Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

Philip is a trial attorney based in Jackson, Mississippi with a diverse civil litigation practice.

When Will PERS Armageddon Arrive?

Posted in PERS Crisis

Everyone knows PERS is going to implode one day. PERS executives, legislators, State executives, they all know.

Here are just a few articles on the topic just last week:

Pension Tsunami posts links to many stories every day.

From the Collapse article:

The next phase of public pension reform will likely be touched off by a stock market decline  that creates the real possibility of at least one state fund running out of cash within a couple of years. The math says that tax increases and spending cuts cannot do much. For one thing, as we learned from Detroit, at a certain point high taxes and poor services force people and businesses out. The numbers are just too big in some states to come out of the budgets. For another, voters won’t stand for it. The voters in these states have refused for decades to pay the full costs of the services they were already enjoying; they’re not going to have sudden conversions to paying full costs, plus the accumulated costs from the past. State constitutions will be amended if necessary and big legal battles will be fought. I cannot see any plausible scenario in which full promised benefits are paid.

Ignoring the PERS crisis is bipartisan for politicians. It’s becoming obvious that it’s monkey see, monkey do. Why should Mississippi address the problem? No one else is.

That’s a winning strategy for politicians. Unless it blows up when you are in office. Which it will at some point for somebody.

Do Yourself a Favor and Install a Scanner App on Your Phone

Posted in Legal Technology

Don’t be the person who takes pictures of documents with your phone. Install a scanner app on your phone and scan documents.

It will make it look like a document–not a picture of a document. It also allows you to easily ‘crop’ (adjust) the image size. It combines multiple pages into one document and automatically uploads it to a cloud folder of your choice.

When I go MC or the State law library I don’t have to make copies or take a bunch of notes. I use my phone app scanner to quickly capture the pages I need. It’s a big help.

My wife loves it because I can scan a document at home and text or email it to her. (I don’t have a home scanner yet).

A phone scanner is a simple tech tool that you will occasionally use that will make your life easier. Don’t be lazy. Install one and figure out how to use it.

And no, this is not a substitute for a real scanner. This is like a doughnut spare tire. You only want to use it when you have to.

I use the Scanner Pro app. It works fine. I’m sure there are others.

$475,000 Verdict in Gulfport Federal Court Slip and Fall Trial

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

Last week a Federal Court jury in Gulfport rendered a 40% defendant at fault and $475,000 verdict in Hlywiak v. Grand Casino Biloxi.

The combined judgment for the two plaintiffs was just under $190,000.

Plaintiffs alleged Grand Casino (Harrah’s) created a dangerous condition by maintaining a pool deck with a coefficient of friction (slipperiness) below the acceptable standard. Plaintiff slipped on a slick surface while stepping over a surface joint after exiting a hot tub . Plaintiff’s expert performed tests showing that the surface was too slick on both sides of the joint but especially slick on the side plaintiff slipped on.

Harrah’s never tested the surface and neglected to tell their paint supplier what coefficient of friction they needed for the surface to be safe.

David Baria and Brandon Jones of Baria-Jones in Bay St. Louis represented the plaintiffs. Taylor McNeel and Rodgrick Hickman with Brunini in Biloxi represented the defendant.

District Judge Sul Ozerden presided.

My Take:

Sounds like some good plaintiff lawyering with the expert, testing for slipperiness, etc. Usually, a case like that is: “I fell; pay me.”

And usually, it doesn’t fly.

Governor Bryant Appoints Joseph Sclafani to Hinds County Circuit Court Judge

Posted in Hinds County Circuit Court, Politics in Mississippi

The Clarion-Ledger’s Jimmie Gates reports on Governor Bryant’s appointment of Joseph Sclafani from a field of 11 applicants to fill the retired Judge Bill Gowan’s seat on the Hinds County Circuit Court.

Sclafani has practiced at Brunini in Jackson since 2003. He will run for a 4-year term in the November election.

The article notes that Gerald Kucia, Trent Walker and Faye Peterson have signed up to run for the seat in November and Hinds County Youth Court Judge Bill Skinner might run. There is also talk in legal circles that Judge Skinner may have his sights set on a Hinds County Chancery Court seat.

I expect Sclafani to do a good job. He is smart, hard working and friendly. Those are three good traits for judges. I’ve had several cases with him over the years and enjoyed working with him.

Teeth gnashing by plaintiff lawyers when a defense lawyer becomes a judge almost always turns out to be unfounded. Especially early on, civil attorneys (plaintiff and defense) usually have more problems with criminal lawyers moving to the bench. That seems to die down after a few years.

Twenty years ago, attorneys complained about judges more than they do today. Maybe it’s because there are fewer cases. Maybe the judges are better. Maybe the judges are just friendlier, or more accurately, less unfriendly.

There were some gruff judges in the 90’s who aren’t on the bench today. Lately, everyone who moves to the bench seems to get decent reviews.

Judge Willett Leads With Hand Grenades and Footnotes

Posted in 5th Circuit Court of Appeals, Legal Technology

Rookie 5th Circuit Judge Don Willett’s first opinion is out. It’s a sad criminal tale involving 143 of 144 hand-grenades being duds. Don’t worry, he went there:

Maturino’s plan for live grenades fell short, but close counts in horseshoes and hand-grenade cases.

My Take:

I’d hate to be the dude who sold 143 defective grenades to the drug cartel.

More interesting than the decision is the format of the opinion. Here’s how I break it down:

  • Font: century schoolbook
  • font size: 13
  • margins: justified
  • use of footnotes: prolific
  • footnote font size: 11.

There are both very happy and very sad appellate lawyers today. Appellate lawyers love to argue about font, margins and footnotes.

Obviously, font causes the most heated arguments. There are 3 camps:

  1. Times New Roman;
  2. Century Schoolbook, Arial, other decent fonts; and
  3. goofballs.

Times New Roman is the Buick of fonts.

Goofballs spend all day locating the goofiest font in Word and then use it on some case cracker motion. Everyone’s first reaction to the motion is: “Good God! What’s that font?”

Century schoolbook is a nice font. I used it until switching to Equity Text a few years ago.

I paid for Equity Text. That’s right. I spent money on a font. Complete nerd.

After font, the biggest cause of bar fights among appellate lawyers is whether to put citations in footnotes. I’ve used footnotes for 20 years since attending a Bryan Garner workshop. Garner loves footnotes and hates legalese (hereby, wherefore, whereby, etc.).

Some people don’t like briefs with footnotes. I’m going to start citing this opinion in my first footnote in every brief as “see U.S. v. Maturino….” with no parenthetical explaining why.

Judge Willett indented his footnotes the same length as new paragraphs. I don’t indent footnotes at all. To me they look better with no indention.

Whether to justify margins is hotly debated. I do. Some judge don’t like it. One federal district judge in Jackson famously doesn’t like justified margins. I worry more about whether a judge likes my margins than the font or footnotes.

The important thing for young lawyers is knowing that you have to write all briefs in the presiding judge’s preference for font, font size, footnotes and margins. They aren’t going to tell you what they are. You have to figure it out. Guess wrong, and you’re sure to lose.

Using Tech. To Save Time and Money on Office Administration

Posted in Legal Technology

A lot of tech resources save both time and money. Going paperless is an example. Eliminate most paper from your office and you eliminate most office supply costs.

And office supplies are expensive. I had sticker shock on office supplies when I opened my office. Everything cost at least five times more than I would have guessed.

Here are a few things I am doing to save administrative time that solo and small firm lawyers may want to consider:

  • use mobile banking app on phone to make bank deposits;
  • pay as many bills as possible on business dedicated credit card;
  • link credit card to Quickbooks to categorize expenses; and
  • use Stamps.com to print stamped envelopes.

When you pay bills with a credit card you save time and money on checks and postage.

I advise against paying any bills other than your credit card bill through a debit to your checking account. If you aren’t going to pay with a credit card, use a check.

Once you turn over your bank account information to a vendor you run the risk of them charging your account for an unauthorized charge. If they do that on a credit care it’s easy to reverse. It’s hard and expensive with a bank account. For instance, never give someone like Lexis your bank account information. You’ll regret it if you do.

A month ago I converted from Quickbooks desktop to Quickbooks online for bookkeeping. Converting my data from the desktop to online version went smoothly. As with all cloud based software, it works better on the cloud than on my desktop. Now I don’t have to worry about Quickbooks desktop crashing my computer, which happens.

On the surface, Quickbooks online is more expensive than the desktop version. I think I paid $300 for a year and it will go up to $500 per next year. You can buy QB desktop pro for $300.

But desktop software is more expensive to run. Desktop Quickbooks is a bit janky. It requires regular updates. I had to get IT involved with it at least a couple of times a year. Those costs offset any savings from using the desktop version.

Online QB navigates differently. I am still getting used to that. But it’s a better solution than desktop.

Credit Fuels Law School Tuition Bubble

Posted in Law School

Too much credit in the markets fuels bubbles. The most notorious example in recent memory is the subprime mortgage crisis that caused the Great Recession in 2008. Some people say we are currently in a sovereign debt bubble that is causing a bubble in all asset classes. The jury is still out on that one.

Since the early 1990’s, there has been a credit fueled bubble in law school tuition. Here is a site that analyzes the law school tuition bubble.

Law school tuition has continued to rise since 2008 despite the value of a law degree falling substantially. Why do law schools keep raising tuition? Because they can.

Many students use loans to fund law school. Rare is the young adult who can appreciate the life choking impact of years of huge student loan payments when it is explained four years before payments begin. Almost without exception, they assume it will all work out.

And in a way, it will all work out. Just probably not how they are thinking.

Here is my recent conversation with a law school applicant:

Him:  Do you think I should go to law school?

Me:    Only if you will not have to take out loans to pay for it.

Him:  But if I don’t take out loans, how can I go to law school?

Me:    I’m sorry, I have to get back to my letter bitching about someone’s discovery responses.

Maybe you can win a circular argument. I can’t.

As long as the loans can’t be discharged in bankruptcy, law schools will continue to raise tuition while admitting more students than the job market can absorb.

And prospective students who can’t identify a better option than three years of law school and ‘it will all work out’ will continue to take the loans and go to over-priced law school.

BTW, you know what I NEVER hear? I never hear anyone say I wish I had gone to law school. Just like I never hear a lawyer who leaves private practice for in-house, government or another profession say they wish they had stayed in private practice. My point related to this post is: are you sure you want to go to law school?

The Legal Software That’s Not Here Yet

Posted in Legal Technology

This Jeff Kerr post on Evolve the Law struck a cord. It opens:

All litigation, both civil and criminal, hinges on disputes about law and facts. We’ve seen massive interest in technology designed to facilitate legal research, but technology for dealing with facts (investigating them, proving them) doesn’t get as much attention.

He explains that with all the focus on e-discovery software, fact management software lags behind:

Fact management software, which is part of the broader category of case management software, fulfills this need. Fact management platforms, from the old (CaseMap) to the new (CaseFleet, FactBox, Allegory) enable litigators to handle facts in a collaborative, reusable, and scalable way. Each platform’s primary unit of data is a fact, which can be linked to other kinds of data, such a legal issues, evidence, and witnesses. The more modern fact management platforms have intuitive and fluid interfaces, which make entering data in them as fast or faster than hammering out a chronology in Word that’s far less useful…

Even so, fact management remains a field that’s ripe for innovation.

My Take:

That’s an understatement. This is what I need in a fact management platform:

  • chronology software that links to source documents;
  • outline software that allow building outlines linked to witnesses and issues;
  • notebook capabilities like OneNote or EverNote to organize material;
  • robust search functions;
  • interacts with my case management software; and
  • cloud based.

There is no product on the market that comes close to meeting these requirements.

CaseMap is still the best fact management software even though it’s not had a major update in at least 10 years and is not cloud based.

Cloud based software like FactBox and CaseFleet solve CaseMap’s biggest glitch of the possibility of losing the path to your linked documents. But they don’t provide the options for organizing material in a fact as well as CaseMap. That may sound minor, but it’s a huge flaw.

Nothing has outline software. If I want to know if I’ve started an outline for a witness, I have to open up NoteMap and look. Then I have to open OneNote and check my notes there. Finally, I check my notes in my case management software, which has a bad note taking feature that I try to avoid, but sometimes use because it’s easy to make a note linked to the case in the phone app.

That’s a lot of running around for something that should all be seamlessly organized in one software platform.

It’s ridiculous that I can’t at least organize notes in Clio. How is that going to work on anything other than a small case? Poorly.

Kerr concludes that we can expect fact management software to get better in the next few years. I hope so. I’m not as optimistic, but I hope so.

There is an opportunity for someone to own the market with a superior product.

Defense Verdict in Multi-million Dollar Madison County Breach of Contract Case

Posted in Verdicts in Mississippi

On March 8, 2018, by a 10-2 vote, a Madison County jury returned a defense verdict in Daniels v. Crocker.

Here is the Pre-Trial Order.

Here is the Final Judgment and Order.

The Daniels purchased a manufacturer’s rep firm from the Crockers in 2011 for $4,365,000. The Crockers received $2.8 million at closing.  The firm served as an independent sales force in Alabama, the Florida Panhandle, North Carolina, South Carolina, West Tennessee, and Virginia for manufactures of equipment used in water treatment plants.

The business experienced trouble after it was terminated in June 2012 by its largest client in North and South Carolina, and suffered resignations by several members of its sales force soon thereafter.  The Daniels effectively ceased operations in July 2012, and sued the Crockers in October 2012, alleging breach of the purchase agreement though various misrepresentations by the Crockers.

Judge Emfinger granted summary judgment for the Crockers in 2016, but the Supreme Court reversed in June 2017. Here is the Supreme Court’s opinion: Daniels v. Crocker (Miss. 2017).

The Daniels asked for $3.9 million at trial.  The jury found for the Crockers.

Roy Liddell and David Marchetti with Wells Marble in Ridgeland represented the Daniels.

Christopher Meyer with Burr Forman in Jackson and Richard Farley and Kelsey Panizzolo with Katten Muchin Rosenman in Charlotte represented the Crockers.

Circuit Judge John Emfinger presided.

My Take:

I wish there were more big commercial cases like this in Mississippi. In general, they are more interesting than personal injury cases.

What’s Missing From the Stories About President Trump Can’t Find a Lawyer?

Posted in National Politics

Lots of stories lately on President Trump having trouble hiring lawyers. All of them incomplete in their analysis.

Yes Trump would be a bad client and yes that would cause some lawyers to not agree to represent him. The key word there being ‘some.’

I’ve seen lawyers fire bad clients. I’ve effectively done it myself when given the choice of their (stupid) way or the highway. (In case you’re wondering–you don’t regret it).

I’ve never seen a client who could pay the attorney not be able to find a replacement lawyer.

So important and absent from the analysis is Trump’s reputation for not paying his bills. Trump’s reputation for not paying his bills extends all the way to Mississippi. Word on the street is he owes six figures to a Mississippi law firm for work related to a possible casino development that never panned out.

Criminal lawyers ask for large up front retainers. Same when it’s a client with a reputation for not paying.

What would the retainer requirement be for a top-flight criminal lawyer to represent the President in the Special Counsel investigation? $10 million? $20 million? More?

What would Trump’s response to such a request likely be?

This is speculation–same as articles like the one cited above. But if reporters are going to speculate on the issue, they don’t need to ignore the possible money factor.