Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

Philip is a trial attorney based in Jackson, Mississippi with a diverse civil litigation practice.

Miss. Supreme Court Reverses and Renders Jefferson County Silica Verdict

Posted in Appellate Decisions From Jury Verdicts, Mississippi Supreme Court

On Thursday the Mississippi Supreme Court reversed and rendered a $13 million judgment in American Optical Corporation v. Rankin. This was a Jefferson County silica case where the date of the judgment was February 24, 2015.

The Court reversed on a statute of limitations issue. The plaintiff filed suit in 2013. Defendant argued that the statute of limitations barred the claim because plaintiff knew he had lung disease more than 3 years before filing suit. The Supreme Court agreed in a 7-2 opinion drafted by Justice Coleman.

The case turned on application of the discovery rule. The majority opinion concludes:

Reasonable minds could not have differed in answering the question on the special verdict form: ‘Do you find by a preponderance of the evidence that [Rankin] knew or should have known before May 13, 2010, that he had the lung injury alleged in this lawsuit?’ It is undisputed that Ranking was aware of and sought treatment for lung disease, COPD, in 2007. Moreover, Rankin’s experts opined that Rankin’s myriad of remaining medical conditions, of which he was aware and for which he sought treatment before May 13, 2010, were related ‘in part’ or ‘exacerbated’ by silica exposure. Accordingly, we hold that the trial court erred by failing to grant AO’s motion for a directed verdict because Rankin’s claims are time barred.

Justice Kitchens dissented, arguing that the case should be reversed and remanded. The dissent argues that while plaintiff’s claims for COPD damages are time barred, his claim for silicosis is not because the silicosis diagnosis occurred after plaintiff filed suit.

My Take:

I’m not a fan of discovery rule law because it can play out like it did here. The parties and court bore the time and expense of trying a case that was ultimately decided on an affirmative defense.

The trial court submitted the question to the jury because of cases that hold that resolution of the discovery rule (what the plaintiff knew and when) is often a question of fact for the jury.

This is an area where a plaintiff lawyer is arguably better off if the court makes the factual determination. I am 0-2 in cases representing the plaintiff where we had to argue that the discovery rule tolled the statute of limitations. We lost both cases on motions for summary judgment, which was my strong preference to losing on the issue at trial or on appeal. If I’m going to lose, I’d rather lose sooner than later.

This is just a tough area for plaintiff attorneys. You know the issue is there when you take the case. And you can’t ever get completely comfortable with it until the case favorably resolves. It could probably be argued that plaintiff lawyers should just stay away from cases where they have to rely on the discovery rule to get past the statute of limitations.

May Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the May 2017 issue of the Miss. Jury Verdict Reporter:

  • $200,000 verdict- Aberdeen federal court excessive force by state trooper case (3/28/17);
  • $265,000 verdict- Aberdeen federal court breach of contract case (4/21/17);
  • $50,000 verdict- Oxford federal court civil rights violation case (4/26/17);
  • $46,895 verdict- Jackson federal court gender discrimination case (2/1/17);
  • $26,366 verdict- DeSoto County car wreck case (4/3/13);
  • $6,250 verdict- Jackson County car wreck case (4/18/17);
  • defense verdict- Rankin County assault/outrage by cop case (3/29/17); and
  • directed verdict- LeFlore Countt medical malpractice case (4/13/17).

My Take:

The $265,000 plaintiff verdict in an excessive force case is a huge win. Those are hard for the plaintiff to win due to the public bias towards cops and fact that cops can get pretty flexible with their stories under oath.

Car wreck trials are interesting. Plaintiffs often get a verdict, but it’s usually not a lot of money. That mirrors my experience trying car wreck cases from the plaintiff side.

More Bad News on PERS

Posted in PERS Crisis

There is more negative coverage this week on public employment retirement systems, such as the Mississippi Public Employees Retirement System:

  1. Hidden Debt, Hidden Deficits: 2017 Edition, by Joshua Rauh; and
  2. The Unavoidable Pension Crisis, by Lance Roberts of Real Investment Advice.

Here are some excerpts from the Rauh report:

  • “…the basic flaw in governmental pension accounting [is] the fallacy that liabilities can be measured by choosing an expected return on plan assets. This procedure uses as inputs the forecasts of investment returns on fundamentally risky assets and ignores the risk necessary to target hoped-for returns.”
  • “In order to target high returns, systems have taken increased investment positions in the stock market and other risky asset classes such as private equity, hedge funds, and real estate. The targeted returns may or may not be achieved, but public sector accounting and budgeting proceed under the assumption that they will be achieved with certainty.
  • “What is in fact going on is that the governments are borrowing from workers and promising to repay that debt when they retire, but the accounting standards allow the bulk of this debt to go unreported through the assumption of high rates of return.”
  • That a 7.5 percent compound annualized return is wildly optimistic and unlikely to be achieved is clear to most observers of financial markets today.”

Meanwhile, Roberts’ report notes the structural problems of growing numbers of retirees and the inflated investment return assumption:

  • One of the primary problems continues to be the decline in the ratio of workers per retiree as retirees are living longer…
  • The biggest problem, following two major bear markets and sub-par annualized returns since the turn of the century, is the expected investment return rate. Using faulty assumptions is the lynchpin to the inability to meet future obligations. By over-estimating returns, it has artificially inflated future pension values and reduced the required contribution amounts by individuals and governments paying into the pension system.”
  • “However, the reason assumptions remain high is simple. If these rates were lowered 1–2 percentage points, the required pension contributions from salaries, or via taxation, would increase dramatically. For each point reduction in the assumed rate of return would require roughly a 10% increase in contributions. For example, if a pension program reduced its investment return rate assumption from 8% to 7%, a person contributing $100 per month to their pension would be required to contribute $110.”

My Take:

Mississippi’s state government continues to ignore the PERS crisis. And yes, I’m calling it a crisis.

There are several scenarios for how this could play out and all of them except the ‘wish and a prayer plan’ are bad. If the stock market stays out of bear territory, at some point the funding shortfall will require workers to increase their contributions and the State to also kick in a bit more. That’s a best realistic case scenario.

The frightening scenario is that the stock market goes into bear territory sometime in the next 5 years and loses 20-50% of its value. If that happens it will be full freakout mode. It’s already happened twice during my 24 year legal career.

Will Filling Judge Jolly’s Fifth Circuit Seat Create a Domino Effect?

Posted in 5th Circuit Court of Appeals, National Politics, Politics in Mississippi

I recently had an interesting conversation about the potential domino effect that could be created by the President’s nomination to fill the Fifth Circuit Court of Appeals seat held by Judge Grady Jolly, who will retire in October.

Everyone I’ve talked to expects the nominee to be a current District Court judge. If so, that will create an opening at the District Court level that the President will also fill. There is a lot of speculation on who might get that appointment.

Someone noted that if the District Court appointment went to a current Mississippi Supreme Court or Court of Appeals Justice, it would create an open slot for Governor Bryant to fill. Governor Bryant could then create his own domino effect at the state judiciary level.

So one Fifth Circuit opening could easily lead to as many as five judicial appointments at the federal and state court level, or even more.

This year’s fantasy judicial appointment league is going to be a lot of fun.

Some People Claim That There’s a Judge to Blame, But I Know…..

Posted in Attorney Mental Health

The opening in Judge Primeaux’s latest blog post on blaming the judge really got my attention:

I am totally comfortable with the fact that one side in nearly every case that I decide is convinced that I am: (a) a raving, total, lunatic; (b) an idiot who lacks common sense; (c) a gullible fool duped by the liars on the other side; (d) an ignoramus about the law; (d) “on the take” from the other side or from sinister, unknown vectors; or (e) any combination or all of the above.

There’s not one revision that makes that a truer statement. And it applies to both clients and their lawyers.

Occasionally, I think a decision was a close call that could have gone either way. The rest of the time, the judge was a lunatic/ idiot/ fool/ ignoramus. Ask me a few weeks or months later and I’ll probably give a different answer. But the natural first reaction is to always blame.

Of course, in jury trials we may say those things about the jury and not the judge, who can’t help that his/her district is composed of fools.

In the instance that Judge Primeaux cited, an apparently procrastinating lawyer unfairly told the client that delays were the judge’s fault:

One example occurred several months ago when a frustrated party called the chancery clerk and complained that she was told that I was refusing to set a case for trial. I pulled the file and found that it was a case for contempt and modification that had been pending several months. Neither lawyer had answered discovery, which was overdue. No one had filed a motion for a trial setting. There was no scheduling order.

What’s the world coming to when a client starts calling the clerk to check out her lawyer’s story? In my day, lawyers didn’t have to worry about clients checking out their excuses.

It’s human nature to blame others for, well, pretty much everything. But as Jimmy Buffett famously sang in Magaritaville, maybe it’s our own damn fault.

Lawyers would do better by shooting straight with their clients. If you are too busy with other matters to get to their case right now, tell them. It’s been my experience that clients are fine with that explanation as long as you tell them when you will get to their case and you actually do it when you said.

That reminds me of another area where many lawyers aren’t straight shooters: explaining why they aren’t taking a case. I can’t tell you how many times I’ve had to tell people that they don’t have a great case because of ‘x’ reason that the lawyer who said they had a million dollar case probably knew but didn’t tell them.

On the issue of blame for a decision, lawyers tend to use reasons (a) – (d). Clients almost always choose the second (d) as the reason:  the judge or jury is “on the take” from the other side or from sinister, unknown vectors. Many times, losing clients conclude that their own lawyer was also “on the take.”

By the way, if you ever get a call from a prospective client who says anyone was “on the take“, run. That and ‘you never want to be the client’s third (or more) lawyer in a case’ are about the only two rules of thumb I can give you for client selection that apply in every practice area.

A good rule of thumb for case valuation is that anytime a prospective client says they have a “million dollar case”, they probably have a hurt feelings case with no damages.

It’s taken me a long time to figure this out, but disputes that wind up in litigation are messy. At the end of the day, the judge or jury’s role is more about making the decision that resolves the dispute than making the ‘right’ decision. The losing side is nearly always going to truly believe that the decision was wrong.

That more than anything else is why a settlement–with or without the assistance of a mediator–is a safer resolution for both sides. I heard James Graves say that over 20 years ago in a settlement conference when he was a Hinds County Circuit Court Judge. As an under 30 rookie lawyer, he might as well have told me that the Bulls and Pistons should negotiate the Eastern Conference Championship. It took me a long time to understand and agree with Judge Graves’ statement.

It’s messy. Facts are disputed. The law can often go either way. Both sides are convinced they are right. When we win, we aren’t as smart as we think we are. When we lose, we blame ourselves too much.

It’s a crapshoot. So rather than blaming the decision maker, maybe we should examine whether we did everything we could to resolve the case before the moron(s) had to decide it.

But when it does go the distance and the decision is made, it’s time for the lawyers to follow Bill Belichick’s advice and move on mentally to the next case:

Tales of the Absurd

Posted in General

I saw a report that an effort in the Florida legislature to amend the state’s workers compensation act failed in part because the House wanted to cap fees of claimants’ attorneys at $150 per hour. The Senate was more generous, only wanting to cap fees at $250 per hour.

Florida has close to 30 million residents. Here in Mississippi with 3 million residents, there are defense lawyers with hourly rates of over $700 per hour. I suspect that some defense lawyers in Miami, Tampa and Orlando charge more than that.

Are they worth it? Who knows. But the rate is a matter of contract between the attorney and the client. It should be no different for plaintiff lawyers–subject of course to the Rules of Professional Responsibility’s requirements that an attorney’s fee be reasonable.

And yes, I get that occasionally an early settlement allows a plaintiff lawyer to collect a contingency fee with a high effective hourly rate. But I can tell you from personal experience that it is much more common to get $0 fee because of a defense verdict or to put so many hours into a case that the effective hourly rate is very low.

The key concept is that of ‘risk.’ Thankfully, almost all judges understand it. Legislators….”when’s the next big booze and feed reception boys?”

April Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the April 2017 issue of the Miss. Jury Verdict Reporter:

  • $3,136,442 verdict (minus 60% fault to plaintiff)- Jackson County motorcycle crash/ roadway negligence (04/13/17);
  • $460,000 verdict (minus 20% fault to plaintiff)- Forrest County workplace negligence/ premises liability (04/12/17);
  • $271,000 verdict- Leflore County medical malpractice (12/17/16);
  • $21,500 verdict- Stone County underinsured motorist (01/18/17);
  • Defense verdict- Aberdeen federal court smelly chicken farm nuisance (03/15/17);
  • Defense verdict- DeSoto County medical malpractice (03/10/17); and
  • Defense verdict- Gulfport federal court inmate civil rights case (02/24/17).

My Take:

I wonder if that’s a record for Stone County?

$1.25 Million Verdict in Jackson County Motorcycle Accident Trial

Posted in Verdicts in Mississippi

Karen Nelson with the Sun-Herald had an excellent article on a recent $1.25 million verdict in Jackson County. The plaintiff Marvin Henderson was an off-duty highway patrolman who alleged that a dangerous road condition left by two construction companies caused his motorcycle crash and leg amputation.

The jury determined that the plaintiff was 60% at fault, but that still left him with $1.25 million of the total award of over $3.1 million.

Court observers could recall only two larger verdicts in Jackson County history:

.the $1.25 million stands out in this county. Judges recalled a $15 million award in a drilling case and $2 million in a 1996 construction case, both involving death, but those were overturned.

Morgan Holder and Christopher Smith of Gulfport represented the Plaintiff. Clark Hicks and Lane Dossett of Hattiesburg represented the defendants. Judge Robert Krebs presided.

The April edition of the Mississippi Jury Verdict Reporter has additional information on this verdict.

Above the Law: Mississippi Has a Lawyer Shortage

Posted in Law School

On Monday I wrote about an Above the Law article that portrayed Mississippians as dumb. I wasn’t a fan.

But my biggest complaint was the article’s suggestion that there is a shortage of attorneys in Mississippi:

Mississippi is a state that desperately needs attorneys. According to the Mississippi Access To Justice Commission, almost 700,000 people in Mississippi live below the poverty line, and the state has only “one legal services lawyer per every 21,000 eligible individuals.” Poor, rural, with a heavy African-American population and civil rights problems that curiously seem to persist despite what Chief Justice Roberts wrote in Shelby, the state needs more competent attorneys, and that’s not something that gets fixed by lowering standards — it’s something that’s fixed by investing two decades into growing students more prepared to enter law school. [emphasis added].

The statement that the state needs more attorneys is wrong. The whole purpose of the Mississippi Access to Justice Commission is to figure out how to better provide legal representation to people who can’t afford to pay a lawyer. The state doesn’t need more lawyers. It needs more lawyers who can work for poor people who can’t pay them.

With 700,000 (of a population of 3 million) living below the poverty line, who is going to pay all these additional competent attorneys? There isn’t enough paying legal work for the competent attorneys we have now.

Mississippi needs more legal services lawyers. But that’s not happening. President Trump’s proposed budget call of eliminating the entire budget for Legal Services Corporation. Mississippi will go to zero legal services lawyers for everyone.

The reason there are legal services lawyers is because the clients can’t pay. If the clients could pay, we wouldn’t need any legal services lawyers.

I’ve been hearing lately the suggestion that law school graduates should hang up their shingles in rural towns. People who make this suggestion have no idea what they are talking about.

Here’s the first thing everyone needs to get straight when they tell someone to open a law practice: you can LOSE money.

Law practices have overhead. That overhead applies even when you don’t make a dime. Rent, phones, computers, internet, bar dues, health insurance, malpractice insurance, office supplies, etc… This adds up even when you have no employees. I don’t see how anyone could run a practice for less than $5,000 per month in overhead.

And that’s all before you pay yourself a dime to cover your personal overhead of food, shelter, clothing and transportation.

No one ever talks about the people who start their own law practice, but go out of business. When I contemplated leaving Baker Donelson, my banker tried to talk me out of it. He had a bunch of clients who tried it and failed, leaving themselves a bunch of debt from the failed venture. That was in 2002 when it was much less risky to start a practice than it is today.

Running your own business is a math problem. If the math doesn’t work–the business will fail. People who have never run their own law practice should not tell people how viable it is.

Otherwise, anyone can make any goofy suggestion they want to. So here’s my list of suggested career moves that are as viable as a private practice serving clients who can’t pay you:

  • become the next John Grisham and write bestselling legal thrillers;
  • quarterback of a NFL team;
  • country music star;
  • actor;
  • assassin;
  • open a nightclub in a rural town;
  • open a 5-star restaurant and/or hotel in a rural town;
  • go to medical school and open a medical practice in a rural town;
  • win the lottery; and
  • get rich quick, make a lot of money and retire at 40.