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

Breaking News: Civil War About Slavery

Posted in Politics in Mississippi

With a background as a history major, it’s frustrating to hear Civil War and Confederate flag apologists say that slavery was not the root cause of the Civil War. “It was about state’s rights,” they say. Miss. flag

They are wrong. It was about slavery. What was the state right they were fighting for? Slavery, of course.

Don’t believe me? Then go read the official Mississippi justification for secession here: Reason for Secession.

It opens:

“Our position is thoroughly identified with the institution of slavery–the greatest material interest in the world.”

It goes on to list Mississippi’s complaints about the Union threat to slavery.

Then, near the end:

“We must either submit to degradation, and to the loss of property worth four billions of money, or we must secede from the Union framed by our fathers, to secure this as well as every other species of property. For far less cause than this, our fathers separated from the Crown of England.”

$4 billion in slaves in Mississippi in 1861? That’s a lot of money. So maybe it wasn’t fought over slavery after all. Maybe boiled down all the way, the war was fought over money.

Ironically, the Confederate flag is now mostly defended by the kind of rednecks who couldn’t have afforded slaves, but would have been on the front lines of the infantry fighting to save the Man’s wealth.

It’s also ironic that the South’s wealth was destroyed more by Union armies in the war than freeing the slaves. Once Reconstruction ended in 1877, things basically returned to how they were in the slavery era. “Free” Southern blacks had to labor on the plantations for room and board.

John Barry’s book Rising Tide, about the 1927 flood, talks about one of the main efforts of the whites in power during the flood was to prevent the black labor class from leaving the Delta.

Things worked out ok for the wealthy Mississippi landowners who led the State into Secession. Not so much for the slaves and their descendants for the next 100-plus years.

Of course, don’t tell this to the Civil War apologists and flag supporters. They like their romantic narrative a lot better.

Deposition Witness Murders Clarksdale Attorney

Posted in General

Clarksdale attorney Ellis Pittman was murdered on Friday by a man who Pittman was suing and deposing at the time of the murder. From WMC:

Pittman was suing Frazier over work he had done on his home. Pittman claimed the work was shoddy and Frazier misused funds. Pittman was taking a deposition from Frazier when the shooting happened.

Clarksdale attorney and mayor Bill Luckett was Frazier’s defense attorney in the Pittman case and apparently witnessed the shooting.

My Take:

What a terrible tragedy.

As shocking as this is, we are lucky it does not happen more often. Litigants often take litigation personal. Combine taking a dispute personal with litigants who are not always mentally stable and bad things can happen.

This is a good example of why security is so tight in most courthouses in Mississippi.

It sounds like this happened so fast that Pittman would not have had time to defend himself even if he had a gun in his office. With a lot of Mississippi lawyers, and judges for that matter, there would be a gunfight if someone came after them in their office.

Here is a post on the 2012 gunfight in Greenwood attorney Lee Abraham’s office.

Flagageddon

Posted in Politics in Mississippi

Who can work with the god-awful Mississippi state flag back in the news. The flag, which voters unwisely didn’t dump in 2001, is being attacked from all corners. Miss. flag

Here’s the latest scoreboard on public officials and politicians who have weighed in on the flag:

Philip Gunn- Speaker of the House /  Dump it
Thad Cochran- U.S. Senator /  Dump it
Roger Wicker- U.S. Senator /  Dump it
Bennie Thompson- U.S. House of Rep. / Dump it
Phil Bryant- Governor /  Keep it
Tate Reeves- Lt. Governor /  Keep it
Chris McDaniel- State Senator / Keep it
Melanie Sojourner- State Senator / Keep it
Delbert Hoseman- Sec. of State / Scared to say
Haley Barbour- former Governor / Pardon it
Henry Barbour- GOP pol  / Dump it
Andy Taggart- GOP smart guy / Dump it

Jim Hood- Attorney General / Dump it

Billy Hewes- GOP Mayor of Gulfport / Dump it

Trent Lott- Former Senator; GOP when it wasn’t cool / Dump it

Judicial Temperament Not Required

Posted in Mississippi Supreme Court

On Thursday Anderson covered the latest from Lee County Chancery Court Judge Talmadge Littlejohn. The Mississippi Supreme Court suspended Judge Littlejohn thirty days without pay and imposed a public reprimand as a result of Judge Littlejohn, once again, throwing someone in jail when he should not have. Here is the Court’s opinion.

In this case, Judge Littlejohn found a litigant in contempt and ordered him incarcerated because the litigant did not comply with the judge’s order to pay $16,750 in a child support matter. The problem was that the litigant had already posted a supersedeas bond and appealed Judge Littlejohn’s order.

As far as bad rulings go, this one is a doozy. A supersedeas bond guarantees performance if the appealing party loses on appeal. It protects the winning party. Judge Littlejohn didn’t care.

From Justice Dickinson’s majority opinion:

Chancellor Littlejohn acknowledged that Brooks had posted a supersedeas bond but nevertheless held him in contempt for his failure to pay and ordered him incarcerated until he paid the entire amount of $16,750. Brooks spent three days and two nights in jail. During his incarceration, he filed an emergency appeal with this Court, and we vacated Chancellor Littlejohn’s contempt finding and ordered Brooks released.

A three justice minority felt that Judge Littlejohn’s suspension should have been with pay.

My Take:

Most people would call a suspension with pay “vacation.”

Given Judge Littlejohn’s history of jailing a lawyer for not reciting the pledge of allegiance, I’ve got to agree with the majority here. For my posts on Judge Littlejohn’s pledge of allegiance fiasco, see here, here and here.

Ballotpedia defines “judicial temperment” as:

a judge’s general attitude toward the law, litigants and other judges. According to the American Bar Association, judicial temperament means that a judge exhibits “compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.

My definition is a judge who doesn’t act like a wing-nut on the bench. Unfortunately, judicial temperament is not actually a job requirement for being a judge.

Judges have different personalities. Some are gregarious and outgoing on the bench. Others are reserved and introverted. And there are many variations in between. All these personalities work when the judge has a judicial temperament.

The vast majority of the judges in Mississippi have a good judicial temperament. Those that don’t will have their names echoing around courthouses years from now when most of us are dead. Just like the unpopular legends of years past that veteran lawyers still tell stories about during trial breaks.

Judge Littlejohn has placed himself in this category of notorious judges.

How Will Driverless Vehicles Impact Legal Industry?

Posted in General

Driverless vehicles are on the way. Seriously. And people are starting to consider how the driverless revolution will impact the economy.

My favorite financial blogger Mish Shedlock has a post today about how self-driving trucks will impact the truck driver profession. But it’s not just truck drivers who will be affected:

At $40,000 a year, the incentive to replace truck drivers with software is massive. And it will happen. Not only that, but insurance costs will drop. Most truck accidents are caused by user error: Driving too fast, driving while tired, driving intoxicated, etc. Robots don’t drink, don’t get tired, won’t drive unsafe to get to a destination faster, etc.

People keep emailing me about insurance. Many believe the cost of insurance will skyrocket. I believe accident rates will plunge, and insurance costs with it. So what happens to a lot of insurance salesmen? Claims investigators?

That hits close to home in the legal industry, as New York personal injury lawyer Eric Turkewitz discussed on his blog a while back.

Turkewitz envisions self-driving cars as a bad development for the personal injury bar. But I think it’s broader than that. googlecar

Mississippi’s post-litigation bubble taught us that if something is bad for the personal injury bar, then it’s also bad for the defense bar. Ten to fifteen years ago, many defense lawyers theorized that their practice would not be impacted by tort reform, etc. because “plaintiff lawyers will always file cases.”

It seems really naive now, but I can’t tell you how many defense lawyers back then thought that their practices would be unaffected. They even cheered on caps and changes to joinder and venue laws because it would level the playing field. Ironically, some of the most naive were the first to be pushed out the door of their defense firm. That’s not surprising when you think about it. Lawyers who don’t have their fingers on the pulse of the litigation climate are less valuable to firms than those that do.

And it wasn’t just litigators who were impacted. The litigation bust pushed many lawyers out of mass tort, consumer fraud and personal injury and into family law and criminal law. Lawyers in those fields were impacted with increased competition.

Some might theorize that the collapse of the car wreck practice area would only affect the big advertising firms and the lawyers working for the big auto insurance companies. History has taught us that’s wrong. The impact would be felt throughout the legal industry in a generally negative way.

This is just another example of how technological advances have a negative impact on current professions. That’s not new, of course. Just ask stagecoach drivers.

Industries and professions are always in a state of flux. The legal industry is becoming less immune to this fact.

June Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $3,100,103 verdict (reduced to $1,098,603 due to amount already paid)- Madison County eminent domain case (4/30/15);
  • $72,521 verdict- Jackson federal court insurance contract dispute (6/4/15);
  • defense verdict- Jackson federal court antitrust case covered here (5/21/15);
  • defense verdict- DeSoto County car allegedly hits motorcycle case (3/17/15);
  • defense verdict- Monroe County medical malpractice case (1/13/15);
  • defense verdict- Aberdeen federal court truck negligence case (5/27/15); and
  • directed verdict- Lowndes County medical malpractice case (5/18/15).

My Take:

MJVR does a great job of obtaining and publishing pertinent information on the verdicts it covers. This is no easy chore, particularly for state court verdicts in non ECF counties.

The emerging trend in medical malpractice trials I mentioned here continues.

When you google “Mississippi medical malpractice attorneys”, you still see firms targeting the practice area with both pay-per-click advertising and organic search positioning. It’s more firms than I would have guessed based on the litigation climate for medical malpractice. jury

My sense is that most of the advertising firms are “marlin fishing” and have an extremely low volume of med-mal cases.

I do occasionally still hear of med-mal cases settling. It’s just a lot different practice area than it was when I started on the defense side in 1993 and for the next 10-12 years or so. It was a vibrant practice area for both plaintiff and defense attorneys. I find the change interesting.

Dealing with the Downers in the Legal Profession

Posted in General

Recently I’ve been following The Anxious Lawyer website and blog. The authors tackle head-on the anxiety producing aspects of practicing law.

A recent article covered dealing with career setbacks. It includes an honest assessment of practicing law:

Let’s start with a basic truth: The law is a very difficult profession. Few clients visit a law office to share happy news. Inevitably, most clients come with bad news, and it’s the lawyer’s job to clean up the mess. Lawyers also are given very few tools to manage these difficulties. To top it off, most lawyers got to where they are because they’re smart, dedicated, and good at what they do.

It’s simply not possible to never fail as a lawyer. Not if we’re applying ourselves and doing our job. The practice of law is just that: a lifelong practice. It’s not something we’ll ever perfect, or master. Of course, we will get better with practice, as with anything. But the constant challenge is also what keeps many lawyers in the game. We enjoy the intellectual challenge, and it satisfies our curiosity.

The article goes on the make ten suggestions for dealing with setbacks.

One disheartening aspect of practicing law in the form that I do is that most of the time, I can’t clean up the mess that a potential client brings me. This was a big adjustment from my big firm defense lawyer days. setbacks

In my big firm days, all cases were good cases. If a client or potential client was sued, we could help. What exactly the help would be varied from case to case.

Sometimes the best you could do was pay a large settlement. But that still helped the client deal with a messy case and get it behind them.

These days, most of my calls come from people who have suffered a loss that they would like to address in the judicial system. Sometimes, but not often, the people are crack-pots who really don’t have a legitimate beef. Most of the time, the people have a legitimate beef, but I can’t help them.

I am up front with potential clients that the economics of a case will be a huge factor in whether I will take the case. I’m not going to take a case that would require $15,000 in expenses and the maximum recovery is, for example, no more than $30,000. That doesn’t work economically.

This means that people who are out no more than a few thousand dollars are out of luck. That’s reality, right? But try explaining that to people over and over for years on end. Try accepting that yourself.

I promise you, if you have a heart, it will impact how you view the judicial system. Lawyers start their careers idealistically thinking that lawyers and the judicial system can fix any mess. The sad reality is that we can’t fix the vast majority of messes. And that’s not fixable.

So what’s a street lawyer to do? The ten suggestions in this article are probably a good start. But I’m not here with a solution. I’m still coming to grips with the problem.

Losing is another animal. I once wrote a post titled Losing Sucks. I got a lot of positive feedback from it.

I was listening to an audio recording of a Rick Friedman CLE presentation. He rhetorically asked what the number one obstacle to lawyers trying more cases was? When no one answered, he gave the response himself: losing. It was funny the way he told it.

Are you Sure you Want to Go to Law School?

Posted in Law School

A lot of articles I read about practicing law or law school aren’t that great because the author doesn’t seem to understand the subject matter very well.

I can’t say that about this article by Amanda Taub titled 7 reasons you shouldn’t go to law school. Ms. Taub went to law school and practiced law. She seems to get it.

Here are some of the key points:

  • It is true that many lawyer jobs are very well-paid. But many aren’t, and even those that are are prone to burnout and instability.
  • Graduating from law school doesn’t necessarily mean you even get a job as a lawyer.
  • Most large firms have a pyramid structure, with large incoming classes of junior associates that get winnowed down over the years until just a few individuals remain. The rest have to leave. That means life as a “biglaw” attorney isn’t the safe, stable professional career path that many people think it is.
  • And even if you do manage to defy all the odds and make partner, that’s still not any guarantee of stability. Partners are under tremendous pressure to bring in clients and high-billing projects. Those who don’t can be cut out of their firms’ equity proceeds — or pushed out entirely.
  • While I do have friends who enjoy their legal careers, I have many more who don’t. And that’s not that surprising, because it’s hard to be happy when you’re spending the majority of your waking hours doing work that you picked because it seemed like a safe option, rather than because it was actually what you wanted to do. And it’s hard to do good work when you’re unhappy. And law is full of people who chose their jobs that way, and who now find themselves consumed with frustration or mired in depression.
  • A law degree is not a “great all-purpose degree.” That’s a lie put about by parents who are trying to lure their children into middle-class professions and by law schools who want their money.

These are all good points that many prospective law students don’t hear. Comically, there are lawyers who work in Big-law who aren’t aware of her point about job stability. At least until they are shown the door.

People sometimes ask me if I think that no one should attend law school. The answer is no, that’s not what I think.

My point is that law school is for people who want to be lawyers and will not incur massive debt obtaining their degrees. These are the only people who should consider going to law school.

Arbitration Jurisprudence Bad for Legal Profession

Posted in General

Here is a link and pdf to Judith Resnik’s Yale Law Journal Article regarding arbitration. The abstract concludes:

The cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of the court.

She’ll get no argument from me on that point.

But I don’t think the current system will last. I believe that the vast majority of judges outside the U.S. Supreme Court bubble agree that pre-dispute arbitration clauses should not be constitutional. U.S. Supreme Court justices are so insulated from the real world that they probably don’t understand how impacts everyday transactions for regular people.

In mandating arbitration, most judges are following Supreme Court precedent that they disagree with. unfair fight

As for consumers who are subject to pre-dispute arbitration clauses, I don’t think I’ve ever met one non-lawyer who who understood that they were signing away their right to file a lawsuit.

Normal people don’t know what arbitration is. The typical response when it’s explained to them is “uh?” When it sinks in, they don’t like it.

Enforcement of pre-dispute arbitration clauses in consumer contracts is the imposition and enforcement of a crooked system. Is that sustainable long term? I don’t think so.

But it’s not going to matter for lawyers in my generation. We are stuck practicing in a world where many viable claims are made non-viable by arbitration clauses. This results in less work for litigation attorneys on both sides of the ‘V.’

One day, Congress or the U.S. Supreme Court will end the current arbitration nonsense. It will be good for business for lawyers. Sadly, I doubt I will still be practicing law when it happens.

Juror Appears to Make Things Up to Support His Theories

Posted in Improving the Jury System

A few weeks ago the New York Times ran this article about a mistrial in a New York murder trial following a several-months-long trial and 18 days of jury deliberations.

The part of the story that grabbed me were the complaints from other jurors that the sole holdout introduced his own theories into deliberations:

[the holdout] was convinced he had acted on principle, but other jurors believed his views were so strong and so singular that they began imagining three theories of the case: the prosecution’s, the defense’s and [the holdout’s]….

Other jurors said they thought [the holdout] was distrustful of the detectives in the case, sometimes citing recent examples of police misconduct….

Sometimes, while challenging the narrative presented by the prosecution, [the holdout] suggested alternatives that other jurors said seemed far-fetched. “He would come up with theories that the defense didn’t even bring up,” said…, the jury’s forewoman. 

This is a real life example of an issue I’ve written about before where jurors introduce their own evidence and unsupported theories into deliberations. I view it as a big problem that the judicial system wants to ignore.

I don’t think that jury instructions adequately explain how juries should go about reaching their verdict. Calling our current method of instructing jurors a joke might be an overstatement. But I’m sure the system of instructing juries could be greatly improved simply by revisiting general court instructions. jury

Lawyers and judges should always be looking for ways to improve the judicial system. Instead, most would rather maintain the status quo.

It’s too bad. This is an area where it might not be hard to greatly increase the odds that juries render the right verdict for the right reasons.