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.

Is Document Review Really That Bad?

Posted in General

Above the Law posted about Michelle Obama telling Oprah how great being a lawyer was how terrible document review is:

…she preaches about the soul-crushing nature of document review. “I was doing document production in Washington, D.C., and I was like, ‘I can’t do this for the rest of my life. I can’t sit in a room and look at documents.’ I won’t get into what that is, but it’s deadly. Deadly. Document production.”

My Take:

Deadly? Only if you count making you want to kill yourself as ‘deadly.’

I have a weird relationship with large document review projects. I kind of like it, but I know it’s not good for me. I suspect it’s how smokers feel about cigarettes.

Or maybe it’s like alcohol? A little can be fun. Too much will always hurt you.

Document review is an area where lawyers can make a real difference in a case. Whether representing plaintiff or defense, finding and dealing with the ‘smoking-guns’ can make a huge impact.

Sometimes defendants produce smoking-guns, but plaintiff’s counsel don’t spot them. The nightmare for defense lawyers is producing a smoking-gun without recognizing its significance and preparing witnesses to answer questions about it.

It’s a lot easier today than when Michelle Obama did it.

Back in the day, attorneys had to go to the documents and review them in dungeons. More than once I can remember pulling client documents out of mini-storage units in far-flung locales for review and production. I spent a lot of time in places like Logan, Utah.

Now, everything is on searchable pdfs, with some platforms using artificial intelligence to help the reviewers.

November 2018 Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the November 2018 issue of the Miss. Jury Verdict Reporter:

  • $291,331 verdict- Madison County breach of contract case (10/12/18);
  • $147,745 verdict- Jackson federal court breach of insurance contract case (9/20/18);
  • $24,012 verdict- DeSoto County underinsured motorist case (10/3/18);
  • $20,000 verdict- Jackson County car wreck case (3/15/18);
  • $13,000 verdict- Forrest County car wreck case (9/25/18);
  • $500 verdict- Gulfport federal court civil rights case (9/27/18);
  • defense verdict- Warren County medical malpractice case (10/22/18); and
  • directed verdict- Hinds County medical malpractice case (10/19/18).

My Take:

The most interesting case is the $500 federal court verdict. The plaintiff was a pro se inmate who won a summary judgment appeal at the 5th Circuit before winning the $500 verdict at trial. Check out the MJVR for all the details.

The New New Computer to Get

Posted in Legal Technology

I can’t remember how much I’ve written about it here, but I’ve talked at CLE’s about my strong recommendation of using a Microsoft Surface Laptop as a work computer. Wired has a review of the latest model, the Surface Laptop 2.

As far as options, if you are an attorney, you want the most expensive one. I’m quoting a professional technology consultant to law firms here.

And I agree. The problem for attorneys picking out how powerful of a computer they need is that the retail descriptions are written for the mass public–not attorneys. So the descriptions say things about gaming and playing a lot of videos and stuff, which we don’t do.

But we do run a lot of software programs at the same time. That’s why you want the latest and fastest processor and a lot of memory.

Do you really need 16 GB of memory instead of 8? Maybe not. But get it any way and don’t worry about it.

It took me a long time to figure this out, but you get what you pay for with computers. If you hardly ever use one then sure, you don’t need a high performance model. But if like most attorneys you are on it all the time, get a great one.

As far as screen size, go with 13″ instead of 15″. I’ve had both. I’ve researched it a lot. The 2 extra inches is not worth the weight and size difference. Plus, most people will dock it and use monitors most of the time anyway.

When I had a 15″ screen, it was too big and heavy to travel with. The 13″ Surface laptop is about like packing an I-pad.

This computer, Microsoft Office 365, Adobe DC and Clio case management software. I can’t recommend these enough.

Mississippi Judicial Elections Produce Some Surprises

Posted in Hinds County Circuit Court, Mississippi Court of Appeals, Politics in Mississippi

Trying to get election results for down ballot races in Mississippi is tough. I watched WLBT’s website last night and early this morning. Now (5:20 a.m.) it’s results are down. And now back up here.

Before I get into it, take all this for what it’s worth. The way results came in for local races has not bolstered confidence that the early reports will be 100% accurate.

Also, I’m not trying to cover every judge race in the state. If you don’t know why, see Rule of Blogging 1.

Mississippi Court of Appeals

Starting with the court of appeals, from the NE Daily Journal, Deborah McDonald has 49.36% of the vote with 408 of 435 precincts reporting. If there is a runoff, it will be against Eric Hawkins.

Also on the court of appeals, David McCarty (49.15%) appears headed to a runoff against Hinds Circuit Judge Jeff Weill (28.36%). Those figures are with 400 of 403 precincts reporting.

Jackson County District Attorney Tony Lawrence was unopposed for Court of Appeals. I crossed paths with Tony in a Miller re-sentencing case I assisted with. He and his assistant D.A.’s were pros’ pros and easy to work with. They showed you can clean someone’s clock in a nice, professional way.

Also unopposed was Judge Sean Tindell, who replaced Justice David Ishee on the court of appeals. Judge Donna Barnes also ran unopposed.

Other Judicial Races

Crystal Martin will replace her mother Judge Pat Wise as Hinds County Chancellor.

In the other Hinds Chancery race, Monique Brown-Barrett (29%) and Tiffany Grove (28%) are headed to a runoff.

Adrienne Wooten (45%) and Matt Allen (37%) will face off in a runoff for Judge Weill’s Circuit Court seat.

In the race for Judge Gowan’s old seat that Judge Joseph Sclanfani now holds, former Hinds District Attorney Faye Peterson (39%) faces Sclafani (27%) in a runoff. Sclafani has done a lot of work to clean up the docket he inherited and has impressed a lot of people along the way. I don’t think his judging days are over even if he loses the runoff.

Judge Tommie Green was easily reelected.

The stunner of the night was that long time Copiah/ Claiborne/ Jefferson County Circuit Judge Lamar Pickard lost a close race 51-49 to Tomika Harris-Irving. Judge Pickard has been on the bench a long time and presided over some of the biggest cases in the history of the state in the Jackpot Justice era. He needs to find a ghost writer and write a tell all book about at the crap he saw.

Pike, Lincoln, Walthall Circuit Judge Mike Taylor won 56-44, after early results showed him behind until at least my bedtime.

In the vacant Madison/Rankin Circuit seat, Dewey Arthur (33%) and Andy Stewart (28%) are headed to a runoff.

Troy Odom (43%) and Mel Coxwell (35%) are in a runoff for a Rankin County Chancery seat I know nothing about.

The Sun Herald has results for Coast races.

Chancelor Sandy Steckler and former Chancellor Margaret Alfonso virtually tied and will be in a runoff. One race shows two candidates with neither getting 50%:

Chancery Court District 16, Place 3

Candidate Percent Votes
Stacie E. Zorn 49.96% 16,562
Mark A. Maples 49.82% 16,515
32 of 32 precincts

The Sun Herald calls it a win for Maples.

That’s it for this report. Congratulations to the winners and losers. My condolences to everyone headed for a runoff. Having to keep running sounds like a fate worse than losing.

If you ran and lost, just remember what Hunter S. Thompson said about people who have the guts to run for public office. I can’t remember exactly what it was, but it was pretty good.

Drug Dealers are Businessmen — Ponzi Schemers are Thieves

Posted in Madison Timber Ponzi Scheme

The Clarion-Ledger reported that con man and thief Lamar Adams was sentenced to 19.5 years in prison:

Former Madison County businessman Arthur Lamar Adams was sentenced Tuesday to 19½ years in prison for his $100 million Ponzi scheme…

Investors didn’t know Adams’ business, Madison Timber Properties, was a Ponzi scheme, prosecutors said. He promised the approximately 300 investors a return of 13 percent interest…

My Take:

What exactly made Lamar Adams a ‘businessman’ or his criminal enterprise a ‘business’?

Like all con men, he’s a thief.

Compare a thief to a drug dealer. A drug dealer sells a product sought on the market and has competition. Drug dealers have employees. The product is illegal and and the competitors sometimes kill each other, but there is a real business that underpins the enterprise.

Avon Barksdale and Stringer Bell were businessmen. Al Capone was a businessman.

A ponzi schemer is a con man who’s just a thief. The ponzi schemer is no better than a purse snatcher, burglar, shoplifter or bank robber. He’s just another variation of a thief. He has no product or service. He’s a crook.

Lamar Adams had no business. He just stole. So what exactly made him a businessman?

He may look and talk like a businessman. But he’s a thief. Call it like it is. And leave the ‘businessmen’ descriptions for drug dealers headed to jail.

Reading Between the Lines of the PERS Valuation Report

Posted in PERS Crisis

PERS recently had a board meeting where it released its 2018 Valuation Report.

The report covers the period ending June 30, 2018. The cover letter notes that since the last valuation, the PERS board increased employer contribution rates from 15.75% to 17.40%. That translates to better funding levels for PERS and more potholes for roads.

Here are the key stats:

  • active members down from 152,382 to 150,687
  • retirees up from 102,260 to 104,973
  • funding ratio up from 61.1% to 61.8%
  • unfunded actuarial accrued liability: $16,940,458,907
  • estimated investment return for 2018: 9.16%
  • assumed investment return: 7.75%

It’s useful to review 10-year (2009-2018) changes to see key trends:

  • participants down from 167,122 to 150,687
  • retirees up from 76,143 to 104,973
  • funding ratio down from 67.3% to 61.8%

Also, from the start of 2012 to June 2018, benefit payments climbed from $1,627,813,430 to $2,500,750,392.

My Take:

A ten year bull market and the funding ratio just does not improve. Imagine what will happen to it when the bull market ends.

The ship is sinking. Even if the investments do return the assumed 7.75% per year (and they probably won’t), it’s still going down because of the reduction of participants and growing number of retirees.

Raising the employer contributions rates will not stop the ship from sinking. It just prolongs it.

Nothing is going to stop the PERS ship from sinking. The only question is when and what happens to the system when it goes under.

There is an emerging view among observes with a clue that PERS systems will blow up nationwide with the next big stock market crash. Maybe that will not be for a few years. Maybe it’s already started. Really, what difference does it make?

It’s going to happen. The only question is when.

Interesting questions include how current participants will grandfather into the new system and how big will cuts be to retirees?

Should participants eligible to retire now go ahead and retire so they are locked into the system? Good question. No one knows because no one is planning the fix.

It’s the ultimate game of kick the can.

The Perplexing Topic of Race in Mississippi

Posted in Politics in Mississippi

Two recent New York Times articles touching on the subject of race in Mississippi show just how nuanced it is.

On October 19, the Times published this article profiling U.S. District Judge Henry Wingate’s sentencing of a white woman in the 2011 attack on a black man in Jackson. Judge Wingate’s comments were very insightful. They included:

When I was picking a jury in the James Ford Seale case — the resurrected cold case of a white member of the Ku Klux Klan who had kidnapped and savagely murdered two black youths in the 1960s — I was appalled at the number of young white jurors who proved unfit for the final juror selection because of their racist views. The number of white youths who are skinheads or admirers of the American Nazi Party and Ku Klux Klan is disturbing. This tells me that the misguided racial education of these youths has not been meaningfully addressed in their homes or schools.

****

James Craig Anderson should not have died. Unfortunately, he simply was the victim of a society which as yet has not healed itself. He had a family, and by all accounts was an employed, law-abiding citizen. His flaw: Being an African-American, being an innocent victim enveloped in the clutches of robotic, mechanical racial hatred, the seeds of which were planted and nurtured by racist literature, demagoguery, and ignorance.

I agree with everything he said.

Yet I somehow also find myself agreeing with Mike Espy’s quote in today’s Times article profiling his U.S. Senate race:

“There are very few who would not consider me because I am black,” Mr. Espy, 64, said as he strolled through Indianola after lunch. “I believe we in many ways have crossed that hurdle. Many of them, if they don’t vote for me, it will be because of their idea of what I represent as a party person.”

How do you reconcile it? I don’t know. I can’t. But I think it’s all true.

I believe there are white Mississippians who would both espouse racist views they’ve heard their whole lives and vote for the right black candidate for statewide office. I can’t explain it. I just believe it’s true.

Breaking Down Case Assignments in the Southern District

Posted in U.S. District Courts in Mississippi

With the announcement of Judge Barbour’s retirement, the U.S. District Court for the Southern District issued a new order regarding judicial case assignment. Here is the Court’s Internal Rule 1.

My Take:

I want to know how the random assignments are made. It will be a letdown if it involves anything other than a lotto machine and ping-pong balls.

Some of this is common knowledge, like Judge Starrett getting all the Eastern Division cases. Other parts, not so much.

Assignment of Northern Division civil cases is interesting. Judges Ozerden and Bramlette get 2% of the civil cases each. Why 2%? Why not 0% or 10%?

I assume its an effort to evenly divide cases across the entire Southern District. It would be a good topic for Chief Judge Jordan to speak on at a CABA membership meeting.

I’m not crazy about litigants knowing who the next judge would be in the event of recusal. If they’d rather have the recusal judge, they can associate someone on the original judge’s recusal list.

Now that would be stupid, because judges are smart and would recognize what’s happened. And they wouldn’t like it. But I suspect some attorneys might still try it.

Why Investment Earnings Are So Important For PERS

Posted in PERS Crisis

Here is an excellent blog post about the percentage of public pension income from investment returns. The average for all public pension plans is about 60% of income is from investment returns.

That’s why the investment assumption is so important. It needs to be realistic to get a true sense of how PERS will perform in the future. And as Kingfish regularly hammers on Jackson Jambalaya, the projections for future participants in the system also has to be realistic.

A lot of experts believe an investment assumption of 7.75% (which PERS uses), is not realistic. But opinions can differ on that.

Reasonable opinions can’t differ on the number of PERS participants. The trend of more retirees in the system than new hires entering the system isn’t going anywhere.

Some people might blame this on Republicans shrinking government. Perhaps. But government should not be immune from technological advances that mean it takes fewer people to perform administrative work. Regardless, it doesn’t matter.

PERS participants are decreasing. PERS’ future assumptions need to reflect it. Future investment assumptions should be realistic–not aspirational. Fixing these issues would expose how bad of shape PERS is really in and force the government to change the system.

 

Deploying Tech. for a Profitable Law Practice

Posted in Legal Technology

Ernest Svenson is one of the most well known tech authorities in the legal profession. He has an excellent podcast, a blog and writes many articles on legal tech. He knows what he’s talking about.

In 12 Steps to a Profitable Law Practice, Svenson explains how he gained the knowledge to become a tech authority and offers advice for tech proficiency.

Many attorneys read this blog who basically delegate tech proficiency to staff. That’s a mistake. I know–that used to be me.

Even big firm attorneys need basic tech proficiency. They need it to understand what their staff is doing and so they can do it themselves in a pinch. In 2018, there should not be attorneys who can’t work unless they have staff also working to feed them information.  Also, god forbid they have to leave big law, they will know how to operate their own practice if they need to.

Finally, clients demand it. I don’t know exactly when we hit the day when clients expect their attorneys to be tech proficient. But we’re there.

There is an over-supply of lawyers. If clients expect tech proficiency and you don’t have it, how will that look?