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

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.

Defense Verdict in Jackson Federal Court Slip-and-Fall Trial

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

On August 15, 2014 a Jackson federal court jury rendered a defense verdict in Chatham v. Logan’s Roadhouse, Inc. Here is the Complaint.

The Complaint alleges that Ms. Chatham was a business invitee at the Logan’s Roadhouse restaurant located in Meridian, Mississippi. While in the restaurant, Ms. Chatham alleges that employees of the restaurant wiped food from her table onto the floor and that she stepped on food causing her to slip and fall and sustain permanent personal injuries.

According to the Complaint, the food wiped from Ms. Chatham’s table onto the floor created an unreasonably dangerous condition which caused permanent injuries to Ms. Chatham. Logan’s is alleged to have either known of the unreasonably dangerous condition and neither corrected nor adequately warned Ms. Chatham. Ms. Chatham claims that she did not have full knowledge of the unreasonably dangerous condition and could not have been expected to fully realize the unreasonably dangerous condition.

Both plaintiffs testified at trial that they had been in Logan’s multiple times before the day of the fall and had always seen peanut shells on the floor. While seated and waiting on their orders to arrive, the Plaintiffs ate peanuts at their table. When the server arrived with their food, the plaintiffs watched as the Logan’s server wiped the peanut shells onto the area of the floor where Ms. Chatham fell.

Here is the jury’s Final Verdict Form. The jury found that Logan’s was not negligent.

Chris Shaw and Stephanie Edgar with Jones Walker in Jackson represented Logan’s. John Mayo of Meridian and Gregg Rogers of Louisville represented the plaintiffs. Judge Carlton Reeves presided in the case.

My Take:

It’s hard to miss all the garbage on the floor of one of those roadhouse places.

I’m guessing that plaintiffs don’t have a winning record in slip-and-fall cases where the plaintiff falls on their own peanut shells.

August Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $40,000 verdict-  Neshoba County premises liability case discussed here (6/30/14);
  • $6,719, $6,784 verdicts- Harrison County car wreck case (7/23/14);
  • $5,000 verdict [minus 50% comparative fault]- Tate County car wreck case (7/1/14);
  • defense verdict- Hinds County premises liability case (Judge Kidd) (7/16/14);
  • defense verdict- Oktibbeha County car wreck case (11/7/13);
  • defense verdict- Jones County medical malpractice case (6/5/14);
  • defense verdict- Jackson federal court employment retaliation case (7/23/14); and
  • defense verdict- Bolivar County medical malpractice case (8/28/13).

My Take:

In both the car wreck cases where the plaintiffs won, the verdict amounts were less than the plaintiffs’ medical bills. So much for the medical bill “glass floor.”

Maybe twenty years from now, young lawyers at defense firms will gather around the coffee pot to hear grizzled veterans talk about the days when a “runaway jury” might render a $15,000 verdict in a case with $10,000 in medical bills.

$173,306 Verdict in Holmes County Nursing Home Trial

Posted in Verdicts in Mississippi

On July 24, 2014 Holmes County Circuit Judge Janie Lewis rendered a verdict and judgment of $173,306 in Hite v. Durant Healthcare, LLC, et al. Here is a copy of the opinion.

The action involved the trial of a nursing home case under the Miss. Tort Claims Act. The entity that operated the nursing home and that lost the judgment was University of Mississippi Medical Center Nursing Home a/k/a Holmes County Long Term Care Center. There were some other listed defendants who were dismissed pre-trial or won at trial.

Plaintiff’s decedent was a a 95-year old female who contracted a Stage II pressure sore in the nursing home. The Court found that the nursing home improperly assessed, treated and monitored the pressure sore, causing it to progress to a Stage IV pressure sore that was infected. The decedent was hospitalized and died as a result.

The verdict included $73,306 in medical expenses and $100,000 in pain and suffering.

Eric Stracener and Andrew Neely of Jackson represented the Plaintiff. Lanny Pace and Emilie Whitehead of Jackson represented the Defendant.

Lawyers Roll in Stupid Country

Posted in General

Judge Primeaux has been lighting it up lately on his blog, including this post Friday on stupidity. Here is my favorite part of the post:

While we’re on the topic, it’s important to distinguish between ignorance and stupidity. Knowledge cures ignorance; knowledge is irrelevant to the stupid. Many of us make the mistake of wasting time and effort to address stupidity by elucidating facts and posing rational arguments. That approach will avail for the ignorant person, but it is absolutely ineffective on the stupid. 

A grizzled, old lawyer told me in my youth that, “If they ever stop making stupid people, the legal profession will be doomed.” Cynical, yes. Inaccurate, no.

The first paragraph explains why education and knowledge don’t define how smart a person is. When you get out in the country in Mississippi you start running across people who are extremely smart, but not well educated. These folks are underestimated by people who don’t understand the distinction between education and street smarts.

This also explains how someone can have the education level of a lawyer and still be stupid.

The second paragraph also seems mostly accurate. A lot of what lawyers do is helping people and companies get it sorted out when someone has done something stupid. Sometimes it involves someone who is not stupid, but who did something stupid.

Let’s face it, anyone can occasionally do something stupid no matter now smart they are. Some smart people even self-destruct over their inability to stop doing something that is stupid. And stupid conduct fuels a lot of legal work.

Former JSU Women’s Basketball Coach Recovers Another $200,000 from School

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

In December I wrote here about a $182,000 jury verdict for former women’s basketball coach Denise Taylor-Travis against Jackson State University. On August 1, 2014 District Judge Henry Wingate rendered a $200,000 verdict for Taylor on her separate invasion of privacy claim against JSU.

Here is Judge Wingate’s opinion: Taylor v. JSU – Opinion on Invasion of Privacy.

The parties agreed to a bench trial on Coach Taylor’s invasion of privacy claim. The Court found that JSU’s release of Coach Taylor’s personnel records to the Clarion-Ledger violated her privacy. Basically, the records falsely accused Coach Taylor of a host of inappropriate conduct that justified her termination. The real reason for the termination appeared to be on-the-court losses by  the women’s basketball team.

The amount of the verdict was $200,000 for Coach Taylor’s mental distress suffered as a result of the invasion of privacy.

Louis Watson Jr. and Nick Norris of Jackson represented the plaintiff. Latoya Merritt and Todd Butler with Phelps Dunbar in Jackson represented JSU.

Book Review: Justice for Ella, by Pam Johnson

Posted in Book Reviews

Pam Johnson’s Justice for Ella is a story about a courageous battle against white supremacy in 1959 Mississippi. It’s an irresistible feel good story that would make an entertaining movie.

The book’s leading characters are Ella Gaston and Jewell McMahan of Hattiesburg. Ella is black. Jewell is white.

While visiting family in Noxubee County, Ella and her husband Nelse are pulled over and arrested for being black. Jewell McMahan and her husband Bryce come to their friends’ rescue by bailing them out of jail and funding their legal defense to the State’s bogus charges.

The book follows the case through the legal system from Justice Court to Circuit Court to the Mississippi Supreme Court to the State’s eventually throwing in the towel. The story contains all the good ole boy racism and intimidation you would expect from 1959 Mississippi.

Ultimately, the Mississippi Supreme Court reversed Ella Gaston’s conviction due to inconsistencies in the cops’ testimony and improper rulings by the trial judge.

It is impossible to imagine the stress put on the Gaston and McMahan families by this event. This was as ugly of a time period as Mississippi has ever seen. Post Emmett Till and Brown v. Board of Education, white Mississippians were not handling well the prospective end of their “way of life.”

The same year (1959), Mack Charles Parker was kidnapped from the Pearl River County jail and lynched by a gang of vigilantes.  No one was ever charged for the crime even though the entire community knew the identity of the perpetrators.

It had to take a huge amount of courage to fight an unfair and rigged system in that environment. It would have been much easier–and arguably safer–do just take the railroad job like so many other African Americans had to in that era. The fact that the Gastons and McMahan’s didn’t is an unbelievable testament to their character and courage.

Mississippians can’t have enough literature about this era in the State’s history. Justice for Ella is a rare feel-good story from this time period.

Update:

Here is journalist Bill Minor’s column on Justice for Ella.

Here is a Kirkus review of the book.