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

You’re Going to Want to Keep Up with the Singing River Health System Debacle

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

Having been both busy at work and playing hurt for the last four weeks, I have not been able to study the ongoing Singing River Health System pension debacle enough to add anything to the conversation. But it has quickly become THE big legal story in Mississippi and promises to be for the foreseeable future.

For anyone not familiar with the story, Singing River Health System is the hospital in Jackson County and, like many hospitals in Mississippi, is county-owned. Not that county governments are qualified to run hospitals.

Here is the short version of the scandal: in 2009 SRHS stopped contributing its portion to the employee pension plan. But they didn’t disclose it to employees. In fact, they did the opposite. They represented to employees in account statements that SRHS was making its contributions to the employees’ pensions. They also continued to debit employees’ paychecks for each employee’s contribution for three years, even though the system was imploding.

It was brazenly fraudulent conduct that continued for years.

The county supervisors who appointed the hospital board claim ignorance. So does the hospital board, who were likely appointed for being loyal cronies to the supervisors as opposed to actually being qualified to serve on a hospital board. The hospital CEO who oversaw the debacle now leads Baptist Health System in Jackson. Surprisingly, Baptist hasn’t canned him.

SRHS recently sued the KPMG accounting firm alleging colossal accounting negligence in performance of the sytem’s financial audits. There are also reports of multiple criminal investigations involving people connected with the hospital. A lot of contracts are being closely scrutinized. Sound familiar?

The Sun Herald is providing outstanding daily coverage. Jackson Jambalya, Slabbed and Ya’ll Politics are all following the controversy.

I will continue to follow the story. We’ll just have to wait and see how much I write about it on this blog.

One take home on this as that this shows that public employee pension funds are fragile.

January Miss. Jury Verdict Reporter Preview

Posted in Mississippi Supreme Court, Verdicts in Mississippi

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

  • $600,000 verdict- Jackson federal court First Amendment / retaliation case discussed here and here (overturning verdict) (10/2/14);
  • $20,757 verdict- Harrison County car wreck case, but with 10% fault to plaintiff (10/9/14);
  • $250 verdict- DeSoto County car wreck case (9/4/14);
  • defense verdict- Hinds County silica products liability case (12/15/14);
  • defense verdict- Gulfport federal court premises liability case (12/17/14);
  • defense verdict- Greenville federal court national origin discrimination case (11/24/14); and
  • directed verdict- Aberdeen federal court breach of contract case (10/28/14).

My Take:

Another good month for defendants.

And another example of the fact that litigation is slow in Mississippi.

 

The Fix is in?

Posted in General, Improving the Jury System

Judges might be appalled to know how much parties theorize that the judge ruled against them because “the other side got to the judge” or “the fix was in.” It doesn’t happen all the time. But it’s not particularly unusual either.

People don’t like to contemplate that their side was wrong on an issue or the case as a whole. So naturally, the judge comes under suspicion with folks who don’t trust the judicial system. The best way to handle this is to shoot it down. Immediately and emphatically:

Lawyer: We lost.

Client: They got to the judge.

Lawyer: No one got to the judge. The judge just ruled for the other side.

Client: So the fix is in, right?

Lawyer: The fix is most definitely not in.

Client: How many times have you seen this?

Lawyer: Every time I’ve lost.

Unfortunately, there have been a few occasions (not my cases) where the fix was in. Like in the recent case of this Arkansas judge with a Mississippi connection.

From the ABA Journal:

A former Arkansas judge waived indictment and pleaded guilty Friday to a federal criminal information (PDF) charging him with accepting a bribe for reducing a nursing home negligence verdict from $5.2 million to $1 million.

Michael A. Maggio, 53, admitted being “improperly influenced” in the nursing home case by campaign contributions in 2013 for his planned run for an appellate court seat, according to Arkansas Business, the Log Cabin Democrat and the Times Record.

The plea agreement identifies a lot of phone calls and text messages between the briber and the bribee. The briber is not identified. But it probably wouldn’t be that hard to figure out.

My Take:

I thought all improper communications with judges were supposed to take place at Shoney’s?

Seriously, things like this are rare. But still, here’s more evidence for an appointed appellate judiciary.

$107,100 Jury Verdict in Jackson Federal Court Retaliation Case

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

On Friday a federal court jury in Jackson rendered a total verdict of $107,100 in Robinson v. JSU and Fuller. 

The plaintiff Fredrick Robinson was the Director of Sports Medicine at Jackson State. He claimed that the Athletic Director (Dr. Vivian Fuller) fired him in retaliation for participating in an EEOC investigation against Fuller. That investigation involved allegations by a department secretary that Fuller made sexual advances toward her. 

 

JSU and Fuller claimed that they fired Robinson as part of a department reorganization. Fuller denied knowing that Robinson even talked to the EEOC. Testimony at trial revealed that Fuller’s attorneys attended Robinson’s interview with the EEOC.

Here is the breakdown of damages:

  • $7,100- lost wages
  • $25,000- emotional distress
  • $75,000- punitive damages against Fuller only.

Here are the jury’s verdicts on Compensatory Damages  and Punitive Damages.

Plaintiff’s counsel were Jim Waide and Rachel Pierce Waide of Tupelo and Rogen Chhabra and Michael Saltaformaggio of Jackson.

Defense counsel was LaToya Merritt and Jason Marsh of Phelps Dunbar of Jackson.

District Judge Henry Wingate presided in the case. 

Book Review: Stand Up That Mountain, by Jay Erskine Leutze

Posted in Book Reviews

Stand Up That Mountain by Jay Erkskine Leutze is the true story of a protracted legal battle to save an area adjoining the Appalachian Trail in North Carolina from development as a gravel mine for the next 100 years.

Here is a description of the book:

LIVING ALONE IN HIS WOODED MOUNTAIN RETREAT, Jay Leutze gets a call from a whip-smart fourteen-year-old, Ashley Cook, and her aunt, Ollie Cox, who say a local mining company is intent on tearing down Belview Mountain, the towering peak above their house. Ashley and her family, who live in a little spot known locally as Dog Town, are “mountain people,” with a way of life and speech unique to their home high in the Appalachians. They suspect the mining company is violating North Carolina’s mining law, and they want Jay, a nonpracticing attorney, to stop the destruction of the mountain. Jay, a devoted naturalist and fisherman, quickly decides to join their cause. 

So begins the epic quest of “the Dog Town Bunch,” a battle that involves fiery public hearings, clandestine surveillance of the mine operator’s highly questionable activities, ferocious pressure on public officials, and high-stakes legal brinksmanship in the North Carolina court system. Jay helps assemble a talented group of environmental lawyers to contend with the well-funded attorneys protecting the mining company’s plan to dynamite Belview Mountain, which happens to sit next to the famous Appalachian Trail, the 2,184- mile national park that stretches from Maine to Georgia. As the mining company continues to level the forest and erect the gigantic crushing plant on the site, Jay’s group searches frantically for a way to stop an act of environmental desecration that will destroy a fragile wild place and mar the Appalachian Trail forever.

It’s a great story. This occurred around the turn of the millennium in Avery County North Carolina. For those familiar with the AT, the proposed mine was located about 1 mile from Hump Mountain, one of the iconic Southern Balds on the AT.

The mine owner pulled a fast one to conceal the development of the mine until well after construction began. Rather than provide notice to adjacent land owners, the mine owner pulled the permit area 50 feet inside the property lines and gave notice to…..get this….himself. It was a ridiculous ploy. And he almost got away with it.

The AT crossing Hump Mountain

The adjoining landowners, environmentalists, Appalachian Trail Conservancy and hiking community learned of the debacle almost after it was too late and eventually rallied to stop it behind the tireless work of Jay Leutze. The competing interests make for a colorful cast and an outcome that remains in doubt until a ruling by the North Carolina Court of Appeals.

The battle lasted for years. The fourteen year old Ashley graduated by the time it was over.

The good guys won in the end. But especially as a litigator, I know it could have easily gone the other way.

I took the photo to the right hiking over Hump Mountain in June 2014. It is a spectacular area. I’m happy to say that I did not see a gravel mine.

Federal Court Overturns $600,000 Verdict Against City of Jackson

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

As reported in the Clarion-Ledger, District Judge Louis Guirola granted the City of Jackson’s motion for judgment notwithstanding the verdict in a lawsuit that resulted in a $600,000 verdict against the City. Here is my original post on the verdict.

From the Clarion-Ledger:

Don Hewitt, owner of Advanced Technology Building Solutions who hoped to build a hotel in the former Deposit Guaranty National Bank building across from the Jackson Convention Complex, claimed city leaders sabotaged his redevelopment plans because he criticized the hotel project’s bidding process. 

On Friday, Chief U.S. District Judge Louis Guirola tossed out the September verdict and the jury award, granting the city’s motion for judgment notwithstanding the verdict. 

“Because the (Jackson) city council never decided to deny ATBS’s request for funding, ATBS cannot demonstrate that the city of Jackson, through official policy or act, committed an adverse action,” Guirola’s Jan. 2 ruling stated.

Claire Barker and Gail Lowery represented the City.

My Take:

This is seriously bad news for the plaintiff. Judges don’t like to grant motions for judgment notwithstanding the verdict. Courts usually deny the motions. The plaintiff’s prospects for a reversal on appeal are probably low.

On the plus side for the plaintiff, he previously settled with the Jackson Redevelopment Authority. I can’t recall ever being in that position, but my guess is that the prior settlement removes much of the sting for the plaintiff and his attorneys.

Nothing hurts like getting zeroed when you represent the plaintiff. You know nothing about losing until you know that feeling.

I hope the City uses the money to repair the gaping pothole near the end of my driveway.

Judge Kenny Griffis is Blogging

Posted in Mississippi Court of Appeals

The big news in the blawg-sphere is that Judge Kenny Griffis of the Mississippi Court of Appeals is now blogging. Judge Primeaux broke the news yesterday on his blog.

In his first post, Judge Griffis tells how he plans to vote in all the cases currently pending before the Court of Appeals. Of course, that’s not what he says:

I will not comment on cases that are pending in the trial courts or Court of Appeals. I may comment on cases pending before the Supreme Court, but we will see. Nothing written in this blog should be considered as a comment on any pending case. Also, nothing written in this blog should be considered as legal advice.

But that probably just means it’s all in secret code.

No word yet whether Judge Griffis will attend the annual secret summit of Mississippi law bloggers.

 

Clarion-Ledger Article Focuses on Funding for Commission on Judicial Performance

Posted in General

An article by Kate Royals in Saturday’s Clarion-Ledger focused on the funding level for the Mississippi Commission on Judicial Performance. Due to funding problems, the Commission cannot timely investigate complaints against judges:

The commission, which usually receives between 200 and 300 complaints a year, received 400 in 2014. And its executive director says that because of a change in the way the commission is funded, it is facing a $57,000 deficit in its budget this year and has requested an appropriation from the legislature to make up for it.

Perhaps the most noticeable consequence of the shortfall is the slowness of the litigation process. It takes an average of almost two years from the time a complaint is filed with the commission, which only handles civil proceedings, to the time the Supreme Court takes action, if the case goes that far.

Although the seven-member commission is required by its rules to meet monthly, it is only meeting every other month to save money. Occasionally, hearings are delayed because of a lack of funds to pay court reporters.

The good news, I guess, is that most disciplinary complaints do not result in findings of wrongdoing by judges. Here are the stats for the last five years:

Year Complaints Discipline Recommendations Percent
2009 337 5 1.5%
2010 262 8 3%
2011 270 6 2%
2012 253 3 1%
2013 255 4 1.5%
Given these stats, what’s the solution? From the article:

State Rep. Mark Baker, chair of the legislative Judiciary Committee, said the commission should be asking for reform, not more money. 

Baker suggested requiring all justice court judges have a law degree. The legal knowledge that comes with a law degree would cut down on the number of complaints the commission receives and thus lessen its workload, Baker said. 

In 2013, 92 of the 255 complaints filed against judges were filed against Justice Court judges. In Mississippi, justice court judges are not required to have any degree beyond a high school diploma.

My Take:

I think Mark Baker is half right. Requiring all judges to have a law degree probably would improve the justice court system. But I doubt it will drastically lower the number of complaints.

Baker’s argument would be more persuasive if more complaints resulted in discipline. But when the vast majority of time someone complains the commission finds that the judge did nothing wrong, I don’t follow how more qualified judges would lead to fewer complaints.

There are going to be a lot of complaints regardless of the qualifications of the judges. People usually want to complain about a judge because the judge ruled against them. Since they lost, they think that the opposing side “got to the judge” and the judge is crooked.

Having more qualified judges is not going to fix this sentiment. As long as one side loses, there will be complaints about judges. And one side is going to lose every time a judge rules. 

The best thing for the judicial system is the perception of a level playing field. People are much more likely to accept losing when they feel like they were treated fairly by the judge. Judges can do themselves a favor here by not being arrogant and always showing respect to the parties and attorneys. But some losing litigants are always going to complain because they don’t trust the judicial system.

An important part of a perception of a level playing field is the knowledge by all involved that a judge will be held accountable for misconduct. The Commission on Judicial Performance provides that backstop.

The last thing unhappy litigants need to hear is that you can file a complaint against a judge, but no one will seriously look at it because the Commission is underfunded. That just reinforces their preconceived notion that the fix is in.

N.Y. Times Covers Continued Drop in Law School Enrollment

Posted in Law School

The New York Times reported last week that law school enrollment continues to plummet. Enrollment levels are their lowest in forty-one years, when there were 53 fewer law schools. There are 30% fewer students than just four years ago.

Poor job prospects lead the list of reasons for the decline:

That would seem a worthy investment if the job market awaiting new law school graduates looked more promising. But the bar association’s employment figures are dismal. In 2013, fewer than two-thirds of newly minted lawyers had found jobs that required passing the bar exam. 

Part of the problem is that jobs that once required lawyers — for sifting through documents before a trial, for instance — are increasingly being automated. Do-it-yourself services, like LegalZoom, are gaining popularity with consumers. 

“There’s also outsourcing,” Professor Campos said. “India has millions of people who speak English perfectly well and they can handle basic legal work. The only segment of the market that isn’t affected is the elite [soul sucking] firms, the Wachtell Liptons of the world. But that represents a very tiny slice of the market.”

Meanwhile, many law school deans continue to spew the b.s.:

There are some optimists about the future of the profession, however. Some law deans argue that the country needs more people studying law, not fewer.

My Take:

The last person in the world you should take advice from on whether to go to law school is the dean of a law school. They get paid to sell the business. It would be like asking a Toyota salesman if you should buy a Toyota or a Blackberry salesman if the Blackberry is dead. 

It’s even worse in Mississippi. We have the same factors impacting the legal market in the rest of the country, plus the fact that we are still in a recession from the bursting of the litigation bubble.

I’m not saying no one should go to law school. But it shouldn’t be something people do because they can get in and don’t know what else to do. These days you need to really want to be a lawyer.  

Read my prior posts on law schools here.

December Mississippi Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $10.5 million verdict- Coahoma County products liability trial mentioned here (9/25/14);
  • $125,000 verdict- Aberdeen federal court breach of contract case mentioned here (11/4/14);
  • $34,775 verdict/ but 48% fault to plaintiff- DeSoto County car wreck case (7/16/14);
  • $30,000 verdict- Holmes County vehicle vs. cotton picker collision case (10/1/14);
  •  $25,000 counterclaim verdict- Hinds County breach of contract case mentioned here (9/27/14);
  • $10,000 verdict- Walthall County car wreck case (11/12/14); and
  • defense verdict- Jackson federal court trip-and-fall premises liability case (11/4/14).
My Take: Quiet month other than the big products verdict. As always, if you want more details of these verdicts you can subscribe to the Miss. Jury Verdict Reporter.