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.

Above the Law Slams Mississippi Bar Passage Rates

Posted in Law School

We’re just a bunch of morons here in Mississippi. That’s the theme of this recent Above the Law article by Joe Patrice discussing the 36% pass rate for the February Bar Examination. From the article:

Few things are certain in this life, but one of them is that Mississippi will find a way to be worse at everything. After Florida posted a 57.7 percent passage rate for the February exam, Mississippi pulled up and delivered a glorious 36 percent passage rate….

….. it’s clear that hard times have fallen on Mississippi….

….Could we blame declining standards designed to keep students in the seats paying tuition? Hmmm. 

…..And it’s a serious problem. Mississippi is a state that desperately needs attorneys. According to the Mississippi Access To Justice Commission, almost 700,000 people in Mississippi live below the poverty line, and the state has only “one legal services lawyer per every 21,000 eligible individuals.”……

But in the meantime, declining standards have played hell with bar passage rates at schools across the country. While many have begun the process of course correction — bringing in smaller, more credentialed classes — we’ve still got a few more years of this trend ahead of us. As we’ve noted before, there are laudable justifications for loosening admission standards, but all too often those are cynical fig leafs to justify taking money from students that the school “knew or should have known” would struggle to pass the bar and earn the license required to pay off their debt. Bottom line, no matter how a state got to this point, when states see bar exam struggles, it’s usually the fault of admissions moves.

I mean, I’d say res ipsa loquitur, but I’m not sure Mississippi students would know what I meant.

The article links Ken Walley’s guest post on this blog that discussed the problems MC Law School is having filling out its classes. The article notes that bar “passage rates are declining with student quality all over the country.”

The Ole Miss Law School took exception to the ATL article and responded with a statement by Dean Debbie Bell posted on Facebook. Dean Bell’s statement:

Dear law school community,

A recent Above the Law column implied that only 36% of Mississippi’s first-time bar exam takers passed the February 2017 bar exam. That is inaccurate. Furthermore – our students’ first-time pass rate for the year was 72.6%.

The ATL article stated that only 36% of the state of Mississippi takers passed the February bar exam, compared to Florida’s 57.7% pass rate. The article compares apples to oranges. Florida’s 57.7% pass rate was for first-time takers. Mississippi’s first-time pass rate for February 2017 was also 57.7%. Thirty-six percent was the overall pass rate, which included almost as many retakers as first-time takers. And for UM Law first-time takers, the pass rate was 60%.

Furthermore, the Mississippi February bar numbers are small — 87 takers. The best annual comparison for small population states like Mississippi is to look at the year’s total.

For the 2016-17 year, Mississippi’s pass rate for all first-time takers was 66.7%. AND OUR STUDENTS’ PASS RATE FOR THE YEAR WAS 72.6%. While this is lower than our traditional pass rate and we want to improve it, it is a far cry from 36%.

In contrast to most law schools, the University of Mississippi has not lowered admissions standards, as the author of the ATL article speculates. We have great confidence in our students’ abilities and are proud of their accomplishments.

My Take:

Hey, you can’t say Mississippi sucks and is last in everything. Only we can say we suck and are last at everything.

Condescending articles like these are why Mississippians have a chip on their shoulder when they mix with the coastal elites.

Drawing a broad conclusion that we’re a bunch of dumbasses in Mississippi is pretty sketchy based on a sample of 87 test takers. The fact that the author made an apples to oranges comparison [later conceded in an update to the original post] didn’t help.

Everyone in the Mississippi legal community knows that February bar exam passage rates are traditionally lower than July. The principal reason is because of all the re-takers, some of whom never pass.

Perhaps less well known is that many of those failing and re-taking the exam didn’t even attend law school in Mississippi.

Sure, MC Law School might have lowered its admission standards. But many of those students are from out of state. It’s unfair to blame Mississippi’s education system for dumbasses from other states who MC Law admits so it can keep the lights on.

Anyone who regularly reads this blog knows I’m no fan of people going to law school or starting their legal career in Mississippi. But it’s because there are too many lawyers in Mississippi.

‘Smart’ is an overrated quality for lawyers. It ain’t rocket science. If I had to rank the qualities of what it takes to be a good lawyer, ‘smart’ would not be near the top of the list. What does it even mean to be smart?

I’ve seen lawyers who were too smart for their own good and couldn’t communicate with regular people. And most of our huge verdicts in Mississippi trials were tried by out of state geniuses. There have been so many huge verdicts over the years that would have been much lower if the cases had been tried by a Mississippi defense lawyer.

The vast majority of bad lawyers are bad lawyers because they are: lazy; and/or don’t have their shit act together. Not coincidentally, those are the same reasons many people fail the bar exam.

Most people I know who failed the bar exam weren’t disciplined in studying. Some of them turned out to be great lawyers once they did pass.

Some people just never learned to study efficiently–something require for the bar exam. Some people freak out due to the pressure. Most, are ‘smart’ enough even if they fail.

I don’t buy the premise that people who pass the bar exam are smart and everyone else is dumb. One of the best experiences of my life was working a manual labor job with men who had little formal education. It’s where I learned the difference between ‘smart’ and ‘educated’. I am certain that my co-workers’ bar passage rate would have been 0%. But they weren’t dumb–not by a long shot. When it came to problem solving, thinking logically, reading people, etc…, those guys were just as smart as any group of lawyers I’ve been around–and smarter than a lot of the out of state geniuses I’ve seen practicing in Mississippi.

But the slam on Mississippi wasn’t the part of the ATL article that bothered me the most. The article’s suggestion that Mississippi needs a bunch more lawyers–without explaining who is going to pay those lawyers–is ridiculous. I’ll discuss that more in my next post.

Rocky Wilkins Joins Morgan & Morgan

Posted in General

A couple of weeks ago Jackson personal injury attorney Rocky Wilkins announced that he will join the Jackson office of Morgan & Morgan on May 1. It’s my understanding that the plan is for Rocky to try all of the firm’s Mississippi cases.

Wilkins’ late father was a well known criminal lawyer in Jackson. Before starting his personal injury practice, Rocky was an associate at Daniel Coker in Jackson. For the last several years, Wilkins has sponsored and co-hosted the TV show Law Call with Tim Porter of the Porter & Malouf Law Firm. He has tried many cases to verdict including numerous seven figure verdicts, some of which I covered on this blog. It’s no secret that he likes trying cases.

Many people I heard from were surprised by the news. While I certainly didn’t predict the move, I was not very surprised. In fact, I would not be too surprised about any successful plaintiff lawyer joining a large plaintiff firm. It’s a sign of the times.

Plaintiffs law is moving away from the lone-wolf model that John Grisham writes about in his novels. There are now many large national plaintiff firms such as Morgan & Morgan, Baron & Budd, Beasley Allen and Lieff Cabraser. These are just a few examples. The large plaintiff firms are monopolizing big litigation from the plaintiff side.

When I started my own practice in 2002, it was still common for a small plaintiff operation to lead a huge plaintiff case. Those attorneys were my role models. It’s now a dinosaur model. Pull up the plaintiff steering committee on recent MDLs and you will see the vast majority of slots held my attorneys in huge firms. Most of the rest were grandfathered into the club.

I haven’t discussed it with the principals, but I suspect that this dynamic has a lot to do with the Mississippi lawyers who started the Johnson & Johnson talc litigation (Allen Smith and Porter & Malouf) associating Beasley Allen in the litigation. With Beasley Allen involved, they don’t have to worry about a judge handing their inventory to another group of lawyers.

And that’s basically what happens in today’s world of MDL litigation. The presiding judge handpicks who will be the point lawyer(s) on the case. Those people have a huge amount of control over all the cases. A lone wolf attorney may intend to handle his own cases. But the reality on the ground is that the lead attorneys control.

There is a huge amount of money at stake in these cases. In the NFL Concussion litigation, a handful of firms will split $112 million in attorney’s fees. Hardly any of that will go to the Pittsburgh attorney (Jason Luckasevic) who many credit with starting the litigation. Most of it will go to New York attorney Chris Seegar who represented only a handful of NFL players, but was picked by the judge to chair the plaintiff steering committee. Best I can tell, Seegar got the job because he had a similar role in earlier MDL’s. That’s great for the Chris Seegars of the world. I’m not sure the Rocky Wilkins of the world can get there without a big firm backing them up.

Rocky Wilkins is a smart guy. I suspect he sees industry trends and is moving to a large firm so that he has a better chance of litigating and trying large cases and cases outside Mississippi. It’s no secret that many Mississippi litigators–plaintiff and defense–are either already litigating cases outside the state or trying to do so. It will be interesting to see if Rocky is given the opportunity to try cases for Morgan & Morgan outside Mississippi.

Morgan & Morgan has invested a ton of money into developing a Mississippi practice. It had some initial growing pains, but has appeared to steady the course. It is the largest plaintiff law firm in the nation and it just hired one of the most well known young plaintiff lawyers in the state. All Mississippi litigators–plaintiff and defense–should think about what the current trends mean for the future of their practice.

PERS Crisis Unavoidable?

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

I recently read this Lance Roberts article about the unavoidable pension crisis posted on Zero Hedge. The article discusses the investment rate of return assumption that I have focused on in my posts on PERS:

The biggest problem, following two major bear markets and sub-par annualized returns since the turn of the century, is the expected investment return rate.

Using faulty assumptions is the lynchpin to the inability to meet future obligations. By over-estimating returns, it has artificially inflated future pension values and reduced the required contribution amounts by individuals and governments paying into the pension system.….

However, the reason assumptions remain high is simple. If these rates were lowered 1–2 percentage points, the required pension contributions from salaries, or via taxation, would increase dramatically.For each point reduction in the assumed rate of return would require roughly a 10% increase in contributions….

Given real world return assumptions going forward pension funds SHOULD lower their return estimates to roughly 3-4% in order to potentially meet future obligations and regain some solvency.

But we won’t get there.

  1. This would require a 40% increase in contributions by plan participants which they simply can not afford.
  2. Given that many plan participants will retire LONG before 2060 there simply isn’t enough time to solve the issues, and;
  3. The next bear market, as shown, will devastate the plans abilities to meet future obligations without massive reforms immediately….

It’s an unsolvable problem. It will happen. And it will devastate many Americans.

It is just a function of time.

My Take:

Mississippi PERS participants who are still working should be saving for retirement outside PERS. You should assume you will take a haircut on your PERS benefits.

I know you think you have a contract with the State. Hopefully, you will not take the assumed haircut. But better safe than sorry.

If I was a PERS participant, I would assume a 20% haircut on my retirement benefits and plan accordingly. That means save more for retirement outside PERS or plan on having less money to spend in retirement.

It’s like planning for a Hurricane. Hope for the best. Plan for the worst.

‘The Mother of All Bombs’ is a Stupid Nickname

Posted in National Politics

I’m a nickname connoisseur. My mother hated nicknames that kids at school gave me in the first grade. And to be fair, grade-school kids come up with stupid nicknames.

It took me a good 15 years after first grade to embrace nicknames. Now, I love them. I’ve probably had 10 in the last 30 years. My personal favorite is ‘Sunshine.’ But then, I think it’s hilarious when a huge dude’s nickname is ‘Tiny.’

What makes a good nickname? It needs to be funny, but not mean. If mean can’t be avoided to maximize humor, well, that’s too bad.

A rule of thumb of a good nickname is 2 syllables max. If it has more than 2 syllables, there better be a good reason besides lack of imagination.

Don’t buy my 2 syllable rule? Tell that to Tiger, Sweetness, The Fridge, Babe, Hank, Csonk, Bear, The King (all 3 of them), Steph, Magic, Bird, Jordan, Archie, etc…

There are some great forgotten nicknames for Mississippi lawyers. Who can identify Coop, Daddy, Famous, Scotty, Deuce, The Beave, Possum, Crash, Father Time, Sloth, The Admiral, Boo, Chachi, Pops and The Q?

Or going back to my law school class: Recap, Nugget, Stupelo, Gone, Shovel and Biggie? [If you were in my law school class, Mike Morton and me had a nickname for you–usually before we ever met you based only on your photo in the first year composite or something that happened the first day of class].

Don’t like your nickname? You better rethink that. People generally only give nicknames to people they like. It’s a term of endearment no matter what it is. Otherwise, they just refer to you as jack-ass, nut-job or a-hole.

So it was with great disappointment when I read that we dropped ‘The Mother of All Bombs’ on ISIS. Good lord! That’s got to be the worst nickname in the history of warfare. 6 syllables? We’ll never defeat ISIS with nicknames like that.

What’s a better nickname? Well, here’s a picture of it:

MOABThat’s not ‘The Mother of All Bombs.’ That’s Orange Crush.

Yes, I’m aware that sometimes the Air Force screws up and paints Orange Crush green. Probably on the orders of the dude who named it The Mother of All Bombs.

So what? It’s still Orange Crush.

What’s Up with Mississippi’s Economy?

Posted in Politics in Mississippi

In March Mississippi broke it’s streak of lagging sales tax collections. What’s the deal?

Why are Mississippi sales tax revenues and income tax receipts millions below projected levels with unemployment at its lowest level in 15 years? [WTVA report].  It’s a “conundrum” notes Secretary of State Delbert Hosemann.

Democratic State Representative Steve Holland theorizes that people are being extraordinarily conservative in spending their money. But that doesn’t explain the lower than projected income tax collections.

Hosemann theorizes that some people may not be paying their fair share and that people are chronically underemployed. Hosemann is right on both counts.

The problem with unemployment rates is that they don’t tell the story of the chronically underemployed and the underpaid. You can be employed and not making ends meat.

Let’s be honest. The economy sucks. People are house poor and car poor. People are struggling to get by. They may have a job, but they’re struggling.

The stock market is at all time highs. But that doesn’t help the vast majority of people in Mississippi. The beneficiaries of the “financial recovery” since 2008 are the top 1%-ers. For most people there hasn’t been a recovery.

When it comes to the economy I trust my gut. My gut tells me that people are struggling and the economy sucks. There is a better chance that the stock market reverts to the reality on the ground than things start going great economically for most people.

The economic boom of my lifetime was the 1990’s. People weren’t worried about keeping their job. It was easy to get a job—it was easy to get a better job. There was a lot of movement in the workforce. People were buying bigger houses and, most importantly, in a better mood.

The boom peaked with the tech bubble. Things came back to some extent before 2008, but the mood never fully recovered.

I don’t buy that there has been any real economic recovery since 2008. The ‘recovery’ has been some sort of central bank engineered mirage. The world economy was heading over a cliff in 2008. They stopped it. But it was just stabilization. The economy is still in a terrible funk in Mississippi and many other states. That’s why sales and income taxes are not up to projections.

That’s why Trump won. People in the rust belt states that swung the election are in the same boat as Mississippians. And they were desperate to try something (or someone) else. Most of those Trump voters are realists. They don’t believe Trump will drain the swamp and save the day. They just knew that there was a 100% chance that Clinton would stay the heartbreaking course.

It’s a big problem with no easy solutions. Automation, robots, artificial intelligence, exporting jobs overseas, etc.. It all seems to be accelerating–not getting better. It takes fewer people to get the job done. Ten years from now, it will take even less.

My advice to the legislature is to look at reality on the ground and plan for it to get worse. We seem to be reverting to our grandparents’ economy.

Pain Pills Scarier than Murder?

Posted in General

Note: I wrote most of this post week before last. In the interim, another local man in his early 20’s overdosed. Good kid. Good family. The opioid epidemic is real–and it’s in your neighborhood.

This is kind of off topic, but it’s becoming more apparent by the day that maybe the number one threat facing our country is the mushrooming opioid epidemic. This recent Washington Post article reports that in 2014, opioid overdoses outnumbered murders in 45 states.

Some people overdose on pain pills. Most overdose on heroin. Many people don’t understand the link between heroin addiction and pain pills. I’ve talked to parents of heroin addicted young people who were unaware of the link.

Heroin addicts don’t start on heroin—or weed for that matter. They start on pain pills. Then they get hooked on pain pills. It’s very easy to get addicted/ hooked on pain pills. Take them for a week straight and it’s going to be hard to stop cold turkey.

But pain pills are expensive and hard to get. The street value of one OxyContin pill can be has high as $80 depending on the dosage. Many people can’t afford to be hooked on pain pills. [Donna Tart explained the economics of pain pills vs. heroin in her masterful novel The Goldfinch.] In contrast, most people can afford to be hooked on heroin.

Shooting heroin sounds like playing Russian roulette. The dose that felt great a few weeks ago kills you this week.

I recommend the book Dreamland, which covers the rise of OxyContin and heroin addiction. The two amazing facts in the book to me were that (1) in many cities heroin is delivered like a pizza; and (2) it’s cheap. As cheap as alcohol.

At least every couple of weeks I see in the Clarion-Ledger the obituary of a kid in their early 20’s who died of an overdose. When I was in college, everyone knew someone who died in a car wreck. Now college kids all no someone who died of an overdose.

It’s scary and it often starts with a pain pill. Pain pills are extremely addictive. OxyContin is particularly addictive. Junkies have told me they’ve done every drug there is and that OxyContin is the most addictive of them all.

In Mississippi, there are as many opioid prescriptions in a year as people. Everyone getting opioids filled is not taking them. Some people turn around and sell them to drug dealers. It’s big business.

And people can overdose on pain pills, particularly when mixed with alcohol and other sedatives.

I don’t have the answer to who should get pain pills and who shouldn’t. I don’t even have an opinion. Perhaps age should be a factor in pain pill prescriptions.

I remember when doctors didn’t prescribe pain pills for conditions like broken bones and severe cuts. In college I suffered multiple broken bones and one severe cut. I was never prescribed pain pills.

Once, I badly broke my hand. The fix was to re-set it, which involved breaking it again. It was terrible–and painful. I got pain shots for the re-break, but nothing to go home with. It was very painful for a couple of weeks. Pain pills would have helped. But would it have offset the risk of exposing a 20 year old to opium? I don’t know.

The opioid epidemic is scary and not fully understood by enough people. And it’s getting worse. It’s the number one thing parents of teenagers and young adults need to be talking to their kids about.

$1.1 Million Jury Verdict- Coahoma County Medical Malpractice Trial

Posted in Verdicts in Mississippi

On Thursday a Coahoma County jury returned a Plaintiff’s verdict of $1,128,000 against emergency room physicians Dr. Tommy Hughes and Dr. Jonathan Massey.

Plaintiff alleged that the defendants negligently failed to diagnose bacterial meningitis, resulting in the death of plaintiff’s decedent.

Andrew Neely and Eric Stracener of Jackson represented the plaintiff. Gordon James and Margaret Blackwell of Monroe represented the defendants.

It’s That Time of Year Again……Southern Propaganda Month

Posted in Politics in Mississippi

What would Spring in Mississippi be without moron ‘Confederate Heritage Month?’ Here is the Jackson Free Press’s report on Colonel Governor Bryant’s last minute declaration honoring the most embarrassing thing about Mississippi–that we fought the nation’s bloodiest war to preserve the South’s indefensible institution.

According to the JFP article, the Sons of the Confederate Veterans say: “…The preservation of liberty and freedom was the motivating factor in the South’s decision to fight the Second American Revolution.”

Wow. Not only is that wrong, but the opposite is true. The South fought the Civil War to preserve slavery and bondage. It was about depriving people of liberty and freedom.

I know that here in the South it’s part of our culture to say that the war was about state’s rights or other such nonsense. But it’s not true. The ruling merchant and planter class said things like that even back at the time of the war to convince poor folks to take up arms.

The Civil War was about money. It wasn’t about state’s rights or heritage or even racism and white supremacy. The War was fought to preserve the economic order and wealth in the institution of slavery.

Here is an interesting article Measuring Slavery in 2011 Dollars. Key points: (1) in today’s dollars one slave was worth tens of thousands of dollars; and (2) in today’s dollars the Emancipation Proclamation wiped $10 trillion in slave value off the books.

The people who run things in the South don’t want everyone to know why we really fought the Civil War. That was true in 1861 and it’s true in 2017.

We fought the War to protect rich dudes’ money.  And there was such a good job done to conceal it that for most white southerners, the cover-up is the truth.

Litigation Just Starting in Miss. Power’s Kemper Plant Debacle

Posted in General

Mississippi Power Co. and its corporate parent Southern Company’s Kemper power plant may be the biggest debacle in the history of Mississippi not related to the Civil War or its long aftermath. It makes the famed beef plant look like tiddlywinks.

The Company spent $6.2 billion (and counting) to build a plant that would (maybe) run on gasified ‘clean coal.’ That compares to the $250 million that it would have cost for a used natural gas plant that would be cheaper to operate. Miss. Power/ Southern Co. promised that the plant would open by May 2014 and would cost less than $2.88 billion.

Running on clean coal is an unproven theory. A $6 billion experiment funded by Mississippians. Right now, natural gas is so cheap that it would be cheaper to run the plant on gas than clean coal–assuming the clean coal theory works. No one really expects natural gas prices to rise substantially because oil fracking produces so much natural gas. And fracking is on the rise.

The plant is still not operational three years after the promised open date. The Company has clearly been deceptive about when the plant will open and, probably, whether it’s going to even work. At this point, you can’t believe anything the Company says about it. The Company has repeatedly lied and/or misled the public and Miss. Public Service Commission about the plant. This would not matter to most people except for the fact that the Company wants South Mississippians to foot the bill for the plant by paying unfairly high electricity rates. It’s ridiculous that this is even possible.

Needless to say, there is going to be a lot of litigation. Plaintiffs filed this securities class action complaint in Atlanta in January. The Company hired mega-firms Latham Watkins and Jones Day to defend it. They haven’t filed an answer yet. Those firms will bill millions on the litigation. Eight figures at least. Maybe more. Those costs will presumably also be passed on to consumers.

Another lawsuit was filed in Delaware seeking records related to the plant. That makes five lawsuits to date according to Steve Wilson with Mississippi Watchdog.

At this point, Miss. Power and the Southern Company have zero credibility. Regardless of whether they had good intentions, they look like incompetent sleazeballs. They need to leave. Someone needs to take over the project who does not already have mud on their face.

Miss. Power needs to be sold to another company such as Entergy or NextEra Energy who can come in and make the best of a bad situation. Maybe Miss. Power needs to declare bankruptcy? Hopefully, something can be done to help keep South Mississippians from holding the bag of the Kemper Plant fiasco. The one certainty is Miss. Power needs to be gone.

Mississippi can’t get a do over. But it needs to at least get the snakes out of the woodpile.

Lying for Colleagues is Medicine’s Dirty Little Secret

Posted in General

This  Medscape Article titled Poll: 43% of Doctors Say Lying For Colleague Could Be Justified confirms what lawyers already know. Doctors aren’t any more honest than the next guy.

In the poll of 922 physicians, only 57% said it was never okay to lie to protect a colleague.

Nurses have more scruples–82% of nurses said it was never okay to lie to protect a colleague.

One respondent called lying medicine’s dirty little secret.

My Take:

I wonder what percent of the 57% think lying in polls is justified? Wow, I’m such a cynic!

Doctors have the public totally bushwhacked on this. Most people trust doctors more than preachers.

Lawyers and politicians–people think we’re usually lying. But doctors? Never! Cue the violins.

It’s in our culture going back to when we’re babies to trust doctors. We trust them with our lives because…..we have to. How are we supposed to know if we really need that surgery now? We’d rather not think about the possibility that doctors aren’t infallible.

Yet I don’t totally buy the poll results. The results are accurate only if the responding physicians were all being honest. I’m skeptical.

I think it’s more like 60% of physicians would lie for a colleague. It’s in their culture. I don’t know why.

More frustrating are the doctors who tell a patient that another doctor screwed up and then deny it when the patient sues. Back when I was screening medical malpractice cases, people often said that a doctor told them that an earlier doctor screwed up. This happened a lot. In many instances it was why the people were looking for a lawyer.

I always told the people that if the doctor didn’t write it in the patient records (and they almost never did), they would deny saying it. My results were 100% on this prediction.

I agree that in general, nurses are more honest and less protective of colleagues than doctors. Again, I don’t know why. If I had to guess, it’s because doctors always treat each other with respect but sometimes are tools to nurses.

If I have a strong medical malpractice case, I am fine with a nurse on my jury. But I’d probably always preemptively strike a doctor. Not that I’ve ever seen one show up for jury duty.