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

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The Mississippi State House of Representatives defeated the latest judicial pay-raise bill last week. The bill needed 71 votes to pass, but got only 59. Here is a link to how members voted on the bill.

Mississippi has the lowest paid judiciary in the nation. The bill would have provided a 37% pay raise for judges who are 100% underpaid and who have not seen a raise in years. The bill proposed to fund the raise by modestly increasing lawsuit filing fees.

Opponents of the bill gave a suspect defense of their votes:

Opponents said with a tight state budget, this isn't the time to consider raises for any public employees.

"I admire the legal system for their intestinal fortitude to come down here and ask for this at this time," said Rep. Ted Mayhall, R-Southaven. "We don't have the money."

By “we” Mayhall presumably meant the state budget coffers. But since the raise was to be funded by filing fees rather than the general budget, Mayhall's explanation does not make sense.

Tort reform proponents use similar Mayhallogic (not logical) to defend damages caps. They argue for the caps by saying that caps are needed due to frivolous lawsuits. But that does not make sense because caps come into play only in cases involving the most seriously injured.

What does make sense is the notion that Mayhall and other opponents of the judicial pay-raise bill do not want a strong judicial branch. They want to substitute the legislature's judgment and authority for the judiciary's. They want to eviscerate one of the three branches of government.

With tort reform's limits on non-economic damages, the legislature tells the judicial branch that the legislature does not trust the judiciary to administer justice fairly. Instead, the legislature determines what are the outer limits on just compensation for victims of other people's wrong-doing.

When the judiciary tells the legislature that judges need a raise, the legislature says no. We will set the laws on how much victims can recover and how much you get paid. You'll get nothing and like it.

This raises an interesting dynamic with at least two cases challenging the constitutionality of damages caps currently before the Mississippi Supreme Court. Will the Court accept that Uncle Mayhall and the rest of the legislature know best? Or will the Court rule that the caps are unconstitutional and violate the Constitution's equal protection clause?

One thing is for certain: the Supreme Court is unlikely to uphold the caps in order to protect their high-paying jobs. Every single justice on the Court could make more money in the private sector. On average, they would make significantly more. But why should Mayhall and other legislators care? Unlike state court judges, legislators can have another job to supplement their State pay.

With the election victories in the last few years of Justices Kitchens and Graves, it's apparent that judges do not have to suck up to big business in order to win elections. Having a moderate record and good campaign skills is more important to winning an election than approval by the Chamber.

It would be ironic if the Court strikes the caps. If it does, I suggest the following passage for the Court's opinion: “the Court admires the legislature's intestinal fortitude to come down here and tell the Court how much people can recover in lawsuits. But the Constitution says that this is a job for the legal system. You don't have this power. Juries and judges do.”  

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A federal court jury in Gulfport rendered a plaintiff verdict yesterday in a Katrina wind vs. water trial against Lloyd's of London. Here is the verdict form, which I interpret to mean that the plaintiff recovers just over $2 million.

Judge Sul Ozerden was the trial judge. I will post more on this verdict next week.

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The newest book devoted exclusively to cross-examination is Cross-Examination Handbook: Persuasion, Strategies & Techniques. Here is the book's website and here is its Amazon page. Here is the cover and a list of the book's chapters:
 

1. Introduction to Book, CD, & Website
2. Purposes of Cross & the Total Trial Approach
3. The Content & Concession-Seeking Cross
4. Constructing the Cross: Your Chance to Testify
5. Impeachment Cross: Reliability
6. Impeachment Cross: Report
7. Impeachment Cross: Reporter
8. Character & Conduct in Trial
9. Witness Control: Strategies & Techniques
10. Preparing the Winning Cross-Examination
11. Cross-Examining Expert Witnesses
12. Forgetters, Perjurers, Adverse Witnesses, Deponents, & More
13. Ethical & Legal Boundaries of Cross
14. Cases & Assignments

I have been looking for a good and current book devoted to cross-examination. This book meets that need.

The authors provide a comprehensive overview of cross-examination from case theory development to executing cross with difficult witnesses. The book is well organized and easy to read. The book manages to be basic enough to be a good choice for a trial practice class and advanced enough to be valuable to experienced lawyers. I consider myself in the latter category, so I will address how reading this book helped me.

I have become frustrated in the last few years with the inconsistency of my cross-examinations. I have had crosses that other lawyers told me were the best that they have ever seen. But I have also had crosses that were mediocre—at least to me. I put exhaustive preparation into both categories, so I could not figure out what seperated the great ones from the mediocre ones. I think that I have the answer after reading this book. What is it? I'm not saying. Read the book. Find your own secrets.

There is one point on which I disagree with the authors. The book advocates taking “full discovery,” which includes deposing all witnesses who the opposing party may call at trial. I disagree.

I believe that there are valid reasons for not deposing the other side's witnesses, particularly their expert witnesses. I think that you need to weigh all the factors and make a decision about who to depose. I disagree with mindlessly scheduling depositions of all potential witnesses. You may end up doing the opposing side a favor by doing this. But that is a minor quibble on a side issue. The book's organized approach explaining how to prepare for and exectute a good cross is fantastic.

  Finally, the book's price point makes it a real bargain. The sticker price is $39.50 and you can save a couple of bucks on Amazon. That is a really good price for a trial practice book. There is no excuse for this book not being in every litigator's library. 

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Governor Barbour's appointment yesterday of Court of Appeals Chief Judge Leslie King to replace Justice James Graves on the Supreme Court was anticlimactic. It's a bit like hiring an assistant coach on your current staff to replace your head football coach. It may be the best move, but it's not very exciting for the fan base.

Many people predicted King would get the position from the day that President Obama appointed Justice Graves to the 5^th Circuit Court of Appeals. Gov. Barbour admitted that King was the only candidate who he considered. It is a safe pick and a smart pick.

So who does Barbour appoint to replace King on the Court of Appeals? This is more interesting because there is no one obvious candidate. The people who always predicted King would get promoted to the Supreme Court believe that Barbour will appoint a current African-American state court judge. But there are four judges in Hinds County alone who fit this profile even if you only consider circuit and chancery judges. And the district is much bigger than just Hinds County.

Judge Denise Owens is a name I hear a lot and would be a popular choice. But unlike with the Supreme Court position, Barbour promises to run this pick through his judicial advisory committee. That would seem to make it a more wide open race. And a more interesting appointment from the fans' point of view.

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I have not been able to obtain much new information in the Archey v. Marriott case that resulted in a $23 million verdict in Hinds County Circuit Court last week. I posted on the case last week here.

As of late last week, the court file was checked out and the verdict and judgment had not been filed.

I did obtain most of the Complaint, which you can view here. I am missing the page that pleads the premises liability claim. That is presumably the action that resulted in the verdict against Marriott.

The Complaint pleaded excessive force as a negligence claim. Interesting. The Complaint also pleaded claims for assault, battery and intentional and negligent infliction of emotional distress. I would like to see the jury instructions to see what theories went to the jury.

I may make another attempt to get the jury instructions and verdict in the future. But without Pacer, my ability to obtain pleadings in state court actions is limited by time constraints imposed by my practice.

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On February 9, 2011 a federal court jury in the Northern District (Western Division) returned a $200,000 verdict against Regions Bank in favor of PGP Investments, LLC. Here is the jury verdict.

Here is PGP's Complaint in the case. PGP alleged that Regions initially agreed to loan money to PGP in January 2008, but reneged on the agreement in the summer of 2008 as the financial markets collapsed. Taylor Boone, son of Ole Miss Athletic Director Pete Boone, was the Regions employee who was responsible for the deal.  

David Shelton of Oxford represented PGP. Frank Holbrook of Butler Snow's Memphis office represented Regions. Chief Judge Michael Mills presided over the case.

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Alison Grant with the Plain Dealer (Cleveland newspaper) reported last week on two lawsuits recently filed against Eaton Corporation related to the Eaton v. Frisby litigation in Hinds County.

The North Carolina Antitrust Case

The first case is an antitrust case filed by Frisby (now called Triumph Actuation Systems) in North Carolina on February 1. Here is the Complaint in that case. NMC has a nice analysis of the Complaint here.

This is a well written complaint. It should come with a box of popcorn. It ties together the facts of the entire Eaton v. Frisby saga from Eaton paying a former Frisby employee to rat on Frisby to the Peters-DeLaughter saga. The Complaint seeks treble [triple] damages and attorney's fees.

The Complaint names Ed Peters, Jackson lawyer Mike Allred and the Quarles & Brady law firm out of Milwaukee as co-conspirators in the Eaton scheme to covertly influence DeLaughter. According to the Complaint, Allred and Peters had a contingency interest in the proceeds of Eaton's lawsuit against Frisby. That would explain some things. Think about it.

Allred and Peters have both been out of the case for years, but the Quarles & Brady firm remains the apparent driving force behind Eaton's litigation in Mississippi. I have always found that amazing. If I'm Eaton, I have to have completely new counsel to trust the advice that I'm getting. It's my understanding that Eaton only replaced its lawyers in Mississippi.

One theory I heard about Eaton not replacing Quarles & Brady was that the firm has close personal ties to Eaton CEO Sandy Cutler. One person told me that Cutler's father was a longtime senior partner in the firm. I located a Richard Cutler on the firm's website, but have not been able to verify the relationship. If the Frisby-Triumph allegations are true, then Eaton did not replace Quarles & Brady because the firm was conspiring with Eaton.

In any event, I don't see how Eaton can continue to have the firm work on the Frisby-Triumph litigation due to the lawsuit's allegations. But what do I know? I can't see how the firm is still in the case now.

The Ohio Shareholder Derivative Case

The second lawsuit is a shareholder derivative case filed against Eaton directors and employees on February 11 in state court in Ohio. Here is the Complaint in that case.

The Complaint alleges that Eaton directors and employees knew or should have known about the improper conduct by Eaton's lawyers in Mississippi, but did not stop it. The Complaint alleges that the dismissal of the Mississippi lawsuit cost Eaton the proceeds of the lawsuit, which were valued as high as $1 billion.

Eaton CEO's Sale of $26 Million in Company Stock

Coincidentally—or not, Eaton CEO Sandy Cutler sold over $26 million in Eaton shares on February 11, according to the February 19 issue of the Wall Street Journal. It was the 13th largest insider sale of stock in a publicly traded company for the week. The timing of the sale was "interesting."

Chronology of Interesting Events

That leads to the following interesting timeline:

• December 22, 2010: Hinds Circuit Judge Swan Yerger dismissed Eaton's case against Frisby based on finding that Eaton knowingly hired Ed Peters to improperly influence Judge Bobby DeLaughter
• January 28, 2011:  Eaton CEO Sandy Cutler appears on the Jim Cramer Mad Money show talking about Eaton's blowout quarter and expectations of further growth in the company's business.  
• February 1, 2011: Frisby/ Triumph file North Carolina antitrust case alleging that the Peters-DeLaughter connection was only one component of a multi-faceted scheme by Eaton to prevent Frisby from competing against Eaton.
• February 9, 2011: Cutler sells $26 million in Eaton stock less than two weeks after touting the company on Cramer.
• February 11, 2011: Eaton shareholders file derivative action against Cutler and other Eaton employees and directors.

My Take:

It's amazing how Eaton continues to paint itself into a corner and make itself look bad. In 2009, I noted in this post that Eaton's spokesperson Don McGrath repeatedly stuck his foot in his mouth when commenting on the Frisby litigation. At the time, I just thought that Eaton's public relations department issued statements without much thought.

Now, the situation looks deeper than a poor PR campaign. Eaton's repeated missteps and bizarre conduct suggest top-down leadership issues. Cutler selling a boat load of Eaton stock right after Frisby filed its case and just before the filing of the shareholder case makes both Cutler and Eaton look bad.

Another possibility is that Eaton is getting completely out-lawyered by Frisby-Triumph. That's possible. But that also falls on the company's leadership who continues to use a firm that helped get the company into this mess.  

Finally, the shareholder action raises interesting questions: why is the Eaton board of directors allowing Eaton to continue down this path? Does Eaton have an independent and active board of directors? Or is it a bunch of sheep in the Enron board mold?

Stay tuned.     

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Kingfish broke the story last week of the lawsuit filed by Ablene Cooper against Kathryn Stockett, author of the bestselling novel The Help, for intentional infliction of emotional distress. Today the Wall Street Journal reported on the lawsuit.

Cooper alleges that she was the basis for the book's Aibileen character and that she asked Stockett not to portray her in the book, but Stockett refused. If Cooper is Aibileen, I guess that makes Stockett Skeeter.

Big deal. I want to know who Hilly is. In the book Hilly is the racist, overbearing Junior League president who keeps all the other Jackson “elite” women in line—the bigot line.  

The book is set in the early 1960's. Hilly would be in her 70's now. So who is she?

If Cooper is Aibileen, then she should be able to identify other Jackson residents who Stockett portrayed in the book. And the one who we all want to know is Hilly. So please Ms. Cooper, can you help us out here? Who's Hilly?

By the way, the book is very good and I highly recommend it for anyone who has not read it yet.

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The Clarion-Ledger reported this morning on a $23 million Hinds County jury verdict yesterday against  Marriott and the City of Jackson. According to the article:

The key question the jury had to decide was whether West was acting as a police officer or was he acting as a security officer for Marriott when he shot Archey.

Archey was seen walking on the parking garage ramp at the Marriott. West lost sight of him after he ran but eventually saw him run across the street and chased him off Marriott's premises. He eventually caught up with [ plaintiff Dale] Archey near the Robert E. Lee Building parking lot.

Deputy City Attorney James Anderson Jr. said West was working and being paid by Marriott when the shooting occurred. But Marriott's attorney, Brett Bollinger, said West wasn't acting as a security officer for the hotel once he left the premises to chase Archey.

****

West testified he was trying to handcuff Archey when Archey made a quick motion, leading him to think Archey may have been reaching for a knife or screwdriver, Bollinger said.

"Dale Archey made a sudden, quick move and Officer West had only a moment to react," Bollinger said. "He feared for his life."

No weapon was located.

West suspected Archey of breaking into cars in the Marriott garage. Plaintiff argued that Archey was homeless and planned to sleep in the garage.

The plaintiff asked for $16 million. The jury awarded $23 million. The jury apportioned 70% fault to Marriott and 30% to the City. That apportionment should result in the City owing zero (according to the City). The City will appeal anyway and by law, does not have to post an appeal bond.

Issues on appeal will include the following:

• standing:  Dale Archey was the plaintiff, but is institutionalized and could not be deposed. A conservatorship was set up, but never substituted as the plaintiff in the case.
• Multiple evidentiary rulings: examples include that the trial court excluded evidence of Archey's criminal history. Archey beat a man to death at age 13 over a drug debt and served time. Archey was also arrested the day before the shooting and had a gun taken away from him. The defense theory was that Archey forgot he did not have his gun and was attempting to pull it when Officer West shot him. Defendants contended that Archey's past was relevant to liability and damages issues. Archey also pleaded guilty to resisting arrest.

It's my understanding that some of the evidentiary issues overlapped with the issues in the Rebelwood Apartments verdict discussed here.

Judge Winston Kidd was the trial judge. Dennis Sweet and Rick Patt of Jackson represented the plaintiff. Brett Bollinger of the Louisiana firm of Allen & Gooch represented Marriott. Deputy City Attorney James Anderson Jr. represented the City of Jackson. 

It's well known that Dennis Sweet loves to draw out-of-state defense lawyers. The argument is that for whatever reason, out-of-state lawyers have trouble connecting with Mississippi juries and tend to exacerbate verdicts. Proponents of this theory can point to many massive verdicts with out-of-state defense lawyers and argue that the verdicts would have been less with Mississippi defense counsel.

It's also theorized that because of Mississippi's history with bet-the-company litigation, Mississippi defense lawyers tend to be more skilled than lawyers from other states who are less experienced in major litigation.     

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The Miss. Court of Appeals settled an age old question last week: it's not cheating if you don't get caught(within 3 years)—at least not when it comes to getting sued. Here is the Court's opinion in Cheated on vs. Dude Who Cheated with Spouse.

Facts:

Yep. It's another alienation of affection case. The relevant facts are:

1. cheating/ affair
2. affair ends
3. three years elapses
4. affair discovered
5. lawsuit filed

The trial court granted summary judgment to the defendant. A unanimous Court of Appeals affirmed, ruling that the statute of limitations elapsed because the affair ended more than three years before the filing of the lawsuit. The Court rejected plaintiff's contention that the discovery rule applied.

My Take:  

This was a weird fact pattern involving a goofy cause of action. So we shouldn't be surprised when it led to a questionable decision.

Cheaters everywhere applaud the Court's decision as a sensible limitation on suing people for screwing around. There are probably a lot people who were screwing around with someone else's spouse more than three years ago who are sleeping easier tonight.

Too bad the Court of Appeals did not take advantage of the opportunity to call for the abolishment of the entire cause of action.

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With the U.S. Senate approving Justice James Graves' appointment to the 5^th Circuit Court of Appeals on Monday, attention turns to who Governor Barbour will appoint to replace Graves on the Miss. Supreme Court. I posted on this issue in this post last June. I've had lines in the water for weeks on this issue and do not really have any fresh information on this topic.  

Speculation in Jackson legal circles continues to center on Barbour appointing Graves' replacement from the Mississippi Court of Appeals. Under this theory Barbour will appoint Court of Appeals Chief Judge Leslie King to the Supreme Court, a sitting trial judge to the Court of Appeals and an attorney to replace the trial judge. Hinds County Chancery Judge Denise Owens is a name that I hear as the favorite to replace King on the Court of Appeals if it this happens. Others speculate that Owens could replace Graves on the Supreme Court.

I've gotten mixed signals on the possibility of Jackson attorney La'Verne Edney getting the Supreme Court appointment. I've heard that she does not want the position. And I've heard that she is campaigning for the job. So I've got no idea.

One interesting scenario would be for Barbour to appoint former Hinds County Circuit Judge Malcolm Harrison to one of the available positions. Word on the street is that Barbour was upset with Judge Bill Gowan for running against—and unseating Harrison. Appointing Harrison to another slot would at least put Harrison back into public service.

With Barbour still in the 2012 Presidential race, expect the position to go to an African-American. If Barbour appoints a white person to the Supreme Court, then he's not running for President.

At this point, I have no prediction on what's going to happen here. Let me know if you've heard any interesting rumors on the Supreme Court seat. If requested, I do not reveal the identity of sources. 

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On Thursday a unanimous Mississippi Supreme Court reversed a $4.5 million jury verdict and ordered a new trial in Hyundai Motor America v. Applewhite. 

The decision involved a products liability case tried in the Circuit Court of Coahoma County. The plaintiffs were the beneficiaries of three persons killed in a car crash involving a 1993 Hyundai Excel. Plaintiffs alleged that the vehicle was not crashworthy due to design and manufacturing defects.

Hyundai's appeal focused on Daubert challenges of the plaintiffs' three expert witnesses.  The Court ruled that the trial court did not abuse its discretion by admitting the experts' testimony. Significantly, the Court rejected Hyundai's argument that computer simulations alone are not sufficient to support expert testimony. The Court stated that: “[w]e are not prepared to say that an expert must physically build a model of his alternative design in order to to demonstrate efficacy.”

But the plaintiff got into trouble over changes to testimony that one of the experts made in his deposition errata sheet. The changes were to four variables used to make the expert's calculations. The plaintiff did not precede or follow the errata sheet with a formal supplementation of the expert's opinions pursuant to Miss. R. Civ. P. 26.  

The Court stated that: “[t]he purpose of an errata sheet is to correct scrivener's errors or provide minor clarification; it is not a means of making material, substantive changes to a witnesses's testimony.” As a result, parties may not rely on a witness's deposition errata sheet as a substitute for formal and timely supplementation.

The Court ordered a new trial due to the plaintiffs' failure to supplement their discovery responses.

Justice Kitchens' wrote the Court's opinion. Ralph Chapman and others represented the plaintiffs. Lawyers from Watkins and Eager in Jackson represented Hyundai.

My Take:

This is not a surprising decision. The Supreme Court likes to see the rules of civil procedure adhered to. Lawyers have to be careful to supplement discovery responses, including expert opinions. This was not a total loss for plaintiffs, since the Court remanded the case instead of rendering.

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NMC wrote earlier this week about Judge Mills' decision to grant a new trial on damages in the $1.15 million Fred's Dollar trip-and-fall case that I reported in this post in November. Here is NMC's link to the opinion.

The decision generated some interesting comments over at NMC that are worth reading.

Judge Mills devoted the first part of the opinion to scolding Fred's for arguing that Fred's should have won on liability. I found this odd for two reasons. First, Judge Mills himself characterized plaintiff's claims as “rather weak” in his order denying summary judgment. Having gone on the record characterizing plaintiff's claims as weak, I don't see how Judge Mills could have been offended when Fred's argued that it should have won on liability.

Second, Fred's liability argument appeared to be a routine argument by the side that lost. It's unusual to see a judge scold a litigant for making a routine argument. 

The second part of the opinion dealt with the damages issue. Judge Mills acknowledged that the plaintiff had “very significant injuries” and that “a large verdict was fully supported by the evidence.” He then ordered a new trial on damages anyway. Uh?

Judge Mills expressed concern over a note the jury sent out during deliberations asking if Fred's had been paying the plaintiff's medical bills. The opinion states: “[c]learly, the jury would only have been asking about the payment of medical bills if it had received the mistaken impression that they were compensable elements of damages in the case.” Uh? That's not clear to me at all.

The jury's note could have been asking the question because the jury viewed Fred's paying the medical bills as an admission of liability. But really there is no telling what the jury was thinking—at least from the note alone.

The opinion describes plaintiff's failure to put on proof of the medical bills as a tactical decision to try to avoid medical liens.  I would have guessed that it meant that the medical bills were not that high and the plaintiff did not want to anchor the jury's deliberations with a modest amount of medical bills. If that were the case, then the defendant should have put the bills in and can't really complain about that issue now.

The opinion implies that a plaintiff is required to put on proof of medical bills and states that plaintiff must present authority supporting this “unusual and arguably misleading trial strategy.” I find it significant that the last five pages of the opinion did not list any supporting authority for the Court's decision.

With the exception of a few jurisdictions, it's much more common for jury verdicts in Mississippi to be on the low end of reasonable than the high end. But you don't see new trials ordered in those cases. Here there is a verdict on the high end and the defendant gets a new trial. That seems unfair—at least to me. 

These types of decisions have a chilling effect on settlements because defendants and defense lawyers see that courts will bail them out if things go south at trial. It's just one more thing to make the playing field easier for the defense side. Short-sighted defense lawyers need to understand that decisions like this are bad for their practice because they make already gun-shy plaintiff lawyers even more reluctant to file cases.

I am hearing this question being asked a lot from the defense side of the bar: why aren't plaintiff lawyers filing cases anymore? There are a lot of reasons.  But decisions like this are a factor because they contribute to a general perception on the plaintiff's side that the playing field is unfairly tilted for the defense.   

One comment at NMC described the decision as “stupid.” Other comments approved of the decision. Personally, I don't get it on multiple levels.

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A Hinds County jury returned a defense verdict on Friday in a nursing home case.

The case involved the alleged wrongful death of a 92–year old resident of Manhattan Nursing and Rehabilitation Center in Jackson. The woman suffered from pressure sores with infection and sepsis, dehydration and malnutrition.

The jury returned a 10–2 defense verdict after a one week trial.

Barry Ford, Davis Frye and Brad Moody with Baker Donelson in Jackson represented the Defendant.

Trae Sims of Canton represented the Plaintiff.

Judge Bill Gowan was the trial judge.

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I recently read Unbillable Hours, by Ian Graham. The book is a memoir by a former associate at mega-firm Latham Watkins' L.A. office.

Here is the book's description:

The story—part memoir, part hard-hitting expose—of a first-year law associate negotiating the arduous path through a system designed to break those who enter it before it makes them.

Landing a job at a prestigious L.A. law firm, complete with a six figure income, signaled the beginning of the good life for Ian Graham. But the harsh reality of life as an associate quickly became evident. The work was grueling and boring, the days were impossibly long, and Graham’s main goal was to rack up billable hours. But when he took an unpaid pro bono case to escape the drudgery, Graham found the meaning in his work that he’d been looking for. As he worked to free Mario Rocha, a gifted young Latino who had been wrongly convicted at 16 and sentenced to life without parole, the shocking contrast between the quest for money and power and Mario’s desperate struggle for freedom led Graham to look long and hard at his future as a corporate lawyer.

Graham captures the plusses and minuses of life at a big firm without coming off as bitter. Great observations include:

• like many people, he went to law school because he got in and didn't know what else to do; [how true is that?]
• a big salary can lead to golden handcuffs; [ditto]
• blame rolls downhill in a law firm; [I think a better observation is that credit rolls uphill in a law firm]
• litigation is bathtub learning with the plug pulled when the case is over; and
• when he left Latham in 2006 only five of 47 in his starting associate class remained.

Think about that last statistic.

The good news is that Graham and Latham won Rocha's case and corrected a huge miscarriage of justice. That part of the story makes the book worth reading for lawyers and non-lawyers alike. Lawyers will enjoy the look at law firm culture.

This was a quick, entertaining, well-written read. I give it two thumbs up.

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Legal Newsline.com reported last week on U.S. Southern Dist. Judge David Bramlette's January 25, 2011 ruling on Illinois Central Railroad's motion for attorney's fees and expenses in its lawsuit against McComb lawyers William Guy and Thomas Brock. Prior posts on that case are here and here.

The title of the article is: “Railroad company losing money on fraud case.” Jackson law firm Forman Perry represented Illinois Central.

Here is Judge Bramlette's thirty page opinion. The opinion looks to have been written with publication in mind, and it will probably be heavily cited in future cases involving attorney's fees and expenses.

The article states:

The company that successfully fought against alleged fraud on the part of two asbestos lawyers is financially in the red on the case.

Illinois Central Railroad decided to sue two Mississippi lawyers who allegedly defrauded the company out of $210,000 in settlements. In doing so, the company racked up nearly $1 million in attorneys fees.

On Jan. 25, U.S. District Judge David Bramlette awarded $547,500 in attorneys fees to Illinois Central, which says it spent $1,075,869.80 in fees, court costs and online research. Illinois Central recovered $588,822.96 in the Jan. 25 order, as well as $420,000 from a jury award last year.

"Illinois Central's 5,731 attorney hours and nearly $1 million in legal fees is extraordinarily high," Bramlette wrote. "First, Illinois Central knew at the outset of this case that its maximum compensatory damages were $210,000.

"Even given the very real possibility of recovering punitive damages, attorneys fees that are nearly five times the maximum compensatory damages recoverable are not reasonable."

Judge Bramlette stated that the requested fees were excessive given the fact that this was a “run-of-the-mill state law case.” The court further found that the bills reflected a failure to exercise “billing judgment” with things like billing for two attorneys to attend one deposition.

Judge Bramlette also cut the costs award from the $58,506 requested to $20,661. There is a good discussion in the opinion about what is properly recoverable as costs in federal court.

My Take:

I didn't find anything unusual about the description of Foreman Perry's bills in the case. Illinois Central is a sophisticated client and had to know when they hired Foreman Perry on an hourly rate that there was a good chance that the railroad would end up underwater in the case. I suspect that the case was about a lot more than the money. Illinois Central probably had a point to make, and I suspect that they made it.

In general though, this does provide a good example of a major difference between the plaintiff side and defense side of a case. On the plaintiff side, when a lawyer bills by the hour the fees can exceed the recovery. There is no danger of that on the defense side. That makes it a lot easier to justify high attorney's fees in a defense case.

Hourly rate defense lawyers sometimes have trouble managing the economics of a plaintiff case. I can think of several examples where defense firm lawyers told be about their fun plaintiff case. When I inquired about the value of the claim, it sounded like it didn't justify the amount of time being put into the case. It sounded like they brought the defense lawyer “leave no stone unturned” mentality to a plaintiff case.

But you can't do that on the plaintiff side. On the plaintiff side, you have to manage your case better than you do on the defense side. You have to always keep the economics of the case in mind. Often, that means that you have to tell the client that the economics don't justify filing the case.

On  the defense side, it's more about justifying each individual billing entry than justifying the entire defense costs. And the defense lawyer can always blame the high bills on the plaintiff's lawyer or the case in general.

The defense lawyer can run up $500,000 in fees and tell the client it's a victory when the case settles for $250,000. They neglect to tell the client that they could have settled for the same $250,000 back when there had only been $10,000 in fees incurred in the case.

For the Illinois Centrals, insurance companies and big corporations of the world, that's on them. Sophisticated users of legal services should be able to figure that out for themselves. But then you start getting into the Dilbert culture of corporate America, which is another story. See my prior post on the Dilbert culture here.    

This case also shows the potential value of a contingency fee contract for a client. The client does not have to worry about attorney's fees exceeding the recovery when there is a contingency contract.

As for the lawyer, trust me on this one: plaintiff lawyers often come out underwater in a case by having substantially more time in a case than they ultimately recover as a fee. And when they lose the case outright, they recover nothing and often have to eat the expenses, which can easily be in the five figures.

I've been on both sides. I like being on the plaintiff side of a case better, but not for the reasons that many defense lawyers suspect. It's not because I make more money with a contingency fee. If someone would guarantee me my hourly rate and a full case load on the plaintiffs side, then I would give up the contingency fee in a heartbeat. Sure I might make more in the contingency fee situation. But I also might lose money or make very little. 

A contingency fee based practice is a huge gamble that many lawyers fail at and wind up heavily in debt. It's a lot like gambling. Don't get me wrong, the defense-hourly rate side of a law practice is also hard and stressful. But it's a lot different. It's a lot harder for a defense lawyer to be real busy all year and lose money.    

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I recently finished reading Typography for Lawyers by Matthew Butterick. The book's byline describes it as “essential tools for polished & persuasive documents. I agree.

What is typography? Basically typography is how a document looks. Lawyers and judges think about typography all the time. Ever said: “this brief looks like crap”? If so, you are talking about typography. This is the first book on typography specifically for lawyers.

Butterick explains that good typography helps the reader. Bad typography is harder to read and more likely to lose the attention of the reader—think judge.

In a mere 216 pages Butterick explains how to implement good typography into your practice. The book tackles letterhead, business cards and motions. It also gives step-by-step instructions on how to implement the advice in both Word and Wordperfect.

As expected, the book also discussed fonts. Butterick hates Arial and also frowns on the commonly used font of Times New Roman. Before even finishing the book, I changed my font in letters and briefs from Times New Roman, which Butterick says “connotes apathy.” I now use Franklin Gothic Medium.   

As of this writing, the book has 14 customer reviews on Amazon. All 14 rate the book as a 5, on a scale of 1–5. Reviewers describe the book as indispensable and something that should be on every lawyer's desk.  

I suspect that five years from now this book will be on the desk of most young lawyers. If I were managing a law firm, I would give a copy to all entering first year associates and order them to read and implement the book.

For older lawyers, reading this book should be a badge of honor. If you care enough about your skills to read a book on typography, you must be a serious lawyer.

Or a total law-goob. One of the two for sure.

In all seriousness, I am glad that I found this book and recommend it for all serious lawyers. It would also be a good idea to ask your staff member who formats your documents to read it as well.

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Charles Griffin is reporting that Justice James Graves' 5th Circuit nomination made it out of the Senate Judiciary Committee this morning. Here is the link.

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I found this article in Tuesday's WSJ to be thought provoking on the issue of keeping one's life in balance. The article focuses on a law school educated investment banker who forgoes family time in order to feed his exercise addition. The wife and mother of their 3 kids is bitter:

 "A lot of wives in my position would have left," Ms. Waxman says.

Yea, and if she's saying that now, then she still may leave.

The flip side is that the husband might be a terror at home if he didn't feed his exercise addiction. Or perhaps he would become addicted to something that is more destructive to the family.

The article exhibits a problem of which there is no easy solution. Some people are work-oholics. Some people are alcoholics, addicted to illegal substances, hunting, fishing, porn, golf, or exercise. Any of these addictions can be bad for family life. Just ask a hunter's wife this time of year.

The trick is finding balance in one's life. But we are all different.

My balance is not your balance. It might be better for me to go home at 5 or 5:30 every night and work 3–4 hours on the weekend. It might be better for you to work until 7:00 every night and not work on the weekend at all. It might be better for someone else to have a 9–5 job where they don't have to work or think about work in non-business hours.

But litigators don't have that luxury. I am always thinking about work.  

We all need to exercise. But can there be too much of it so that it hurts the family?

We all need a hobby outside the law. But how much of a hobby is too much? Maybe there can't be too much. If you like it that much and can do it that much, maybe you should.  

BTW: ever noticed that there is stigma associated with being a lawyer who is a very good golfer. My first mentor Natie Caraway told me that people don't want a lawyer who is a great golfer because it means that they spend too much time at the golf course. The same probably applies to hunting, fishing, running and even world-class boozing it up.

I love practicing law more than anyone I know. I could literally do it 7 days a week. But I believe that it would come with a cost that I am not prepared to pay. Would I be a better lawyer if I worked more? Maybe. Maybe not. I've seen some lawyers who work too much who spend half their time spinning their wheels. 

Maybe I would be a better lawyer if I worked more, but I would be a worse husband and father. Should I work more? Or less? What about you? Ever thought about it?  

Finding balance in life is hard—damn hard. And there are no formulas that work for everyone. I've got the question, but no answers.  

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This site is turning into the Jones County Litigation Review and Commentary. Yesterday a Jones County jury returned a $1.71 million verdict in a brain injury case.  $1.56 million went to the victim and $150,000 to his wife for loss of consortium. The trial began on January 20.

The victim was a mechanic who was injured from an explosion while repairing the defendant Enviro, Inc.'s 18–wheeler garbage trailer. He was in a coma and on life support and suffered a brain injury with permanent dysfunction.

Gene Harlow and Roy Nowell with Hortman Harlow in Laurel represented the plaintiffs.

Lee Davis Thames and Meade Mitchell (a.k.a. Father Time) from Butler Snow in Ridgeland represented the defendant. No word yet on whether Butler Snow has canceled all future trials with Jones County juries.

Judge Billy Joe Landrum was the trial judge.

I will update this post if I obtain more information.  

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Last week Jones County Circuit Court Judge Billy Joe Landrum awarded over $12.5 million in attorney's fees and expenses in the Evans v. Baker & McKenzie legal malpractice case. Here is the Order for the Plaintiff's fees. Here is the Order for the Cross-Plaintiff's fees.

Judge Landrum awarded the Plaintiff attorney's fees of $9,602,372 and expenses of $228,043. He awarded the Cross-Plaintiff $2,532,819 in attorney's fees and $203,113 in expenses. In both cases the attorney's fee consisted of 10% of the recovery plus actual hours spent on the case.

Mississippi law allows plaintiffs who recover punitive damages to seek attorney's fees and expenses. In this case the award raised Baker & McKenzie's total liability exposure to over $115 million. Of course, it is Baker & McKenzie's liability insurance company that is potentially on the hook. Throw in the cost of bond and the appeal and there is something like $120 million riding on the appeal.