Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

• Email This
• Print
• Comments (11)
• Trackbacks
• Share Link

The American Bar Association (ABA) Journal named the Mississippi Litigation Review to its 2010 list of the best 100 legal blogs. Here is the ABA Journal's article on the ABA Journal Blawg 100. And here is a link to the ABA Journal Blawg 100. The ABA Journal has over 3,000 blogs in its legal directory.

The ABA Journal listing of this blog includes an endorsement by Ya'll Politics blogger and author Alan Lange. My enjoyment of reading Lange's blog is one of the reasons that I decided to start a blog two years ago.

The top 100 blogs are organized in 12 categories. This blog is in the “Niche” category—presumably because I am short.

Readers can vote from their favorite blogs for among the top 100. Voting ends on December 30th. Please vote for my blog so it at least doesn't come in last.

Thank you to everyone who reads this blog. I feel a bit like Steve Martin as Navin Johnson in The Jerk when he found out that his name was in the phone book. Watch video here. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Pop Tort Blog has a post about a new report from the National Center for State Courts. Here is a link to the report, which covers 2008 (its most recent reporting year).

According to the Report, tort filings are dropping significantly. Meanwhile, debt collection actions are flooding civil courts.

Here are some of the report's statistics for Mississippi. Again, this is for 2008:

contract cases—43,456 (includes 34,971 debt collection cases (80%).

tort cases—5,545 (11% of filed cases) (includes 1,595 car wreck cases (39% of tort cases).

medical malpractice cases—241 (4.3% of tort cases).

According to my math, this means that medical malpractice cases represented one half of one percent of all filings in 2008. On top of that, defendants win most medical malpractice cases that go to trial.

Yet insurance companies can brainwash doctors into thinking that plaintiff lawyers are a bigger threat to doctors than insurance companies who refuse to pay the bills of patients that should be covered by the patient's insurance. Amazing.  

The work is never going to rebound for large defense firms who made a killing during the litigation boom in the 1990's and early 2000's. Mass tort litigation in Mississippi is dead compared to how it was back then. Some of the biggest plaintiff lawyers from that era are in jail. Other plaintiff lawyers have closed their practices or transitioned to criminal law, domestic, bankruptcy or other types of non-tort litigation work.

Making matters worse, out of state lawyers squeeze out Mississippi firms for much of any major litigation that is filed in Mississippi. Some Mississippi defense firms that are surviving in this climate do it by borrowing a page from national counsel's playbook and compete for work outside of Mississippi. That makes sense to me. In my experience the “national counsel” from outside Mississippi are rarely as talented trial lawyers as their Mississippi “local counsel.”     

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Mississippi Jury Verdict Reporter has released its December 2010 issue. This is just the second issue of this new publication.

The new issue reports on over twenty-five verdicts. Some of the verdicts were previously reported on this site. But many—including defense verdicts and small plaintiff verdicts—were previously unknown to me. This provides confirmation of my belief that we hear about large verdicts, but not the more common defense verdicts and small plaintiff verdicts.  

Here is a special preview of the December edition for readers of this blog. I am not affiliated with the publication, but I do recommend it for Mississippi lawyers and others with an interest in jury verdicts in Mississippi.

• Email This
• Print
• Comments (12)
• Trackbacks
• Share Link

The AP had a short article today on A&O front man Russell Mackert's guilty plea in federal court in Virginia:

RICHMOND, Va. (AP) — A lawyer involved in what authorities say was a $100 million life insurance fraud scheme has pleaded guilty in federal court in Richmond.

Prosecutors say 51-year-old Russell Mackert of Spring, Texas, pleaded guilty Tuesday to conspiracy to commit mail fraud and bulk cash smuggling. He faces up to 25 years in prison and a $500,000 fine.

Mackert was an attorney for A&O Life Funds, which bought life insurance policies from insured people at less than face value and then collected the benefits when those people died. Prosecutors said company officials illegally portrayed investments in their company as risk-free and guaranteed double-digit returns. They say about 800 people throughout the U.S. and Canada were victimized.

Mackert admitted misleading investors and trying to hide $10 million in profits from the scheme in offshore bank accounts.

I have seen the comments where people speculate that Oncale or others might not have to spend any real time in jail. I disagree. The federal court system generally does not work that way. Take for instance Michael Vick serving a year and a half in prison for charges related to dog fighting. That guy may be the NFL MVP this year, but he did time.

I can't say these guys will get the years in prison that cheated investors would like--but I do think that they will all serve time.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Results for Tuesday's runoffs in judicial elections:

Hinds County Court: Melvin Priester over Brent Southern

Madison County Court: Steve Ratcliff over Will Longwitz

13th Chancery District (Covington, Jefferson Davis, Lawrence, Simpson, Smith): David Shoemake over incumbent Judge Larry Buffington

13th Circuit District (Smith, Jasper, Simpson, Covington): Interim Judge Eddie Bowen over Wilton McNair

10th Chancery District: Dawn Beam over Scott Phillips.

Reports were that voter turnout was low. The Clarion-Ledger reported that the Madison County race got ugly.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In April Lt. Governor Phil Bryant filed a lawsuit in the U.S. Dist. Court for Southern District of Mississippi challenging the legality of Congress' health-care reform bill passed at the urging of President Obama.

In August the government filed a motion to dismiss. The government's supporting brief tipped the scales at 46 pages. Here is the brief.

Not to be out done, Bryant's attorney, State Senator Chris McDaniel, filed a response with a supporting brief that is 78 pages. Here is the plaintiff's response brief.

I may have to wait for the cliff notes.

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

The Clarion-Ledger ran this article on Saturday about Jackson lawyer Wayne Farrell's lawsuit against Arkansas lawyer Tab Turner. The case is a fee dispute among lawyers over the presumed multi-million dollar settlement in the Jasper County Cole v. Ford Motor lawsuit that resulted in a $132 million jury verdict. The case settled shortly after the verdict.

Now the plaintiffs' lawyers are fighting over the attorney's fees:

Jackson lawyer Wayne Ferrell Jr. is suing Arkansas lawyer C. Tab Turner and others in Jasper County Chancery Court, seeking to force Turner to abide by a 2006 attorney-fee sharing agreement.

 The attorneys agreed legal fees and expenses would be split 28 percent for Ferrell, 23 percent for Turner and other attorneys would share the rest. In early 2005, a new contingency fee was worked out with attorneys to receive 50 percent of the total amount awarded to the family. 

Ferrell said in court papers Turner shut out other attorneys from the decision-making process during settlement negotiations.

After a second mistrial in February, Turner requested Ferrell and other attorneys pay about $600,000 in expenses. He said he had incurred more than $832,000 in expenses from the start of his involvement in the case. From the September trial that resulted in the jury verdict, Ferrell said Turner requested payment in advance for expenses incurred for expert witnesses and trial expenses.

But Ferrell said in court papers that Turner hadn't provided any proof by way of invoices from expert witnesses.

"Turner has threatened to pay Ferrell nothing from the fee proceeds even though Ferrell procured the case and even though Ferrell has thousands of hours in the case," Ferrell said in court papers.

This has the potential to be the biggest lawyer fee dispute case since the 1999 Dockins v. Allred decision in which the Mississippi Supreme Court ruled on a fee dispute between Hal Dockins and Mike Allred over the attorney's fees in the Loewen case.

That case resulted in a $500 million dollar verdict in the mid-1990's. Ironically, most people credit Florida attorney Willie Gary for that verdict even though he avoided the fee dispute. Here is a link to a video of Gary re-enacting his closing argument from the Loewen trial. Here is a link to a law review article that examines the controversial Loewen verdict.

I suspect that the Brian Cole settlement deeply discounted the jury's verdict. But even a 90% discount would leave the attorneys fighting over millions of dollars in fees. Lawsuits against and among lawyers are often knife fights. I doubt that this one will be any different.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Senate Judiciary Committee did not act on any pending judicial nominations today. This included the 5th Circuit nomination for Justice James Graves. Here is the link.

The Point of Law blog noted in a post today that conservatives are trying to stall on all nominations for the entire lame duck session. 

President Obama may be about to learn why he should have pushed these nominations through a year ago.

• Email This
• Print
• Comments (11)
• Trackbacks
• Share Link

On Tuesday a federal court jury in the Western Division of the Northern District of Mississippi returned a plaintiff's verdict of $1.15 million in Whiteaker v. Fred's Stores of Tennessee. The case involved a trip and fall accident outside a Fred's Store in Southaven.

Here is the Complaint. The plaintiff alleged that the plaintiff tripped and fell on a wooden corral outside the store that was set up to create a maze that made it harder for shoplifters to get out of the store. The fall resulted in the plaintiff breaking both arms, injuring her neck and chest and breaking several teeth.

Here is Fred's Memo. Supporting Motion for Summary Judgment.

Here is the plaintiff's response.

Here is the Order denying the motion. The Court's opinion characterized plaintiff's case as weak, but involving fact questions for a jury. The judgment and verdict form were not filed on Pacer as of this posting.

The trial lasted two days with Judge Michael Mills presiding. Philip Stroud of Southaven and James Lees of Charleston, West Virginia represented the plaintiff. Robert Jolly and Scott Hollis of Watkins Ludlam's Olive Branch office represented Fred's.

Complaint.

Summary Judgement Memo.

Summary Judgment Response.

Order Denying Summary Judgment.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Charles Griffin reports on his Minority Defense Litigator Blog that on Thursday Justice James Graves will get his Senate Judiciary Committee vote for his appointment to  the 5th Circuit Court of Appeals. Here is a Sun-Herald story on the vote.

This is one of the steps in Graves' confirmation process. After he clears the committee he has to wait for a vote by the full Senate. I'm not getting any intel on when  the Senate vote might take place.

Carlton Reeves is still waiting for his full Senate vote. He cleared the Senate Judiciary Committee in August. Graves' wait for a Senate vote could be shorter--or longer. As Gulfport's Homer Dedeaux used to say: "that's politics, coach."

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

This article on the ABA Journal News website discusses the issue of law schools failing to disclose the dim job prospects to students. The article states:

While those at the very top of the starting salary scale might earn $160,000, the median among all lawyers is $60,000. So, for those in the middle of the pack, "if you have debts over $100,000, some reaching $150,000, it will be very difficult to pay that debt," he says.

David N. Yellen, dean of Loyola University Chicago School of Law and chair of the ABA subcommittee that considers what consumer information law schools should be required to report, tells the Law Bulletin that law schools need to be more transparent about job prospects.

"I believe the time has come to mandate that law schools publicly disclose more information about job outcomes," Yellen is quoted saying.

If $60,000 is the nationwide median salary for lawyers, then the median in Mississippi has to be lower. And job prospects for lawyers are at an all time low. 

Hardly a week goes by that I don't hear a rumor about layoffs at a big or medium size firm, get a phone call about a lawyer looking for work or hear a story about a former law grad delivering pizzas. Just yesterday I was looking up a lawyer on a Jackson based firm's web site. I was shocked to see how much smaller the firm was than 5–10 years ago. The firm has shrunk down to the point where most of the lawyers were at the firm 15 years ago.

I'm starting to get the feeling that many Mississippi lawyers who graduated from law school in the late 90's and early 2000's during the mass joinder litigation boom have disappeared.  I have no idea where all the lawyers who were working in Mississippi litigation ten years ago—but aren't now—went to.

Meanwhile, I heard recently that the Mississippi College Law School just increased the size of its first year class. They should be shrinking their classes instead of growing them. MC Law School is not alone on this issue. But law schools are such profit centers for schools that they will not do the right thing on this issue.

For many people, starting law school in this legal economy is a sucker bet. I can understand it for people who really want to be a lawyer and are willing to suffer to make it happen. But that applies to what? 10% of a first year class at the most? Everyone else is there because they are smart enough to get in and don't have a better idea for what to do after college.

People might be better off going to a trade school after college. If you learn a trade, are good at it and can succesfully run a business, you probably have better income prospects than a lawyer right now. Not to mention the fact that many lawyers hate practicing law.  

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

An Adams County circuit court jury returned a $511,000 plaintiff verdict on Thursday in Ford v. Fairbanks. The trial was a medical malpractice case that involved a knee replacement.

Here is the Complaint. The Plaintiff (Johnny Mack Ford) alleged that the Defendant Dr. Rusty Fairbanks negligently performed a left knee replacement. The plaintiff developed sepsis and had multiple revision procedures by other physicians to repair the damage caused by Dr. Fairbanks.

Here is the jury's verdict form. The jury awarded $300,000 in non-economic damages and $211,000 in economic damages.

David Dunbar of Dunbar Monroe in Ridgeland represented the plaintiff. Diane Pradat and Brad Overcash of Wilkins Tipton in Jackson represented the defendant. Judge Forrest Johnson was the trial judge. 

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

On Wednesday a Hinds County jury acquitted a native Indian store owner for the 2008 shooting death of an African-American man in Jackson. The defendant claimed self-defense in shooting the decedent after he stole beer from the defendant's convenience store. Here is a Clarion-Ledger article on the verdict.

Here are the racial dynamics from the trial:

• decedent: African-American
• defendant: native-Indian
• assistant district attorney: African-American (Kimalon Melton)
• defense attorney: white (Tom Fortner)
• judge: African-American (Judge Winston Kidd)  
• jury: 11 African-Americans and 1 white

I believe that many people who over estimate the factor that race plays in jury trials would have expected a predominately African-American jury to convict a defendant of another race. But as pointed out by Jackson City Council President Frank Bluntson:

"People are just tired of crime," Jackson City Council President Frank Bluntson said of the jury's decision as he stood outside the Hinds County Courthouse.

By “people” Bluntson means everyone. Not just white people.

Whatever factor race played in this trial—if any—was trumped by the facts of the case and jurors' views about crime in Hinds County. I think it's fair to say that a large segment of the Hinds County population—black and white—reacts positively when they hear about a crime victim shooting the perpetrator. These feelings about crime trump any racial biases.

There are lawyers in Mississippi who believe that race is an overwhelming factor in jury verdicts. These lawyers believe that having a good African-American lawyer or expert witness in a trial with mostly African-American jurors is more important than the facts of the case.    

I can't say race never plays any factor in jury verdicts in Mississippi. But I can say that many lawyers—mostly white lawyers who attended segregated schools and have spent little time around African Americans— completely over estimate the importance of racial factors in juror decision making. 

Racial dynamics in Mississippi are complicated. Like many elements of trial practice, there are no hard and fast rules when it comes to the race factor in jury trials.          

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Saturday's Clarion-Ledger reported on a $345,020 jury verdict last week in a workplace retaliation claim filed by Renee Summers-Akers against Hinds Community College. The case was tried in the Jackson Division of the Southern District of Mississippi before Judge Tom Lee.

Here is the jury's verdict form.

Here is the court's judgment.

The C-L article states:

Renee Summers-Akers, who taught at Hinds from 1982 until her retirement this spring, alleged she was passed over for a promotion in 2006 because she had aided a colleague who was accusing the college of racial discrimination.

The verdict consisted of compensatory damages and back pay. Summers-Akers is also entitled to seek recovery of her attorney's fees, since this was a civil rights case. The judgment gives her 14 days to file her motion for attorney's fees. If granted, the motion will probably significantly increase Hinds' total liability.

Louis Watson, Jr. of Jackson represented the plaintiff. Ben Piazza and Thomas Bryson of Jackson represented the defendant.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On October 26, 2010 a Hancock County jury awarded $1,170,000 to Coastal Hardware Store in a bad faith case against Lloyds of London. Coastal Hardware was destroyed by Hurricane Katrina. Lloyds refused to pay the claim despite accepting premiums for the insurance. The verdict is one of the largest—if not the largest—in the history of Hancock County.

Coastal Hardware is located in “the” Kiln. An earlier trial in August resulted in a mistrial due to the acoustically challenged Hancock County courtroom. I am not sure if the retrial was moved to Gulfport or relocated to a different courtroom in Hancock County.

The case involved an interesting twist. Two days before Katrina, Lloyds mailed the policy to the Kiln post office. Being the U.S. Postal Service, the policy did not arrive before Katrina. The Kiln post office was destroyed in Katrina, so Coastal Hardware never received the policy.

Circuit Judge Lisa Dodson ruled that the governing contract consisted of quote sheets provided before Katrina.

Coastal Hardware thought that it had a strong punitive damages case, but the jury voted to not award punitives by a 9–3 margin. Hancock County is very conservative. My guess is that the jury thought that over a million in damages was enough.

Former U.S. Attorney Brad Pigott of Pigott Reeves & Johnson in Jackson represented Coastal Hardware. Whit Johnson of Currie Johnson in Flowood represented Lloyds.

• Email This
• Print
• Comments (8)
• Trackbacks
• Share Link

Incumbents--many unopposed--were the big winners in Tuesday's judicial elections in Mississippi. The best site I found for vote totals in all the races was on the Northeast Mississippi Daily Journal's website.

Judge Donna Barnes defeated challenger Kelly Mims for the Court of Appeals. Mims ran a hard race, but voters did not have much of a reason to vote Barnes out of office.

In local judge races, Jeff Weill won Swan Yerger's seat on the Hinds County Circuit Court with over 60% of the vote. Whoever Governor Barbour appoints to replace Justice James Graves on the Mississippi Supreme Court should fear Weill. I believe that Weill can beat anyone else who runs for the seat.

Bill Gowan defeated Malcolm Harrison by 700 votes for the other contested Hinds County Circuit Court seat. Gowan won on the strength of a bunch of Malcolm McMillan TV commercials. Harrison had been appointed to the position by Governor Haley Barbour. Rain on Tuesday may have been the deciding factor in Gowan's win.

On the Coast, Gulfport native Jennifer Schloegel beat four other candidates to win the Chancery Judge seat being vacated by Margaret Alfonso, who won a county court judge seat. Schloegel, her husband Mark, and both their families are well known and popular on the Coast. Schloegel's father-in-law is mayor of Gulfport.

Like Weill, Schloegel probably could also win an election for the Court of Appeals or Supreme Court. She would also be a candidate for an appointment to replace Justice Mike Randolph on the Mississippi Supreme Court if he ever acts on rumors that he is interested in running for state wide office.

There will be an interesting runoff between Melvin Priester and Brent Southern for Hinds County County Court judge. Priester got over 5,000 more votes than Southern. But Southern will pick up all Frank Farmer's supporters and a lot of Trent Walker's in the runoff. I expect the runoff to be close and would not be surprised to see Southern win based on better voter turnout by his supporters.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

With legal news slow this week going into today's election, I am blogging on this report yesterday on the Jackson Jambalya blog. The post reports that the Mississippi Prepaid College Tuition Program is 75% funded and faces an unfunded liability of $84.7 million as of June 30, 2010. The unfunded liability will presumably have to be covered out of the State's general fund, which has no funds to spare.

The reason for the short-fall? Kingfish reports:

 The program assumes an annual rate of return of 7.8% on investments and an annual tuition rate increase of 6.5%, yielding a spread of 1.3%. There are 21,257 participants enrolled in the program. The 2009 report posted below shows the program was 95% funded with an unfunded liability of $13.5 million in 2007. The program was 85% funded with an unfunded liability of $48.6 million in 2008. The 2008 meltdown hit hard as the unfunded liability skyrocketed to $86.8 million in 2009 while funding dropped to a level of 72.7%. The funding level improved slightly to 75% as the program enjoyed a 12.87% return of investment last year as the markets recovered.

State Treasurer Tate Reeves defended the fund's assumption of a 7.8% investment rate of return:

Mr. Reeves said as the markets recover, the rate of return will improve. He agreed with me that the reason for the high rate of return last year was due to the "dead cat bounce" the markets enjoyed as they recovered from the crash of 2008. He said 7.8% is a realistic goal over a long period of time such as thirty years, as shorter terms are subject to more variations in the rate of return, but they tend to be more stable over time.

My jaw hit the floor when I read Reeves defending a 7.8% assumed investment return over thirty years. Over the last ten years investment returns have gone nowhere (other than gold and other metals that the fund does not invest in). Mississippi's non pre-paid 529 plans have been losing money for the last few years. The economy is in the ditch and there is no reason to think that the market will earn 7.8% annualized returns anytime in the foreseeable future.

Eager for a second opinion, I emailed Mike Shedlock, author of the Mish's Global Trend Analysis financial blog. This dude knows what he is talking about in the financial markets. Here is Shedlock's response to my email asking if 7.8% is a reasonable assumption:

7.8% is nuts
will never happen when treasuries are yielding nothing
I think 5% is very optimistic
In fact, I think there will be no returns at all for 5 years - and they might even be negative

 I am predicting that the shortfalls in this program create a huge political stink at some point in the future. And this is something that the politicians should have seen coming.
 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

The latest edition of the Jackson Free Press contains this article about Mississippi's elected judiciary system by reporter Adam Lynch. The article covers a lot of ground including:

• Minor-gate;
• Scruggs-gate;
• the U.S. Chamber's history of trying to influence judicial elections in Mississippi;
• Alex Altson's outing of the Chief Justice Jim Smith Supreme Court's pro-business voting record; and
• arguments for an appointed judiciary in Mississippi.

Former State Court Supreme Court Justice Oliver Diaz advocates a cleaner elected judiciary system:

The former justice remains convinced that a cleaner election system is the best method to get a good judge. “The elective system isn’t inherently bad in and of itself. It just has to be conducted in the right way,” Diaz said. “The way we conduct it now, it is flawed, where these groups from outside the state, outside the country even are allowed to come in and basically buy a seat on the Mississippi Supreme Court if they want to.”

I am quoted in the article based on my support for an appointed judiciary.