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

Remember When Checking the Mail Was a Big Deal?

Posted in General

The practice of law has changed a lot in the 21 years I have been doing it. One area that has changed a lot–particularly in the last 10 years–is the importance of checking the mail.

When I started practicing, checking the mail was more important that the telephones working. I would say it was more important than the internet. But there was no internet. The mail was it.

Everything that we now receive through electronic filing arrived in the mail. Almost everything that we now receive through email arrived in the mail. Emails between lawyers? Mail (or, sometimes fax). Pdf document production? Hard copies via mail. The mail was important and there was a lot of it.

Every law firm had someone pick up the mail at the post office first thing in the morning. A large firm received bins full of mail every day. The mail was sorted in the firms “mail room” and either delivered to attorney’s offices or picked up by the attorney or his/her secretary in the mail room. 

The mail even found its way to the firm on Saturdays. Usually on Saturdays a veteran (i.e. old) lawyer would pick the mail up and deliver it to the mail room. Many lawyers wanted their mail on Saturday so that come Monday morning, they wouldn’t have as much mail to deal with.

When I started my own practice in 2002 the mail was still a huge deal. The first thing you did when opening a practice was get a PO box. I checked the box myself at the downtown post office every morning at 7:30. I regularly saw other lawyers doing the same thing.

Many days I had more mail than would fit in my box. I would have to go stand in a line to get my bin full of mail. This was the pre-electronic filing, pre-scanner era, of course.

Now my PO box is lonelier than the Maytag repairman. Gone are the days where I bother to pick up the mail myself. That is assigned to my assistant. Most days we receive nothing significant in the mail.

Last week my assistant was on vacation, so I checked the PO box myself. During the entire week, I received around five case-specific pieces of mail. One was a representation letter from an old school lawyer who, if he were twenty years younger, would have saved the paper and stamp and emailed me instead.

None of the mail was really important. Everything important arrived in my email in-box via electronic filing or via email from other attorneys.

Ten years ago, five case-specific mail items would have been a slow day.

Most of the time these days when I receive a hard copy of something in the mail I already have it, since the sending attorney already courteously emailed a pdf copy.

I watched a video the other day of a lawyer getting berated by the Supreme Court for not checking his PO box. The judges couldn’t understand why the lawyer didn’t check his mail. The judges definitely had a point. But I still kept waiting for the lawyer to say: “but your honor, nothing important is ever in the mail box.”

That’s not literally true–the Supreme Court still communicates by mail. But figuratively speaking, it’s true. And it’s a big change in how things work in the practice of law.

Miss. CLE Deadline is Next Week

Posted in General

With not a lot interesting happening on the Mississippi legal front this week, I remind Mississippi attorneys that the deadline for obtaining 12 hours of continuing legal education for this year is July 31.

Like many attorneys, I find myself scrambling this year to get my hours by the deadline. So I will be attending courses this week.

The CLE rules require 12 hours of approved continuing legal education. The rules do not seem to require that the approved CLE course actually has to be relevant to the attorney’s practice.

For this reason, you hear stories about near-deadline CLE courses with litigators attending tax law courses or tax lawyers attending litigation courses. And it’s not as pointless as it may seem at first glance.

A lot of people expect lawyers to know all areas of the law. Try telling a friend or family member that you can’t help them because their problem is not in your area of the law. They will probably look at you like you are an idiot.

So maybe we should all focus our CLE attendance on courses that are outside our normal areas of practice.

$40,000 Verdict in Neshoba County Slip-and-Fall Case

Posted in Verdicts in Mississippi

I’m not sure of the exact date of the verdict, but I have a report of a $40,000 verdict in a Neshoba County slip-and-fall case in Brantley v. West Quality Food Services, Inc., d/b/a Kentucky Fried Chicken. The verdict was rendered either on June 30 or the 3-day trial started on June 30.

In any event, the plaintiff alleged a permanent lower back injury (SI joint dysfunction with 2% impairment rating) after slipping and falling on a wet floor in the KFC in Philadelphia, MS.

Plaintiff’s medical expenses were $9,000 and there were no lost wages.

Plaintiff alleged that he was in KFC to use the restroom, see a client and buy a Coke. Plaintiff fell before buying the Coke.

KFC argued that Plaintiff was a licensee rather than an invitee because Plaintiff’s real purpose was to pick up an insurance premium check from a KFC employee. KFC also argued that it satisfied its duty by placing a caution cone in a different part of the restaurant before the fall. KFC’s internal policies and procedures required that several caution cones be placed in all areas that were wet.

The jury determined that Plaintiff was an invitee, that KFC failed to keep its premises safe and failed to adequately warn Plaintiff of a hazardous condition. The jury’s verdict of $40,000 matched the Plaintiff’s request in closing argument.

Plaintiff’s counsel were Shanda Yates with Burns and Associates in Jackson and Al Chadick of Kosciusko.

Defense counsel was Mark Biggers with Upshaw Williams in Greenwood.

Judge Marcus Gordon presided in the trial.

My Take:

I don’t hear about many civil trials in Neshoba County, so this verdict is newsworthy.

The fact that this case was tried says something about how difficult the litigation climate currently is for plaintiffs in personal injury cases.

The violation of its own policies and procedures was a bad fact for KFC. The Plaintiff asking for $40,000 in closing suggests that a settlement for a lower amount was available to KFC. But KFC was confident enough to risk incurring its legal fees and losing the trial.

I’m not criticizing KFC’s decision. In the same circumstances and litigation environment, I might make the same decision. That’s a case the defendant expects to win nowadays.

I’m just pointing out that the fact that a case with these dynamics is tried is bad news for personal injury plaintiffs and people on both sides of the bar who make their living from personal injury litigation in Mississippi.

For people who ask why plaintiff lawyers don’t file more cases, this case is an answer.

The New Legal Dream Team

Posted in General

From the Onion comes news of the formation of a new legal dream team of non-lawyers dedicated to defeating the injustice of a co-worker’s traffic ticket:

 Local woman and Helios Network Solutions sales manager Patricia Carson reportedly received astute counsel from a veritable legal dream team of coworkers Tuesday, who dispensed invaluable advice on how to get out of a recent speeding ticket. 

The elite legal brain trust, composed of five colleagues who gathered around Carson’s cubicle as she recounted receiving a $120 traffic citation the previous evening, reportedly drew on their comprehensive knowledge of the judicial system to map out an ironclad courtroom strategy that would allow Carson, 35, to successfully contest her ticket.

Sounds like the advice was spot on:

According to workplace sources, over the course of the 10-minute discussion, Carson received a wealth of incisive guidance from her cubicle area’s top advocates, including such mavens of the legal world as software developer Mark Schreiber, junior marketing associate Alyssa Eldridge, and Kevin from tech support. 

Working together to advise Carson on an infallible exoneration strategy, the crack team, with a combined three decades of experience in the most complex intricacies of the U.S. legal system, reportedly formulated a brilliant argument rooted in the most unassailable tenets of constitutional law. 

“Half the time the radar gun is busted,” said Schreiber, laying the groundwork for a flawless defense that would hold up under the scrutiny of even the most ruthless prosecutor. “They’re just counting on you to pay the ticket anyway. That’s why you gotta call their bluff.”

My Take:

I have serious reservations about the advice of this so called “Dream Team.” Notice how they aren’t really lawyers. That’s the unauthorized practice of law in my book.

I hope the Maryland Bar takes notice of this and files a complaint against these people. Especially that Kevin dude from tech support. Those tech support people are always know-it-alls because no one else knows what the hell they are talking about with all their computer jargon.

Welcome to my world, Kevin.

July Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the verdicts reported in the July issue of the Miss. Jury Verdict Reporter:

  •  $13.8 million verdict (50% fault to defendant)- Hinds County construction negligence/ explosion case (5/16/14);
  • $100,00 verdict- Aberdeen federal court FMLA retaliation case (6/10/14);
  •  $60,000 verdict- Jackson federal court breach of contract case (6/10/14);
  • defense verdict- Harrison County medical malpractice trial (7/26/13);
  • directed verdict- Hattiesburg federal court religious discrimination case (5/16/14); and
  • defense verdict- Jackson federal court race discrimination case (6/4/14).

As usual, anyone interested in more information on these verdict should purchase a copy of the Miss. Jury Verdict Reporter.

I usually do not respond to requests for specific information that someone can look up in the Reporter just as easily as I can. This qualifies as an assignment for me.

You can read my take on blogger assignments here.

Adultery Protected by First Amendment? Probably Not

Posted in Alienation of Affection Lawsuits

In an interesting attack on the alienation of affection cause of action, a North Carolina judge ruled that  the cause of action violates due process and privacy interests of the Fourteenth Amendment and First Amendment Free Speech rights.

While I’m a critic of the AA cause of action, I agree with Eugene Volokh’s criticism of the decision.

The problem I have with the claim is that proving the cause and damages of a failed marriage are just too nebulous. I discussed some of my specific criticisms a few years ago in this post.

In particular, these cases have huge causation and damages issues. In practice, however, they don’t. Plaintiffs almost always win alienation of affection lawsuits (at least in Mississippi) and often render large damages verdicts–even in very conservative counties.

So alienation of affection is basically a strict liability cause of action with a possible punitive component in the compensatory damages verdict.

I’m a fan of opinions that strike down the cause of action, but the First Amendment is probably not the best way to do it.

U.S. Supreme Court Vacates 5th Circuit Decision on Mississippi Retaliatory Discharge Case

Posted in 5th Circuit Court of Appeals, U.S. Supreme Court

On June 30, 2014 the U.S. Supreme Court granted cert and vacated a 5th Circuit Court of Appeals decision in Gibson v. Kilpatrick.

The case originated in the U.S. District Court for the Northern District of Mississippi, with Judge Michael Mills presiding. The plaintiff was the former police chief of Drew. He alleged that the town’s mayor fired him in retaliation for reporting theft of gasoline by the mayor (Kilpatrick).

The trial court ruled that the employment actions against Gibson violated his First Amendment rights. The Fifth Circuit reversed based on prior precedent. Apparently there was a later change of law, however, with the Supreme Court issuing the following ruling:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Lane v. Franks, 573 U. S. ___ (2014). 

This was a big win for Gibson and his attorney, Jim Waide of Tupelo.

Don’t Go into Debt to Attend Law School

Posted in Law School

Slate says it’s time to apply to law school. Wow. Talk about completely misguided.

Above the Law takes issue with the Slate article in a humorous, yet accurate, way.

Let me be clear. It’s as bad an idea to go to law school now has it has ever been.

The best time to go to law school in Mississippi was around 1980. That way, you would have been practicing around twenty years when the litigation boom hit in the late 1990′s and in prime position to take advantage of the boom.

Of course, it wasn’t clear that the boom was temporary at the time. Many lawyers who did take advantage of the boom didn’t save any money because they assumed that they would be making it forever.

I’m not saying that no one should ever attend law school. But for god’s sake, don’t go into debt to do it. The risk-reward / expected value analysis on the decision of whether to go into debt to attend law school weighs heavily in favor of not going.

Yea, it could all work out in your favor with a high paying job to pay off the debt. But odds are, it’s going to be a deep hole with little income available to pay off the student loans. Law schools encouraging prospective students to go into debt are selling a fairy tale.

Your odds with $100,000 are much better at a blackjack table in the casino than they are with law school.

Practicing law is about making good decisions. Going into debt to attend law school in the current economic environment for law school graduates is a really bad decision.

Mississippi Not on Latest Judicial Hellhole List

Posted in General

The American Tort Reform Foundation’s latest propaganda on judicial hellholes can be read here. The site focuses on civil venues where large corporations have lost big verdicts.  It also has a “points of light” section, which focuses on verdicts and decisions where large corporations won.

Mississippi does not make the “judicial hellhole” list, although Jones County is on the “watchlist.” Ironically, one of the site’s big complaints about Jones County was the Bryan Cole verdict that was actually tried before a Jasper County jury.

Unsurprisingly, I can’t find any reference on the site to judicial hellholes for plaintiffs. I bet Mississippi has some venues that could make that list.

Eaton Finally Throws in the Towel

Posted in Eaton v. Frisby

The settlement of the Eaton v. Frisby litigation last week was not a surprise. The case went quiet after Eaton got its clock cleaned last year at the Mississippi Supreme Court, which is a reliable indicator of advanced settlement negotiations. I suspect that the case has been basically settled for months.

Here is Alison Grant’s story on the settlement in the Plain Dealer. The article notes:

The case spawned more than 2,400 docket entries in Hinds County Circuit Court in Mississippi — where Eaton sued Frisby in 2004, alleging that six former Eaton engineers who took jobs at Frisby stole valuable trade secrets used to make hydraulic pumps and motors for aircraft. Those same six engineers now will divide more than $12 million as part of the settlement, a Triumph spokesman said.

What a win for the Frisby-six. They went from facing jail time in a federal criminal prosecution to dividing $12 million. Federal criminal defendants are almost never acquitted, much less end up making money. Other than the politically motivated sham prosecution of Justice Oliver Diaz, I can’t think of another federal prosecution in Mississippi that did not end in a conviction.

Eaton went from a billion dollar claim to paying $147.5 million to end the litigation. The result should be a lesson to all corporations on how important it is to have in-house lawyers who are competent and ethical. In contrast, the Eaton in-house lawyers seemed straight from the Dilbert comic strip.

Eaton spent millions of dollars trying to dig out of the hole dug by its in-house lawyers and original outside attorneys. But despite the efforts of some of the brightest legal minds in (or outside) Mississippi, the damage done by the original lawyers who wanted to cheat was too much to overcome.

The settlement ends that biggest civil action in Mississippi over the last decade. It will probably be a long time before Mississippi ever sees a case of this magnitude.