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.

Legal Tech: Case Management Software

Posted in Legal Technology

It took me a long time to believe in case management software. Not the idea of it–I’ve liked the idea for 20 years. But in practice, it hasn’t worked for me until now.

I installed a case management software program when I opened my practice in 2002. I hardly used it. It just didn’t do much that helped me. This was in the pre-ECF and paperless days. I bought a different version a few years later. It died on the vine. I’ve looked into many other versions over the years and not gotten excited.

But this time it’s different. I tried Clio after attending the Miss. Bar’s Technology CLE in May. I love it. It’s a fantastic addition to my practice. And I’m still not using all its features.

The difference makers for modern case management software is that its cloud and subscription based without big up front adoption costs or long term contracts that try to lock you down.

Years ago case management software was on the server and you had to be in the office to use it. Today it’s wherever you have internet access and on your phone. Clio has a great app for i-phone and android that I use a lot.

Before Clio, I was a to-do list fanatic. But I was doing it by hand every week in OneNote. Clio has a great task system that makes it simple to create and modify tasks. It gives options for setting deadlines and tying tasks to specific matters.

Clio’s contacts feature works better than Outlook. My Outlook contacts became such a mess years ago that it was largely worthless. I keep my contacts organized better in Clio.

Clio also integrates with Outlook so that my Clio calendar is also maintained on my Outlook calendar. I use an $8 per month add-in called Click-to-file that makes it easier to save and read old emails within Clio. When I need to find a particular email or attachment, its easier to find it in Clio than Outlook. In Clio the emails are listed and you can read the entire email by hovering the cursor over an email.

Like the tasks feature, Clio’s calendar allows users to tie calendar entries to matters. When you create a calendar item and link it to a matter it will show up on the calendar section within the matter page. Same for tasks, contacts (you can link contacts to matters), expenses and time. This matter centric organization is fantastic. It centralizes and organizes a ton of information that was spread all over the place.

Within the matters are the following sections for each case: dashboard (general case info.), activities (time, expenses), calendar, communications (emails), notes, documents, tasks, bills, transactions, Clio Connect (client portal). For instance, hit the calendar tab and you can see everything scheduled in that particular case. That’s a handy feature when you are on the phone and need to identify a deadline or deposition date fast.

Clio has a great search function that is fast.

I use Clio to record time and create invoices. I was previously doing this in Quickbooks. With Clio it’s easier to create and modify time entries. Plus, I can do it on my phone. Clio creates practice reports that some lawyers and firms find very beneficial.

Clio has an app directory with over 60 integration partners. These allow you to add additional software and tie it to Clio. Examples include Office 365, Box, Dropbox, Quickbooks on-line, Ruby Receptionists, Factbox, Fastcase and many others.

Clio recently launched its Apollo platform, which makes the software slicker and faster. I liked it before. Now it’s better.

You can try Clio free for 30 days and get a 10% discount through the Mississippi Bar. Pricing starts at $39 per month. I use the $59 per month boutique plan.

Before you think this post is a Clio commercial, note that Clio has competitors. Rocket Matter may be the biggest, but there are many others. My purpose is not to rank them.

Many lawyers get hung up trying to identify the ‘best’ case management software instead of trying to get the most out of the one they have. My advice for implementing case management software follows.

Advice for Implementation

Start slow

Pick out a case management software and install a trial version. Don’t waste your time putting your whole practice in it. Get going with 1-3 cases. See how you like it. That way you will not have a lot of time invested if you decide you don’t like it or want to try something else.

Try others if you aren’t sure you like it

A recurring theme on legal tech list servs is people asking for advice on what case management software to try. The responses are interesting. Lawyers have a tendency to not be monogamous to their case management software and are always looking for a prettier partner.

Invariably, someone responds that they’ve basically tried them all. Of course, they are in love with their current software. I always wonder whether if I checked back in two years they would be using something else.

What makes the most sense to me is to find something you know you like and then stick to it. I didn’t do this, but one idea would be to test a few programs at the same time. For instance, get a free trial of Clio, Rocket Matter, and Panther at the same time. Put a few cases in each. Then work out of all the programs at the same time depending on which case you are working. That would tell you which system you like best.

Stay committed

Rather than looking for something prettier, spend your time figuring out how to better use what you have. I’m not going to say that I am only scratching the surface with Clio, but I may be. I do know that it has a lot of features and app partnerships that I have not tried yet.

Room for improvement

My biggest gripe with Clio is the lack of ability to organize notes. I wish I could organize my notes like in OneNote and Evernote. Since I can’t, I still mainly use OneNote for notes and analysis. I would also love to see outlining software like NoteMap within the notes.

It’s hard for me to imagine any lawyers not using case management software in ten years. It’s great now and will only get better.

Next tech topic:

In my next tech post I will discuss why Microsoft Office users should be using Office 365 rather than desktop versions of the popular software.

October Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $1,128,744 verdict- Coahoma County medical malpractice trial mentioned here (3/30/17);
  • defense verdict- Lamar County car wreck case (8/30/17);
  • defense verdict- Grenada County medical malpractice trial covered here (8/18/17);
  • defense verdict- Jackson federal court employment retaliation case (8/31/17);
  • defense verdict- Lee County slip-and-fall case (9/13/17);
  • defense verdict- Oxford federal court disability discrimination case (9/12/17); and
  • defense bench verdict- Jackson federal court medical malpractice case (3/13/17 [June 2016 trial]).

My Take:

I sense a pattern here. But I can’t put my finger on it.

Announcing an Exciting New Topic: Legal Technology

Posted in Legal Technology

I’ve decided to regularly discuss here the aspect of practicing that has interested me the most over the last year: legal technology.

Legal technology is exciting. Here are some of the many benefits of legal tech:

  • lawyers and staff can work more efficiently;
  • improves organization and work flow;
  • saves on much of the costly practice overhead;
  • improves work product;
  • allows remote work (this is also a negative);
  • makes lawyers less dependent on support staff; and
  • allows lawyers to take home more income while working the same or less.

In summary, getting as much as you can out of your legal tech makes your job and life easier.

The disclaimer is that I don’t know how to measure my expertise level. I’m always trying to learn more. I have much to learn about the software and hardware I use in my practice–plus the software I should be using but am not.

But I’m sure that I know more than many of my readers. For instance, recently I saw an email from one attorney I know asking how to save a revised excel spreadsheet. I know how to do that. I also use a lot of software in my practice.

The plan is to make ‘legal technology’ a Topic on the blog’s left bar. I will add a new post on the topic every 1-2 weeks.

Topics will include hardware, software, and any other content I think is helpful or interesting to attorneys who want to be technologically proficient. I will talk about what has worked and not worked for me. I’m sure I’ll also talk about what I want to try.

I’m sure commenters will read some of my posts and tell me I’m an idiot. But what’s new there, right?

As with any other post, don’t read it if doesn’t interest you.

The next post in the series will discuss my adoption of Case Management Software. After at least three failed attempts, I am now all-in with case management software and highly recommend it. In my next post, I will discuss my failed attempts at adoption and why I love my case management software.

My Take on Ishee to Supreme Court, Tindell to Miss. Court of Appeals

Posted in Mississippi Court of Appeals, Mississippi Supreme Court

It’s not new news, but I’ve yet to write about Governor Bryant appointing Court of Appeals Judge David Ishee to the Supreme Court and State Senator Sean Tindell of Gulfport to replace Ishee on the Mississippi Court of Appeals. Both seem like good picks.

I kind of feel like I know Ishee even though I really don’t. I grew up around the corner from him in Gulfport, but he was a good bit older than me. The only thing I remember about him is that he was a big kid (everyone was a big kid to me) and a constant presence jogging and walking around the neighborhood in those god-awful sweat suits everyone wore working out back then.

I don’t know Tindell and have never had a case with or against him. But I expect he will be fine on the Court of Appeals. Here is my reasoning:

  • Bryant has a history of solid judicial appointments;
  • Tindell spent five years as an Assistant D.A. in an office with a record for producing outstanding attorneys and judges; and
  • people from Gulfport are flat out awesome.

Clearly, I have no home town bias in talking about these picks.

Mississippi Appears Favorite to Retain Open 5th Circuit Seat

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

Geoff Pender’s article on the Clarion-Ledger’s website Thursday confirmed that the recent nominations to the 5th Circuit Court of Appeals did not include a nomination for the seat held by the retired Judge Grady Jolly. From the article:

On Thursday, the White House sent the Engelhardt nomination to the Senate listed as a replacement for Clement, not Jolly, an indication Mississippi’s seat remains open.

Sens. Thad Cochran and Roger Wicker this week in a joint statement said they are continuing to work with the Trump Administration on a nominee — a choice over which a state’s senators usually have a large say as nominees require Senate confirmation….

The Senators’ offices have not explained why Mississippi does not have a nominee yet when picks from other states have already been named.

Based on the current publicly available information, it appears that Mississippi is favored to retain Judge Jolly’s seat.

But it’s also my understanding that there’s no guarantee. I will remain worried until President Trump nominates a Mississippian for the seat. The reasons for my concern are:

  • Trump is a wing-nut;
  • the Republican Party is divided;
  • Senators Cochran and Wicker may or may not be aligned with the President;
  • Trump is a wing-nut;
  • Texas is an obvious threat to Mississippi on federal judicial appointments;
  • it’s politics; and
  • see points 1 and 4 above.

There was speculation in comments that Governor Bryant and the Senators might not be on the same page as far as who is appointed. A 5th Circuit seat is a plumb. I’m sure there is some interesting maneuvering going on behind the scenes.

10 yr. Median State Pension Investment Return: 5.9%

Posted in PERS Crisis

Courtesy of Zero Hedge is this post about a report that the median state pension plan had a 10 year annual investment return of 5.9% as of June 2016. From the post:

Of course, as we’ve noted on numerous occasions, the problem with those returns is that most public pensions in the U.S. have randomly decided to assume a long-term return of 7.5%, or 1.6% higher than what they’ve actually been able to achieve in practice. All of which only serves to mask the true scale of the pension crisis in the U.S. by discounting future liabilities at an artificially high rate.

All of this generally applies to Mississippi’s PERS, which is in crisis denial mode.

I can’t really find a difference of opinion on whether something like a 60-40 blend of stocks and bonds will return 7.5% over the next 10 years. Everything I read says they won’t because future gains in corporate profits are already baked into today’s stock prices.

By some measures, stocks are way over-valued now. That doesn’t necessarily mean stocks will crash. But it strongly suggests that returns going forward will be anemic.

And some people think stocks are destined to crash again. From the Zero Hedge post:

All of which raises two very important questions: (1) how is it possible that pension underfundings continue to surge when 50% of assets have participated in one of the biggest equity bubbles in history and (2) when the current equity bubble bursts, which in inevitably will, will it result in a cascading failure of retirement systems across the country and finally expose the public pension ponzi for great lie that it has always been?

These are scary thoughts for PERS stakeholders.

Update on Mississippi’s Lost 5th Circuit Seat

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

The A.P. has a short story today titled ‘Mississippi jurist should fill appellate seat, senators say.’ Here are the key passages:

Mississippi’s two Republican U.S. senators say they are working with President Donald Trump’s administration to fill a seat on a federal appeals court with someone from the state.

Sens. Thad Cochran and Roger Wicker said in a joint statement Monday it’s their priority to have “a well-qualified, constitutional conservative jurist” from Mississippi to succeed Judge Grady Jolly on the 5th U.S. Circuit Court of Appeals…

“The administration understands that it is a priority to us that a Mississippian be nominated to fill this seat on the U.S. Court of Appeals for the 5th Circuit,” the joint statement from Cochran and Wicker said. “We look forward to President Trump, with the advice and consent of the Senate, announcing such a nomination as soon as possible.”

Trump last week nominated two people from Texas and two from Louisiana to the 17-member court.

Three seats already were vacant. A federal court website shows that Judge Edith Brown Clement, of Louisiana, plans to retire from active court service, though no date has been set.

My Take:

Same as last week. Cochran and Wicker blew it by letting it come to this.

Let’s be clear. Mississippi lost Judge Jolly’s seat last week.

Maybe we get it back when Judge Clement’s replacement is named. Then again, maybe not.

Several people contacted me after my original post to alert me that maybe we haven’t lost the seat because of the Clement vacancy. Insiders are hopeful. But not one person told me that Mississippi definitely will get the Clement seat–all said we might not. And Cochran and Wicker don’t say it either.

I was also contacted last week by lawyers from outside Mississippi. Their perception is that Mississippi lost the seat.

Bottom line is that it shouldn’t have come to this. The Louisianan who was named to Judge Jolly’s seat should be waiting on the Clement vacancy. Cochran and Wicker’s ‘Mississippi jurist’ should have been named last week.

This has not been handled well by Mississippi’s two senators. That will be true regardless of whether a Mississippian fills the next opening.

Mississippi Loses Seat on Fifth Circuit Court of Appeals

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

President Trump announced his nominations for the vacant seats on the Fifth Circuit Court of Appeals yesterday. The slots are going to two Texans and two Louisianans. This apparently includes the seat held by the retiring Judge Grady Jolly, whose chambers are in Jackson. Louisiana gained a seat.

Here is a link to a How Appealing Blog post that links articles covering the nominations. This A.P. report confirms that one nomination is for the seat held by Judge Jolly. Here is the A.P.’s blurb on the picks:

The White House on Thursday announced the nominations of U.S. District Judge Kurt Engelhardt of New Orleans and Kyle Duncan, a Washington lawyer and former solicitor general in the Louisiana Attorney General’s Office, to the 5th U.S. Circuit Court of Appeals. Also nominated were James C. Ho, a Texas lawyer who has served in the U.S. Attorney General’s Office; and Don Willett, a justice on the Texas Supreme Court.

My Take:

Could someone please wake up Thad Cochran and Roger Wicker? They just had their pockets picked.

Justice Willett is probably the most expected of the four, since he was a finalist for the U.S. Supreme Court nomination that went to Justice Gorsuch. Willett probably has a decent shot of getting a Supreme Court nomination later.

The major story in Mississippi is that a Mississippian was not nominated to fill Judge Jolly’s seat. It’s hard to interpret this as anything other than an abject failure by Mississippi Senators Thad Cochran and Roger Wicker to protect their turf.

With a Republican in the White House, Cochran and Wicker should have viewed the Jolly seat as their seat to fill. They apparently just let it go to Louisiana. That’s weak.

It will be interesting to see if Chris McDaniel pounces on this as a campaign issue in the looming Republican civil war primary with Senator Wicker. While most people don’t know or care about Fifth Circuit seats, McDaniel will have a war chest to educate voters on why it’s important for Mississippi to be represented on the Fifth Circuit.

It’s easy to envision a scenario where McDaniel could have hand-picked Judge Jolly’s replacement if he had beaten Cochran in the last senate race. He could have staked out a position to the right of establishment republicans and threatened to vote ‘no’ on the A.C.A. repeal unless he got to pick a Fifth Circuit nominee to fill Jolly’s seat.

If the President refused, he could have joined Rand Paul in voting ‘no’ from the right camp. So what if he alienated the  President. That didn’t hurt Roy Moore.

Jim Eastland is rolling over in his grave. As long time chair of the Senate Judiciary Committee, there is no way this happens on his watch.

Mississippi is a one party state. But that doesn’t mean that political leaders can’t be challenged from within the party. Maybe it’s time for some new blood in the Senate.

Update:  Within minutes of this post going up I received word that Judge Clement is taking senior status, meaning that there will be a Louisiana slot open on the Fifth Circuit. Cochran and Wicker need to get back in the ball game and get a Mississippian appointed to fill that seat.

September Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $2.2 million verdict- Hinds County car wreck case covered here (8/18/17);
  • $1.22 million verdict- Gulfport federal court under-insured motorist case covered here (8/10/17);
  • $83,447 verdict- Aberdeen federal court retaliation case covered here (8/23/17);
  • $59,448 verdict- Franklin County uninsured motorist case (9/20/16);
  • defense verdict- Harrison County medical malpractice case (8/16/17); and
  • defense verdict- Harrison County uninsured motorist case (8/23/17).

My Take:

Good month for plaintiffs, winning 4 of 6 with two 7-figure verdicts.

It’s hard to say what will happen to the Hinds County verdict on appeal. But the 5th Circuit usually affirms jury verdicts.

Hoopla Over 53% Bar Passage Rate

Posted in Law School

There was a front page article yesterday in the Clarion-Ledger about the 53% passage rate in Mississippi for the July Bar Exam. It opens:

Entering the legal profession in Mississippi is once again proving difficult for those seeking to become a licensed attorney.

The July Mississippi bar exam results released last week showed about 53 percent of the 172 who took the exam passed.

Passage rates are dropping as smart students decide against law school.

Above the Law covered the State’s passage rate in a snarky post here, saying Mississippi’s Bar Exam results “suck.” From ATL:

The results from Mississippi’s July 2017 administration of the bar exam were released yesterday, revealing that only 53 percent of all test-takers passed. That’s an 18 percentage point drop from the July 2016 exam, and a staggering 27 percentage point drop from the July 2013 exam. Something is wrong here.

ATL blames the low passage rates on declining admission standards and dismisses the suggestion that students from out of state law schools are failing the exam:

Some have speculated students from out of state attending law schools in Mississippi may be leading to lower passage rates.

Apparently Mississippi law school graduates who aren’t Mississippi locals are causing lower passage rates on the Mississippi bar exam. That’s a new one we’ve never heard before, and the logic it took to get there may explain why the passage rates on the Mississippi bar exam have sunk to historic lows.

For context, Ole Law School Dean Susan Duncan wrote about the issue here.

31 of 41 (75.6%) first time takers from Ole Miss Law passed the exam. Duncan’s explanation points out that repeat takers of the Bar Exam fail by a 2-1 margin. Duncan’s stats also peg Mississippi’s passage rate at 55.9%.

Ole Miss has reduced its class sizes and denies declining admission standards.

Also, according to this 2013 Witnesseth Blog Post, Mississippi’s Bar exam does not rank among the nations easiest to pass. It ranked 20th hardest.

The Clarion-Ledger article notes that the national average was 58% in 2016.

My Take:

I have trouble getting worked up over this issue.

There aren’t enough jobs waiting for the 53% who passed. No one will need a bar card to yell “Welcome to Moe’s” every time someone walks in the restaurant.

The sad fact is that we still have an over-supply of lawyers in Mississippi. That’s the reality that the people who do pass face on day 1.

As for the exam results, the main problem is that repeat exam takers keep failing. Some people try for years and never pass.

As fewer people take the exam, the people who keep taking it and failing have a disproportionate statistical impact on the passage rate.

Should the Mississippi Board of Bar Admissions pass more people to make the numbers better? No.

Should Mississippi go back to the days where state law school graduates don’t even have to take the exam? God no.

It’s easy to write about Bar Exam passage rates. But the bigger and more important stories are the job market for attorneys, fact that many talented attorneys are leaving the state for better opportunities and the mental health of attorneys.