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.

Every Lawyer Should Use Outlining Software

Posted in Legal Technology

I repeat: every lawyer should use outlining software.

Yet I can’t find anyone who does.

Back in the mid-90’s, I attended a Bryan Garner CLE on improving legal writing. Twenty years later, the three big takeaways I still remember are:

  1. outline before you write;
  2. shorter is better; and
  3. ditch the legalese (hereby, wherefore, hereto, etc.)

Here’s an article that says John Grisham spends more time on the outline than the book:

Ask John Grisham, and he’ll tell you he can’t write a novel without doing an outline first. He does a 50-page outline with a paragraph or two about each chapter, setting out the major events and plot points. He spends more time on the outline than on the writing. Robert Ludlum once told me the same thing — his outlines were often as long as 100 or 150 pages!

Sometimes I’ll write something without an outline because I think it will be so short I don’t need one. Usually, it’s a mistake. However great you think you do without outlines, you would be better with outlines.

I don’t outline blog posts because of time factors. If I did, the posts would be better organized and read better. Take this post for instance. The organization is not great.

For outlining, I’ve used the software NoteMap for years. It works well. I can’t practice without it (or something comparable). I use it for every deposition and witness outline and every brief.

I recommend using dedicated outlining software rather than outlining functions in Microsoft software like Word and OneNote. The key benefit of outlining software is that it makes it easier and faster to re-organize. With the click of a mouse, you can move questions or topics around, create new topics or sub-topics or delete topics or questions.

Drafting questions with outline software also makes it easier to recognize needed follow-up questions.

Organization of questions makes a huge difference in the clarity of witness outlines.

If I still worked at a big firm, I would train associates on outlining and force them to use outlining software for briefs and witness outlines. It would improve their work product and their analysis.

November Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the November 2017 issue of the Miss. Jury Verdict Reporter:

  • $218,000 verdict- Oxford federal court denial of faculty tenure case covered here (10/27/17);
  • $55,000 verdict- Lowndes County underinsured motorist case (9/1/17);
  • $8,090 verdict- Lamar County County Court underinsured motorist case (11/10/17);
  • $3,437 verdict- Madison County County Court car wreck case (10/30/17);
  • defense verdict- Hinds County medical malpractice case, retrial of this screw-up for the ages (10/6/17);
  • defense bench trial verdict- Hinds County (Judge Green) medical malpractice trial covered here (8/18/17); and
  • defense summary judgment- Oxford federal court negligent bus safety case with pro se plaintiff (10/17/17).

My Take:

This is what an average month of trial practice looks like in Mississippi. General conclusions that can be drawn are:

  • not many cases are being tried;
  • defendants have limited (sub-seven figure) exposure in tried cases;
  • defendants almost always win medical malpractice trials;
  • plaintiffs win low damage verdicts in car wreck cases; and
  • plaintiffs seem to do ok in employment-related cases.

Miss. Supreme Court Quietly Puts Fax Machines Out of Their Misery

Posted in Legal Technology, Mississippi Supreme Court

On Thursday the Mississippi Supreme Court amended Canon 5F of the Code of Judicial Conduct. The Canon relates to actions during judicial campaigns. Here is the Court’s Order.

Here is a post analyzing the decision on Miss. Court of Appeals Judge Kenny Griffis’ blog.

It’s all kind of ‘inside baseball’ to me. But I saw something in the Order that interested me.

Here is the part of the amended Canon I focused on:

….the Commission staff shall immediately forward a copy of the allegation by e-mail or facsimile, if available, and U.S. mail to the Special Committee members and the judicial candidate…

Boom. Faxing is no longer an option. Notice is by e-mail followed by snail mail.

This interests me because I wondered for a couple of years why I still had a fax machine. I’d wander by it every once in a while and see that the only faxes received were spam offering discounts on cruise vacations. [I’ve never been on a cruise].

One day I unplugged the fax machine and waited to see if anyone complained. They didn’t. Still nervous, I opened an account with efax, which basically turns a fax into an email. After several months I’ve received 1 fax. But with this Miss. Supreme Court decision, I feel safe terminating my efax account.

For all I know the Miss. Supreme Court has been waging a war of fax machines for a decade. I haven’t paid attention until now. And I’m glad I did.

$25,000 Jury Verdict in Forrest County Car Wreck Case

Posted in Verdicts in Mississippi

Last Monday a Forrest County County Court jury returned a verdict of $25,000 in Scott v. Rawls.

The case involved a car wreck. Defendant pulled out of his driveway and hit Plaintiff’s vehicle. Plaintiff had soft-tissue injuries and medical bills totaling $8,178. The medicals included one visit to the emergency room and six weeks of physical therapy. There was no lost wages claim.

Plaintiff requested a verdict of $30,000. Defendant argued that the impact was too minor to cause damages.

Daniel Ware of Florence represented the Plaintiff. Stephanie Beaver of Gulfport represented the Defendant on behalf of State Farm Insurance.

Judge Michael McPhail presided.

Above the Law Adds Platform Dedicated to Legal Technology

Posted in Legal Technology

Last week the most popular legal blog in the world (Above the Law) announced a new platform dedicated to legal technology. It’s called Evolve the Law. From the announcement:

As technology and innovation become more and more integrated into the practice of law, and a requirement for lawyers, Above the Law is announcing a new platform for this coverage: Evolve the Law, ATL’s Legal Innovation Center. This Center will be a platform to connect lawyers with technologists, legal-design thinkers, innovators, alternative service providers, and Evolve Law members. It will feature op-eds from the innovation community in law, as well as across industries in healthtech, fintech, regtech.

Attorneys would be rise to follow Evolve the Law. We’re to the point where technology proficiency is no longer optional in the legal profession.

Law schools need to teach it and law firms need to require their attorneys to be tech proficient. Clients are getting tech savvy too and understand that a lawyer who isn’t tech proficient is not efficient and wasting the client’s money.

$218,000 Jury Verdict in Oxford Federal Court Denial of Faculty Tenure Case

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

On Friday a federal court jury in Oxford rendered a verdict of $218,000 in Wiggington v. Ole Miss. Here is the verdict.

Here is a good report on the case on Jackson Jambalaya. The verdict was for depriving plaintiff of his due process rights in considering his application for tenure and promotion. The jury rejected plaintiff’s age discrimination claim.

The verdict consisted of the following:

  • $18,000- lost wages and benefits
  • $100,000- past pain, suffering, mental anguish, etc.
  • $100,000- future pain, suffering, mental anguish, etc.

Mike Farrell and Sam Begley of Jackson represented the Plaintiff. Cal Mayo of Oxford represented Ole Miss.

My Take:

I heard the recently fired Black Bear mascot is looking for an attorney.

Wordrake is Great Editing Software

Posted in Legal Technology

Last week I wrote about PerfectIt, which is proofreading software. Today’s topic is Wordrake.

Wordrake is editing software. Like PerfectIt, Wordrake is a Word ad-in that launches from the top ribbon in Word. There is also a version for emails that I have not tried.

The Wordrake homepage contains a good 30 second video demo about how the product works.

Run Wordrake in your Word document or Outlook email and it suggests revisions. The suggested revisions shorten sentences. With the click of a button, you can accept or reject a suggested revision.

Here are the price plans. $129 per year for Word or Outlook; $199 for both. There are also discounts for multiple orders by law firms. Those discounts can get quiet steep.

In my experience, Wordrake’s revisions almost always improve the text by making sentences clearer. If a sentence can be made shorter, Wordrake will suggest it. This is an important feature for lawyers.

What’s the number 1 suggestion from judges to lawyers about legal writing? “Shorter is better” has to rank at the top. Wordrake ‘rakes’ away the words to make the text shorter. Judges will appreciate you raking your documents. Heck, if I was a judge I would use it to rake my opinions.

To be fair, some attorneys need to use Wordrake more than others. People who write short sentences in active voice will not see as many suggested revisions as people who write in passive voice. Consistently writing in passive voice is the easiest way to make your legal writing long and hard to follow. Identify good legal writing and it’s going to be in active voice.

They don’t teach the active-passive dichotomy in law school. Or if they do, no one pays attention. Over use of passive voice is a common error by young attorneys.

I wasn’t aware of the importance of the active-passive concept until the late 1990’s when I went to a Bryan Garner legal writing CLE in response to my boss Bill Reed telling me that my writing sucked. Reed was fanatical about short clear sentences. He must have gone through two red pens a day editing associates’ documents. The most frustrating part of the exercise was that his edits almost always improved the draft.

The first time I ‘Wordraked’ a brief, I looked at my computer like Bill Reed was about to jump out of it. He could have written the software.

Wordrake and PerfectIt perform different jobs. They are both great. I highly recommend them for all attorneys who write.

PerfectIt Proofreading Software a Great Fit for Solos and Associates

Posted in Legal Technology

For the last few months I’ve been using PerfectIt proofreading software for professionals. The software functions as a Word add-in. The software reduces proofreading time for the drafter.

PerfectIt checks for typos, misspellings and formatting inconsistencies. It was programmed by lawyers and knows the dreaded Bluebook. This means it knows the proper abbreviations and where the spaces go in common legal citations. If you want to use this feature you need to set it up for ‘American Legal Style’ once you download the software.

If you are a solo or other attorney who doesn’t have the benefit of a second set of eyes proofreading your documents, PerfectIt is great for identifying inconsistencies that jump off the page at some readers.

If you are an associate at a law firm, you may not be aware of how much typos and format inconsistencies drive partners crazy. When you give them a document with these types of errors, they often think that you are lazy or sloppy. They remember it. You may think that something so minor can’t cost you your job. You would be wrong. Any reasonably priced software that helps clean up documents is worth the price for firm associates.

The current price for PerfectIt is $99 for a permanent license. I understand that the pricing structure will soon change to a yearly license for $70. So now is a good time to buy.

Office 365 is Better than Traditional Desktop Version

Posted in Legal Technology

This post is about Microsoft Office 365. I am not going to explain what Office is. If you don’t know, go figure it out. Chances are, you use it (Outlook, Excel, OneNote, Powerpoint).

The question you are asking is: why Office 365? The answer is: it just works better.

Emails especially just work better between all my devices.

I’m a late adopter to cloud based software, especially for something like Office that I already have.

It’s on my computer already, why do I need to move it to the cloud? It’s a good question. Here’s the answer: it just works better in today’s multi-device always working from somewhere world.

You may or may not know or remember this, but that Office suite on your computer was not free. You (or someone else) paid for it when you got that computer. It cost maybe $200. It’s good for that computer. Buy a new computer and you’ll need another Office license, unless you move to Office 365. Then you don’t buy the license with the computer and you pay by the month or year.

Each license is good for five devices. That covers office, home, phone, I-pad with 1 extra.

It’s very affordable. Here are the business plans. I am paying about $15 per month for business premium. I probably don’t need the ‘premium’ features, but they add only a few bucks per month.

I get hung up on some picayunish legal tech issues. Do I need a fax machine? Ok, no, but do I need a fax line? Probably not, but I have one anyway. More on this in a later post.

Moving to Office 365 is not something to get hung up on. It’s a no-brainer. Because it just works better.

Legal Tech: Case Management Software

Posted in Legal Technology

It took me a long time to believe in case management software. Not the idea of it–I’ve liked the idea for 20 years. But in practice, it hasn’t worked for me until now.

I installed a case management software program when I opened my practice in 2002. I hardly used it. It just didn’t do much that helped me. This was in the pre-ECF and paperless days. I bought a different version a few years later. It died on the vine. I’ve looked into many other versions over the years and not gotten excited.

But this time it’s different. I tried Clio after attending the Miss. Bar’s Technology CLE in May. I love it. It’s a fantastic addition to my practice. And I’m still not using all its features.

The difference makers for modern case management software is that its cloud and subscription based without big up front adoption costs or long term contracts that try to lock you down.

Years ago case management software was on the server and you had to be in the office to use it. Today it’s wherever you have internet access and on your phone. Clio has a great app for i-phone and android that I use a lot.

Before Clio, I was a to-do list fanatic. But I was doing it by hand every week in OneNote. Clio has a great task system that makes it simple to create and modify tasks. It gives options for setting deadlines and tying tasks to specific matters.

Clio’s contacts feature works better than Outlook. My Outlook contacts became such a mess years ago that it was largely worthless. I keep my contacts organized better in Clio.

Clio also integrates with Outlook so that my Clio calendar is also maintained on my Outlook calendar. I use an $8 per month add-in called Click-to-file that makes it easier to save and read old emails within Clio. When I need to find a particular email or attachment, its easier to find it in Clio than Outlook. In Clio the emails are listed and you can read the entire email by hovering the cursor over an email.

Like the tasks feature, Clio’s calendar allows users to tie calendar entries to matters. When you create a calendar item and link it to a matter it will show up on the calendar section within the matter page. Same for tasks, contacts (you can link contacts to matters), expenses and time. This matter centric organization is fantastic. It centralizes and organizes a ton of information that was spread all over the place.

Within the matters are the following sections for each case: dashboard (general case info.), activities (time, expenses), calendar, communications (emails), notes, documents, tasks, bills, transactions, Clio Connect (client portal). For instance, hit the calendar tab and you can see everything scheduled in that particular case. That’s a handy feature when you are on the phone and need to identify a deadline or deposition date fast.

Clio has a great search function that is fast.

I use Clio to record time and create invoices. I was previously doing this in Quickbooks. With Clio it’s easier to create and modify time entries. Plus, I can do it on my phone. Clio creates practice reports that some lawyers and firms find very beneficial.

Clio has an app directory with over 60 integration partners. These allow you to add additional software and tie it to Clio. Examples include Office 365, Box, Dropbox, Quickbooks on-line, Ruby Receptionists, Factbox, Fastcase and many others.

Clio recently launched its Apollo platform, which makes the software slicker and faster. I liked it before. Now it’s better.

You can try Clio free for 30 days and get a 10% discount through the Mississippi Bar. Pricing starts at $39 per month. I use the $59 per month boutique plan.

Before you think this post is a Clio commercial, note that Clio has competitors. Rocket Matter may be the biggest, but there are many others. My purpose is not to rank them.

Many lawyers get hung up trying to identify the ‘best’ case management software instead of trying to get the most out of the one they have. My advice for implementing case management software follows.

Advice for Implementation

Start slow

Pick out a case management software and install a trial version. Don’t waste your time putting your whole practice in it. Get going with 1-3 cases. See how you like it. That way you will not have a lot of time invested if you decide you don’t like it or want to try something else.

Try others if you aren’t sure you like it

A recurring theme on legal tech list servs is people asking for advice on what case management software to try. The responses are interesting. Lawyers have a tendency to not be monogamous to their case management software and are always looking for a prettier partner.

Invariably, someone responds that they’ve basically tried them all. Of course, they are in love with their current software. I always wonder whether if I checked back in two years they would be using something else.

What makes the most sense to me is to find something you know you like and then stick to it. I didn’t do this, but one idea would be to test a few programs at the same time. For instance, get a free trial of Clio, Rocket Matter, and Panther at the same time. Put a few cases in each. Then work out of all the programs at the same time depending on which case you are working. That would tell you which system you like best.

Stay committed

Rather than looking for something prettier, spend your time figuring out how to better use what you have. I’m not going to say that I am only scratching the surface with Clio, but I may be. I do know that it has a lot of features and app partnerships that I have not tried yet.

Room for improvement

My biggest gripe with Clio is the lack of ability to organize notes. I wish I could organize my notes like in OneNote and Evernote. Since I can’t, I still mainly use OneNote for notes and analysis. I would also love to see outlining software like NoteMap within the notes.

It’s hard for me to imagine any lawyers not using case management software in ten years. It’s great now and will only get better.

Next tech topic:

In my next tech post I will discuss why Microsoft Office users should be using Office 365 rather than desktop versions of the popular software.