The question of why filings are so low in Mississippi gets thrown out there quiet a bit.

Defense lawyers have been asking the question for years after their pre-tort reform predictions that plaintiff lawyers would not stop filing cases proved to be wrong.  I recently heard that law school professors are asking the question because there are a lot of people with real legal disputes that can’t find representation.

The answer is in how plaintiff-side litigation works. Plaintiff lawyers can be paid hourly or on a contingency fee. Mississippi is a poor state. Most people can’t afford to pay a plaintiff lawyer by the hour. Further, many plaintiff lawyers, including me, are hesitant to take a plaintiff case by the hour unless the merits are good enough to where they would also take it on a contingency.

So the plaintiff lawyer needs to conclude that the case is winnable in order to take and file the case. Look back at the verdicts listed on Monday in the preview of the Mississippi Jury Verdict Reporter. On the whole, these verdicts represent a disastrous month for the plaintiffs.

Why aren’t plaintiff lawyers filing more cases? This is why. The plaintiff lawyers likely lost a lot of money in the medical malpractice, nursing home and products cases and maybe the tree case.

While the plaintiff lawyers probably didn’t lose money out of pocket on the two car wreck ‘wins’, they also made very little money considering they had to try the cases.

Other plaintiff lawyers view these results and take heed.

Bottom line: plaintiff lawyers have to be very careful about the cases they file. Unlike defense lawyers who are billing by the hour, plaintiff lawyers don’t have to stay busy. A plaintiff lawyer who feels compelled to stay busy may end up filing a case that is a loser that will cause them to lose a bunch of money in fronted expenses.

Repeatedly losing money in cases is not a viable business model. Plaintiff lawyers who don’t know how to screen cases or can’t tell people no will not stay in business long.

Plaintiff lawyers hear some bleak stories from prospective clients who unquestionably have been wronged. But we have to tell the client no if we conclude that the case is not economically viable for whatever reason–and there are many factors that can kill an otherwise viable claim. Hearing these stories and having to tell people no is the single worst part of my job. But I have to do it if I want to stay in business.

A plaintiff lawyer is better off going hunting or fishing than filing a case that is likely a loser. Whether to take a contingency plaintiff case is a math problem. Experienced plaintiff lawyers aren’t going to file cases where they have better odds at the craps tables in a casino.

Combined with the fact that so many big cases get exported out-of-state in MDLs as I discussed here, the trends for litigation in Mississippi are exceptionally bleak. Filings just aren’t going to rise significantly barring something weird like a Katrina-like disaster that leads to litigation or Congressional legislation rolling back consumer arbitration clauses.