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

Governor, Legislature Get it Right with Texting and Driving Bill

Posted in Politics in Mississippi

It was too long coming, but Mississippi has finally enacted a law banning texting while driving. The law prohibits texting, emailing and accessing social networking sites while driving.

Kudos to Governor Bryant and the legislature. In particular, Sen. Billy Hudson of Hattiesburg deserves credit for banging the drum on this issue for some time. texting and driving

This is a good law that will instill good habits in drivers. Critics of the bill sound just like the people who criticized seat belt laws. But the law has been a huge success with most people now in the habit of wearing seat belts. Contrast that to 30 years ago when my 66′ Mustang didn’t even have seat belts. Not that it needed them. No one wore seat belts when I was a kid.

For people who question the necessity of the law, I encourage you to read A Deadly Wandering, by Matt Richtel. The book is a gripping account how Utah came to enact anti-texting laws in the years following the deaths of two rocket scientists killed in an accident caused by a teenager who was texting. The book also explores the effects of technology on our brains. It’s a good read.

What’s Everyone So Mad About?

Posted in General

In a recent Hotty Toddy.com article about the uproar caused by the IHL board running off Dan Jones, controversial former lawyer and long-time Ole Miss supporter Richard Scruggs led with the following:

When I returned to civilization last year from six years in prison, I found that civilization wasn’t how I remembered it. Something had changed. Gradually, it began dawning on me that folks were angrier. And not just about specific issues or things, but pissed off seemingly at everything.

If you’re like me, you read this article and thought several things:

  1. What the hell is Hotty Toddy.com?
  2. Was he really in prison for six years? Wow. It didn’t seem that long ago when that all blew up;
  3. That’s the smile of a man who knows he’s done practicing law; and
  4. By God, he’s right. IMG_0088

People are angrier than they used to be. You see it with political movements (Tea Party, Occupy Wall Street), on news shows (especially Fox News Pravda), and in juries and focus groups.

But why? What is everyone so mad about?

This is a question I’ve given a lot of thought to for years. I’ve discussed it with some smart people. But I can’t tell you the answer. After all the discussion and analysis, I don’t even have an opinion.

I can tell you some of the theories bandied about:

  1. White people are mad that the country is getting browner and, especially….
  2. that the President is black;
  3. black people are mad that they can still get pulled over and shot for being black;
  4. people feel poorer than they did in the 80’s and 90’s because wages have not kept pace with inflation;
  5. the super rich get richer while everyone else gets poorer (we don’t see this so much in Mississippi because almost no one here is super rich. Most people here think doctors are super rich. In New York and Miami, doctors are middle class);
  6. the cheer-leading partisan news networks (Fox News, MSNBC) stir up anger and divisiveness chasing ratings in the 24-hour news cycle;
  7. politics has become too nasty and partisan;
  8. people are scared of the out-of-control national debt;
  9. terrorism and the reactionary ill advised invasion of Iraq;
  10. etc.

It’s a fascinating topic. In part, because there is no easy answer. Plus, due to the complexity of decision making, if you asked people why they are so mad, they could easily give you the wrong answer. That is, even the people who are mad may not have a handle on why they are so mad.

And as for a solution to this problem, I don’t even know of any theories for how to fix it.

April Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $37,000 verdict (minus 30% fault)- Simpson County uninsured motorist car wreck case (3/11/15);
  • $25,000 total verdict for two plaintiffs- Warren County car wreck case (2/13/15);
  • defense verdict- Hinds County medical malpractice case (3/5/13);
  • defense verdict- Gulfport federal court Fair Labor Standards Act case (3/5/15);
  • defense verdict- Harrison County medical malpractice case (1/30/15);
  • directed verdict- Hattiesburg federal court pregnancy discrimination case (2/20/15);
  • mistrial- Oxford federal court products liability case (3/26/15); and
  • mistrial- Rankin County breach of attorney fee contract case (3/12/15).

My Take:

No surprises here. I do see an emerging pattern in medical malpractice trials. And no, it’s not that defendants are winning them. I’m not going to say what it is. But if anyone has a guess, they can post it in a comment or send me an email.

Blog Update

Posted in General

Trial last week. So, this week:

Image result for asleep at computer

The geese are back at the Supreme Court and I want to give my take on Dick Scruggs’ Dan Jones column where he contrasts the general public’s mood when he returned from his extended sabbatical.

But right now my brain is too tired for extra-curricular writing. Based on past experience, tomorrow is not going to be much better. I’ll let you know when I wake up.

Another Misleading Article Touting Law School

Posted in Law School

Law school administrators and teachers are notorious for overselling the benefits of law degrees. I don’t like it because: (1) they have a vested interest in maintaining law school admission levels; and (2) they often have distorted misconceptions about life in the real Better Call Saul world of the legal profession.

So not surprisingly, I am not a fan of this New York Times article last week by Cal. Berkeley law professor Steven Solomon. My biggest problem is the article’s title: Law Schools and Industry Show Signs of Life, Despite Forecasts of Doom.

A better title would have been: Despite Industry Downturn, Largest Law Firms Still Earning Huge Profits. I realize that the problem with the title is probably not Mr. Solomon’s fault. Curious about the origin of newspaper article titles, I reached out to a lawyer who was formerly a Clarion-Ledger reporter. He responded that when he was a reporter, they could not even suggest article titles. He would be surprised if any mainstream media source allowed the author to write the title.

This paragraph from the article text is more measured than the title:

Several new studies, however, point to signs of vigorous life in the legal job market, at least toward the higher end.

By “higher end” he means Am Law 100 firms and the Ivy League level graduates they hire. And to the author’s credit, he admits he is biased:

 …The top 10 schools have even higher employment rates for the class of 2010, and employment statistics for 2014 are expected to rise. (Full disclosure: I teach at one of those top 10 schools and so am biased here.)

This is like Alabama coach Nick Saban writing an article stating that playing in the NFL is a realistic dream for all college football players because the NFL hires a bunch of his players every year.

If you can get admitted to one of the top 10 law schools in the country, then I’ve got no advice for you. But if you–like the vast majority of people who consider law school–are looking at attending a more pedestrian law school, forget about what’s  going on in Big Law. That’s not where you will end up working.

This is an important paragraph also:

So, there will be disruptions, but this is likely to be a case of lawyers shifting from law firms to corporate departments and compliance becoming its own industry. Solo practice, meanwhile, will become more difficult because of automation. Again, these changes are likely to hit students at lower-tier schools harder than those graduating from the top schools.

I agree with the first sentence. The second sentence is just wrong. Solo practicing has never been easier because of automation. Compared to when I became a solo in 2002, solos need less office space, less expensive equipment like servers and phone systems and less support staff work because of scanners, electronic filing and software innovations. In 2002, I had to have a legal assistant. In 2015, it’s a luxury–not a necessity. All the solo really has to have now is a good computer, a scanner and connection to the internet–stuff many lawyers already own.

Solo practice is harder than it used to be because there are more lawyers competing for less profitable legal work. In The Curmudgeon’s Guide to Practicing Law former big law partner Mark Herrmann compares soloing to practicing on the edge of a cliff. It’s a fitting analogy.

Soloing is the purest way to practice law–some would say the best way. Parts of it have never been easier. But it’s not for everyone, just like everyone can’t work at an Am Law 100 firm.

Yes there will be plenty of lawyers twenty years from now. Yes, high end law school graduates still stand a good chance of landing high paying Big Law jobs. But there are a lot more Jimmy McGills out there than Am Law 100 lawyers. If you are going to publish an article that pertains to what is a small—if visible and prominent–corner of the legal world, it should be reflected in the title.

There will be plenty of NFL players too. But let’s not sugarcoat the prospects for either profession. I view Mr. Solomon’s article as a measured take on the top of the industry. Unfortunately, the editors slapped a misleading title on it that exaggerates the scope of the overall message.

Mandatory Scheduling Orders and Trial Settings Coming to State Court?

Posted in Improving the Jury System, Mississippi Supreme Court

In what could be a major change for state court litigation, the Mississippi Supreme Court is requesting comments about proposed amendments to the Rules of Civil Procedure. The proposals include mandatory scheduling orders and trial settings for civil actions.

Here is the Court’s entire document on the proposals.

Here is the Advisory Committee on Rules’ Motion to amend Rule 16. The motion opens:

Over the past several years, the Mississippi Supreme Court has referred to the Committee various inquiries and requests from members of the Mississippi Bar asking for consideration of a rule requiring mandatory scheduling orders/trial settings. After due consideration and discussion, the Committee determined that a rule pertaining to scheduling orders and trial settings would be beneficial to both the bench and the bar.

Here is Anderson’s post on the proposal.

Under the proposal, the lawyers are responsible for drafting the order. Further, “as the proposed amendment mandates all the deadlines, there is no room for disagreement among the attorneys and, therefore, no need to involve the judge.”

The amended rule would mandate deadlines similar to federal court orders. The trial date would have to be scheduled for a window 12-18 months from the date of the entry of the scheduling order.

My Take:

As an LSU fan, I have a tendency to nitpick wins. “Yea, we won the game. But Les Miles’ game management gives me a heart attack, the quarterback play sucked and we should have won by two touchdowns.”

I’m not doing that here. I love the proposed amendment. Plus, it’s not like the Court can’t tweak it later. This is long overdue and much needed. We know this system will work better than the current system from our experience in federal court. Miss. Supreme Court

What I didn’t know was that members of the Bar could make requests to the Court for rule amendments. But since I know that now, let me take this opportunity to request a rule requiring judges in bench trials to issue a ruling within certain amount of time after the end of the trial. I know of instances where trial judges have taken years to rule in bench trials. Something needs to be done to address that.

I think my favorite bench trial was before Rankin County Court Judge Kent McDaniel. It took him all of a couple of minutes to rule. And my client lost, so that’s not what I liked about it.

Nothing tops the anxiety of waiting for a trial ruling. Anything that shortens it is a plus.


Law Schools Cooking the Books on Employment Data?

Posted in Law School

It’s generally assumed that law schools cook the books when reporting employment data for recent graduates.   The Wall Street Journal recently reported that new measures are aimed at keeping law schools honest:

U.S. law schools face renewed scrutiny over claims about their ability to find work for their graduates, a crucial selling point amid one of the legal industry’s worst-ever job markets.

Some of the schools have been creating temporary jobs for grads by paying nonprofits and others to employ them, a move that in some cases has boosted the schools’ standings in the much-followed U.S. News & World Report rankings.

A new rule adopted last week by the accrediting arm of the American Bar Association will tighten such claims, giving law schools less credit for jobs that they subsidize.

In other law school graduate employment news, the ABA Journal recently reported on a study showing that 25% of Ohio’s 2010 bar admittees aren’t practicing law:

A law professor who used a bar directory and online resources to track down more than 1,100 lawyers who passed Ohio’s bar exam in 2010 feels “great sadness” for her study subjects.

Ohio State University law professor Deborah Jones Merritt found that at least a quarter of the 2010 bar admittees weren’t using their law licenses four years later, a finding she attributes to structural changes in the market for legal labor. Merritt summarizes her findings at the Law School Café…….

Merritt believes the legal job market is being affected by an oversupply of lawyers, deregulation of the legal profession, new technology, use of outsourcing and contract lawyers, increased reliance on nonlawyers for legal work and competition from global providers.

Merritt notes her study didn’t include law grads who didn’t pass the bar, and it didn’t distinguish between full- and part-time jobs or temporary and permanent jobs. In addition, she notes that some grads may have exaggerated the character of their position.

My Take:

That last paragraph is important. It’s not 25% of graduates. It’s 25% of people who passed the bar and presumably wanted to practice law. Image result for law school

I’ve said it before, but I’ll say it again. No one should even consider going to law school unless: (1) they really, really want to be a lawyer; and/or (2) they will not go into debt to attend law school.

Law schools should be telling prospective students what they are signing up for instead of cooking the employment numbers and over-stating the value of a law degree if you will not end up practicing law.

My Take on the Public Defender’s Assault on Judge Weill’s Courtroom

Posted in Hinds County Circuit Court

I have shied away from blogging about the ongoing dispute between Hinds Circuit Judge Jeff Weill and the Hinds County Public Defender’s office because:

  1. there is a back story here that I don’t know; and
  2. I am not a criminal lawyer.

But I listened to the recording of the hearing last week posted on Jackson Jambalaya and feel qualified to comment about it. I was shocked by what I heard.

The public defenders who spoke on the recording were way out of line. Lawyers can’t act like that in court. Other people can’t either, but especially lawyers.

When the judge tells you to stand down in his courtroom, you have one option at that moment: stand down. It does not matter whether the judge is justified in telling you to stand down. hinds county courthouse

Let’s assume just for argument sake that Judge Weill was completely wrong on everything he did both before the hearing and during the hearing. Would that justify the public defenders refusing to stand down as ordered by the judge? No, it wouldn’t. You can’t do it. Period.

When an attorney appears before a judge, he is appearing before that Court. Disrespecting Judge Weill in his courtroom also disrespects Judges Green, Kidd and Gowan. It also shows disrespect for the Mississippi Supreme Court and Commission on Judicial Performance, because it’s basically saying you don’t trust them to do their jobs.

Trial judges don’t act with impunity. If they get out of line, there are ways to address it through either the Supreme Court or Commission on Judicial Performance. Refusing to obey in open Court is not an option.

Judge Weill showed great restraint in dealing with the disruptive behavior. I have seen judges blow-up over far less shows of disrespect. I have also seen the occasional instance where a trial judge appeared to be “off his meds” and act like a complete jack-ass to a lawyer or party. You hope judges have the judicial temperament to not blow up. But it’s not unheard of.

Remember what happened in My Cousin Vinnie when the judge thought that Joe Pesci was disrespecting the Court?

Lawyers have been held in contempt and thrown in the clink for less than what I heard on that recording. It was obvious grandstanding, so maybe that was what they were after.

I don’t know who’s right in the underlying dispute. But I’m in Judge Weill’s corner on the hearing last week.

Perhaps when Governor Winter finishes up mediating the IHL – Dan Jones dispute he can get the combatants in a room and get this dispute resolved without anymore outbursts that look bad for the entire legal system. Because no one will be happy if Butler Snow has to get involved.

I’m Not Buying the Dan Jones – Butler Snow Conspiracy Theory

Posted in Politics in Mississippi

Former Governor Ronnie Musgrove published this story on Huffington Post yesterday accusing the IHL Board of firing University of Mississippi Chancellor Dan Jones because he doesn’t like the Butler Snow law firm. Really. I did not see this one coming.

From the article:

Since Jones’ hiring, [Gov. Haley] Barbour has taken two highly lucrative positions. Without missing a beat, he returned to his pre-gubernatorial position as head of Washington, DC lobbying firm, the BGR Group. He also took an equity position at the law firm, Butler Snow, in Ridgeland, MS – a suburb of the state’s capitol of Jackson.

When Barbour left office, Butler Snow was the third largest law firm in town. Since then, Butler Snow has taken hundreds of millions of dollars in state contracts. Now they are one of the largest firms in the nation…..

Butler Snow could be considered the ‘for-profit’ arm of our state government…..

Hundreds of millions – if not billions – flow through their hallowed halls in legal fees for health care contracts, research grants, bond issuances, buildings contracting, the list is too long to count. Even in a poor state that chronically underfunds education, we’re talking a mountain of untapped billable hours for a firm like Butler Snow.

Dan Jones was standing at the gates of a gold mine, but he wasn’t a Butler Snow man. He wasn’t a Barbour or Bryant man.

My Take:

If nothing else, this is a great article for Butler Snow. If the firm is perceived to be that powerful, this will drive even more legal work their way.

But I don’t buy the conspiracy theory. It sounds more like sour grapes. It would be kind of like Burger King telling you why McDonald’s sucks. Consider the source.

Start out with the fact that Gov. Musgrove is also now a private practice attorney who is a competitor of Butler Snow. Assuming that everything he says is true, would he do anything different if this was a Democratic controlled state and he had the influence that Barbour has? Hasn’t Gov. Musgrove used his connections and influence to get business?

That’s what big law firms do. They hire people with influence who they hope will bring business to the firm. Not only is that how things work, there is nothing wrong with it.

Musgrove didn’t have a problem taking a job with Copeland Cook. And I bet he used his contacts and influence to bring in business for that firm and his current firm.

Also, there is too much exaggeration here. Yes Butler Snow has transitioned itself from a Mississippi law firm to one with a national presence. With over 300 attorneys, it’s a big firm. But you’d have to have a very loose definition to call it one of the largest firms in the nation. Maybe it will get there. Hell, I hope so. It would be great for the Jackson area.

But right now, Butler Snow is a growing regional firm with a national presence. The firm has done an amazing job of not only weathering the Mississippi legal industry depression, but thriving while other firms struggle to remain alive.

I’m not sure how much credit Haley Barbour should get for that. It seems to me that the wheels were already in motion before Barbour arrived. I’d give most of the credit to Don Clark and the rest of the firm’s leadership, along with “female powerbrokerChristy Jones building a national litigation practice.

A few weeks ago, someone emailed me that a Butler Snow lawyer had lost a big trial in Philadelphia. My response was “that’s impressive.” “That they lost?” “No, because it’s big time for Mississippi lawyers to be trying cases in the Northeast.” There is no shame in losing a trial. It’s impressive that they were in that game.

I don’t know how much legal work Butler Snow gets from government related work. But I know enough about law firm economics to know that its not billions or hundreds of millions of dollars. If Butler Snow is getting billions of dollars in legal fees through State contracts–and it’s not–why would it need to get Dan Jones fired? Wouldn’t this argument make more sense if Butler Snow was getting no work from the State?

Not to mention the fact that IHL Board Member Alan Perry is an attorney who has always worked for big law firms that compete with Butler Snow. Why in the world would he want to fire Jones just to help one of his firm’s biggest competitors?

I agree that the Jones firing wreaks of politics. But it’s a political appointment. So that’s going to happen.

I don’t have an opinion yet on the Jones firing. Except for the Haley Barbour – Butler Snow angle. I’m not buying that one.

Court of Appeals to Decide Caps?

Posted in Mississippi Court of Appeals, Mississippi Supreme Court

In 2012 I wrote about a $3.5 million verdict in a Hinds County medical malpractice case that implicates Mississippi’s legislative caps. The case is now almost fully briefed in the appellate court and will presumably be decided later this year.

Here is the appellant’s brief.

Here is the appellees’ brief.

Anderson discusses the case here.

In a somewhat surprising development, the Supreme Court assigned the case to the Court of Appeals. One take on the assignment is that it is a way for the Supreme Court to dodge deciding the caps. But a review of the docket filings does not really support that argument.

The Court assigned the case to the Court of Appeals after the appellants filed their brief, but before the appellees filed their cross-appeal challenging the constitutionality of the caps. The appellant’s brief focuses on garden-variety appeal issues like admissibility of evidence and jury instructions.

The appellant’s response to the appellees’ motion to move the case back to the Supreme Court argues that the caps should not be in play. The response states:

…the judgment below must be reversed due to multiple errors under settled law. The constitutional question plaintiffs intend to argue on their cross-appeal will never need to be reached.

And that’s normally the way the cases come down. The Court decides the appeal based on other issues and doesn’t ever get to the caps argument. That, or the cases settle before the Court rules.

Image result for caps

Please remove your cap

You’ve got caps 

So the med-mal caps are in play in this case. Will they be decided? History tells us probably not.

I believe this is the only pending case challenging the med-mal caps. I think there is one looming case (Walls v. Pyro discussed in this earlier post) challenging the regular caps statute, but that case is in the post-trial motion phase and has not made it to High Street yet.

And then you’ve got the dreaded double-caps argument

The appellants make the dreaded double-caps argument. Under the double-caps argument, if a jury awards more than the caps in non-economic damages, then the Court should reduce the verdict to the amount of the caps and then reduce it again based on defendant’s percentage of fault.

In this case the jury’s verdict for non-economic damages was $2 million. Judge Kidd reduced it to $500,000 pursuant to the med-mal caps. The defendant/appellee argued that Judge Kidd should have reduced it by another 25%, since defendant was apportioned 75% of the fault. The technical argument appears to be that caps should be applied before apportionment.

My Take:

I’m surprised that the appellants didn’t argue that they should also get to take the plaintiffs out back and beat the crap out of them.

The double cap argument is hogwash. I don’t see the Court buying it. It would almost be funny, except for the fact that they may can scrape up a vote or two for it. Maybe.

This argument reminds me of the defense lawyer adage from the years when plaintiffs never won on appeal that “there’s not an argument I can make that [he’s now a former justice] won’t buy.

On another note, it would have been helpful if the appellees had labeled the issues in their brief’s table of contents in a more descriptive manner than “Issue I”, etc. Want to know what page they discuss the caps argument? Start flipping pages.

The appellants’ brief has a better table of contents.