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

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According to Law.com the legal sector lost 5,800 jobs in October with more layoffs at large firms than at any time in the last 30 years. The blogs Above the Law and Law Shucks also track the carnage on a weekly basis. Law Shucks states:

The National Law Journal has put out its 2009 survey of the largest firms in the US, and the numbers are just about as awful as would be expected. Headcount is down pretty much across the board, with the total number of lawyers employed by the 250 largest firms back at 2005 levels, wiping out three years’ growth.

In our view, the data support what we’ve been saying all along: firms are grossly underreporting layoffs and stealth layoffs are running rampant.

 In the Jackson area Currie Johnson recently laid off five associates and McGlinchey laid off two in its Jackson office. These numbers may not sound like a lot until you compute the percentage of lawyers in these offices who were let go.

The down economy for law firms in Mississippi started around 2004 with the Mississippi Supreme Court's opinion in Janssen v. Armond, which eliminated joinder of large numbers of plaintiffs in mass tort cases. This caused a huge hit to many defense firms who had a large presence in mass tort litigation. Mississippi firms slowly began to lose attorneys as natural attrition and stealth layoffs led to a reduction of the associate ranks.

Today many Mississippi firms look top heavy, with a lot more partners than associates. That's how firms looked in the early 1990's. The litigation boom of the late 1990's and early 2000's allowed firms to become leveraged by adding associates, of-counsel and paralegals. That meant more jobs for associates and more income for partners.

Ironically, associates in Mississippi who were forced to find new jobs several years ago turned out to be lucky. The economy was fine and it was usually not that hard to find another job. While finding another job often required leaving the state, some would say that is a positive. Today, it is much harder to find a job.

I do not expect the job market to significantly recover with the economy. Corporations and insurance companies are in a trend of bringing more legal work in-house. This is resulting in more lawyers going in-house from private practice. But since most of those types of jobs are outside Mississippi, the trend is a negative for Mississippi attorneys.

I'm not sure what will happen to the legal industry over the next 100 years. I hope a hundred years from now there are more lawyers who are practicing because they want to help resolve disputes and less who are practicing because they thought that it would be a path to making a lot of money.

There are too many well paid but unhappy lawyers who don't like the practice but are dependent on the income. I would like to see a leaner profession where most lawyers like the practice and do not attribute income with happiness.  It may take fewer lawyers and less money to make this dream a reality. 

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Every few months there is a new newspaper article that credits legislative tort reform with the reduction in lawsuits filed against physicians in Mississippi. The latest example is this article that appeared in the Sunday Natchez-Democrat.

In discussing the alleged need for national tort reform in medical malpractice litigation the article makes familiar statements about what happened after Mississippi enacted legislative tort reform:

the number of medical malpractice claims has dropped by 91 percent from its peak, and the state’s largest medical liability insurer has dropped its premiums by 42 percent

The article suggests that this data is solely due to non-economic caps:

Under current law, individuals may pursue civil claims against physicians and other health care providers for alleged torts — breaches of duty that result in personal injury. Mississippi legislators in 2004 put a $500,000 cap on pain-and-suffering or non-economic damage awards in medical malpractice cases, ending the state’s reputation as the “judicial hell hole for jackpot jury verdicts” — a phrase coined by Gov. Haley Barbour.

Frivolous lawsuits hit their apex in Jefferson County, where a pharmacist was named in more than 1,000 lawsuits. A Jefferson County jury awarded $1 billion to the family of a woman who had taken the drug Pondimin, a weight loss remedy known as fen-phen that is now off the market.

Absent from this article and other similar articles is any mention of the Mississippi Supreme Court's 2004 opinion in Janssen Pharmaceutica v. Armond. The Court's decision in Jannsen had more to do with reducing lawsuits against doctors than did tort reform's non-economic damages caps.

Before Janssen there could be hundreds of plaintiffs with no connection joined in one lawsuit in a venue that was bad for defendants, such as Jefferson County. Janssen itself involved 56 plaintiffs suing a pharmaceutical company and 42 Mississippi physicians who prescribed Propulsid to the plaintiffs. The Court held that joinder of the claims into one case was improper and ordered claims of the individual plaintiffs severed and transferred to a proper venue. 

After Janssen, mass tort plaintiff lawyers basically stopped filing tons of cases in Mississippi. This greatly reduced the number of lawsuits against doctors who were getting sued like crazy in pharmaceutical litigation cases where the doctors were not even real targets and were sued to keep the case out of federal court. A huge percentage of the 91% reduction in claims against doctors resulted from the impact of Jannsen. It had a much bigger impact on the reduction in filings against doctors than did legislative tort reform caps.

The second biggest impact on reducing the number of pharmaceutical cases against doctors was the tort reform provision that required plaintiffs to get an expert to sign off on the case before filing suit. This provision could impact the number of suits, since most of the claims against doctors in drug lititgation were not legitimate. So two things contributed to the reduction in the number of suits: (1) Janssen; and (2) the expert certification requirement.

Caps simply did not reduce the number of suits.

The fallacy with legislative caps on non-economic damages is that proponents claim that caps are needed to address frivilous (baseless) lawsuits. But the reality is that the caps come into play in the cases with merit and severe damages. Examples include cases where injuries are severe and permanent, such as brain damage or paralysis. A plaintiff lawyer is not going to choose not to file one of these cases because of the caps. But the victim will recover less money.

A damages cap does not affect a case where a plaintiff sues a doctor with a baseless claim in hopes of a quick settlement. That type of case will be thrown out by the judge on summary judgment before a trial. Insurance companies know this, but the general public does not.  Apparently, the media does not understand this either, since it continues to ignore the Mississippi Supreme Court's contribution to the reduction on cases filed against doctors.

It's not surprising that politicians ignore Janssen and give all the credit to themselves. That's something polititicians do with both credit and blame. But it's disappointing that the media continues to drink the Kool-Aid.