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

Book Review: Typography For Lawyers, 2nd Ed., by Matthew Butterick

Posted in Book Reviews

You know you are a law geek when you get excited reading a book called Typography for Lawyers.


Matthew Butterick’s book first reviewed on this site in 2011 is now out with a second edition. The first edition has a perfect 5 of 5 customer review rating on Amazon with 100 reviews as of this writing.

The new edition includes 20 pages of new material. The new material addresses topics including email, footnotes, presentations, contracts, court opinions and new font recommendations. typography for lawyers

You can really get lawyers worked up discussing footnotes and fonts.

This is a book that should be on all legal professionals’ bookshelf.

Appearance matters in persuasive writing. A document that looks better is easier to read and comprehend. This book teaches lawyers how to make their documents look better.

There are not many books for lawyers that should be considered indispensable. This is one of them.

I’m not seeing the second edition on Amazon yet, but you can buy it here.

Mikal Watts: I’m Ready for Trial

Posted in Gulf Oil Spill Litigation

This update from the BP Oil Spill attorney criminal prosecution. In response to some of his co-defendants’ motion for continuance, on Friday Texas attorney Mikal Watts filed this response.

From the response:

Mikal Watts objects to a delay in the trial. Mr. Watts is ready to go to trial, answer the allegations, and prove his innocence to a jury of his fellow citizens…

Watts demands his speedy trial.

The response, filed by Watts’ attorney Rob McDuff, also states that the investigation has lasted four years.

Sounds like this will be a hard fought trial that may occur as soon as February.

Why Aren’t Plaintiff Lawyers Filing More Cases?

Posted in General, Tort Reform

The question of why filings are so low in Mississippi gets thrown out there quiet a bit.

Defense lawyers have been asking the question for years after their pre-tort reform predictions that plaintiff lawyers would not stop filing cases proved to be wrong.  I recently heard that law school professors are asking the question because there are a lot of people with real legal disputes that can’t find representation.

The answer is in how plaintiff-side litigation works. Plaintiff lawyers can be paid hourly or on a contingency fee. Mississippi is a poor state. Most people can’t afford to pay a plaintiff lawyer by the hour. Further, many plaintiff lawyers, including me, are hesitant to take a plaintiff case by the hour unless the merits are good enough to where they would also take it on a contingency.

So the plaintiff lawyer needs to conclude that the case is winnable in order to take and file the case. Look back at the verdicts listed on Monday in the preview of the Mississippi Jury Verdict Reporter. On the whole, these verdicts represent a disastrous month for the plaintiffs.

Why aren’t plaintiff lawyers filing more cases? This is why. The plaintiff lawyers likely lost a lot of money in the medical malpractice, nursing home and products cases and maybe the tree case.

While the plaintiff lawyers probably didn’t lose money out of pocket on the two car wreck ‘wins’, they also made very little money considering they had to try the cases.

Other plaintiff lawyers view these results and take heed.

Bottom line: plaintiff lawyers have to be very careful about the cases they file. Unlike defense lawyers who are billing by the hour, plaintiff lawyers don’t have to stay busy. A plaintiff lawyer who feels compelled to stay busy may end up filing a case that is a loser that will cause them to lose a bunch of money in fronted expenses.

Repeatedly losing money in cases is not a viable business model. Plaintiff lawyers who don’t know how to screen cases or can’t tell people no will not stay in business long.

Plaintiff lawyers hear some bleak stories from prospective clients who unquestionably have been wronged. But we have to tell the client no if we conclude that the case is not economically viable for whatever reason–and there are many factors that can kill an otherwise viable claim. Hearing these stories and having to tell people no is the single worst part of my job. But I have to do it if I want to stay in business.

A plaintiff lawyer is better off going hunting or fishing than filing a case that is likely a loser. Whether to take a contingency plaintiff case is a math problem. Experienced plaintiff lawyers aren’t going to file cases where they have better odds at the craps tables in a casino.

Combined with the fact that so many big cases get exported out-of-state in MDLs as I discussed here, the trends for litigation in Mississippi are exceptionally bleak. Filings just aren’t going to rise significantly barring something weird like a Katrina-like disaster that leads to litigation or Congressional legislation rolling back consumer arbitration clauses.

November Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $148,566 jury verdict- Monroe County employment retaliation case covered here (9/30/15);
  • $25,000 jury verdict- Warren County car wreck case (9/28/15);
  • $12,396 jury verdict- Madison County car wreck case with $8,212 of the verdict covering meds  (9/28/15);
  • defense verdict- Leflore County Tort Claims Act medical malpractice bench trial (10/8/15);
  • defense verdict- Hinds County nursing home case covered here (10/8/15);
  • defense verdict- Aberdeen federal court products liability case involving an ammo magazine (10/16/15);
  • defense verdict- George County Tort Claims Act bench trial involving vehicle hitting tree in road (10/23/15); and
  • directed verdict- Harrison County slip-and-fall case covered here (10/8/15).

My Take:

Par for the course. A nice win by Jim Waide in Monroe County, a couple of small plaintiff verdicts in car wreck cases that were probably really defense wins and a bunch of defense verdicts.

On Wednesday I will tie in the current verdict trends with a question that gets kicked around quiet a bit in Mississippi: Why aren’t more cases being filed?

Miss. Supreme Court Decision Recognizing Same Sex Divorce Draws Controversial Dissents

Posted in Mississippi Supreme Court

Having waited for the U.S. Supreme Court to rule on the issue of same sex marriage, it was unsurprising that last week the Mississippi Supreme Court remanded a same sex divorce case to chancery court where the divorce will presumably be granted.

Here is the Court’s decision.

Here is the Clarion-Ledger’s article on the decision.

The State, as Appellee, confessed the Appellant’s motion for entry of judgment due to the Supreme Court’s ruling this summer in Obergefell.

Despite the uncontested posture of the case, Justices Dickinson and Coleman dissented. The dissents argue that the Court may not have to follow the U.S. Supreme Court if the decision was wrong. Mississippi College Law Professor Matt Steffey panned the dissents in the Clarion-Ledger article:

Chief Justice of the United States John Roberts wrote the dissent in Obergefell v. Hodges, which is why Matt Steffey, constitutional law expert and Mississippi College of Law professor, doesn’t believe Roberts’ opinion can be used for a valid argument.

“A dissent is the opinion of the side that lost,” Steffey said.

Steffey said Dickinson is simply saying the U.S. Supreme Court got it wrong. Steffey also said Dickinson’s argument is the same one that the Ku Klux Klan, the White Citizens Council and former Governor Ross Barnett used to oppose Brown v. Board of Education.

“It’s exactly the same line of argument considered and rejected by our founding fathers,” Steffey said. “I’m talking about the line of thinking where every person gets to decide for themselves what the law means instead of following binding decisions of the court.”…

Justice Coleman wrote a separate statement that used a hypothetical situation in which the Supreme Court ruled every household must own a zoo animal.

“I would be writing the same statement and expressing the same concerns if faced with a United States Supreme Court decision that held the Constitution of the United States required every household in America to own a giraffe,” Coleman wrote.

In his statement, he concludes that requiring households to own giraffes has “no constitutional support.”

“This is not what you would expect from a serious-minded judge,” Steffey said.

The dissents are also attracting negative comments on blogs.

It’s worth pointing out that Mississippi’s ban on gay marriage has already been overturned in federal court by District Judge Carlton Reeves as a result of a directive from the Fifth Circuit to follow Obergefell:

“Obergefell, in both its Fourteenth and First Amendment iterations, is the law of the land and, consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court,” Judge Jerry Smith wrote for a three-judge panel of the 5th Circuit Court.The panel heard oral arguments in the cases in January, but opted not to rule before the U.S. Supreme Court settled the issue in Obergefell v. Hodges on Friday. Now, the panel has given district judges in the three states until July 17 to issue final rulings in the cases.

Judge Smith was appointed to the Fifth Circuit by President Reagan in 1987. He’s conservative and knows what he’s doing.

My Take:

This is an interesting decision. I love it when the Mississippi Supreme Court issues interesting decisions.

I definitely thought the Court had to follow the Obergefell decision under Marbury v. Madison. Justice Coleman says that may not be the case.

What would the U.S. Supreme Court do if a state court decision on gay marriage goes the other way and rejects Obergefell? Would there be another 5-4 split along the same lines as the original decision? Or would it be closer to a 9-0 vote on the Marbury v. Madison issue? Or something in between? My guess is 9-0.

These are just a few of the many interesting questions this case raises.

What to Make of the Supreme Court’s Ruling in the AWP Litigation?

Posted in Mississippi Supreme Court, Tort Reform

As discussed here week before last, the Mississippi Supreme Court affirmed a $30 million bench verdict in favor of the State of Mississippi against Sandoz, Inc. for overcharging the State for drugs.Here is the Court’s opinion.

The decision was actually a tie, as explained last week by Judge Primeaux on his blog:

Justice Chandler wrote the plurality opinion, joined by Kitchens, King, and Randolph specially concurring. Justices Dickinson and Lamar wrote dissenting opinions that were joined by Pierce and Coleman. Waller did not participate. If you’re counting, the score is Affirm = 4, Dissent = 4, Abstain = 1. If the vote is tied, the decision is affirmed.

Because it was a tie, Justice Randolph criticized the Court’s lengthy opinions–a combined 53 pages. As Judge Primeaux explains:

Justice Randolph concurred in the result, but he vigorously argued that the court should not have issued an opinion in the case, but rather should have issued an order merely affirming since there was no majority in agreement to issue a statement of the law on the subject. He cites SCOTUS opinions that support his position holding that split decisions have no precedential value, and concludes by questioning why our court clings to its practice of issuing opinions that can be used as precedent in such cases. I have to say that I find his brief concurring opinion persuasive.

Kind of lost in the shuffle was the majority’s conclusion that the statutory punitive damages caps apply to cases where the State is the plaintiff.

My Take:

Without getting into the merits of caps, it seems fair that caps that apply to other plaintiffs also apply to the State.

There is no way for me to opine on whether the Court (and Chancellor) got it right without analyzing the record. For any reader who would like to give me some homework by assigning me the task of reading the record and reporting back: YOU DO IT.

I agree with Judge Primeaux that for those of us unburdened with knowledge of the record, Justice Randolph’s concurrence is persuasive. The beauty of Justice Randolph’s opinion is that you don’t need to know what’s in the record to follow it.

Finally, it’s worth pointing out that this may not be over. Sandoz will no doubt file a motion for re-hearing and we could see tweaked (or more) opinions months down the road.

MDL Leadership Repeat Player Trend Sparks Criticism

Posted in General

A couple of weeks ago in this post about the Mikal Watts indictment I described the cadre of lawyers who serve on MDL steering committees as an oligarchy. Since then, I’ve noticed that mainstream press also notices the trend.

Last week in this New York Times article about the Volkswagen Diesel litigation, Barry Meier writes:

Wherever the case goes, a judge will select a “plaintiffs’ steering committee,” typically, a group of about 10 lawyers, to lead it. Those posts carry prestige — law firms promote the roles on their websites — and the potential to make tens of millions of dollars in added fees….

This approach has been used dozens of times in mass lawsuits involving cars, drugs and other products. But concern is growing among legal scholars that a small circle of law firms has come to dominate the process and that some settlements have benefited the lawyers more than their clients.

One recent study found that about two dozen firms played leading roles in 10 or more major lawsuits. Five of those firms spearheaded 20 or more.

The article also mentions the Mikal Watts indictment.

In Judging Multidistrict Litigation (article), Elizabeth Chamblee Burch notes that repeat players in the examined cases held 749 out of 1177 steering committee slots (63.6%). Among firms, the percentage was even higher: 78%.

That basically leaves a couple of spots on steering committees for local counsel.

The article also suggests that there are repeat player judges based on experience presiding over prior MDL cases–not a good sign for lawyers and judges hoping to bring an MDL to Mississippi.

This is bad news for Mississippi lawyers. Fifteen years ago, we worked in the major leagues of litigation. Now, most of the big cases get shipped off to MDLs.

And this has nothing to do with tort reform or the Mississippi Supreme Court. This is a national phenomenon that occurs in federal court.

I suspect that many Mississippi state and federal judges–including some on High Street–would prefer to see more interesting big civil cases on their dockets.

Mikal Watts Case May Be Headed to Trial

Posted in Gulf Oil Spill Litigation

As expected, Texas lawyer Mikal Watts and others were indicted by a federal grand jury on charges for fraud related to alleged shenanigans in the BP Oil Spill litigation. Here is the Indictment.

Essentially, the indictment alleges that Watts and his confederates did a bunch of sleazy stuff to jack up their take in the BP litigation. Think: going through the phone book and writing down everyone’s names and claiming to represent them. Purported clients included dogs and dead people.

Apparently an unnamed Jackson attorney was involved. Sounds like he is cooperating since he wasn’t named in the indictment. I talked to someone who has a good theory on who it is, but we’ll have to wait and see if he’s right.

Watts took the unusual step of issuing his own press release via his attorney (Rob McDuff) following the unsealing of the indictment. Here it is: Watts’ response to indictment.

Watts claims to be a serious lawyer whose work on the oil spill litigation was significant and legitimate.

Assistant U.S. Attorneys John Dowdy and Jerry Rushing are prosecuting the case.

My Take:

That’s going to be a tough out for McDuff. Dowdy has been in the U.S. Attorney’s office for 25-plus years and has lost maybe one trial. I have a lot of respect for both and will have to view some of the trial if it makes it that far.

I read the indictment from my perspective as a lawyer. My most prominent thought is: Jesus, is that what the big dogs in MDL cases really do? And the same ones get appointed to steering committees repeatedly? Good lord. A better precedent would be to never appoint the same lawyer to a steering committee twice.

The big question at this point is whether Watts is posturing for a better deal or seriously planning to go to trial. Either is possible.

If he goes to trial, he should use some of his millions to conduct a bunch of focus groups. One possible interpretation of his defense is that a lot of sleazy stuff goes on in mass tort cases, but you can’t pin it on the lawyers. I don’t know how that would play. I know I wouldn’t want to bet my freedom on finding out without doing a bunch of testing before-hand.

Can you really get in bed with a bunch of sleaze balls and walk by claiming you were duped too? Rumor is it’s worked before in mass tort, so we’ll have to see.

Miss. Supreme Court Affirms $30 Million Bench Verdict

Posted in Appellate Decisions From Jury Verdicts, Mississippi Supreme Court

The Mississippi Supreme Court affirmed a $30 million bench verdict on Thursday in Sandoz v. State of Mississippi. Here is Court’s the opinion and here is my 2011 post mentioning the verdict.

This was a state A.G. case that charged Sandoz with inflating wholesale prices of prescription drugs.

Here is Jane’s Law Blog’s summary of the case:

The State of Mississippi sued Sandoz over the price of generic drugs manufactured and sold wholesale  by Sandoz to Mississippi pharmacies.  The State contends that the Mississippi Division of Medicaid was defrauded when it used Sandoz’ published “Average Wholesale Prices”  when calculating the amount it reimbursed pharmacies for drugs they dispensed to Medicaid patients. The State argued that the AWP was not merely a suggested or reference price, but instead meant the “average of wholesale prices that a wholesaler received from the sale of Sandoz drugs to pharmacies” and,  thus,  Sandoz committed fraud because it knew that its AWPs were greater than the prices pharmacies actually paid causing the State to overpay Mississippi pharmacies by $23 million.

The chancellor found against Sandoz and awarded  $23,661,618, –  the amount MS Medicaid overpaid due to Sandoz’s actions. The court also awarded the State $2,699,000 in civil penalties based on the Consumer Protection Act. The court imposed $3,750,000 in punitive damages for Sandoz’s willful and fraudulent misconduct. The court ruled against the State on whether Sandoz violated Mississippi’s Medicaid Fraud Control Act, and it denied the State’s post-trial motion for attorney’s fees, prejudgment interest, and other relief.  The Miss.S.Ct. affirms.

I will post more on this decision next week.

Curing the Law School Debt Crisis

Posted in Law School

Saturday the New York Times ran this editorial on “The Law School Debt Crisis.” The editorial focuses on for profit Florida Coastal School of Law, which the Times labels a ‘scam.’

As for the cause of the crisis, the Times points to the 2006 extension of the federal Direct PLUS Loan Program, which allows law school students to borrow 100% of tuition and living expenses. In response, law schools raised tuition and accepted more students. law school

Then the financial crisis hit. Law school graduates stopped getting jobs and law schools had to start honestly reporting hiring numbers for graduates. The result was many smart people who used to go to law school now avoid it.

Now, it’s not the smart kids who are going to law school: in 2014 the average multi-state score on the bar exam was the lowest in 25 years.

So how to stem the tide of growing numbers of dumb lawyers with mountains of debt who can’t find jobs?

Forget the Obama administration’s solution. Forget the Times’ suggestions. It’s all too complicated.

Here’s my solution: make law school student-loan debt dischargeable in bankruptcy. That would kill the Florida Coastal law schools of the world and drastically reduce the number of law students overall.