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.

July Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $327,000 plaintiff verdict (minus 73% comparative fault = $88,290)- Gulfport federal court trip-and-fall (6/8/17);
  • $123,727 bench verdict (Judge Weathers)- Forest County Tort Claims Act car wreck (5/17/17);
  • $13,104 bench verdict (Judge Green)- Hinds County Tort Claims Act police chase negligence (6/15/17);
  • $12,700 total verdict- 2 plaintiff Rankin County uninsured motorist case (6/24/16)
  • defense verdict- Jackson federal court slip-and-fall covered here (6/23/17);
  • defense verdict- Madison County breach of employment contract (6/15/17);
  • defense verdict- Greenville federal court uninsured motorist case (6/20/17); and
  • defense verdict- Harrison county county court car wreck case (6/14/17).

My Take:

It’s pretty quiet out there.

‘The Lawyer, the Addict’ is NY Times’ Most Emailed Article This Week

Posted in Attorney Mental Health

Eilene Zimmerman’s moving article in the NY Times this weekend about the death of her attorney ex-husband is receiving a lot of attention. Please don’t rely on my description of the article. If you haven’t already read it, go read it at above link and come back.

Peter Munson died in 2015 from complications related to intravenous heroine use. A Silicon Valley patent attorney, his last phone call was dialing into a conference call for work. Peter’s ex-wife is convinced that the profession contributed to his addiction.

This section really moved me:

At Peter’s memorial service in 2015 — held in a place he loved, with sweeping views of the Pacific — a young associate from his firm stood up to speak of their friendship and of the bands they sometimes went to see together, only to break down in tears. Quite a few of the lawyers attending the service were bent over their phones, reading and tapping out emails.

Their friend and colleague was dead, and yet they couldn’t stop working long enough to listen to what was being said about him.

Peter himself lived in a state of heavy stress. He obsessed about the competition, about his compensation, about the clients, their demands and his fear of losing them. He loved the intellectual challenge of his work but hated the combative nature of the profession, because it was at odds with his own nature.

Nailed it.

I’m convinced that the combative nature of the profession has a cumulative adverse impact on attorneys mental health that slowly builds for years. I don’t hear about lawyers in their 20’s and 30’s having mental breakdowns. It seems to happen in our 40’s and 50’s after we’ve endured 20-plus years of the grind of the profession.

I’m also convinced that constant connection with work from cell phones is terrible for attorney mental health. Am I the only one who sometimes dreads having my phone vibrate signaling a new email has arrived when I am not working? It used to be that a day off was really a day off. Now, it’s just a day out of the office. The fires keep coming.

This point also hits on something I’ve been thinking of as a stresser in the law:

“Yes, there are other stressful professions,” said Wil Miller, who practices family law in the offices of Molly B. Kenny in Bellevue, Wash. He spent 10 years as a sex crimes prosecutor, the last six months of which he was addicted to methamphetamines. “Being a surgeon is stressful, for instance — but not in the same way. It would be like having another surgeon across the table from you trying to undo your operation. In law, you are financially rewarded for being hostile.”

Exactly. In what other profession is there an opponent whose job it is to point out your deficiencies and ruin your case? That’s stressful. At least for normal people.

I wish I had the answer for dealing with professional stress. I don’t. Daily exercise is my go to stress reliever. But it’s a treatment–not a cure.

I would love to know the affect on attorney mental health of the sabbatical that Butler Snow requires its attorneys to take every, what? 15 years? It sounds like a great idea. Of course, most attorneys don’t work at a big deep firm like Butler Snow and a sabbatical is not realistic.

I’ve more than toyed with the idea of taking a sabbatical. Leading up to the summer of 2015, I cleared my calendar for a 500 mile hike that would have taken 4-6 weeks to complete. And then my hip went bad. Now it would be hard to get away for that long even if the hip was 100%.

Sometimes when I think about that hike, I hear Morgan Freeman’s voice at the end of Shawshank Redemption:

I wonder if he would have finished that hike. I wonder if he would have gone home relieved of the stress of the law and ready for another 20 years. I wonder if he would have gotten eaten by a bear. I wonder…..

Study Confirms Plaintiffs Win Less Than They Used To

Posted in General

An interesting article recently hit the presses: The Curious Incident of the Falling Win Rate, by Alexander Lahav and Peter Siegleman. Here is the Article.

The study is based on federal court results nationwide for 1980 to 2010. It opens:

Between 1985 and 1995, the plaintiff win rate in civil cases adjudicated in federal district courts fell dramatically and consistently. After 1995, win rates became substantially more volatile.

In 1985, plaintiffs won almost 70% of federal court civil trials. By 1995, the plaintiff win rate was down to 30%. It climbed back to almost 50% by 2000. Since 2000, the plaintiff win rate has bounced around in the 30-40% range.

The article notes that the reasons for the changes are not known. There is some deep commentary, like this:

…there is no necessary relationship between win rates in adjudication and anything else. Suppose, for example, that for reason judges suddenly became more defendant-friendly starting in 1985 (and continuing for 10 years). Even if this were true, it is entirely possible that the win rate in adjudicated cases might not move at all in response. If all parties know that cases have become hard for plaintiffs to win, rational plaintiffs would bring fewer marginal (low probability of victory) cases and/or settle the cases they do bring on less-favorable terms, leaving win rates in the cases that survive to an adjudication largely unchanged….

The article notes that win rates declined across the board in case types–it wasn’t just pro se prisoner cases. It considered and rejects the theory that plaintiff attorneys filed poorer quality cases.

It considers other theories and rejects them. It concludes that someone needs to figure it out.

My Take:

My theory: it’s complicated.

There are lots of reasons that might justify why things have gotten tougher on plaintiffs. Is it just coincidental that plaintiffs have struggled since the Koch Brothers, Richard Scaife and other billionaires started investing so heavily in ‘think tanks’ and politics in the 1970’s? Maybe. Then again, maybe not.

Perhaps some of the veteran attorneys who read this blog who were practicing in the early 1980’s can comment.

In my 24 years of practice plaintiff lawyers have never screened cases as hard as they do now. And they are still getting their clocks cleaned in over 60% of their trials. You just can’t know how that feels unless you have lost a trial in a case you had on contingency with a lot of money in the case.

One thing is certain, plaintiffs winning a lot is good for the business of litigation. A plaintiff lawyer who wins a tough trial is more likely to get cocky and file more tough cases, creating more work for the defense bar. Defense lawyers and their clients see plaintiffs winning a lot and settle more cases for more money.

I don’t have to know why plaintiffs winning less is happening to know it’s bad for my business. A rising tide lifts all boats.

I just wish I had been a plaintiff lawyer when they were winning 70% of the time they teed it up in federal court. That must have been fun.

Bar Convention Week

Posted in General

It’s Bar Convention week–probably the slowest non-Holidays week of the year for Mississippi lawyers. Even attorneys who don’t attend the Bar Convention often schedule vacations this week.

On Friday morning, I will be speaking at the Litigation and Appellate Sections meeting on an otherwise all-star panel about social media. On the panel:

Best of all, the event does not conflict with the always popular with Bama fans, ‘Build-a-Bear’ Party.

Defense Verdict in Casino Slip-and-Fall Trial

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

On June 23, 2017 a Jackson federal court jury returned a defense verdict in Spriggins v. Magnolia Hill, LLC d/b/a Riverwalk Casino Hotel. Here is the 2014 Complaint.

Plaintiff alleged that in 2013, she slipped and fell on water leaking from the salad bar in the casino buffet. Plaintiff cut her thumb, ‘tore her shoulder’ and hurt her back.

The case was tried on June 20-23. The jury determined that plaintiff did not prove that defendant had actual or constructive notice of an unreasonably dangerous condition on its premises. Here is the verdict form.

Here is the Spriggins Judgment.

Ashley Ogden, Tyler Royals and Wendy Looney of Ogden & Associates in Jackson represented the plaintiff.

Roy Smith and Christy Malatesta of Daniel Coker in Jackson represented the casino.

District Judge Henry Wingate presided.

My Take:

A four day trial seems kind of long for a slip-and-fall case.

The fact that casino buffets are a hazard to your health is open and obvious. But if you go, go on Italian night. Don’t take my word for it. Ask Cousin Eddie.

What Does U.S. Supreme Court Decision on Joinder Mean for Mississippi Litigators?

Posted in U.S. Supreme Court

A few weeks ago the U.S. Supreme Court dealt a blow to the lawsuit industry in Bristol-Myers Squibb Co. v. Superior Court of California. In an 8-1 decision, the Court ruled against mass joinder of plaintiffs in state court litigation where the plaintiffs have no connection to the forum state outside the defendant’s home state.

The decision reminds Mississippi litigators of the Mississippi Supreme Court’s 2004 decision in Janssen that was the death knell of the jackpot justice era. Before Jannsen, Mississippi was the major leagues of litigation. After Janssen, the mass tort industry moved all their cases to California, Missouri and other states.

Here is the excerpt from the U.S. Supreme Court’s opinion that I found most interesting:

Our straightforward application in this case of settled principles of personal jurisdiction will not result in the parade of horribles that respondents conjure up. See Brief for Respondents 38-47. Our decision does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action the the States that have general jurisdiction over BMS. BMS concedes that such suits could be brought in either New York or Delaware. Se Brief for Petitioner 13. Alternatively, the plaintiffs who are residents of a particular State–for example, the 92 plaintiffs from Texas and the 71 from Ohio–could probably sue together in their home States….

The Supreme Court is like the Bad News Bears. They should never assume anything.

I don’t know about Texas and Ohio, but plaintiffs definitely can’t sue together in Mississippi. We don’t have mass joinder or a state court Rule 23 for class actions.

Also, lawyers who specialize in products liability have been telling me that Mississippi courts–or at least federal courts in Mississippi–are starting to rule that there is no long-arm jurisdiction over companies like BMS in Mississippi, even in individual actions. They also say that the prospects of suing a company like Ford Motor Co. in its home state are….unappealing.

It’s easy for most Mississippi litigators to sit back and say, “so what? this won’t affect me.” I remember lawyers who said that when the state enacted tort reform. They did not recognize the threat to their practice resulting from an over-supply of lawyers and a drastically lower litigation docket. Many of them are no longer practicing law. The fallout killed their practices.

So I’m not going to say: “so what? this won’t affect me.” It’s a bad sign for litigators–even Mississippi litigators who don’t export cases or litigate cases in other states.

You know all those lawyers on your recent flight to or from Atlanta? Many of them were working on mass joinder cases pending in other states. If most of that litigation gets shut down, there will be even more lawyers back in Mississippi competing for the same shrinking case load. Think ripple effect.

And keep in mind, national litigation firm Susman Godfrey was already reducing contingency work even before this decision in response to expectations of changes resulting from a Republican White House and Congress. The forecast is that things are going to keep getting worse for litigators.

As a litigator, the most depressing aspect of this decision is that it solidifies the trend. Ten years ago, veteran lawyers in Mississippi were fond of saying that things would eventually swing back to the left. That hasn’t happened. Things have swung much further to the right. And the momentum is still heading in that direction. This trend has a lot of litigators depressed.

Their prediction for litigators:

Mike Hurst and Chad Lamar Get U.S. Attorney Appointments

Posted in National Politics, Politics in Mississippi

It was announced last week (Mississippi Today) that President Trump nominated Mike Hurst to serve as Southern District U.S. Attorney and Chad Lamar to fill the slot in the Northern District.

My Take:

These seem like reasonable picks.

It took President Obama years to fill these slots. I’m guessing that’s more a reflection on Obama being a Democrat and our Senators and Governor being Republicans than Trump having his act together. Trump doesn’t seem like the kind of president who would care who the U.S. Attorneys are in Mississippi.

5th Circuit’s H.B. 1523 Ruling Adds to State’s Macro-level Economic Struggles

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

Mississippi’s economy got some terrible news last week with the 5th Circuit Court of Appeals reversing the District Court on standing grounds and upholding the homophobic House Bill 1523. Regardless of what you think of H.B. 1523, it is undeniably bad for the economy. Just ask North Carolina, which repealed its homophobic law after it cost the state economy hundreds of millions of dollars.

This comes at a time when Mississippi’s economy struggles to find an identity other than entitlements and corporate welfare projects. The State is cutting jobs. Medical providers are cutting jobs due to cuts in Medicaid funding. And huge additional cuts to Medicaid will happen if Congress approves the proposed versions of the Republicans’ health care bills. That will devastate small town hospitals and nursing homes. Most of the nursing homes will go out of business.

A few weeks ago, I received an email from the Public Service Commission promoting utility industry jobs in Mississippi. As a parent of a soon to be college graduate, that doesn’t cut it for me as far as where I will encourage my daughter to locate after college.

There are utility industry jobs everywhere. I want her to live someplace with a health private economy on top of the government and utility industry jobs that are a given.

It’s about having many opportunities—not one or two. It’s about having opportunities to move to a different job if she doesn’t like the one she is at or, the employer doesn’t like her. Being trapped in a job you don’t like because there are no other prospects is not a recipe for a happy life.

I am not alone in these sentiments. Many of my contemporaries have kids who are in college or soon to be in college. It’s exceptionally common for them to mention to me that they are encouraging their kids to look at schools and/or job markets outside Mississippi where the economy is better. I don’t bring it up—they just say it while explaining what is going on with their kids.

I hear it over and over. From Democrats and Republicans. The sentiment has nothing to do with politics or religious beliefs. It’s a statement about the economy in Mississippi and where they think it’s heading.

HB 1523 just makes it worse.

The growth industry of the future is tech. Mississippi would struggle to get a foothold in the tech industry without laws that alienate segments of the population.

Telling some people they aren’t welcome here doesn’t just offend those people–it also offends people who disagree with the view. That’s educated progressive people—the people we should be trying to attract. Instead, we do the opposite. If there is a more frustrating place to live in this country than Mississippi, I don’t know where it is.

Commercial Litigation is …..

Posted in General

A lot’s happened in the legal world since I last had time to blog.

The U.S. Supreme Court took a lesson from the Miss. Supreme Court’s playbook on joinder. Meanwhile, some non-Mississippi judges on the 5th Circuit locked Mississippi into 50th place upheld HB 1523.

That’s like letting Bama homers decide whether Ole Miss committed NCAA violations. Which is probably what happened.

But I’ll have to return to these serious topics later.

On the lighter side, I just realized something about commercial cases that is weird. Or that makes me weird.

With the qualifier that these statements are in general, I find commercial cases more interesting than personal injury cases. Commercial cases tend to be more unique and less paint-by-the-numbers.

While the damages may not be as high as what you can claim in a PI case, they are easier to get because they are economic damages. Jurors don’t view a commercial case with quite the same skepticism as a PI case. There is a lot of law in play, which leaves more room for the lawyers to make a difference.

But I can’t remember details of commercial cases. I remember details from personal injury cases 25 years ago. I can’t remember the details of commercial cases from 3 years ago. I literally can’t remember what they were fighting over. I remember my client and that I thought it was an interesting case. But I can’t remember the opposing party or what the dispute was.

In another commercial case that I tried (but only for 1 day) maybe 15 years ago, I remember: 1. the judge (it was a bench trial); 2. my client’s face-but not his name; and 3. we lost.

I don’t think I could confirm the identity of the opposing party or what the case was about if you told me.

What I do remember is that it was one of the rare instances where I lost and I thought the decision was reasonable. Like all other lawyers, I usually think the judge/jury got it wrong when I lose.

So how is it possible that a more interesting case is harder to remember than a run-of-the mill PI case? I have some thoughts, but they are all guessing. It’s weird.

Pennsylvania PERS Reform Shows Where This is Going

Posted in PERS Crisis

Last week the WSJ (paywall) reported on Pennsylvania’s PERS reform legislation. Not surprisingly, the reform moves toward 401(k) type retirement benefits as opposed to the soon-to-be-extinct pension system. From the article:

The compromise measure will move most future state and public school workers at least partly into 401(k)-style plans to help shore up the deeply underfunded pension system and shift market risk from taxpayers to employees….

Current and retired employees will remain under the traditional “defined benefit” pension that provides set retirement payments. The two pension systems for state and public school employees have about 863,000 active, vested and retired members. The new law won’t apply to state troopers or correctional officers….

Critics of the legislation say it would do little to address the state’s roughly $62 billion in existing pension debt.

“Pension debt is the sole reason for doing pension reform and yet, ironically and bizarrely,” the bill doesn’t address existing unfunded liabilities, Republican state Rep. John McGinnis said during a recent debate. “We’re not making history, we are repeating it.”…

Republican House Speaker Mike Turzai acknowledged the state isn’t likely to see major savings for years under the pension overhaul, but said it is time to follow the private sector into 401(k)-type retirement plans, where the market determines future benefits.

“At a certain point you’ve just got to turn off the spigot, and you’ve got to move to where the private sector’s been,” he said in a video on his website.

His office says 18 states have enacted some 401(k)-style plan for state workers, and notes that the state’s Independent Fiscal Office estimates pension payments by Pennsylvania taxpayers will account for nearly 10% of the state’s general fund budget by 2019.

My Take:

That’s where we’re headed. Everyone knows it. The longer we wait the worse it will be for current retirees and participating employees.