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.

No Class Actions in Mississippi a Big Deal?

Posted in Mississippi Supreme Court

Jimmy Gates with the Clarion-Ledger has this article about the Mississippi Supreme Court’s recent decision rejecting a petition to adopt Rule 23, which would permit class actions in state court.

Judge Primeaux’s blog post on Monday explains why enacting Rule 23 was not popular. He states:

Before I am flooded with comments along the lines of “Mississippi is the only state without a class-action rule,” and “We are out of step again,” let me point out that I am a member of the MSSC’s Advisory Committee on Rules, and have been since 2010. The committee membership includes plaintiffs’ and defense lawyers, an assistant AG, a public defender, 2 each circuit and chancery judges, a county-court judge, and an appellate judge. I am on the subcommittee that exhaustively studied the proposal, including reading scholarly articles on the subject and studies of other states’ rules. We even interviewed proponents of each side of the debate, something we have not done before during my time on the committee. The proposal was discussed in depth. The unanimous conclusion of the subcommittee (with one abstention) was that the federal Class Action Fairness Act of 2005 (CAFA) has had the effect of making almost all class-action suits removable to federal court, obviating the need for a state rule. The full committee voted unanimously (with one abstention) that the proposed rule not be adopted.

My Take:

I never could get worked up over this issue. Are state court class actions really a thing somewhere?

Don’t get me wrong, I’d rather have them than not have them because it might help business for Mississippi attorneys. But I don’t know that this is a big deal.

About That Good Plaintiff Verdict

Posted in Verdicts in Mississippi

In the April Miss. Jury Verdict Reporter preview post, I commented on an $80k plaintiff verdict in a Harrison County car wreck case that seemed like a plaintiff win. Too much of a plaintiff win it turns out.

Last week the trial court ordered a remittitur that knocks over $30,000 off the judgment. Here is the court’s Opinion.

The court reduced medicals from $20,000 to $18,971 and pain and suffering from $60,000 to $30,000. The actual medicals proven were $18,971. Plaintiff asked for $50,000 in pain and suffering in closing argument. The jury returned $60,000.

Here was the jury’s Verdict.

The plaintiff missed three days of work and received chiropractic treatment for under three months. Much of the medicals were for diagnostic testing that was negative.

My Take:

This is why general verdict forms are better for plaintiffs. The jury awarding more for medicals than the bills may have cost the plaintiff more than $1,021. It may have been the primary factor in losing $30,000 from the pain and suffering verdict.

This will cause teeth gnashing in what’s left of the plaintiff bar. But how you view this decision is a matter of perspective.

Plaintiff lawyer view:

The trial court substituted its judgement for the jury’s. This is bad for the judicial system, bad for the profession and bad for injured parties. Outlier verdicts for the plaintiff in soft-tissue personal injury cases are rare. If the trial court reverses them when they happen, insurance companies have no incentive to settle.

Verdicts of less than the medicals with little or nothing for pain and suffering are much more common. Those verdicts aren’t disturbed by trial judges. The playing field is not level.

Defense oriented view:

The plaintiff got lucky by getting a remittitur instead of the court ordering a new trial. When a jury renders a verdict for more in medicals than actually proven, you know something goofy happened. The trial court screwed up by not ordering a new trial.

The plaintiff wasn’t hurt and the medicals were unnecessary. A $49,310 judgment is still a lot more than the case would likely bring on a retrial. The plaintiff would be an idiot to not accept the remittitur.

Final thoughts:

Something about what underlies the above analysis has a lot to do with why I prefer working on business disputes and other non-personal injury cases.

The personal injury segment of the industry continues to shift to a model where cases are brought by the advertising PI mills vs. adjusters and in-house attorneys. One of the state’s preeminent mediators recently told me that he is mediating a lot of cases with an adjuster and no defense attorney.

That model is good for the PI factories and insurance companies. It’s bad for insurance defense lawyers and street lawyers.

This turned out to be a thought provoking car wreck case.

Miss. Bar to Provide Fastcase Legal Research to Members

Posted in Legal Technology

The announcement in the Bar’s weekly email that it will provide Fastcase Legal Research Service for members is great news. I’ve been using Fastcase for a while and discussed it in this post.

Here is info. on the Bar’s website.

Fastcase has been a good alternative to the expensive and predatory billing and collection practices of Westlaw and Lexis. The fact I now will not have to pay $95 per month is great.

Fastcase integrates with Clio case management software, which offers a 10% discount for Bar members.

Fastcase is worth trying for attorneys still paying though the nose legal research.

Judicial Election Time

Posted in Politics in Mississippi

The deadline for running for judicial office has passed. Luckily for me, the topic has already been written about.

Judge Primeaux covers the races for chancery court seats.

The Clarion-Ledger covers the state and local races.

My first impression is that there are more contested seats than usual. A number of sitting judges are not running, so there will be new faces on the bench.

Madison Timber: Receivers and Clawbacks

Posted in Madison Timber Ponzi Scheme

The winners in the Madison Timber ponzi scheme might not be winners for long. This Miss. Business Journal article by Jackson attorneys Win Gault and Spencer Ritchie discuss clawback actions to recover money paid out to ‘investors.’

Clawbacks are bad news for early investors who think they dodged a bullet by getting out.

Meanwhile, Kingfish has a post about the SEC and Secretary of State’s efforts to have a receiver appointed for Lamar Adams and Madison Timber. A receiver would likely be the person/ entity who leads the clawback efforts.

I’m surprised there has been only 1 civil action filed so far.

WSJ: Public Pension Funds Making Promises They Probably Can’t Keep

Posted in PERS Crisis

The Wall Street Journal reported last week on the latest investment returns for public pensions like Mississippi’s PERS. It has a good explanation of why governments aren’t doing anything about the growing PERS crisis:

But government officials seeking to make their investment targets more conservative have a powerful disincentive: Assumptions of high returns appeal to elected leaders because they reduce the amount governments need to set aside to cover pension promises.

It also notes the risks in current investments:

“They’re taking a lot [of] risk in their plans with high allocations to equity and other return-seeking assets,” said Ed Bartholomew, a consultant. “Someone is bearing that risk, and the question should always be ‘who is bearing that risk?’ ”

The answer is: everyone.

If PERS implodes, this will affect us all.

PERS Doing Great!!!!!

Posted in PERS Crisis

Not really.

Here is a Charlie Mitchell column in the Clarion-Ledger about PERS. It includes:

While PERS is far more solvent than Social Security, Uncle Sam’s program for senior citizens, there are some question marks.

Bad analogy. Uncle Sam can print money to pay Social Security benefits. Literally. Mississippi can’t print money. You can’t compare State obligations to federal obligations. You just….can’t.

It goes on:

Any good news?

Yes. During the year, PERS slowly closed the gap between its assets and its projected liabilities.

I’m a glass is half empty kind of guy. To me, that’s bad news. The stock market is 3x above the 2009 lows. It rose every month in 2017. At this point, the funding gap should not be closed. It should be erased. The stock market is not going up every year.

So far, it’s not going up this year. Here is the PERS investment report for the quarter ending March 31: PERS Investment Report.

It earned .1%.

It concludes:

Perhaps more significantly, Mississippi’s plan is working better than those in 26 other states, according to Crain’s Business Report. Tennessee is way up on the “solid” list, followed by Arkansas, which is also ahead of Mississippi. Louisiana is doing slightly worse and Alabama, along with Kentucky and Illinois, are much worse.

There will come a time when PERS needs more fiscal attention from the Legislature. Not every year will have rosy investment returns and other happy news.

For now, though, it’s a point of pride that public employees in Mississippi can breathe easy. “Will there be any money there when I get ready to retire?” is a serious question. For now, the answer is a confident, “Yes.”

It’s like this was ghost written by the PERS director and Tate Reeves.That’s not significant at all. On a scale of 1-10, it’s a 0.

How is other states doing worse going to help? It’s like telling someone on the Titanic that everything is ok because there are a couple of thousand other people going down with them.

Plus, compared to other states, Mississippi is near the bottom in funding levels. Last time I checked, 10th worst. The phrase polishing a turd comes to mind.

Will there be any money when you retire? Yes. Will it be all the money you were promised? Probably not.

Most people in the system who haven’t retired yet are going to take a haircut. And the longer the Legislature plays ostrich, the bigger the haircut.

Civil Lawsuit Filed Against Madison Timber, Salesman in Madison County

Posted in Madison Timber Ponzi Scheme

This may be the first non-SEC civil lawsuit against Madison Timber and its salesmen. It will not be the last.

Highway 22 LLC v. McHenry Complaint.

Highway 22 LLC sued William McHenry, Lamar Adams and Madison Timber in Madison County Circuit Court on Wednesday. McHenry solicited a $150,000 ‘investment’ for MT in 2016. When checks bounced and plaintiff tried to record the deed securing the loan, she discovered the land did not exist.

Eddie Abdeen of Madison represents the plaintiff. That’s going to be a problem for McHenry.

Abdeen is smart.

$350,000 Jury Verdict in Lamar County Sexual Harassment Case

Posted in Verdicts in Mississippi

On Friday a Lamar County jury rendered verdicts totaling $350,000 in Hillman v. Stafford Const. Co.

Here is the Complaint.

Plaintiff alleged Melvin Stafford sexually harassed her at work and fired her after ‘snitching’ on him and refusing to let him stick his hand down her shirt.

The jury returned a compensatory damages verdict of $250,000.

The jury returned a punitive damages verdict of $100,000. It is believed to be the only punitive verdict in at least 20 years in Lamar County.

Daniel Waide with Johnson Ratliff & Waide in Hattiesburg represented plaintiff. Bill Ducker from Purvis represented Defendants. Circuit Judge Tony Mozingo presided.

My Take:

Has there ever been a punitive verdict in Lamar County?

Here’s One of the Timber Scam Sales Documents

Posted in Madison Timber Ponzi Scheme

Someone gave me a Madison Timber sales document. Here it is: Timber return spreadsheet.

The document appears to be from 2011. Here are some questions:

  • if this business is so lucrative, why do they need my money?
  • if they have cash flow to start repaying in a month and pay the loan off in a year, why would they need to borrow money from individuals at 10%?
  • why wouldn’t they go to a bank and get all the money they needed at under 10%?
  • wouldn’t a bank have loaned them the money if they had that cash flow and held assets in a commodity?
  • the hot under the radar investment was…timber? for real?
  • look at a chart for the timber company Weyerhauser (WY). Its stock peaked in 2007, got hammered in the collapse and still hasn’t recovered.
  • who needed all the timber? sawmills were in the toilet because no one was building anything, right? has construction recovered to this day?
  • are these types of investment pitches ever legitimate?

If you want to invest in making loans, you might want to try peer-to-peer lending with companies like Lending Club. You might even get 10% returns. But it will involve investing in loans with a high risk for default.