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

HB 1523 Update: Gov. Bryant Looking Forward to Losing Again

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

On Thursday U.S. District Judge Carlton Reeves further gutted HB 1523 with this 60 page decision: Barber v. Bryant opinion.

I will have more on Judge Reeves’ opinion next week.

Meanwhile, according to this Jackson Free Press article Attorney General Jim Hood is not geeked up about losing the case again on appeal:

“In consideration of the individual rights of all our citizens, the state’s current budget crisis and the cost of appeal, I will have to think long and hard about spending taxpayer money to appeal the case against me. An appeal could cost the state hundreds of thousands of dollars…..Because of the huge tax breaks handed out to big corporations by these same leaders, the state is throwing mentally ill patients out on the street. This is hardly protecting the least among us as Jesus directed.”

Meanwhile, JFP reports that Gov. Ross Barnett Phil Bryant is looking forward to filing an appeal motion to lose again:

Predictably, the injunction upsets Gov. Phil Bryant, who said in a statement he looks forward to an “aggressive appeal” of the decision, the Associated Press reported.

The same article quotes Mississippi College Law School constitutional law professor Matt Steffey a describing the chances of Judge Reeves getting reversed on appeal as ‘unlikely.’

This week I took an informal poll of colleagues (some of whom are Republicans) asking their estimate on the percentage of Republican legislators and state officials (Bryant, Reeves, etc.) who know that 1523 is straight out of Mississippi’s losing Jim Crow era playbook. The general consensus was that about 25% have a clue while the other 75% are morons who think they are being clever.

Federal Court Strikes HB 1523 – Mississippi Preserves its Reputation for Bigotry

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

On Monday U.S. District Judge Carlton Reeves struck the central ‘feature’ of HB 1523, ruling that county clerks must issue marriage licenses to gay and lesbian couples. Here is Larrison Campbell’s article on Mississippi Today. Here is Judge Reeves’ Order.

The Order includes a lot of procedural noise. Here are key passages:

  • In 2016, Mississippi responded to Obergefell [U.S. Supreme Court decision recognizing constitutional right to same-sex marriage] by creating a new way to treat same-sex couples differently than opposite-sex couples (p. 12);
  • The Fifth Circuit long ago chastised our State for such “a carefully calculated campaign of delay…and masterly inactivity.” (p. 13); and
  • The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be enforced (p. 15).

My Take:

And just like that Mississippi’s 2016 Jim Crow law bites the dust. Fifty-four years after the Fifth Circuit chastised the State for doing the same sort of thing in trying to keep James Meredith out of Ole Miss. How did that work out, by the way? Meredith is a celebrated hero. The people on the other side of that fight? Not so much.

Let’s be clear. If you are a vocal 1523 supporter, fifty years from now people will view you the same way they view Ross Barnett and the other state leaders who fought to keep Ole Miss segregated. Damn poorly.

How utterly embarrassing and damaging for the State. It’s hard to fathom why a State with a huge image problem would enact a clearly unconstitutional law that reinforces the State’s image for bigotry and stupidity.

I understand that some people are bigots. And hey, it’s a free country. You get to be a bigot if you choose. But you don’t get to infringe on the rights of people who you don’t like.

What frustrates me is the stupidity. As I have noted in prior posts on 1523, the bill was bad for economic development in a state sorely in need of economic development. Saying we shot ourselves in the foot discredits people who accidentally shoot themselves in the foot. This was intentional.

The repercussions will be long-lasting. Mississippi will continue to suffer a ‘brain drain’ and will continue to have to bribe companies to locate facilities in the state. Meanwhile, states with more open minded populations and leadership will continue to pass us by. It’s disheartening.

June Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $31,095,000 verdict- Rankin County car wreck case (5/17/16);
  • $6,228,000 verdict- Harrison County eminent domain case (5/20/16);
  • $100,000 settlement- Lafayette County medical malpractice case (5/28/15);
  • $10,000 verdict- Hinds County car wreck case (5/26/16);
  • $10,000 verdict- DeSoto County car wreck case (3/14/16);
  • $8,888 combined verdict- DeSoto County car wreck case- 2 plaintiffs (2/22/16);
  • defense verdict- Hattiesburg federal court car wreck case (5/19/16); and
  • defense verdict- Hattiesburg federal court insurance coverage dispute (12/2/15).

My Take:

A big month for the plaintiffs–only two defense verdicts.

The defendant in the Rankin County car wreck case was pro se. I think we all know what that means. In any event, take that one with a grain of salt.

Big win for Sheldon Alston and Karen Howell at Brunini in the eminent domain case.

Is Trump in it to Win it?

Posted in National Politics

This morning Electoral Vote.com mentioned a question that has been on my mind for a few days: is Donald Trump trying to lose?

Let’s look at some of Trump’s bizarre moves lately:

None of these gaffes gain Trump new voters. While it may be red meat for people voted for him in the primaries, he doesn’t need to win their support. He needs to find 60 million new votes.

Trump is still in full heel mode when he should be trying to turn face and make people like him. It’s so bizarre. Could he be trying to lose?

It’s Tough Out There for Lawyers

Posted in Attorney Mental Health, General, Law School

The bad news keeps pouring in for lawyers with these latest headlines:

From the Times article:

Mr. Acosta is just one of tens of thousands of recent law school graduates caught up in a broad transformation of the legal profession. While demand for other white-collar jobs has grown substantially since the start of the recession, law firms and corporations are finding they can make do with far fewer in-house lawyers than before, squeezing those just starting their careers.

Here in Jackson, 2016 seems to be a shake out year. Firm breakups and downsizing are going on that points to fewer lawyers and staff at the big firms. That’s going to lead to increased competition for lawyers who do personal injury, family law and other practice areas that lawyers outside big firms focus on.

These pressures will in turn lead to more anxiety and depression for lawyers who are worried about their future.

Businesses Bemoan HB 1523

Posted in Politics in Mississippi

The Jackson Free Press ran this article last week about Mississippi businesses suffering as a byproduct of HB 1523, which is a Jim Crow type law that attempts to legalize discrimination against gays. The article notes:

  • Jackson developer and architect Roy Decker lost an investor due to the bill’s passage (Decker is developing one of the two new hotels scheduled to be built in Fondren);
  • Mississippi hotels have lost business due to HB 1523; and
  • Sharon Stone cancelled the filming of a movie in Mississippi.

The article also quotes Jackson attorney Will Manuel as opining that the law is unconstitutional:

The problem with the bill overall is I think it’s facially unconstitutional because it only protects certain types of religious thought,” Manuel told the Jackson Free Press.

HB 1523 is set to become law on July 1.

There are at least four pending legal challenges to the law. The cases are assigned to U.S. District Judge Carlton Reeves, who was the judge who struck down the State’s ban on gay marriage.

The odds of Judge Reeves upholding 1523 are somewhere between slim and none. And as with the same sex marriage issue, Mississippi will win by losing the challenge to 1523.

Other HB 1523 posts.

PERS Suffers Negative Yearly Investment Return

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

Mississippi’s PERS website links its quarterly investment report for the period ending March 31, 2016: PERS Investement Report.03.31.16.

The report reflects that the total fund’s return for the period ending 3/31/2016 was  minus .47%. As a reminder, PERS is modeled on an unrealistic investment return assumption of 7.75%.

The fund made money in private equity, real estate and bonds (fixed income). The fund lost money in all three categories of equities (stocks): U.S., international and global. Those make up about 60% of the funds investment allocations.

The fund finished the quarter with 1.86% cash. This means that the fund is not positioned to take advantage of a market pullback despite the fact that stock valuations are in the nosebleed zone.

On top of this, the Mississippi Business Journal reported last week that S&P Global Ratings is focused on the fact that PERS is underfunded. From the article:

Meanwhile, expenditure pressures could also come from potential underfunding of Medicaid and the state’s pension fund, according to S&P Global.

If unchecked, the pressure could cause Mississippi to lose its AA rating on its bonds, S&P said in its June 7 assessment report.

The article quotes State Treasurer Lynn Fitch stating that the state needs to address PERS’ underfunding:

Additionally, the state must address a pension system that is funded well below the national average, she said.

“Kicking the can down the road on any of these issues puts our credit ratings at risk.”

“Kicking the can down the road” is exactly what the state is doing. Fitch is right to sound the alarm. Too bad our Legislature is more concerned with unconstitutional anti-gay laws and a gun fetish.

Here are all my posts on PERS.

U.S. Supreme Court Rules Juries Can be Recalled in Civil Cases

Posted in Improving the Jury System, U.S. Supreme Court

On Thursday in Dietz v. Bouldin, the Supreme Court ruled that federal district courts can recall jurors after identifying errors in deliberations.

The decision involved the trial of a car wreck case in Florida. The defendant admitted liability and stipulated $10,136 in damages for plaintiff’s medical expenses. During deliberations, the jury sent out a note asking whether plaintiff’s medical expenses had been paid and, if so, by whom. As is typical in that situation, the judge gave a non-response that the information was not relevant to the verdict. The jury then returned a plaintiff verdict for $0.

The judge discharged the jury. Then, the judge realized that the verdict had to be for over $10,136. Over plaintiff’s objection, the judge recalled the jurors, all but one of whom were still in the courthouse. After questioning the jurors and determining that none had discussed the case with anyone, the judge gave clarifying instructions and ordered the jury to resume deliberations. The jury then returned a plaintiff verdict for $15,000.

The plaintiff appealed and argued for a new trial. The Ninth Circuit affirmed.

In a 6-2 decision, the Supreme Court ruled that it was within the trial court’s inherent power to recall the jury. But the court should be careful when exercising the power and do so only in civil cases after determining that the jury was not tainted after discharge. The judge should question the jurors about whether they discussed the case with anyone, accessed their smartphones or the internet or were impacted by the parties’ reaction to the verdict.

Justices Thomas dissented with an opinion joined by Justice Kennedy. The dissent argued that the better rule is the common law bright line rule that once discharged, the judge cannot recall a jury. The dissent states:

All rules have their drawbacks. The common-law rule, on occasion, may unnecessarily force a district court to redo a trial for a minor substantive mistake in the verdict. But the majority’s multifactor test will only create more confusion. It would be much simpler to instruct the district courts, when they find a mistake in the verdict after the jury is dismissed, to hold a new trial.

My Take:

New rule: you can’t put a skunk back in the box–unless it’s a civil case. Then it’s ok.

In theory, I don’t mind a trial judge having a bit of discretion in this area. But come on. Bringing back a jury that rendered a $0 verdict when the defendant stipulated $10,136 in legitimate medical expenses? Everyone knew the plaintiff was going to get screwed. This was a bad jury. And the judge was more interested in getting it over than getting it right.

This case goes in my Improving the Jury System category. It’s another example of a case where the jury system didn’t work well. I don’t blame jurors for this. I blame a legal system that pretends like the jury system is perfect and never tries to improve it. You know what I bet they didn’t tell the jury in plain English? That the verdict must be for at least $10,136.

$15,000 was probably just enough to stick. I would like to see what the judge would have done if the jury had come back with $10,136.01.

It’s sad–but completely unsurprising–that the Supreme Court didn’t seem to notice how screwed up this was.

Ignore Most of the National Coverage on the Presidential Election

Posted in National Politics

I’m going to throw up if I read or see one more story about a new poll on Hillary v. Trump. National polls are lazy, near-worthless information. Don’t believe me? Ask President Gore. He won the popular vote.

Everyone knows it comes down to a few battleground states that will decide the electoral college. Want to read electoral college focused coverage? Then read electoral-vote.com. It’s my favorite website during election season. After the conventions, it will provide an electoral college projection based on the the most recent polling. It also updates daily with a lengthy update on the election news. This is my first stop for election news–even before the New York Times.

As for prognosticating, the pundits say Clinton is a heavy favorite. I’m not so sure. The prognosticators have never seen anything like Trump. They thought he was going to be gone before Iowa. They predicted his demise every step of the way. Some even still predict his demise for the Republican nomination that he’s already locked up.

Trump acts like a jack-ass. But a lot of people are ready to try a jack-ass-acting president. Why? Maybe it’s because people don’t believe any of it. All the candidates are acting in some form.

To use pro wresting verbiage, some people are ‘smarks.’ They know it’s all a ‘work.’ They don’t think Trump is for real. They cheer for Trump over Clinton because he’s got a fresher shtick. Not that all his supporters are smarks.

Some of them are ‘marks.’ They believe and buy into his racism and ridiculousness. How many Trump supporters are marks and how many are smarks? Does it matter? Their votes count the same.

Personally, I don’t believe Trump is a racist. He’s too rich to be a racist. An elitist? Sure. But racist? Why would he care? He’s not worried about white flight from Trump Towers. Hell, he’s probably never been around minorities except for Beyonce and Jay Z.

Who do you think Trump would rather have over? Denzel or Joe the Plumber?

Trump: “White supremacists? I don’t know anything about those guys. Do they have a house in Palm Beach? No? No idea. I just know I like kicking it with Spike in the VIP Lounge at the Garden.”

I’m not making election predictions because there are new and unknown dynamics in play. Sometimes people win an election by acting in a completely unorthodox fashion. Don’t believe me? Then go research the 1985 election for Gulfport High School student body president. No one who saw Joe Phillips’ campaign speech will ever forget it.

Miss. Law Firms Following National Trend of Reducing Staff

Posted in General

Above the Law reported last week about Big-law firm Akin Gump asking support staff in several offices to voluntarily leave the firm. In exchange, the firm will provide a generous severance package. The firm says it has no plans to fire anyone.

Unfortunately for the staff, law firms have a tendency to do a bad job telegraphing layoffs and they often take the employees by surprise. Law firms hate to admit when business is bad–even internally in the firm.

Staff layoffs have happened this year at big firms in Jackson. In addition to layoffs, there have been reductions in staff hours and salaries at a firm.

As the ATL post stated:

With more and more technical advances, and lawyers’ increased proficiency with that tech, the need for hordes of staff has just decreased.

It’s sad for people affected by this trend.