If Court Orders documented what the judge was thinking, they would all look something like this order from a Kentucky state court. Seems that the judge was excited that the parties settled the case.
My favorite part of the order was the footnote to the word amicably: “The Court uses the word 'amicably' loosely.”
Don't stop reading on the first page. Paragraph 4 is not to be missed. 
The Order was entered by Judge Martin Sheehan (not pictured).
Want to improve your legal writing? If so, you may want to consider reading: Point Made, How to Write Like the Nation's Top Advocates, by Ross Guberman. 
The book's product description on Amazon states in part:
With Point Made, legal writing expert Ross Guberman throws a life preserver to attorneys, who are under more pressure than ever to produce compelling prose. What is the strongest opening for a motion or brief? How to draft winning headings? How to tell a persuasive story when the record is dry and dense? The answers are "more science than art," says Guberman, who has analyzed stellar arguments by distinguished attorneys to develop step-by-step instructions for achieving the results you want.
The author takes an empirical approach, drawing heavily on the writings of the nation's 50 most influential lawyers, including Barack Obama, John Roberts, Elena Kagan, Ted Olson, and David Boies. Their strategies, demystified and broken down into specific, learnable techniques, become a detailed writing guide full of practical models.
I found this book interesting. The examples from briefs written by legal heavyweights like John Roberts show that not only is it ok to depart from traditional, wordy "legalese" writing, it is preferred. For instance, the book encourages lawyers to consider streamlining information with tables and bullet point lists.
I have been using tables in my briefs for the last few months since reading this suggestion. I find it helpful for compressing a lot of information onto one page. I think lawyers will see a lot more of this and other similar techniques in the coming years with heavy use of the internet making everyone—including judges—speed skimmers.
Books on legal writing are a bit like eating spinach. Or in Mississippi Supreme Court Justice Jess Dickinson's case, peas. They may not be that exciting, but they are good for us. Point Made has a list price of under $20 and sell for much less on Amazon. The book is a real bargain and worth reading for litigators who are always looking to improve their game.
Everyone knows that slots are a sucker's play with the highest house edge in the casino. Not satisfied with crushing a player's wallet, however, Tunica slot machines are now physically attacking patrons.
The Sun-Herald reported today on Randy Perkins' personal injury lawsuit against Tunica Roadhouse Corporation. Here is Mr. Perkins' Complaint, filed in the U.S. District Court for the Northern District of Mississippi.
The Complaint alleges that plaintiff sat down to play the slots “when suddenly, and without warning, the heavy metal front of the slot machine fell onto the Plaintiff.” The machine hit Plaintiff's arm and knocked him off his stool, which caused a back injury. Plaintiff seeks $750,000 in damages.
Jonathan Barrett and Patrick Barrett with the Barrett law firm represent the plaintiff.
My Take:
I wonder if this case could settle for 100,000? Player's points—-not dollars. 
Being the cynic that I am, my first thought was that the slot machine gave the plaintiff a monetary thrashing; plaintiff got frustrated; plaintiff physically attacked the slot machine. Plaintiff's attack caused the front of the machine to fall on the plaintiff.
I mean who hasn't wanted to beat the crap out of a slot or video poker machine? Right?
If that is how it happened, the slot machine will probably claim self-defense.
Of course, it's more likely that some other patron beat the crap out of the slot machine before the plaintiff began playing the machine. Regardless of who attacked the slot, I bet this slot machine had taken a lot of people's money and had it coming.
Please Lord, let there be video. And let it make it to You Tube.
On Friday the hammer fell for five men who pleaded guilty in the A&O Life life insurance fraud scheme. Here is a good A.P. article on the sentencing as printed in the Houston Chronicle. The article describes the scam:
The sentences were:
Mackert asked for a shorter sentence based on his being stupid:
These sentences put a smile on my face. Life insurance agents, in particular, should heed Mr. Bromseth's sentence. The take-home is that when you put your clients into a scam, you will be held criminally responsible.
Investors should note that they cannot automatically trust their life insurance agents—particularly when it comes to selling investment products. Many of the victims of the A&O scheme invested because they were buying from their long-time life insurance agent who they trusted. The agents, who earned large commissions from the sales, later claimed ignorance as a defense to the scheme.
This is not the first investment scheme fueled by sales made by life insurance agents. Personally, I would not buy anything except insurance from an insurance agent. They may try to become your investment advisor and put you into mutual funds and other investments. I'd say no. Why?
It's sort of like the adage of don't order steak at a fish house or fish at a steak house. Insurance and investing are different.
A few weeks ago the Wall Street Journal Law Blog wrote about jury reforms adopted by the State of Michigan. Here is the article. Here is a link to the actual reforms that the Michigan Supreme Court adopted. 
Key provisions in the Michigan reforms include:
My Take:
I love it. The Mississippi Supreme Court should adopt something like this.
Some things about how we present cases to juries is bizarre. For example, think about a big products liability trial.
The court seats a jury and gives them no instructions about what the plaintiff must prove in order to meet their burden of proof. The parties may present evidence for two or three weeks (or longer). At the end of the trial, the trial judge reads jury instructions. And reads jury instructions. And reads jury instructions. I have personally seen jury instructions read for 50 minutes. I've talked to lawyers who have seen instructions read for even longer.
The court then gives one copy of the instructions for the use of the entire jury and sends them to the jury room to pick a winner.
I don't doubt that this was the best way to instruct juries in the 1800's. But methods of instructing jurors has not kept up with advances in technology and more complex trials.
Tell the jury what the substantive law is before they hear evidence. Give each juror a copy of the instuctions. Decide on the front-end substantive instructions at the pre-trial conference. That would make pre-trial conferences more productive and focus the case--the point of the pre-trial order.
We should also do a better job of explaining to jurors on the front end what it means to decide the case based only on the evidence at trial and the Court's instructions. On this point, we tell jurors; we do not explain. We should explain to them that it's not appropriate for jurors to start talking in deliberations about what happened when they rolled their vehicle on I-55 or how hurt their Aunt Ethel was when she got rear-ended by an 18–wheeler.
We should also instruct jurors to notify the bailiff or judge if other jurors interject other matters or commentary into deliberations. Tell them they have to report it--don't make it optional.
Let jurors submit questions for witnesses. I understand they may ask questions that can't be answered. Tell them that. At least that way they aren't thinking we are idiots for not providing them with information that they want. Plus, I bet juror questions would often have the added benefit of scaring one side or the other into settlement.
I even like the interim commentary during trial idea. It's one thing to wait for closing to tie it all together when closing is this afternoon or tomorrow. It's another thing when closing is in 2 weeks. Interim commentary with a time limitation of a couple of minutes would be tremendously helpful in communicating to the jury the significance of testimony and other evidence without delaying the proceeding.
I know there will be lawyers who disagree with me on this. My response is go watch a bunch of focus group deliberations. Then tell me that we should not be looking for ways to improve jury deliberations.
We could be doing a better job of instructing juries. And we should be.
A federal investigator's libel lawsuit based on statements in a book on Scruggs-gate is over before it got out of the starting gate. NMC reported over the weekend on the dismissal of Hal Neilson's libel lawsuit against Tom Dawson and Alan Lange based on statements that appeared in their book Kings of Tort. Here is NMC's December post about the lawsuit.
It looks like Neilson threw in the towel. Neilson never served the defendants with process and did not respond to Lange and Dawson's motion to dismiss.
The rules of civil procedure give a plaintiff 4 months (120 days) to serve a defendant with process. In most cases, it is not hard to serve process. You've got to believe that Lange and Dawson would be easy to get served. They make public appearances all the time and their residences would be easy for a process server to find.
Tim's comment on NMC theorizes:
This was not a serious attempt at litigation but filed to stop the SOL [statute of limitations] from running then think about it. I would bet good $$ that Christie filed to stop SOL and told Hal to get another attorney if he wished to pursue and he either did not or could not. Agree with Tom let sleeping dogs lie.
That makes sense.
To me, Neilson's appearance in Kings of Tort was not significant. It's been a while since I read the book; I don't remember what it said about Neilson.
In any event, this was a big win for Lange and Dawson.
The mistrial in the Roger Clemens perjury trial last week was stunning. The cause of the mistrial was that the prosecution played video tape of Congressional testimony that contained hearsay and had already been ruled inadmissible. Here is a link to a Washington Post article discussing how it happened.
By all accounts the prosecutors are honest and simply threw this one behind the batter. So how does it happen? Easy. The prosecutors did not actually review the edited video excerpts before trial:
A review of transcripts and interviews with people knowledgeable about what happened reveals that federal prosecutors did not intentionally introduce barred evidence to the jury. Despite years of experience, two well-respected prosecutors had made a basic mistake and not carefully reviewed the videos they planned to show jurors.
Am I surprised that this could happen with experienced prosecutors? No. I am surprised that it happened on the second day of trial.
This is the type of mistake that I would expect to see more near the end of a long trial when the lawyers are running on fumes. But on day 2? That's surprising. But not shocking.
Preparing for trial is all consuming. Much of the work is tedious and mundane—no matter how exciting the case is. Tasks like reviewing the edited video clips can keep getting pushed to the back burner while a lawyer works on other more pressing matters.
Sometimes these tasks end up not getting done. After all, the person who made the edits was careful and would have double checked, right? Wrong.
Remember Vincent Bugliosi's 75% rule from his book Outrage about the OJ Simpson trial. Bugliosi's theory is that 75% of workers are not good at their job—no matter what their job is. If you stop and think about it, he has a point.
The “don't sweat the small stuff” theory is great. But during trial there is no small stuff.
HBO's Summer documentary series continues Monday night with Mann v. Ford. The film is about a New Jersey lawsuit against Ford Motor Co. over toxic waste. Clinton lawyer Vickie Gilliam represented the plaintiffs in the case and is one of the stars of the film.
Here is the preview:
Gilliam was a member of the much-feared Ole Miss law school class of 1993. She graduated a semester early, but she started with us so we get to claim her.
Yesterday the Mississippi Supreme Court stayed further proceedings in the Union Carbide v. Brown case pending a determination of Union Carbide's motion to recuse Judge Eddie Bowen. Here is the Supreme Court's Order. Here is my post where I wrote about the recusal motion.
The Clarion-Ledger article confuses me and makes me suspect that I am missing a piece of the puzzle. I get this part of the article:
Union Carbide Corp. had asked Bowen of Raleigh to vacate the jury award and to step aside from any further action in the case because he didn't divulge that his father had filed two similar asbestos cases.
Bowen's inaction resulted in Union Carbide petitioning the Supreme Court to force him off the case.
The judge's bias and prejudice against Union Carbide and Chevron Phillips, the other party being sued, were evidenced in his rulings, comments in front of the jury, and his coaching of Brown's attorneys in questioning witnesses, according to Union Carbide's motion.
Here is where the article loses me:
Georgia Pacific filed court papers last month saying Bowen, who was presiding over three Mississippi lawsuits involving the company, had sued one of the company's subsidiaries in Jasper County.
The company said the lawsuit filed by Tullos on behalf of Bowen and others is materially similar to the pending lawsuits assigned to Bowen.
What is this talking about? How did the article go from Union Carbide to Georgia Pacific? Is this talking about the same case or a related case? Did Judge Bowen not recuse himself from the case even though he had sued the defendant? I can't tell.
Someone help me out here.
Yesterday Judge Primeaux provided words of wisdom to lawyers on the issue of stress in this post. Here is what he said:
Lawyer, meet stress. It’s your bane, your motivator, your constant companion, your all-too-familiar demon. It comes from clients, deadlines, judges, finances, family and ethics. It visits you on the day the bills are due, the day after those requests for admissions were unansweredly due, at 2:00 a.m., and when you walk in the court room door. It can make you sick, grumpy, sad, drunk, ineffective, inattentive, erratic and even violent. It’s part of the job. Learn to live with it or die.
Translation: rub some dirt on it.
Stress is definitely my constant companion. I was telling someone the other day that I can't relax and don't even try anymore. And I like practicing law more than anyone I know.
I don't know how long that I would have to be on vacation to get to the point where I could relax. But I know that a week is not long enough. If I ever retire it will probably be because I want to try to end the 24–7 stress rather than that I stopped liking the practice of law.
Yesterday's Wall Street Journal contained this article about law schools changing course offerings in an effort to help students get jobs after graduating.
The article states:
Law schools are responding by infusing a practical focus into their curricula that, in many cases, have not changed in decades. So far, the transformations are most visible among so-called lower-tier law schools, but a few elite players are also starting to make adjustments.
Washington and Lee University School of Law in Lexington, Virginia, overhauled its third year curriculum in 2009 by swapping out traditional lectures for case-based courses.
New York Law School hired 15 new faculty members over the last two years to teach skills in negotiation, counseling, interviewing and fact investigation.
Professors at Indiana’s Maurer School of Law started teaching project management as well as so-called emotional intelligence.
And last year, Harvard launched a new problem-solving class for first years, while Stanford is considering making a full-time clinical course a graduation requirement.
What I found most interesting was this chart that accompanied the article:
That's a scary trend if you are in law school or thinking about going to law school. If that trend continues, law schools will need to start offering courses on how to live under a bridge.
One other thing. I know that many law students think that good old Uncle Bubba or whoever can pull some strings and get them a job at Butler Snow or somewhere similar. He can't—unless you finish in the top 3 in your class and would have gotten the job anyway.
Maybe things worked like that 50 years ago. But it didn't work like that 19 years ago when I graduated from law school. It didn't work like that 9 years ago when I left Baker Donelson. And it doesn't work like that now. You will sink or swim on your own record. So study hard.
It's Bar Convention week in Mississippi. The Summer School for Lawyers CLE runs today through Wednesday and the Annual Meeting runs Wednesday through Saturday. Both are at the Sandestin Resort. There are 250 lawyers registered for the CLE and 400 lawyers and judges registered for the Annual Meeting.
The Bar Convention is a great opportunity for lawyers and judges to visit in a relaxed atmosphere. Everyone always has a smile on their face.
For lawyers and judges back in Mississippi, Bar Convention week is often one of the quietest weeks of the year. With so many judges and lawyers in Florida, there is usually a noticeable decline in the number scheduled trials, hearings and depositions this week. So for anyone looking to sneak out to the golf course or fishing hole for an afternoon, this wouldn't be a bad week to do it.
Every month I eagerly anticipate the release of the Mississippi Jury Verdict Reporter. There are always significant plaintiff and defense verdicts reported that I have not previously heard about.
The July issue reports on eleven recent verdicts. They include:
I had heard and previously wrote about 5 of 6 plaintiff verdicts during the reported period. I had heard and reported about only 1 of 5 defense verdicts. I'm continually amazed by defense lawyers' failure to publicize their defense verdicts.
The Mississippi Business Journal's quarterly health care issue contained an article on the unsuccessful efforts in the Mississippi Legislature to pass a bill requiring nursing homes to carry liability insurance. Here is a link to the digital issue. The article starts on page 32.
In the article Jackson attorney John Maxey speaks on behalf of the nursing home industry, which opposes efforts to require nursing homes to carry liability insurance. In an email to the MBJ on the issue, Maxey dropped this bombshell:
“The overwhelming majority of nursing homes already have liability coverage in place, and the remainder make provisions within their business model to satisfy any court-ordered financial obligations that might arise.”
Really? Thanks for the info. Mr. Maxey, because lawyers in your firm who are defending nursing home cases sing a different tune.
Maxey's assertion that nursing homes can pay any judgment directly contradicts what lawyers in Maxey's law firm tell plaintiff lawyers when negotiating settlements. When defending cases alleging negligence by nursing homes, lawyers in Maxey's firm tell plaintiff lawyers that uninsured nursing homes will declare bankruptcy if a large judgment is obtained in the case.
The typical nursing home that Maxey's firm defends operates as a limited liability company (LLC). A different company owns the building and certificate of need for the nursing home. The LLC operating the nursing home has little or no assets because it is a shell corporation with the profits drained off to the owners.
This organizational structure is designed to insulate nursing home operators from liability for abuse and neglect. Nursing home defense lawyers use it as a hammer to drive down the settlement value of cases. The organizational structure has made the bankruptcy threat appear very real to lawyers representing the victims of nursing home neglect.
But now John Maxey says it's a bluff. This is a big deal.
For prior posts on the issue of Mississippi's uninsured nursing homes, click here.
You Can't Teach Hungry is John Morgan's self-described how-to guide for building the multi-million dollar law firm. Morgan is the founder of the Morgan & Morgan personal injury law firm that has developed a national footprint. The firm lists eleven lawyers in its Jackson office, which makes it one of the largest plaintiff firms in the state.
Morgan's book is part nuts and bolts suggestions and part business philosophy. The latter is what I enjoyed the most. 
Morgan definitely understands lawyers. He recognizes that many lawyers are poor businessmen and simply hope for the best for their practice. His descriptions of some lawyers are funny, such as the big-talking lawyers who always tell war stories about the same trial that was years ago. Incidentally, I think that I am speaking for many lawyers when I say that the only war stories that we are interested in hearing are the ones with a punch-line at the end.
Morgan attributes a fear of failure as a common characteristic of successful lawyers. That is something I can identify with. I've had my own practice for nine years. My practice has been successful and financially stable for the entire time, despite a transition from an almost all defense practice to an almost all plaintiff practice. But success and experience has not made me fear failure less.
I fear failure more today than I did the day that I walked out of Baker Donelson. The reason is that now I have tasted bitter defeat from losing trials where there was no recovery or fee unless we won and have seen other lawyers' practices fail. In the late 90's and early 2000's there were lawyers making a fortune in Mississippi who were not really practicing law—much less litigating and trying cases. Today, there are smart and hard working lawyers who struggle to make it.
Morgan suggests that when the fear of failure leaves a lawyer, he or she should hang it up.
Morgan is a huge proponent of television advertising. He states that many lawyers who try television ad campaigns do it wrong. He recommends developing a catch phrase like his firm's brilliant “for the people.” If everyone advertised like Morgan's firm, I might not think that it is damaging to the profession. But the get-rich-quick commercials starring plaintiffs who look fine are a ball-and-chain around the neck of those of us who actually try cases.
Although the book is written for plaintiff lawyers, some defense lawyers might enjoy its insights on the business of law. The book is $20 on Amazon or $9.99 on the Kindle. You don't need to get much out of it to make it worth that price. The book even comes with an offer for a free gift for those who read to near the end of the book. What is it? Read the book. But I can say that Morgan does deliver the gift as promised.
Happy 4th of July to all. Whether you are a Nazi-Republican or a Commie-Democrat, your freedom is worth celebrating.
As for me, I plan on watching reenactments of Paul Revere warning the British that they couldn't take away our automatic rifles and Abraham Lincoln's victory over the French at Lexington and Concord.
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