stance on this law. And unless he withdraws the appeal, history is not going to remember him kindly.

Just ask segregationist politicians who never had the opportunity to publicly reset their views.

Miss. Supreme Court Affirms $644,000 Jury Verdict in Inverse Condemnation Case

Posted in Appellate Decisions From Jury Verdicts, Mississippi Supreme Court

On Thursday a unanimous Miss. Supreme Court affirmed a 2014 jury verdict of $644,000 in Murphy v. State of Mississippi.

The plaintiffs alleged that the State took their property for public use without formal condemnation proceedings and without compensating plaintiffs. The State argued that the property in question was public tidelands.

The jury agreed with the plaintiffs and the Court affirmed.

Here is the Court’s opinion.

Here is my 2014 post on the verdict.

Here is an Anita Lee Sun Herald article on the decision. From the article:

The Mississippi Supreme Court ruled unanimously Thursday that a jury’s conclusion was correct: The Murphys should receive $644,000 because the state took their property. With legal fees, court costs, and interest, the Secretary of State’s Office owes the Murphys about $1.2 million.

The Supreme Court concluded the Murphys owned the property because it was a natural beach the state had never maintained or renourished.

Chief Justice Waller wrote the Court’s opinion.

My Take:

Eminent domain is a specialized area that is not in my wheelhouse. But this was apparently not a controversial decision at the Supreme Court because it was unanimous with all nine justices participating.

I read a lot into the fact that a decision is unanimous. Unless I lose. In that case, I read into it that they all got it wrong. Kind of like when I lose unanimous jury verdicts.

October Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the October 2016 issue of the Miss. Jury Verdict Reporter:

  • $122,242 verdict- Madison County breach of contract case covered here (9/15/16);
  • $75,000 combined verdict- Hinds County car wreck case covered here (8/3/16);
  • $10,000 verdict- Harrison County car wreck case (9/9/16);
  • defense bench verdict- Jackson County roadway negligence case (6/3/16);
  • defense bench verdict- Forrest County university due process case (7/7/16);
  • defense verdict- Hinds County negligent security case covered here (9/9/16);
  • defense verdict- Warren County medical malpractice case (9/16/16) and
  • defense verdict- Aberdeen federal court gender discrimination case (9/20/16).

My Take:

Seems like a normal month.