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

More From the Lawyers Shouldn’t File Stuff Like this Chronicles

Posted in Gulf Oil Spill Litigation

As if getting crushed in the BP Oil Spill litigation wasn’t enough, District Judge Carl Barbier is calling out BP’s lawyers for cheating by sneakily exceeding the Court’s 35-page brief limit. My favorite article on the ruling is from the Christian Science Monitor. From the article:

The BP legal team had tried to reduce the line spacing in a brief to sneak six extra pages in without exceeding the page limit. US District Court Judge Carl Barbier (a double-spacing purist? a stickler for formatting?) was unimpressed.

“Counsel’s tactic would not be appropriate for a college term paper,” Judge Barbier wrote in a ruling Monday. “It certainly is not appropriate here.”

****

“BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced,” Judge Barbier wrote. “As a result, BP exceeded the (already enlarged) page limit by roughly six pages.”

My Take:

I’d love to have a video of the BP lawyers high-fiving when they came up with the crafty ploy to sneak in a few extra pages.

“Hey S. Steven the 3rd, look at this, reducing the spacing to 1.75 gets us an extra six pages.” “Wow, that’s awesome R. Biff! Judge Barbier is sure to buy our aurguments when we overwhelm him with six extra pages of brilliant legal writing.”

“Yea, we’re awesome. That’s why we make the big bucks and work on the 53rd floor of a big city office building. Let’s go tell the other forty-six lawyers in the firm billing on the case how smart we are.”

September Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the verdicts detailed in the September issue of the Mississippi Jury Verdict Reporter:

  • $173,306 bench verdict- Holmes County nursing home case covered here (7/24/14);
  • $80,993 verdict- Harrison County breach of contract case (8/1/14);
  • $43,560 verdict- Madison County timber trespass case (6/25/14);
  • $36,500 verdict- Jackson federal court disability discrimination case covered here (8/15/14)
  • $35,000 defense counterclaim verdict- Coahoma County car wreck case (6/10/14);
  • defense verdict- Jackson federal court premises liability case covered here (8/15/14);
  • defense verdict- Washington County silica products liability case (2/14/14); and
  • defense verdict- Rankin County battery case (doctor groping nurse) (8/4/14).

My Take:

The plaintiffs didn’t bust the bank, but at least they avoided the goose egg in four of the cases.

$500,000 Verdict Against Target in Hinds County Slip-and-Fall Case

Posted in Hinds County Circuit Court, Verdicts in Mississippi

Last week a Hinds County jury rendered a $500,000 verdict in McFarland v. Target Corp. Here is the Verdict Form.

Lesa McFarland alleged that she fell in Target on August 4, 2011 on the See Spot Save dollar aisle. This was a high traffic aisle that was often ransacked with items on the floor because….who doesn’t like the dollar aisle?

McFarland slipped and fell on place-mats that were on the floor. [Sidebar: I need to go check out the dollar place-mats at Target].

Target violated their own safety rules by not using shelf guards in the area to keep the [$1] place-mats from falling on the floor. Even worse, Target “lost” the videotape of the aisle from the time of the fall after documenting in the incident report that the video was secured. [Oops!].

Target blamed the Defendant for falling down and noted that the video cameras on the dollar aisle were fake because video cameras are expensive. [And who would go to the trouble of shoplifting from the dollar aisle?].

The jury awarded $55,000 in past medical expenses, so I assume that was the total amount of medical bills. The total verdict was $490,000 for the plaintiff and $10,000 for her husband on his loss of consortium claim.

Update: I neglected to mention in the original post that the jury apportioned 20% of the fault to the plaintiff, which will reduce the judgement to $400,000.

Rocky Wilkins and Shandra Yates of Jackson represented the Plaintiff. William Reese with Hand Arendall in Mobile represented Target. Judge Winston Kidd presided in the case.

My Take:

Sounds like Target has some good deals on that dollar aisle.

Lawyers Shouldn’t File Stuff Like This

Posted in Mississippi Supreme Court, U.S. District Courts in Mississippi

The Clarion-Ledger broke the story today about the ridiculous lawsuit that Jackson attorney Herbert Lee filed against Hinds County Circuit Judge Jeff Weill and selected justices of the Mississippi Supreme Court.

Here is Lee’s Complaint, which he filed in federal court in Jackson. It’s an odd Complaint. In it, Lee feels compelled to point out that the defendants are all “Caucasian,” while Lee is “African-American.” Supreme Court Justice Leslie King also decided against Lee, but wasn’t named a Defendant.

Lee presumably didn’t sue Justice King because it would damage his narrative of the white judges sticking it to the black lawyer. Back to the race issue in a moment.

Judge Dan Jordan drew the short straw and was assigned the case–not that this case will be hard or take long to decide.

The background is that two former clients sued Lee for improperly withholding part of a Fen Phen mass tort settlement and won. The Mississippi Supreme Court found unanimously against Lee. Twice. Once here in 2010. And again here in 2014.

Lee’s complaint contends that the sued judges violated his due process and equal protection rights because the “Caucasian” Ed Williams won his fee dispute involving mass tort MDL fees. One problem, the prevailing parties in the dispute with Lee were also African-American, a fact omitted from the Complaint.

My Take:

Never in the history of law have so many lawyers been paid so much, for doing so little, as in the Fen Phen litigation. Yet more than ten years down the road, lawyers are still dealing with allegations that they kept even more money than they were entitled to. In other states lawyers have even gone to jail for stealing clients’ Fen Phen money. Amazing.

Here would be some good counsel for Mr. Lee: “it’s not that you’re black. They just don’t like you.”

That was a joke, by the way, for my readers who don’t get my sense of humor.

Seriously, this case is ridiculous. I first got wind of it in August and decided not to blog about it because it looked silly.

You can’t sue a judge who rules against you. They have immunity. The immunity applies even if the plaintiff alleges that the judge’s acts were done maliciously or corruptly. Like in the case discussed in the book The Price of Justice, which I reviewed here.

The A.G., who represents the defendant judges, will file a motion to dismiss in the near future.  The motion will be granted. End of ballgame.

As I’ve written before, losing sucks. When you do lose, it’s pretty easy to start thinking that somehow, the decision was personal against you. But the reality is that the Court just didn’t buy your arguments. It happens.

Every time a Court rules, one side thinks that the Court got it wrong. Every time.

But you don’t get to sue the judges who ruled against you. There is really only one thing you can do. Suck it up. Congratulate the opposing side. Act like a professional. And then head down to the neighborhood bar, have a few drinks and tell everyone how bad you got hosed in court.

After 40 Years, Lawyer Forgets How to Act in Court

Posted in 5th Circuit Court of Appeals

NMissCommentor had this post yesterday about a 5th Circuit oral argument gone bad for Louisiana lawyer Daniel Broussard. Broussard, who says he’s been doing it for forty years, first interrupted Judge Grady Jolly and then proceeded to argue with him:

Judge Jolly: You need to learn how to argue in the Fifth Circuit.

Attorney: [tries to interrupt]

Judge Jolly: That is, you need to learn how to argue in the Fifth Circuit.

Attorney: I know how to argue in the Fifth Circuit. I’ve been doing it for forty years, Judge.

Judge Jolly: Well

Attorney: I clerked for [District] Judge Herbert Christenberry for three years I think I know a little bit about federal courts. Go ahead and tell me, though.

Judge Jolly: No, I’m just telling you that whenever you argue in the Fifth Circuit, you need to listen to the judges instead of interrupting. We’re the ones that decide the case. We ask questions, we like to have answers. We don’t like you to continue to rumble on.. Now, with that said…

Attorney: [interrupting] I appreciate if it is reciprocal. When I’m answering a question, you interrupt me, you don’t let me finish sentences. Is it reciprocal or not?

Judge Jolly: Well, go take a lesson in how to argue in the fifth circuit.

My Take:

To answer your question Mr. Broussard, no, it’s not reciprocal. Judges get to interrupt in the courtroom. Lawyers don’t.

Remember in My Cousin Vinnie when Joe Pesci’s opening statement was “everything that guy just said is bullshit?” Well one of the things that makes that line so funny for lawyers is that there are plenty of times in court when we’d like to stand up and shout that. Alas, we can’t.

Nor can we interrupt the opposing lawyer when it’s her turn to speak. And for the love of God, we can never interrupt the judge. You have to show decorum and respect for the position even when you don’t think things are going your way in the courtroom.

The best thing about the civil justice system is not its ability to ferret out the truth. The best thing about the system is that it is a peaceful and orderly way to resolve often emotionally charged disputes. That starts with acting appropriately in the courtroom.

For lawyers, that means acting like a professional and showing proper respect for the court. No interrupting, no wise cracks, no lashing out if the judge is being a meany. You have to say, “thank you sir, may I have another?” That’s just the way it works.

Surely Mr. Broussard knew that for most of his 40 plus years of practice.

More on Lawyers’ Professional Reputation

Posted in General

Last week in this post, I noted how important a lawyer’s professional reputation is to judges.

In this July blog post, Judge Primeaux noted that there are two types of lawyers to judges:

To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.

That trust is earned over time and subject to forfeiture:

The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.

***

Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.

But as I noted in my post last week, practicing before a judge who trusts you makes life easier:

There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign. 

I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.

Mississippi Judges Stress the Importance of Professional Reputation

Posted in General

I’ve been meaning to write about this for a while. The Spring 2014 issue of the Mississippi Lawyer contained question and answer interviews with federal and state court judges in conjunction with the Young Lawyers Division Midyear Conference.

A recurrent theme in the interviews was the importance of a lawyer’s reputation to judges. Some of the comments are below:

Judge Tom Lee (U.S. District Judge):

…your reputation usually precedes you, so treat your clients, your adversaries, your peers and the court with respect and courtesy…and be honest and straightforward in your presentations to the court. Judges come to know which lawyers they can, and those they can’t expect that from. You always should strive to be one of those that a judge would consider trustworthy and reliable…

Judge Sul Ozerden (U.S. District Judge):

Credibility is extremely important. The judges do talk and lawyers develop a reputation for whether they can be relied upon to write good briefs, to cite the record reliably and accurately…

Judge Michael Parker (U.S. Magistrate):

Right now, you are establishing your professional reputation. And what will it say?….How you treat not just members of the court, but the members of the profession makes all the difference in the world. Don’t forget that the advesary you are fighting with today might be the judge of tomorrow…a good reputation matters on all levels…

Judge Allan Alexander (U.S. Magistrate):

Everybody learns everybody else’s reputation. If your’re bad, we know you’re bad…

Judge David Ishee (Miss. Court of Appeals):

…you can spend 20 years building a good reputation in this business. You lie to a judge one time, and that 20 years is gone….There is absolutely nothing worse than somebody who wants to be known as the jerk lawyer…

 Judge Margaret Carey-McRay (Circuit Judge):

…You are building professional reputations. Civility and professionalism are important as one builds a solid foundation for the practice of law…

Judge John Gargiulo (U.S. Magistrate/ previously Circuit Judge):

…what I think you should be most concerned with is building your professional reputation…

My Take:

After you have practiced for a while, you can tell when you’ve earned the respect of a judge. Practicing in a judge’s courtroom is much easier once the judge trusts that you are competent. This is one of the things that makes being a young lawyer difficult.

The young lawyer who the judge has never seen before could easily get grilled by the judge more than a lawyer who has a good reputation and the judge trusts. And it’s not that the judge is afraid of being lied to. The judge is more likely to be afraid that the lawyer doesn’t know what he or she is talking about. Judges are more likely to trust lawyers who have proven themselves to be competent and honest.

This makes trying cases extremely hard for young lawyers. Not only are young lawyers dealing with their own nerves and inexperience in the courtroom, they also have to deal with judges who have increased skepticism because the young lawyer has no track record with the judge.

When I was a baby lawyer there were times that I felt like judges were giving me a hard time compared to some of my old veteran colleagues. Now I realize it wasn’t about hazing the young lawyer, it was about who had earned the judge’s trust by building a good reputation. Judges don’t give trust to you just because you’ve passed the bar.

Judges are keeping score on lawyers’ reputations and trading notes on who they can trust. This is a huge issue for all lawyers.

But it’s not necessarily that hard to earn a judge’s trust. If a lawyer is honest and competent, he or she will earn the respect of the judge over the course of one trial. You can literally see a judge’s attitude toward a lawyer transform over the course of a trial.

And once that happens, practicing in that judge’s court is going to be easier.

$35,000 Verdict in Jackson Federal Court Retaliation Trial

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

On August 15, 2014 a federal court jury in Jackson rendered a $35,000 verdict in Wheat v. Rush Foundation Hospital.

Johnny Wheat was a registered nurse at Rush Hospital in Meridian. Wheat complained to the EEOC that loud music played in the orthopedic surgery operating room interfered with his ability to hear, due to his bilateral hearing loss.

After Wheat filed his EEOC charge, he was transferred out of surgery and given a pay reduction. Wheat resigned and accepted a job with UMC in Jackson, where he now earns twice as much as he was paid in Meridian.

The jury agreed with Wheat on his retaliation claim and rendered a $35,000 verdict for emotional distress.

Jim Waide and Rachel Pierce Waide of Waide & Associates in Tupelo represented the plaintiff. Tommy Siler (Jackson) and Krissy Casey Nobile (Tupelo) with Phelps Dunbar represented the hospital.

District Judge Sul Ozerden presided in the case.

My Take:

I didn’t know that surgeons really cranked up the music in the O.R.

Personally, I don’t want my surgeon having AC/DC’s Highway to Hell jacked up in the O.R. while he’s operating on me.

I’d prefer total silence. But if they’ve got to play music, the patient should have control of the song list.

$644,000 Jury Verdict in Hancock County Inverse Condemnation Case

Posted in Verdicts in Mississippi

As reported in the Sea Coast Echo, a Hancock County jury rendered a verdict of $644,000 on August 18, 2014 in Murphy vs. State of Mississippi. The verdict was based on the jury’s conclusion that the Secretary of State took the Murphy’s property without compensation.

Before Katrina, the plaintiffs used and maintained their sand beach in downtown Bay St. Louis in connection with their restaurant. After Katrina, the State claimed that a portion of the property was in tidelands and leased it to the City for a new municipal pier.

The issues at trial were how much property the Murphys owned and how much it was worth. The jury sided with the Murphys and rendered a verdict of $644,000 of the $800,000  requested.

Robert Quimby and Paul Scott with Smith Phillips in Hernando represented the plaintiffs. Hugh Keating with Dukes Dukes and Keating in Gulfport represented the Secretary of State.

Donald Rafferty of Gulfport represented the City, which won at trial. Judge Lisa Dodson presided in the case.

My Take:

Hancock County is usually one of the most conservative venues in Mississippi. But lookout if the case has anything to do with Katrina. There was also a $1.17 million verdict in the county in a Katrina bad faith case in 2010.

I recommend that plaintiff’s attorneys in Hancock County personal injury cases start their openings with: “You see, it all started when the defendant screwed over my client after Katrina.”

Finally, it’s worth noting that Judge Dodson tends to fly under the radar, but gets rave reviews from attorneys who practice in her court.