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

Maybe Law Students Should Line Up Job Before Law School

Posted in Law School

In this NY Times Op-ed last week Steven Harper bashed the ABA for not doing enough about “the crisis in legal education.” The problem: too many law students with too much debt and not enough jobs.

The author singled out three law schools with sub 40% employment rates for 2014 graduates and average law school debt of $140,538 – $187,792. Of course, that debt is not dischargeable in bankruptcy. With that kind of debt load, it’s not like graduates can unring the bell. Many will be forced to take low paying jobs with suffocating debt.

Even though overall law school enrollment is declining:

Too many incoming law school students still believe they will be among the lucky few who get decent jobs.

I wish someone would do a poll of incoming law students on how many believe they will graduate in the top 15% of their class. I bet it’s well over 50%. That sort of wishful thinking is a big reason why so many people still go to law school despite overwhelming evidence that it might not be a great idea.

According to Harper, the main reason for the problem is that there are no negative consequences for law schools:

The underlying difficulty is that once students pay their tuition bills, law schools have no responsibility for the debt their students have taken on. In other words, law schools whose graduates have the greatest difficulty finding jobs that require bar passage are operating without financial accountability and free of the constraints that characterize a functioning market.

This problem has been evident since the 2008 financial crisis. It’s not going anywhere and no one is going to do anything to stop it. The best protection for prospective law students is to protect yourselves.law school

So you think Uncle Bob has enough pull to get you a job when you get out? Ok. Get that in writing now, before you even start. Otherwise, you better call Saul.

The Good, The Bad and the Ugly From the Bar Economic Survey

Posted in General

This week the Mississippi Bar released the results from the 2014 Mississippi Bar Economic Survey. Here it is. The last survey was for 2011. survey

The Good:

Pay for associates, secretaries and legal assistants is up from 2011 levels.

Only 21.8% believe that the economic circumstances of practicing law were worse than last year.

50% of respondents took at least 10 days vacation in 2014.

70% get at least enough personal satisfaction practicing law.

The Bad:

26.8% do not have malpractice insurance.

22.3% don’t have enough work to keep them busy.

47% believe there has been a decrease in professionalism during the last 5 years.

41% think the economic condition of their practice is worse than prior years.

27.5% think the future economic outlook of their law practice is worse than current.

The Ugly:

Average personal income for attorneys was down from $159,612 in 2011 to $141,768 in 2014– a decline of around 11%.

My Take:

Mr. Sunshine is impressed that the responses were not more negative. I think things are a lot worse than many lawyers realize.

$141,768 for average pay seems low. There are big firm lawyers making at least three times that amount. It takes a lot of people making much less to get to the average.

I would love to know what the median salary is for lawyers. I’m thinking south of $100,000. That doesn’t sound too bad until you factor in the house note size student loan payment that so many lawyers have.

Trial Court Filings Leveling Off

Posted in Mississippi Supreme Court, Tort Reform

The Mississippi Supreme Court recently released its 2014 Annual Report.

On page 25 (pdf p. 30), the report lists trial court filings and dispositions for 2010-2014. Circuit court civil filings were as follows:

  • 2010: 25,800
  • 2011: 26,862
  • 2012: 23,553
  • 2013: 19,429
  • 2014: 19,305

In 2014 county court civil filings were 24,793 and chancery court filings were 69,100, both significant drops from 2010 levels. Miss. Supreme Court

The good news for civil litigation attorneys is that the decrease in filings that has marked a long-term recession in the Mississippi legal industry appears to be bottoming out.

The bad news is that there is nothing happening in Mississippi to suggest that there will be an increase in legal work in the foreseeable future. Also, competition for the existing work continuously gets fiercer due to a combination of factors.

Mississippi’s economy, which is one of the worst in the nation, is not growing as mentioned in this recent flag post. A growing economy would be good for the legal industry because the growth would spurn more deals, developments, construction, disputes and accidents. All of this would create work for lawyers. But I don’t see anything encouraging about Mississippi’s future economic prospects.

Because I blog about these issues, I am often asked when I think things will improve for Mississippi lawyers or what would lead to an improvement. My response is that it’s not going to get better. As much as I hate this saying, it is what it is.

There is a talk on the street about a lot of the big firms struggling. I also have more and more big firm litigators telling me that a large percentage of their work is on cases pending outside Mississippi. This leaves me wondering whether a lawyer building a multi-state practice would be better served practicing out of Jackson or a larger city such as Nashville or Atlanta. The latter makes more sense to me.

In retrospect, a Mississippi lawyer relocating to someplace like Nashville 5-10 years ago looks like a shrewd move. It’s hard to figure out why it wouldn’t also be a smart move today, particularly for lawyers under the age of 40 who still have most of their career in front of them. Of course, you have to find a job somewhere else, which is a whole other issue. But I don’t get the sense that many young lawyers are trying to relocate.

Yours truly,

Sunshine

Report Looks at Public Pension Investment Return Assumptions

Posted in Mississippi Public Employer's Retirement System (PERS)

This recent NASRA report looks at the investment return assumption of public retirement systems nationwide. Mississippi’s 8% investment return assumption is among the nation’s highest, although many other systems use this optimistic projection.

Investment returns are hugely important for PERS because–as the report notes–investment returns account for an average of 62% of revenue. If investment returns don’t meet projected estimates, then the governments will have to cover the difference or not pay the agreed benefits.

Of the 126 plans covered, over half have reduced their assumed investment return since 2008. The average assumption is now 7.68%. Almost no plans assume more that 8%. A few plans assume less than 7%.

The people who invest Mississippi’s PERS money recognize the challenge of an 8% assumption and invest accordingly in a high-risk portfolio. Hopefully, it will all work out. If it doesn’t, politicians will do exactly what they are doing in the Singing River Hospital debacle: claim ignorance of the potential problem.

August Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $3,898,074 verdict- Jackson federal court products liability case covered here (7/28/15);
  • $705,917 bench verdict- Lincoln County bus negligence case covered here (7/23/15);
  • defense verdict- Gulfport federal court employment retaliation case (8/5/15);
  • defense verdict- Gulfport federal court premises liability case (7/20/15);
  • defense verdict- Madison County negligent construction case (7/31//15); and
  • defense verdict- Warren County medical malpractice case (7/24/15).

July Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

It’s already August, but I’m behind with the previews of the Miss. Jury Verdict Reporter. Here is a preview of the July issue:

  • $60,000 verdict, $60,000 additur- Jackson federal court breach of contract case (6/10/14 verdict; 3/18/15 additur);
  • $12,093 verdict- Hinds County car wreck case (5/20/15);
  • $3,418 verdict- Harrison County car wreck case (6/2/15); and
  • defense verdict- Warren County breach of contract case (6/10/15).

The issue also includes this editor’s note:

Since we began publishing the Mississippi Jury Verdict Reporter in November of 2010…this is easily the fewest verdicts we have reported. We are employing our usual methods of identifying civil verdicts all over the state. There haven’t been many lately…..The key takeaway from this note is that we are working hard to identify verdicts in Mississippi- as hard as we ever have- we just didn’t find many this month….

My Take:

The fact there are so few civil trials taking place is just as important information as reports on the ones that do happen. Plaintiff lawyer see how hard it is to get a big verdict at trial. How might this effect the number and quality of cases that do get filed?

It should make for fewer cases filed with the quality of those cases being higher. Undoubtedly, fewer cases are getting filed.

Is the overall quality of those cases going up because plaintiff lawyers are raising their threshold for a viable case? That’s probably hard to say one way or the other. But plaintiff lawyers who want to survive long term in this climate better be really careful about the cases they file.

I’ve posted many times about my thoughts on why litigation is so slow in Mississippi. It’s a combination of factors–a proverbial perfect storm of bad news for the litigation industry.

What’s the biggest reason? Honestly, I don’t know. I doubt what I’ve written has stayed totally consistent over the years because it’s the type of question where my opinion can fluctuate based on what’s on my mind at the time. I can identify many factors. Ranking them is much like a pre-season college football poll.

Right now, a huge factor my thoughts focus on is the prevalence of federal court MDL litigation. We don’t seem to get any MDL’s in Mississippi. Plus, in an MDL, the bulk of the legal work is done by a few firms on each side.

Plaintiff lawyers who sign up cases lose control of the cases to the steering committee. And on the defense side, almost all the legal work is centralized in a couple of law firms: national and local counsel. This formula sure seems to make for less legal work to go around.

Of course, that’s just one of many factors in play.

$2.5 Million FINRA Arbitration Verdict for Mishandling Investment Brokerage Account

Posted in Verdicts in Mississippi

In 2013 I posted here about a $388,000 arbitration verdict against the local Morgan Stanley branch for mishandling an investment account.The case was one of several involving this particular branch.

In the latest related case, on July 24, 2015, a separate three person FINRA arbitration panel rendered a total verdict of approximately $2.5 million against Morgan Stanley. The verdict included punitive damages, attorney’s fees and costs.

The Claimants alleged mishandling of their accounts, unauthorized trading, fraud, and breach of fiduciary duty. The Claimants’ accounts vastly underperformed the market during the 2008 financial crisis. In the recovery years after 2008, the Claimants’ accounts never rebounded and stuck at their 2008 loss levels. The Claimants alleged a complete failure of branch supervision.

The arbitration was held over a 7 month period from November 2014 to May 2015 with hearings during 6 of those months.

Jud Lee of Madison, Kim Breese from Ridgeland and Joe Peiffer from New Orleans represented the Claimants. Morgan Stanley was represented by out of state lawyers. The hearings were held in Jackson.

My Take:

No word yet on whether we need to add FINRA arbitrations to the list of more favorable plaintiff venues than Mississippi state court.

$635,325 Judgment in Lincoln County Wrongful Death Bench Trial

Posted in Verdicts in Mississippi

On July 23, 2015 Circuit Court Judge David Strong entered a $635,325 judgment in McCrory v. Lincoln County School District. The judgment resulted from a tort claims act bench trial in a case involving a car-school bus wreck.

Here is the Court’s Memorandum Opinion and Order.

The accident happened in 2011. The decedent, Tammy Jo Brown was traveling on a road in Wesson when she collided with a Lincoln County school bus traveling in the opposite direction. The school bus was two feet over the center line at the time of the collision. Brown died at the scene.

Brown was speeding: 68 mph in a 20 mph zone before the collision and 52 mph at the time of the collision. The school bus was also speeding: 35 mph. The bus driver saw the car approaching from two hills away, yet didn’t get into her own lane. The bus driver also didn’t show up for the trial.

The Court apportioned 90% fault to the bus driver and 10% fault to Brown. The Court assessed damages as $205,917 in economic damages and $500,000 in loss of society and companionship.

Due to Brown’s 10% fault, the damages were reduced and judgment entered in the amount of $635,325.

Defendant’s top offer to settle before trial was $230,000.

Darryl Gibbs of Chhabra & Gibbs in Jackson represented the plaintiff. Bobby Thompson with Copeland Cook in Ridgeland represented the County.

My Take:

Fascinating case.

You have a speeding school bus on the wrong side of the road and you try it because, presumably, you think that there is a good chance that most of the fault will be apportioned to the speeding lady who was in her own lane. Defendant’s pre-trial settlement offer of $230,000 was not insignificant, but it seems to assume a best case outcome for the Defendant.

With $700,000 in damages, the Defendant needs 70% or more fault apportioned to the Plaintiff to break even on the pre-trial offer. Sure that could happen, but a settlement offer needs to factor in that it might not. I would think that a Defendant on the wrong side of the road should expect to be apportioned 70-100% of the fault. That would put the valuation range at $490,000- $700,000. It probably would not take that much to settle the case. But $230,000 probably wouldn’t be tempting.

An interesting offer would have been $325,000. That’s still giving the Defendant less than 50% of the $700,000 in damages. If I’m on the defense side, I can sell that to my client as a good deal.

And it’s a harder offer for the Plaintiff to reject. First, it puts a lot of money in the Plaintiff’s pocket now. Second, it gets into the realm of possibilities where the outcome at trial could be worse.

Defendants want to make settlement offers that translate into hard decisions for Plaintiffs. In this case, offering $50,000 would have been the same as offering zero. Neither number is going to get the case settled. It’s like dealing a poker player 7-2 off-suit and hoping they go all in.

What I’m trying to figure out is whether the $230,000 offer here was any different from offering $50,000. Where was the risk for the Plaintiff in rejecting $230,000 and going to trial? I’m not saying there wasn’t any. But I don’t see it from the Memorandum Opinion.

Another interesting observation is that if the decedent was going slower and not killed, the value of the case would probably have been higher due to severe injuries and high medical bills. That arguably makes pointing the finger at the decedent for speeding a disingenuous argument.

Anyway, this would be a fun case to spitball over beers or talk through in a law school class.

$2.7 Million Verdict in Helicopter Crash Case

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

On Tuesday a federal court jury in Jackson rendered a total verdict of $2.7 million against Robinson Helicopter to plaintiffs involved in a 2009 helicopter crash in Jackson. Here is the original Complaint. 

According to the Complaint, the cause of the crash was severe vibration or “chugging.” Charles Farmer died in the crash and Larry Wells suffered severe injuries. The owner of the helicopter, Webb Group, was also a plaintiff.

The trial commenced on July 13, 2015 before District Judge Carlton Reeves. The trial lasted eleven days and ended on July 28. Here is the verdict.

The jury apportioned 70% fault to Robinson, 15% to Wells and 15% to the FAA. Damages were as follows:

  • Larry Wells: $2,525,000  ($2 million economic)
  • Donna Wells: $289,074  ($189,074 economic)
  • Connie Farmer: $700,000 ($350,000 economic)
  • Webb Group: $384,000 (all economic).

The apportionment of fault reduced the total verdict to just north of $2.7 million.

The trial was set to resume on July 29 on the issue of punitive damages. However, the parties announced a settlement. Here is the dismissal order.

Plaintiff’s counsel were Mike Pangia, Joseph Anderson, Douglas Dejarden (all from a D.C. firm), and Nick Norris and Louis Watson, Jr. from Jackson. Ben Watson from Butler Snow represented Webb Group.

David Ayers and Rusty Comley from Watkins Eager in Jackson and Tim Goetz from California represented Robinson Helicopter.

My Take:

That seems like a measured verdict given the facts of the case. If anything, the non-economic amounts seem low for a crash that was severe enough to kill one of the occupants and where the other plaintiff’s economic damages were $2 million. It would be interesting to know how much the plaintiffs requested from the jury.

The quick settlement and dismissal is fodder for plaintiff lawyers who argue that federal court is a better venue than state court because cases move faster and it’s easier to monetize a verdict.

It’s hard to imagine such a quick settlement in state court given the fact that defense lawyers still routinely claim in settlement negotiations that the Mississippi appellate courts will not affirm large verdicts. I’m not sure I agree with that assessment, but I still hear the claim and have no reason to doubt that defense lawyers are telling their clients that. True or not, as long as lawyers and clients believe that it will impact litigation in Mississippi.

Plaintiff lawyers do not hear those political-based threats from defense lawyers in federal court nearly as much as in state court, if any.

almost back…..hopefully

Posted in General

I am working today for the first time in over two weeks due to a family medical emergency.

Stuff has happened in my absence. There was a $2.7 million verdict in a federal court products case involving a helicopter and a $2.4 award in an investment arbitration proceeding. Seems like there are a few more things on my blogging plate as well.

More reports to follow.