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

April Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the April 2016 issue of the Miss. Jury Verdict Reporter:

  • $50,000 verdict- Rankin County car wreck case (3/9/16);
  • $16,573 verdict- Harrison County underinsured motorist car wreck case (3/2/16);
  • defense verdict- Greenville federal court racial discrimination case (3/1/16);
  • defense verdict- Hinds County trip and fall case (3/10/16);
  • defense verdict- Greenville federal court Fair Labor Standards Act case (3/15/16);
  • defense verdict- Gulfport federal court malicious prosecution case (4/7/16); and
  • defense verdict- Clay County breach of contract case (4/6/16).

My Take:

More pain for Mississippi litigators. That’s an average verdict of $9,510.

But an even worse sign is that none of these cases are something a defense firm could legitimately sink its teeth into and generate hundreds of thousands of dollars in fees. With new filings continuing to decline, there does not appear to be any relief in sight.

Enjoy Business Travel? Let Me See if I Can Fix That

Posted in Attorney Mental Health

Many lawyers love business travel. Get out of the house, get a break from the kids, have a few drinks, big meal at a chain restaurant, watch some TV. They can have it.

Until business travel doesn’t require staying in a hotel, you can have it. Why?

Hotels are filthy. F-i-l-t-h-y.

Hotels have bed bugs. Just ask Kyrie Irving.

Next time you are in a hotel, look where the vacuum cleaner doesn’t reach. For instance, look at the space between the night stand and the bed.

And look at the TV remote. Does it look clean? No it doesn’t. It looks like a filthy piece of plastic wiped down with a dirty rag. If you think about it, that last statement is going to apply to the entire room. Do yourself a favor and bring some sanitary wipes and wipe the remote off when you arrive.

How often do hotels wash bedspreads and pillows? I’m a glass is half empty kind of guy, so I say never.

Not to say all hotels are filthy. A Ritz Carlton room is usually clean, at least in the three times I could afford to stay at one.

Hotels are also noisy. The 10% of the guests who act like they are in a barn ruin it for everyone else.

Plus, it’s common for a hotel to give you a key to an already occupied room. Or to give someone else the key to your room. People have lost fingers in the door when this snafu happened. In Mississippi. More than once.

You also see a lot of weirdos and dumb-asses in hotels. I’m not sure if the hotel-idiots are always like that or just when they stay at a hotel. But don’t say anything to them or look at them crooked. They might beat the stew out of you. That’s also not unheard of in Mississippi.

Hotels are full of people acting stupid. After college, I worked for a summer as a front desk clerk for a lodge in Glacier National Park. My last day on the job, I wrote down every stupid thing that guests said to me. I thought I would have a few things on my list. It was four pages. It would have been shorter if I had written it down when people didn’t say something stupid.

Here’s a tip. If you like hotels, try not to pay attention when you are in them. If you do, you might not like what you see. And then you will be ruined on the path to hotel phobia.

All Courts Should Announce When They Are Going to Rule

Posted in Attorney Mental Health, Mississippi Court of Appeals, Mississippi Supreme Court

Something the Mississippi Supreme Court and Mississippi Court of Appeals have right is how they release opinions.

The Supreme Court issues opinions at 1:30 pm. every Thursday except for a few weeks a year (holidays, bar convention). The Court of Appeals issues its decisions at 1:30 pm. on Tuesday. I don’t know if they are scheduled to publish or if someone turns a switch. But one minute they are not there, the next, they are.

This is good for the mental health of litigants and attorneys with cases before the Court. You don’t have to worry about whether that decision might come down the rest of the week.

Yea, its anxiety city at 1:30 on Tuesday or Thursday if you have a case pending. But the rest of the week is much less stressful. Sure you still know on Friday they may hammer you. But not today, Chap– not today. It’s a civilized way to get shot in the gut.

Compare that to something like a motion for summary judgment in federal court or an ECF venue in state court. The Court’s decision could arrive in two minutes. Or it might be 6 months. Or longer. Who knows? These courts give you much more anxiety for your money. anxiety

I have two suggestions. First, the Supreme Court and Court of Appeals could make their good system even better by giving the parties a day’s notice that the decision in their case is coming down the next day. That way, every week attorneys don’t have to hit the reload page on the Court’s decision page with one hand on the mouse and the other on a bottle of whiskey.

Instead, they can have a ‘liquid lunch’ on the faithful day knowing that they will soon be celebrating the Court’s infinite wisdom or drowning their sorrows because High Street just doesn’t get it.

My second suggestion is for all you other courts out there. You should also give the parties a day’s warning on when a decision on a dispositive motion is forthcoming. Why? Because you are driving us crazy, that’s why.

When I started practicing there was no email or electronic filing. Except for the occasional fax, bad news arrived in the morning mail. If you dodged a bullet, you were safe for another day–or 3 days on Friday. Afternoons in particular were much more enjoyable than these days.

Now courts issue decisions at any time on any weekday. It’s one of the reasons lawyers obsessively check their emails. They don’t want to be the last person to learn that Judge Screwem let em have it.

So how about it distinguished jurists? I know you’re reading. How about doing a solid for us poor anxiety filled street lawyers?

What’s Your Wrong Wake-up Time?

Posted in Attorney Mental Health

A lot of attorneys have shared their stories with me since I started writing here about issues related to attorney mental health. There are two things I hear the most:

  • practice-related anxiety is common–maybe even prevalent–but it’s not something lawyers like to admit to experiencing;
  • lawyers have sleep problems.

The sleep problems that I hear about fall into two categories: (1) trouble going to sleep; and (2) trouble staying a sleep.

Personally, I rarely have trouble falling asleep. But I usually don’t sleep through the night. A lot of attorneys tell me that they have the same problem.

One interesting facet of the problem is that it seems to be common for attorneys to wake up in the middle of the night at the same time most nights. That seems weird. You wake up at the same time in the middle of the night no matter what time you went to bed? What a weirdo. I’m describing myself, by the way.  awake

My current wrong wake up time is 1:30 a.m. Waking up at 1:30 a.m. is a problem because I don’t take Ambien after midnight. Ambien is useful for getting to sleep, particularly when I travel with my near phobia over hotel rooms (they are, without exception, filthy-remind me to blog on that later).

Being exhausted often doesn’t help. I have trouble sleeping for days after a trial–win or lose.

Unfortunately, Ambien is not great for keeping me asleep all night. And I don’t like Ambien. Ambien sleep doesn’t seem normal. I usually don’t dream when I take Ambien. That concerns me. I dream a lot when I’m not on Ambien. And never about the law–thank God. With Ambien I also don’t wake-up feeling as rejuvenated as with non-drug induced sleep.

Some people say Ambien makes them groggy the next morning. Some lawyers take Valium or Xanax to help them sleep. I’ve tried it. It makes me groggy the next morning.

Be careful with the Ambien though. It makes some people do some really goofy things (call people, eat everything in the fridge, go for a drive) and not remember it the next day.

Sometimes, I’ll have a snack and can get back to sleep in a half hour or so. Sometimes I watch TV and am awake for two hours. I can usually tell which it will be based on how awake I feel when I wake up.

My current favorite middle of the night TV show is ABC News World Now, which starts at 2:05 a.m. It’s more laid back than normal network news with a young, funny anchor duo. They act how you would expect anchors to act if they thought no one was watching.

Some lawyers put themselves back to sleep by having a drink(s). That doesn’t work for me–the thought of alcohol in the middle of the night is unappealing. Not that I like the fact that sometimes I eat just to try to make myself sleepy. If I do that a few times a week, that’s a lot of middle of the night calories over the course of a year.

I was on the shelf for four weeks last month recovering from hip replacement surgery. I slept great until a few days before I went back to work. Just the thought of starting back ruined my sleep.

Most of the lawyers I talk to are in private practice. I wonder how much trouble sleeping in-house and government lawyers have? On one hand, they experience some of the same uncertainty and anxiety producing experiences as private practice attorneys. But on the other hand they probably aren’t as worried about where the next case will come from.

So what’s the secret for good sleep for attorneys? Retirement. But until you can retire, you have to manage it the best you can.

My only piece of advice if you have sleep problems is to consider it normal. If you consider it normal, you are less likely to let it frustrate you.

Miss. Supreme Court Affirms $484,141.98 Jury Verdict in Medical Malpractice Case

Posted in Appellate Decisions From Jury Verdicts, Mississippi Supreme Court

On Thursday a unanimous Mississippi Supreme Court affirmed a jury verdict of $484.141.98 in Robinson v. Corr.

Facts:

This was a medical malpractice case. In 1998, Regina Corr gave birth at Gulfport Memorial Hospital. Her OB/GYN (Dr. Charles Robinson) delivered by C-section. During the procedure, Regina’s uterus was lacerated, requiring repair.

A urology consult the following day revealed that the left ureter was sutured. The urologist placed a nephrostomy tube to drain urine from the blockage into a nephrostomy bag. Another urologist later inserted stents to widen the blocked area until the blockage dissipated.

Regina had no further complaints after May 1999.

Allegations and Trial:

Plaintiff alleged that Dr. Robinson negligently sutured the ureter during the repair. During a 2001 deposition, Dr. Robinson denied suturing the ureter.

The case was tried in 2014. At trial, Dr. Robinson attempted to give new testimony concerning the repair that was not previously disclosed in discovery. Dr. Robinson wanted to testify that he would not have attempted to remove the suture if he had known of its existence due to potential bleeding. The trial court refused to allow the testimony because it was not previously disclosed.

Another trial issue involved defense counsel opening the door by asking a question to Plaintiff’s expert and then not liking the answer.The trial court found that defense counsel ‘opened the door’ by asking the question.

The jury rendered a verdict for the following damages:

  • $55,634.78- past medical expenses
  • $8,507.20- lost wages
  • $420,000- pain and suffering.

The trial court denied Defendant’s motion for remittitur.

Joe Sam Owen and Robert P. Meyers, Jr. represented the Plaintiff. Brett K. Williams and Joshua Danos represented the Defendant.

Judge Lisa Dodson presided in the case.

Decision:

Chief Justice Waller wrote the Court’s unanimous opinion. On the issue of the undisclosed testimony by Dr. Robinson, the Court stated:

We find that Dr. Robinson’s expert designation was insufficient to put Regina on notice of the proffered testimony and new theory at trial. The very purpose of disclosing expert opinions before trial is ‘to prevent trials from being tainted with surprise and unfair advantage’…Based on Dr. Robinson’s expert designation, we find that the opinion–he would not have removed the stitch from the ureter due to the threat of uncontrollable blood loss–was not meaningfully disclosed before opening statements at trial. Thus, the trial court did not abuse its discretion in excluding Dr. Robinson’s proposed testimony…

On the issue of the challenged testimony of the Plaintiff’s expert, the Court found:

we believe the answer was responsive to Dr. Robinson’s counsel’s questions as to excessive blood loss and the concerns with performing an intraoperative IVP in light of such blood loss.

The Court also applied an abuse of discretion standard to the trial court’s ruling that a party ‘opens the door’ to testimony by asking a question on the subject and concluded that the trial court did not abuse its discretion.

Finally, the Court affirmed the trial court’s denial of Defendant’s motion for remittitur.

My Take:

This decision is a gut-shot to the narrative some defense lawyers still cling to that the Mississippi Supreme Court will not affirm any plaintiff verdict. That has been a bad argument for years–but a decision like this drives the point home.

Litigation has slowed down so much that the Court doesn’t see many appeals from jury verdicts any more.

Judge Carlton Reeves States Fact– Internet Blows Up

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

From ABC News, to an AP report on Yahoo, to our own Yall Politics, the internet is blowing up. Shockingly, Judge Carlton Reeves stated in Court that the Confederate Flag is anti-American because it represents those who fought to leave the United States. flag

flag in battle

Just a little dust up over heritage

Fact Check: The Confederate army fought for the eleven Confederate States of America. Those states did leave the U.S. Mississippi was readmitted to the Union in 1971 1870. Technically, the rebs had left the Union and fought to stay gone.

But the point is, Judge Reeves said that the confederate flag is a symbol of those who first waved it in the Civil War. Is that really a shocker?

Is it a shocker that the Rising Son is a symbol of Japanese military aggression? rising son

 

Is it a shocker that the Nazi flag is seen as a symbol of rogue criminals running a nation, the Holocaust and the extermination of millions of Jews and other undesirables? nazi flag

Mississippians give the Confederate flag a pass on its primary symbolism. That’s the problem.

Judge Reeves is right. The flag does symbolize anti-Americanism. How can it not? The amazing thing is the media’s reaction.

He said what? Wow. Scandalous.

Miss. flagMississippi needs a state flag that does not belong on this page. Is that a job for Judge Reeves? Probably not. But that does not diminish the fact.

Mississippi Legislators React to HB 1523 Backlash

Posted in Politics in Mississippi

Who knew? Mississippi has been on double secret probation since the start of the semester. I guess there’s only one thing to do.

Here is hidden camera footage of Mississippi legislators reacting to the national backlash over the ‘Hospitality State’s’ passage of a law giving assholes dumbasses closed minded nimrods bigots the green light to discriminate against upstanding citizens just because they happen to be gay.

Recommendation for OneNote Users: Install Onetastic

Posted in General

Microsoft OneNote is indispensable in my practice. While I still maintain traditional (paperless) files, I organize most of my case and practice workflow in OneNote.

In a typical case I have sections for experts, standards-rules, key documents, witnesses, settlement, trial themes and contact notes with opposing and co-counsel. But since I use it so much, sometimes I have trouble locating specific pages that I know I created.

Enter Onetastic. It’s an addin for OneNote created by a Microsoft employee. It has a number of new features for OneNote. You can pick and choose the features on its macro page. But the key feature is OneCalendar.

OneCalendar is a stand-alone tool that provides a calendar view for OneNote that displays the pages on the date you created or last modified them. You can download it as a separate tool and keep it open on your desktop or pin it to your taskbar. Alternatively, you can access it from within OneNote using the Onetastic add-in.

It’s a fantastic addition to OneNote. It’s much easier to find that note I’m looking for because I usually know about when I created it.

Here is how it looks:

OneCalendar screenshot

Mississippi is Such an Enigma

Posted in Politics in Mississippi

Check out this CNN article about backlash over Mississippi’s new law legalizing discrimination against gay people. It contains a link to the anti-gay ‘Mississippi Tourism’ video that has been making the rounds.

It also notes that Mississippi native Robin Roberts (who is gay), is on the cover of the cover of the official Mississippi tour guide. This may seem odd, but it’s completely consistent with the enigma that is Mississippi bigotry. Robin is ok because we know her. Same with Ellen. Same with Oprah even though she is black. robin roberts

There are racial bigots in Mississippi who don’t hate all black people. They are friends with a few from work or something and know they are good people. They think that the black people they are friends with are different. It’s all the ones they don’t know who have a problem.

Really. There are tons of white people in Mississippi who think like this. But they rarely stop and question their underlying prejudices. Rather than question their prejudice, they conclude that the black people they know are different from the rest.

Now, the same applies to gay people. Gay bigots aren’t afraid of the gay people they know. It’s all the ones they don’t know who they assume are looking to play grab ass at the urinal. Mississippians know Robin Roberts. She’s ok. It’s all you sickos we don’t know that cause us to enact anti-gay legislation.

Don’t ask me to explain how people can be so narrow minded. Richard Grant tried to figure it out in Dispatches from Pluto and couldn’t.

This is so frustrating for many Mississippians. We know that Mississippians have good hearts–even most of the bigots. They just can’t be open minded about people who aren’t just like them.

Mississippi Legislators Discuss ‘Religious Freedom Bill’

Posted in Politics in Mississippi

According to this Larrison Campbell article on Mississippi Today, some of the Mississippi legislators who voted for the Jesus hates gay people ‘Religious Freedom Bill’ sound like they already have buyer’s remorse. So they’ve decided to play dumb and claim that despite the national clamor over similar bills in other states, they thought the global business community was cool with Mississippi hating on gay people.

Uh, sure thing Cruiser.