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

PERS Investment Update

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

Last year I was critical of the Mississippi PERS investment allocations in posts here and here. In the posts I questioned whether PERS needed to be dumping treasuries for junk bonds and whether the equity/stock allocations were too high.

Here is a chart that shows the performance of treasuries (TLT), junk bonds (JNK) and domestic equities (GSPC) for the last year. Non-US equities are down even more.

This is not good news for PERS. For the last year:

  • S&P (equities): -13.42%
  • Junk bonds: -20.4%
  • treasuries (what PERS sold to buy junk bonds): +5.13%.

PERS would have performed better if it had done the opposite of what it did. Reminds me of my own investment decisions.

Click on the graphic for a sharper image.

SnipImage

 

 

Legal Profession’s Drinking Problem – It’s the Job, Not the Culture

Posted in Attorney Mental Health, General

Last  week a friend emailed me this CNN article about this Journal of Addiction Medicine Article regarding substance abuse and mental health problems in the legal profession. From the CNN article by Patrick Krill, lead author of the study:

The law has always been a magnet for hard-working, self-reliant, and competitive people who often prioritize success and accomplishment far above personal health or wellbeing. On top of that, stress, unhappiness and imbalance abound, while unhealthy coping skills such as excessive drinking are the cultural norm — malignant, learned behaviors passed down through the profession with the frequency of a dominant gene.

Here are some statistics for lawyers from the study:

  • 20.6% have a drinking problem
  • 28% suffer from depression
  • 19% suffer from anxiety
  • 23% suffer from stress

The study shows that these rates are higher than professionals in other fields.

My Take:

My comments below don’t apply to sub-thirty attorneys who were wild in college and/or law school and still occasionally party like a kid. The vast majority of us grow out of that behavior in our 20’s.

I would have guessed that the statistics would have been higher for anxiety and stress.

I don’t necessarily agree that excess drinking is caused by the culture of the profession. At neither of the big law firms where I worked did older attorneys encourage younger attorneys to drink. And by and large, I had no idea which of the older attorneys may have been drinking too much when they left the office. Of course, there were firm functions where alcohol was served. But visible intoxication was not very common and generally frowned upon. I also rarely see visible intoxication at professional receptions.

Public intoxication by an attorney at a firm function or in the attorney’s hometown is a really bad move. It can do nothing but hurt the lawyer’s reputation. liquour bottles

Smart lawyers who feel compelled to drink to excess do it out of public or out of town. Of course that’s part of the problem, attorneys hide their drinking problem. Many of their friends and colleagues don’t know the extent of the problem and never try to intervene.

I agree that the profession implicitly discourages attorneys from sharing their struggles. Think about it like this. How often do you hear lawyers bragging about their legal prowess? Trust me, it’s a lot. It’s what dominates most CLE programs organized by both AAJ and DRI. “Here’s a story that shows how clever I am…..”

You don’t hear many–if any–CLE presentations talking about how to deal with the stress of the profession and the grind of adulthood described so well by David Foster Wallace in this speech. Incidentally, one of the things that makes Wallace’s words so moving is knowing that he later committed suicide.

To me, the work is the primary cause of the higher rates of substance abuse and mental illness in the profession. Practicing law is just a hard and stressful job. This is particularly true in private practice due to the unending pressure of having to obtain legal work before that legal works starts stressing you out.

I agree with the author that:

law schools, law firms, and lawyers themselves — the “private sector” of the profession — must take proactive steps and devote meaningful resources to overcoming this challenge.

But I think it’s more about treating the problem and trying to reduce the rates of addiction and suicide. I don’t see the statistical rates of these problems meaningfully declining. For attorneys, this is the life we have chosen.

Bringing Back Memories of Taking the Bar Exam

Posted in General

We are all excited at my office because we are getting the ultra-fast C-Spire internet service. Our office is located on a corner. A few weeks ago, workers jack-hammered the street all day running the cable. But I couldn’t figure out why they were running the cable to the building on the other side of the street. This week the workers are back with their jackhammers. Yep, they are running the cable to the right building this time.

Every time I hear jackhammers it reminds me of taking the bar exam. It was August 1993. We took the bar exam in the Robert E. Lee building downtown. The room was hot and fraught with tension. And for what seemed like the whole time, there were jackhammers going off outside. Let me tell you, taking the bar exam with jackhammers going off the whole time is not fun. jackhammer

After the bar exam, most of us went our separate ways. That night, one classmate got punched in the face in a bar. By another classmate.

Me and my then wife, who also took the exam, drove to Washington D.C. for a wedding. For two days and 1,000 miles, I had to recount my answers for all 200 questions on the multi-state exam. Usually, her response to my answer was a burst of tears and wailing that “I failed” (she didn’t).

Now, every time I hear a jackhammer I think about the events surrounding taking the bar exam. It sure brings a smile to my face now. But it sure didn’t back then.

$85,891 Jury Verdict in Lee County Retaliation Case

Posted in Verdicts in Mississippi

On January 27, 2016 a Lee County jury (County Court) returned a plaintiff verdict of $85,891 in Nguyen v. Dao.

The plaintiff worked for Dao at the Ichiban Japanese Grill in Tupelo. She alleged that she was fired for reporting illegal activity and that she was not paid properly under the Fair Labor Standards Act. The jury agree.

The jury rendered a verdict for the following damages:

  • $1,943- lost income because of discharge for reporting illegal activity
  • $50,000- mental anxiety
  • $33,948- violation of Fair Labor Standards Act.

The jury also found for the plaintiff on a counter-claim of malicious prosecution filed by one of the defendants. The trial judge declined to submit the issue of punitive damages to the jury. The judgement also included 8% post judgment interest.

Here is the final judgment.

Jim Waide and Rachel Pierce Waide of Waide & Associates in Tupelo represented the plaintiff. Jonathan Martin of Tupelo represented the defendants. County Judge Charles Brett presided in the case.

My advice:

Don’t wear anything you like to one of those Japanese steakhouse places where they cook in front of you. They get little specks of grease all over your clothes.

Tupelo Bolsters Reputation For Dumb Criminals

Posted in General

The NE Daily Journal reports that the plan of three Tupelo men to rob and kidnap Circuit Judge Paul Funderburk was foiled before it got out of the Huddle House:

Three Lee County men were arrested Monday after law enforcement uncovered a plot to kidnap Circuit Court Judge Paul Funderburk.

According to Lee County Sheriff Jim Johnson, a concerned citizen overheard the men talking at a Tupelo restaurant Sunday.

“During the conversation, they were talking about robbing a home owned by Judge Funderburk,” Johnson said. “During the conversation, they said if the judge was at home, they would kidnap him as well.

“The concerned citizen notified authorities. We were able to get surveillance video from the restaurant and interviewed folks to determine the information was credible.”

The quick investigation ended when two suspects were arrested at a local motel. The third man was arrested at a Tupelo residence.

My Take:

Cobra Kai dojo instructor James Dutschke thinks those guys are stupid.

How could that plan go wrong? From planning the heist in a restaurant to targeting a public servant, these guys were not on their criminal game.

Home invasions in Mississippi often don’t go well for the invaders. There seems to be a big home field advantage for the homeowner, who typically comes out blasting and is a better shot than a dope fiend.

I’m going to go out on a limb and predict that if they had tried this and Judge Funderburk was home, they would not have kidnapped him. A more likely scenario: a couple of dead bad guys with the third “getting away” for about, oh, half an hour.

This may come as news to the criminal element, but most judges who send people to prison take personal security seriously. It’s not going to be much different that trying to rob a cop. You probably have a better odds of pulling off the heist if you just stick up the restaurant you are planning this in.

Here is what I predict these guys will hear a lot of as they adjust to life behind bars: “man, you guys sure are dumb.”

Alcorn State Loses $500,000 Jury Verdict

Posted in Verdicts in Mississippi

It was a bad week on the reservation. First, Alcorn State lost wildly successful head football coach Jay Hopson to USM.

On top of that, on Thursday a Claiborne County jury rendered a $500,000 verdict to former ball coach Ernest T. Jones for mental anxiety. Technically, the verdict was against the Mississippi Institutions of Higher Learning.

Coach Jones alleged that Alcorn breached his contract to serve as head football coach by firing all of his assistant coaches, by failing to timely provide the players with uniforms and shoes, and by making several false charges of misconduct against him.

Jones is an Alcorn alum who was the head coach in 2008. Alcorn went 2-10 under Coach Jones.

The defense argued that the State is immune from damages under sovereign immunity.

Plaintiff’s counsel were Jim Waide of Tupelo, Wayne Ferrell and Adrienne Parker of Jackson and Michael Keyton of Port Gibson.

Defense counsel were Alan Purdie and Christopher Corkern of Ridgeland. Judge Lamar Pickard presided.

My Take:

Did he have to field a team without helmets and shoes? That would give me mental anxiety.

Directed Verdict in Covington County Nursing Home Bench Trial

Posted in Verdicts in Mississippi

On January 14, 2016 Circuit Judge Eddie Bowen granted Defendant’s motion for directed verdict in Ashmore v. Mississippi State Veterans Home. Here is the Order.

According to the Order, the case involved an 85 year old double amputee [uh-oh] suffering from multiple medical conditions. The gentlemen allegedly suffered a fractured humerus during a lift transfer from bed. The plaintiff also alleged negligence related to dehydration. lift transfer

According to the Court’s order, the plaintiff did not have supporting expert testimony. Plaintiff attempted to satisfy the expert testimony requirement through the executrix, who was an LPN. This still left the plaintiff without a medical causation expert.

The defendants argued that even assuming that the lift transfer broke the man’s arm, there was no proof of a breach of the standard of care. The Court agreed.

The Court found that plaintiff failed to establish:

  • a breach;
  • proximate cause; or
  • damages (since there was no proof of increased pain resulting from the fracture).

Jeff Reynolds and Carson Thurman of Jackson represented the Defendant. Barry Gilmer and Wade Gilmer of Madison represented the plaintiff.

My  Take:

That case was a real long-shot for the plaintiff even without some of the proof deficiencies. Kudos to Judge Bowen for a quick ruling.

Rare Plaintiff Summary Judgment in Excessive Force Case

Posted in U.S. District Courts in Mississippi

This is something you don’t see every day. Northern District Federal Judge Michael Mills granted summary judgment for the plaintiff in a police excessive force case. Here is the Complaint in Cooper v. Brown and City of Horn Lake and here is the Order Granting in Part and Denying in Part SJ.

The Court granted the plaintiff’s motion for partial summary judgment against officer Lynn Brown.

According to the Complaint, Brown pulled Cooper over for suspected DUI and Cooper ran after getting out of his car. Cooper didn’t run far, however, and sat down next to an air conditioner unit by a house. police dog

Officer Brown quickly found Cooper and had his police dog ‘Sunny’ attack him with no prior warning. By this time, Brown already knew that Cooper had no pending felony or violent offense charges and was not holding a weapon. Officer Brown disregarded a Horn Lake police policy that requires officers to announce their presence and give the suspect an opportunity to surrender.

Judge Mills emphasized that ‘pictures don’t lie’ and the photos depict a sustained and brutal attack. Officer Brown was handcuffing Cooper while his dog tried to eat Cooper’s leg, literally according to Cooper.

Brown contended that Cooper should have done a better job of saying “I give up” while Sunny chewed on his leg. No, really. Brown actually argued that.

Even Brown’s expert admitted that it was obviously unreasonable to allow the attack to continue after Cooper was on his stomach with his hands behind his back. And, “Plaintiff testified that Brown seemed to take an inordinately long time to handcuff him after he was on his stomach and his hands were behind his back, and it seems clear that much of his injuries occurred after this point.”

The Court noted: “Based on his own testimony, Officer Brown does not strike this court as an officer reluctantly resorting to force, but, rather, one only reluctantly terminating the use of force.” The Court also noted that Brown had a reputation within the department for being overeager to unleash the hounds of justice.

Philip Stroud and Brandon Flechas of Southaven represents the plaintiff.

My Take:

This is an example of why people need to be very careful with the police. Sure most cops aren’t psychos like Officer Brown. But there are plenty of Officer Browns out there who are, literally, armed and dangerous.

No matter how young, drunk and stupid you are, you can’t mouth off to, or run from, the police. Young men under the age of 30 in particular can get into trouble with the police.

Maybe schools should teach kids what to do if they are ever stopped by the police. It’s really pretty simple: stop, no sudden movements, don’t speak unless spoken to, don’t argue, be respectful, etc. In other words, treat the cop like he’s the school principal. Maybe we should not let our kids figure this out on their own.

January 2016 Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $25,000 verdict- Hinds County car wreck case/$5,126 in meds  (9/23/15);
  • $15,000- verdict- Madison County general negligence case involving second degree burns/ $2,100 in meds (12/16/15);
  • $10,846 verdict- Harrison County hospital vs. doctor breach of contract case (12/9/15);
  • defense verdict- Hinds County nursing home case covered here (10/2/15)
  • defense verdict- Madison County car-bicycle collision case (12/16/15);
  • defense verdict- DeSoto County medical malpractice case involving a vescio-vaginal fistula discovered after total hysterectomy surgery (12/3/15);
  • defense verdict- Jackson federal court reverse race discrimination case (11/4/15);
  • defense verdict- Aberdeen federal court civil rights case with a pro se plaintiff (7/14/15).

My Take:

Not much to see this month, but all Mississippi litigation attorneys should be reading this publication in order to stay abreast of current verdict trends.

The Hinds County car wreck case sounds like a genuine plaintiff win. Seems like it has been a while since the MJVR reported a verdict where the plaintiff received a good bit more than the meds. jury

Book Review: You Can’t Teach Vision, by John Morgan

Posted in Book Reviews

You Can’t Teach Vision is John Morgan’s follow up to You Can’t Teach Hungry, which I favorably reviewed here. The sub-title of the book is the Twenty-First Century Law Firm, which Morgan continues to build. It could have been titled ‘what I’ve learned from thirty years in the law business.”

The book contains twenty-four short chapters on a range of topics related to law firms. In the last chapter, fittingly titled ‘Windows Open, Windows Close’, Morgan opens up about what set his fanatical drive in motion. can't teach vision

Growing up in Lexington, Kentucky both Morgan’s parents were alcoholics and his home life “was a real shit show.” As a young child Morgan broke a tooth. At the dentist’s office his father told the dentist to pull the tooth because they could not afford the $50 price tag for a root canal. Morgan vowed that money would never again block something he needed and started working as a paper boy.

Morgan turned out to be an entrepreneur and ended up helping support his family. The motivation and drive that started as a child apparently continues to drive Morgan today. If I had made enough money to buy $25,000 in Amazon stock every month I would have gone to the house by now. Morgan is obsessed with getting it to the next level.

How many people had heard of Morgan & Morgan ten years ago? Today, it’s the largest plaintiff law firm in the country and continues to grow. Like it or not (and I don’t), the large law firm is the future of plaintiff law.

One of the biggest changes in the profession since I have been practicing is the takeover of complex litigation by large plaintiff firms. The light bulb went on for me on this topic in 2010 while I was researching this post on the steering committee for the BP Oil Spill. Aggregation of big cases in MDL’s has made solo and small firm low-volume/ large-case plaintiff lawyers like me dinosaurs. It’s a model that worked much better in the past than the present and future.

Morgan has done it bigger and faster than anyone.

That’s not to say that I agree with Morgan on everything. He loves being constantly connected and likes lawyers who send out emails at 2:00 a.m. I don’t like how people have become tethered to their devices and expect immediate responses to routine emails.

As for 2:00 a.m. emails, for me, they are always a mistake. I have trouble staying asleep and am up in the middle of the night a lot. One of the most frustrating things about it is the fact that my brain is not in working shape. I can write down a bunch of ideas or even send out some emails. But when I read them the next day, they almost never are great thoughts. Sort of like no matter how awake I felt, part of my brain was still asleep.

Plus, whenever I see a work email that was sent at 2:00 a.m., I think that the sender must be on drugs or something.

Similarly, I read a lot and usually have 2-4 books going at a time, but I can’t get quality reading done in the middle of the night. I think this is why I, and many other insomniacs, end up watching TV in the middle of the night. The Bloomberg business channel is my go-to middle of the night program. It’s Goldilocks: interesting enough to hold my attention, but boring enough to put me to sleep.

Morgan has an engaging writing style and sense of humor that makes his books quick reads. Along the way he answers many questions people have about Morgan & Morgan, like their advertising budget is up to $40 million and last year 60,000 people hired the firm.

There is a lot of wisdom in the book and I highly recommend it. It reminds me of Rick Friedman’s on Becoming a Trial Lawyer more than Morgan’s previous book. Both are must reads for plaintiff lawyers. Non-plaintiff lawyers who think about the business side of the profession would probably also find the books interesting.