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

May Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $59,000 verdict- Harrison County breach of contract case (2/19/16);
  • $600 verdict- DeSoto County car wreck case (3/17/16);
  • defense verdict- DeSoto County medical malpractice case (7/16/15);
  • defense verdict- Harrison County case where kid alleged he was roughed up at Chuck E. Cheese (4/22/16);
  • defense verdict- Attala County medical malpractice case (3/15/16);
  • defense verdict- Gulfport federal court excessive force case (4/21/16);
  • defense verdict- Jackson federal court reverse race discrimination case (1/28/16); and
  • defense verdict- Alcorn County car wreck case (4/2/15).

My Take:

An MJVR interesting issue. The DeSoto County medical malpractice case involved a retained sponge with injuries. The doctor and hospital both won by blaming a non-party radiologist that reviewed films after the surgery. The only thing limiting the viable defenses in med-mal cases is the imagination of defense lawyers.

In the Attala County med-mal trial, Morgan and Morgan brought in their star trial lawyer Kieth Mitnik, but still lost. The lawyers aren’t the problem for plaintiffs in med-mal cases. It’s the juries.

Remember the good old days when there were six-figure verdicts in Mississippi?

Report: Most Lawyers Are Not Busy Enough

Posted in General

You are not alone if you are a partner at a law firm and aren’t busy enough. According to this ABA article an Altman Weil report reveals that most partners aren’t busy enough. The figure is 80% for non-equity partners at big firms. Here is a summary of the report.

Stats from the article:

Fifty-two percent of the surveyed law firms report their equity partners are not sufficiently busy. Sixty-two percent say their nonequity partners are not sufficiently busy, including 80 percent of firms with more than 250 lawyers.

The report identifies overcapacity of lawyers as the problem. One of the main causes is firms losing business to corporate law departments. One of the suggested solutions is ‘downsizing’, which is a nice way of describing firing people.

One of the long-term effects of this trend is more lawyers working in-house while making less money than they did in private practice. While this may sound bad to some private practice attorneys, I’m not sure it is.

I don’t know if I have ever talked to an in-house lawyer who expressed a desire to return to private practice. Once they adjust to the lower pay, they are happy to stay in-house. The same applies for most government lawyers. Quality of life and not having the pressure of having to generate work and/or bill time are the primary reasons given.

One of the problems with this model for Mississippi lawyers is that we don’t have that many in-house jobs in Mississippi. For many Mississippi lawyers, going in-house means moving to another state.

I expect lawyer overcapacity to be an issue for the rest of my career.

Varidesk is a Great Stand-up Desk Option

Posted in General

Regular readers are familiar with my bitching about the health effects of sitting at a desk and working on a computer all day. Sitting all day makes my neck stiff and hurt. My gut feeling is that it’s generally bad for my physical health.

For this reason, I’ve been in the market for a stand-up desk for years. But I always worried about how it would work and whether I would get the height correct. A few weeks ago I finally pulled the trigger on Veridesk.

A Veridesk is height adjustable and is designed to sit on top of an existing table or desk. Being height adjustable means that you can use it from both seated and standing positions. varidesk

I bought the pro-plus 36 ($395) and dual monitor arm ($195). The Varidesk comes already fully assembled and is ready for use. I had to mount the dual monitor arm on the Varidesk and then mount my monitors on the arm. It did not take long to do, and I am not great at assembling things.

I’ve been using it for several weeks and am very pleased. The Varidesk raises and lowers as effortlessly as shown in the website videos.

standing-desk-dual-monitor-arm_main-4Some days I stand all day. Some days I stand most of the day, but move back and forth between standing and sitting. I’m still working on the schedule that works best for me.

One thing to be aware of if you are buying one is the space requirement. I planned to put the Veridesk on my credenza where I used to have my monitors. But the credenza was too narrow and I had to move it to my desk. It was worth it, but it is better to know it will fit where you want to put it before you order.

The monitor arms are expensive for a hardware item. But they are Cadillacs. I had a monitor arm on my credenza and these are much better. I would recommend these monitor arms independent of the Varidesk.

You may think you don’t need monitor arms and you may not. But you need them if you want the monitors the same distance from your eyes when you are standing vs. sitting. You are probably going to like monitor arms if you have never tried them.

If you plan to stand most of the day, you might also consider a cushioned mat like this one.

I can tell a big difference in my neck and shoulders since I started using the Varidesk. On the downside, the ache in my hips and legs from standing all day remind me that I am long past my time working as a hotel front desk clerk where I stood for entire eight hour shifts.

I am now a big proponent of attorneys having a stand-up desk option and endorse Varidesk for it.

March Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a (late) preview of the March 2016 issue of the Miss. Jury Verdict Reporter:

  • $43,500 verdict- Warren County trip and fall case (2/1/16);
  • $26,567 verdict- Madison County breach of contract case (1/12/16);
  • $5,000 verdict and 50% plaintiff fault- Jones County parking lot injury case (12/18/15);
  • verdict for insurance co. in dec. action- insurance co. alleged fraudulent claim; Jackson federal court (2/18/16);
  • defense verdict- Hinds County medical malpractice tort claims act bench trial (Judge Gowan) (9/16/15);
  • defense verdict- Harrison County trespass case (2/25/16);
  • defense verdict- Hinds County school negligence case (2/10/16); and
  • defense verdict- Jackson federal court FMLA retaliation case (2/17/16).

HB 1523 DOA?

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

The ACLU filed suit on Monday in federal court in Jackson seeking to block enforcement of HB 1523. Here is the Complaint. 

The Complaint alleges that the bill violates the 14th Amendment because it applies separate but unequal treatment to same sex couples.

They also filed a motion for preliminary injuction.

The motion seeks to block enforcement of the bill before it takes effect on July 1, 1956 2016.

The case was assigned to District Judge Dan Jordan. Judge Jordan is a terrible draw for the wack-jobs behind the bill.

Proponents of HB 1523 were hoping to draw Judge Harold Cox. Instead, they get a judge who is smart, conscientious and who has already blocked the legislature’s illegal attempt to close Mississippi’s only abortion clinic.

Legal scholars applauded the lawsuit and panned 1523. From Zachary Smith’s article on Mississippi Today:

“Why wait for it to cause injury?” Mississippi College Law School professor Matt Steffey said. “In this case, the law is so blatantly unconstitutional just by reading it that there is no imaginable set of circumstances where this law could be constitutional.”…

Professor Emeritus George Cochran at the University of Mississippi School of Law said that the plaintiffs have standing for the suit: “Essentially what the act does is treat same-sex couples as second class citizens. It is stigmatizing portions of the population….It looks to me like a significant lawsuit, well grounded in the United States Constitution.”

Former Mississippi Supreme Court Justice Oliver Diaz of Madison and a team of wicked-smart ACLU lawyers represent the plaintiffs.

Hopefully, Attorney General Jim Hood will appoint Andy Gibson and Philip Gunn as special assistant (unfunded) attorney generals to represent the State.

Ear to the Ground on HB 1523

Posted in Politics in Mississippi

It’s been over a month since the Mississippi Legislature and Governor gut-shot the state by enacting HB 1523, which attempts to legalize discrimination against non-heterosexuals. So what’s the reaction been? Terrible.

Here is a summary of the reaction to the bill that I have heard and read about so far:

Sadness– This is the reaction to the bill from Mississippians that I have talked to. People realize how bad the bill is for the reputation of a state that still suffers from being on the wrong side of history in the civil rights movement.I haven’t talked to a single supporter of the bill.

Other states have banned non-essential travel to Mississippi.

Rock star Bryan Adams cancelled a show in Mississippi. Governor Bryant’s reaction to this news was about what you would expect from him. Adams may be an 80’s rock star, but he still draws and 2000’s rock stars are not lining up to come to Mississippi. The bill will surely negatively impact scheduling future acts. But that will not make the news like the cancellation of a scheduled show.

95 prominent Mississippi writers spoke out against the bill. John Grisham, Greg Isles, Donna Tartt, etc. Every Mississippi writer I could name is on the list except for Richard Ford, and I’m guessing that he doesn’t support the bill either.

NCAA considering not scheduling events in Mississippi. This would be crushing for the baseball programs at Mississippi State and Ole Miss, which regularly host regionals.

Investors pulling out of projects. I talked to a local developer who had a mid-six figures investor pull out of a project in reaction to the bill.

Parents positioning their kids for careers outside Mississippi. Parents trying to direct their kids into colleges and/or majors where the kids can find jobs outside Mississippi isn’t new. But it is more pronounced after 1523. I talked to a parent who has never voted for a Democrat in his life who is doing this because he thinks Mississippi committed economic suicide with 1523.

Professionals are leaving. I have heard of at least one same sex couple who are professionals who have decided to relocate to another state. I also talked to a lawyer who although was already leaning toward leaving the state due to the declining legal market, this made his decision much easier. Passage of the bill will clearly make it harder to attract professionals to Mississippi. UMMC comes to mind.

Companies assuring employees they don’t have to travel to Mississippi. I know of a company that is drafting a policy that assures employees that they do not have to travel to Mississippi. It is a conservative company located in a conservative state. The policy is in response to heterosexual employees who are appalled by the passage of 1523.

Perhaps Mississippi would always remain an economic backwater even without 1523. But it’s going to be worse with the passage of the bill.

It’s been only 50 years since Mississippi stood on the wrong side of history in the civil rights era. Apparently, our leaders have not learned much since then. Just writing this made me sad.

Court of Appeals Doesn’t Decide Caps

Posted in Appellate Decisions From Jury Verdicts, Mississippi Court of Appeals

The Mississippi Court of Appeals decided the much ballyhooed caps case on Tuesday. Here is the Court’s decision in Emergency Medicine Associates of Jackson v. Glover.

As predicted, the Court never got to the issue of whether Mississippi’s caps on non-economic damages are constitutional.

This was a Hinds County medical malpractice case where the jury awarded $1.5 million in economic damages and $2 million in non-economic damages.

On appeal, the Court ruled that the trial court should have granted Defendants’ motion for an ‘independent medical exam.’

Sidebar: Why are they called ‘independent’ medical exams? They aren’t independent. They are bought and paid for by defendants and conducted by the biggest defense whores they can find. I’m not saying they shouldn’t get them, but let’s be honest and call them something like ‘defense medical exam’ or ‘biased medical exam’ or even ‘non-independent medical exam’.

The Court next ruled that the trial court improperly allowed a treating physician to opine about whether the injuries were permanent and disabling when his last examination of the plaintiff was a month after the incident.

Based on the previous ruling, the Court concluded that the award of $1.5 million in economic damages was excessive. The Court said that the plaintiff only proved $112,499 in medicals. The plaintiff offered evidence of $707,000 of lost wages at trial based on the disallowed permanent injury opinion. My recollection of the oral argument was that the evidence supporting the $1.5 million verdict was thin.

Finally, the Court concluded that the trial court improperly excluded Defendant’s superseding cause jury instruction.

The trial court reduced the non-economic damaged verdict to $500,000 due to the cap in medical malpractice cases. The plaintiff challenged the constitutionality of the cap in a cross-appeal. The Court did not reach the cap issue because it ruled against the Plaintiff on the direct appeal.

Judge Griffis wrote the Court’s opinion. Judge Irving dissented and was joined by Chief Judge Lee.

My Take:

The Court arguably buried the lead when it struck plaintiff’s expert testimony that the injury was permanent and disabling. While this part of the decision received second billing, it creates the biggest problem for the plaintiff on remand.

Judge Irving’s dissent makes a decent argument that the ‘IME’ wasn’t warranted. The dissent did not focus on the fact that the standard of review for ordering the IME was abuse of discretion.

We have all these different appellate standards of review. But it sure looks like the parties often argue–and appeals courts often decide–based on a right/wrong analysis without much regard given to the standard of review. This is not necessarily true, but that is the impression that the opinions often leave.

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?