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

Good Stuff in Latest CABA Newsletter

Posted in General

The Capital Area Bar Association now publishes its newsletter in electronic format. Here is a link to the latest issue.

The latest issue includes:

Y’all Politics Reopens Legal Bureau

Posted in Politics in Mississippi

When I first started blogging, Y’all Politics seemed to be as much a legal blog as a political blog with its coverage of the judicial bribery scandal. One of the reasons that I decidided to focus on the civil side was that Ya’ll and NMC were doing such a good job on the criminal coverage.

Lately, its been more of a conservative political blog. Of course, there’s not as much to write about in the Mississippi legal world as there used to be.

But Y’all cranked up the legal coverage this week with coverage and commentary on Joey Langston trying to get his 2008 guilty plea overturned. People who followed that case may want to make sure Ya’ll is on their regular reading list.

There is a lot of space currently for a Mississippi blog focusing on criminal law. The general public is more interested in criminal matters than civil matters, so I imagine that someone who committed to regular posts on criminal law topics could generate a big following.

Law School Applications Down 50% from Peak

Posted in Law School

The Washington Post ran this article last week on the decline of law school enrollment. From the article:

Nearly 46,000 people have applied so far to go to an accredited U.S. law school in the most recent admissions cycle, a figure that puts applications on track to hit just short of 53,000 total. By comparison, there were a total of 77,000 applicants in 2010 and 90,000 in 2004,….

What’s a law school to do?

In response, Morant and other deans say their schools are increasing practical training for students, including more semesters of writing courses and externships. law school

Even better practical training might be courses on bar tending, waiting tables and retail sales.

What about job prospects?

Nine months after graduation, a little more than half of the class of 2013 had found full-time jobs as lawyers, down from 77 percent of 2007, according to the most recent data from the American Bar Association and the National Association for Law Placement. Those who did find jobs had starting salaries that were 8 percent below the 2009 peak, averaging $78,205 in 2013.

These people have college degrees, a law school degree, are fairly smart (at least book smart), and yet only half can find a job?

That’s terrible. And there is no way for law schools to honestly sugar coat it.

 “Law school is not a ticket to financial security,” said Kyle McEntee, a Vanderbilt University Law School graduate who helped found the group Law School Transparency. “There’s just no evidence that the people starting school now are going to end up okay, and to me that’s really concerning.”

But it’s all good, since law school graduates aren’t homeless:

“These people will be okay,” she said, comparing them with the homeless clients whom her students represent in the defense clinic at Ohio State University’s law school. “I did not find evidence of homeless law graduates in my study.”

It’s gotten pretty bad when the message for law school graduates is “be glad you aren’t homeless.”

Then over the weekend the New York Times ran this article on how bad it is for law school graduates. The article noted the debt law school graduates have:

Over all, nearly 85 percent of law graduates have taken out student loans, according to the website Law School Transparency, and 2010 law graduates accumulated debt averaging $77,364 at public law schools and $112,007 at private ones.

What none of the struggling law graduates ever seem to say is the BS line espoused by law schools that a law degree has a lot of value beyond practicing law. Some value? Sure. Value that justifies a house note sized student loan payment? Sorry, but no.


Supreme Court Reverses and Renders Silica Verdict

Posted in Appellate Decisions From Jury Verdicts, Mississippi Supreme Court

On Thursday the Mississippi Supreme Court reversed and rendered a $787,500 silica case judgement in Mine Safety Appliance Co. v. Holmes. It was a 6-3 decision with Chief Justice Waller writing the majority opinion. Here is Jane Tucker’s post that contains a summary of the decision.

This was a products case with the product at issue being a respirator. The majority determined that the plaintiff’s misuse of the respirator by never changing the filter materially changed the product’s condition after it left the defendant’s control.

The dissent cited expert testimony that it would have been impossible for the filter to be used for six years without changing the filter.

My Take:

I don’t really have a take on whether the Court got it right. The issue seems like there is a fact question in there somewhere. But trying a case where the conduct at issue happened 50 years ago is going to invite a lot of appellate scrutiny, particularly in Jefferson County.

A lot of fortunes were made litigating cases in Jefferson County in the late 1990’s and early 2000’s. And we owe a lot of our current litigation climate to it. Fishing with dynamite was the most apt description I heard of filing cases in Jefferson County in that era.

Personally, I wouldn’t want to have to file a case now in Jefferson County. If you can get your case to the jury, which is not a given, defendants can win at trial as shown here and here. This leaves defendants free-rolling in trials believing that they will be favored on the appeal. That’s a bad recipe for plaintiffs.

A lot of people will criticize this decision as another blow for litigation practices in Mississippi. And I feel certain that plaintiff lawyers will be hearing about it from defense lawyers in mediations in the coming months.

It’s easy to say that most plaintiff verdicts decided on appeal are reversed. That’s just math. Where the stats are more nebulous is on the number and value of cases that settle while on appeal.

Do some of the best plaintiff cases settle before the Court can affirm (or reverse) the verdicts?

Governor, Legislature Get it Right with Texting and Driving Bill

Posted in Politics in Mississippi

It was too long coming, but Mississippi has finally enacted a law banning texting while driving. The law prohibits texting, emailing and accessing social networking sites while driving.

Kudos to Governor Bryant and the legislature. In particular, Sen. Billy Hudson of Hattiesburg deserves credit for banging the drum on this issue for some time. texting and driving

This is a good law that will instill good habits in drivers. Critics of the bill sound just like the people who criticized seat belt laws. But the law has been a huge success with most people now in the habit of wearing seat belts. Contrast that to 30 years ago when my 66′ Mustang didn’t even have seat belts. Not that it needed them. No one wore seat belts when I was a kid.

For people who question the necessity of the law, I encourage you to read A Deadly Wandering, by Matt Richtel. The book is a gripping account how Utah came to enact anti-texting laws in the years following the deaths of two rocket scientists killed in an accident caused by a teenager who was texting. The book also explores the effects of technology on our brains. It’s a good read.

What’s Everyone So Mad About?

Posted in General

In a recent Hotty Toddy.com article about the uproar caused by the IHL board running off Dan Jones, controversial former lawyer and long-time Ole Miss supporter Richard Scruggs led with the following:

When I returned to civilization last year from six years in prison, I found that civilization wasn’t how I remembered it. Something had changed. Gradually, it began dawning on me that folks were angrier. And not just about specific issues or things, but pissed off seemingly at everything.

If you’re like me, you read this article and thought several things:

  1. What the hell is Hotty Toddy.com?
  2. Was he really in prison for six years? Wow. It didn’t seem that long ago when that all blew up;
  3. That’s the smile of a man who knows he’s done practicing law; and
  4. By God, he’s right. IMG_0088

People are angrier than they used to be. You see it with political movements (Tea Party, Occupy Wall Street), on news shows (especially Fox News Pravda), and in juries and focus groups.

But why? What is everyone so mad about?

This is a question I’ve given a lot of thought to for years. I’ve discussed it with some smart people. But I can’t tell you the answer. After all the discussion and analysis, I don’t even have an opinion.

I can tell you some of the theories bandied about:

  1. White people are mad that the country is getting browner and, especially….
  2. that the President is black;
  3. black people are mad that they can still get pulled over and shot for being black;
  4. people feel poorer than they did in the 80’s and 90’s because wages have not kept pace with inflation;
  5. the super rich get richer while everyone else gets poorer (we don’t see this so much in Mississippi because almost no one here is super rich. Most people here think doctors are super rich. In New York and Miami, doctors are middle class);
  6. the cheer-leading partisan news networks (Fox News, MSNBC) stir up anger and divisiveness chasing ratings in the 24-hour news cycle;
  7. politics has become too nasty and partisan;
  8. people are scared of the out-of-control national debt;
  9. terrorism and the reactionary ill advised invasion of Iraq;
  10. etc.

It’s a fascinating topic. In part, because there is no easy answer. Plus, due to the complexity of decision making, if you asked people why they are so mad, they could easily give you the wrong answer. That is, even the people who are mad may not have a handle on why they are so mad.

And as for a solution to this problem, I don’t even know of any theories for how to fix it.

April Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $37,000 verdict (minus 30% fault)- Simpson County uninsured motorist car wreck case (3/11/15);
  • $25,000 total verdict for two plaintiffs- Warren County car wreck case (2/13/15);
  • defense verdict- Hinds County medical malpractice case (3/5/13);
  • defense verdict- Gulfport federal court Fair Labor Standards Act case (3/5/15);
  • defense verdict- Harrison County medical malpractice case (1/30/15);
  • directed verdict- Hattiesburg federal court pregnancy discrimination case (2/20/15);
  • mistrial- Oxford federal court products liability case (3/26/15); and
  • mistrial- Rankin County breach of attorney fee contract case (3/12/15).

My Take:

No surprises here. I do see an emerging pattern in medical malpractice trials. And no, it’s not that defendants are winning them. I’m not going to say what it is. But if anyone has a guess, they can post it in a comment or send me an email.

Blog Update

Posted in General

Trial last week. So, this week:

Image result for asleep at computer

The geese are back at the Supreme Court and I want to give my take on Dick Scruggs’ Dan Jones column where he contrasts the general public’s mood when he returned from his extended sabbatical.

But right now my brain is too tired for extra-curricular writing. Based on past experience, tomorrow is not going to be much better. I’ll let you know when I wake up.

Another Misleading Article Touting Law School

Posted in Law School

Law school administrators and teachers are notorious for overselling the benefits of law degrees. I don’t like it because: (1) they have a vested interest in maintaining law school admission levels; and (2) they often have distorted misconceptions about life in the real Better Call Saul world of the legal profession.

So not surprisingly, I am not a fan of this New York Times article last week by Cal. Berkeley law professor Steven Solomon. My biggest problem is the article’s title: Law Schools and Industry Show Signs of Life, Despite Forecasts of Doom.

A better title would have been: Despite Industry Downturn, Largest Law Firms Still Earning Huge Profits. I realize that the problem with the title is probably not Mr. Solomon’s fault. Curious about the origin of newspaper article titles, I reached out to a lawyer who was formerly a Clarion-Ledger reporter. He responded that when he was a reporter, they could not even suggest article titles. He would be surprised if any mainstream media source allowed the author to write the title.

This paragraph from the article text is more measured than the title:

Several new studies, however, point to signs of vigorous life in the legal job market, at least toward the higher end.

By “higher end” he means Am Law 100 firms and the Ivy League level graduates they hire. And to the author’s credit, he admits he is biased:

 …The top 10 schools have even higher employment rates for the class of 2010, and employment statistics for 2014 are expected to rise. (Full disclosure: I teach at one of those top 10 schools and so am biased here.)

This is like Alabama coach Nick Saban writing an article stating that playing in the NFL is a realistic dream for all college football players because the NFL hires a bunch of his players every year.

If you can get admitted to one of the top 10 law schools in the country, then I’ve got no advice for you. But if you–like the vast majority of people who consider law school–are looking at attending a more pedestrian law school, forget about what’s  going on in Big Law. That’s not where you will end up working.

This is an important paragraph also:

So, there will be disruptions, but this is likely to be a case of lawyers shifting from law firms to corporate departments and compliance becoming its own industry. Solo practice, meanwhile, will become more difficult because of automation. Again, these changes are likely to hit students at lower-tier schools harder than those graduating from the top schools.

I agree with the first sentence. The second sentence is just wrong. Solo practicing has never been easier because of automation. Compared to when I became a solo in 2002, solos need less office space, less expensive equipment like servers and phone systems and less support staff work because of scanners, electronic filing and software innovations. In 2002, I had to have a legal assistant. In 2015, it’s a luxury–not a necessity. All the solo really has to have now is a good computer, a scanner and connection to the internet–stuff many lawyers already own.

Solo practice is harder than it used to be because there are more lawyers competing for less profitable legal work. In The Curmudgeon’s Guide to Practicing Law former big law partner Mark Herrmann compares soloing to practicing on the edge of a cliff. It’s a fitting analogy.

Soloing is the purest way to practice law–some would say the best way. Parts of it have never been easier. But it’s not for everyone, just like everyone can’t work at an Am Law 100 firm.

Yes there will be plenty of lawyers twenty years from now. Yes, high end law school graduates still stand a good chance of landing high paying Big Law jobs. But there are a lot more Jimmy McGills out there than Am Law 100 lawyers. If you are going to publish an article that pertains to what is a small—if visible and prominent–corner of the legal world, it should be reflected in the title.

There will be plenty of NFL players too. But let’s not sugarcoat the prospects for either profession. I view Mr. Solomon’s article as a measured take on the top of the industry. Unfortunately, the editors slapped a misleading title on it that exaggerates the scope of the overall message.

Mandatory Scheduling Orders and Trial Settings Coming to State Court?

Posted in Improving the Jury System, Mississippi Supreme Court

In what could be a major change for state court litigation, the Mississippi Supreme Court is requesting comments about proposed amendments to the Rules of Civil Procedure. The proposals include mandatory scheduling orders and trial settings for civil actions.

Here is the Court’s entire document on the proposals.

Here is the Advisory Committee on Rules’ Motion to amend Rule 16. The motion opens:

Over the past several years, the Mississippi Supreme Court has referred to the Committee various inquiries and requests from members of the Mississippi Bar asking for consideration of a rule requiring mandatory scheduling orders/trial settings. After due consideration and discussion, the Committee determined that a rule pertaining to scheduling orders and trial settings would be beneficial to both the bench and the bar.

Here is Anderson’s post on the proposal.

Under the proposal, the lawyers are responsible for drafting the order. Further, “as the proposed amendment mandates all the deadlines, there is no room for disagreement among the attorneys and, therefore, no need to involve the judge.”

The amended rule would mandate deadlines similar to federal court orders. The trial date would have to be scheduled for a window 12-18 months from the date of the entry of the scheduling order.

My Take:

As an LSU fan, I have a tendency to nitpick wins. “Yea, we won the game. But Les Miles’ game management gives me a heart attack, the quarterback play sucked and we should have won by two touchdowns.”

I’m not doing that here. I love the proposed amendment. Plus, it’s not like the Court can’t tweak it later. This is long overdue and much needed. We know this system will work better than the current system from our experience in federal court. Miss. Supreme Court

What I didn’t know was that members of the Bar could make requests to the Court for rule amendments. But since I know that now, let me take this opportunity to request a rule requiring judges in bench trials to issue a ruling within certain amount of time after the end of the trial. I know of instances where trial judges have taken years to rule in bench trials. Something needs to be done to address that.

I think my favorite bench trial was before Rankin County Court Judge Kent McDaniel. It took him all of a couple of minutes to rule. And my client lost, so that’s not what I liked about it.

Nothing tops the anxiety of waiting for a trial ruling. Anything that shortens it is a plus.