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.

March Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $45,000 verdict- Leflore County car wreck case (2/18/18);
  • $30,845 verdict- Harrison County car wreck case; plaintiff’s medicals: $36,253 (2/15/18);
  • defense verdict- Hinds County car wreck case (2/13/18);
  • defense verdict- Lamar County medical malpractice case (1/26/18);
  • defense verdict- Harrison County bus repair negligence case (1/31/18);
  • defense verdict- DeSoto County medical malpractice case (2/9/18); and
  • defense verdict- Jasper County alienation of affection trial covered here (2/22/18).

My Take:

Big month for defendants, taking home defense verdicts in an alienation of affection case and a Hinds County rear-ender.

Don’t forget to send me an email with details of trials.

Case Management Software Designed for Personal Injury Practices

Posted in Legal Technology

I use and am a fan of Clio case management software. I have a diverse practice: a lot of plaintiff, some defense, a lot of non-personal injury and some personal injury. Clio is a great tool for my practice.

But is there better case management software for plaintiff lawyers who specialize in personal injury? Maybe.

Casepeer looks promising for personal injury attorneys. It is cloud based and designed for personal injury attorneys. Pricing plans range from $55 to $85 per user per month.

I can’t recommend enough that attorneys use cloud based case management software. There are a number of good options for every practice.


The Best Argument Against Law School I Have Read

Posted in Law School

Written in 2016, this Steven Waechter article calling law school financial suicide is still on point today. The article contains important facts and great analysis:

Of those, about 354,000 were self-employed sole practitioners, and they were earning an average of $49,000 in 2012 according to the IRS, a 30 percent decrease for that cohort since 1988 in inflation-adjusted dollars…

This massive overproduction is supposedly justified on several grounds, including an impending wave of Boomer retirements, which the BLS statistics show to be utter nonsense; and the huge unmet need for legal services in underserved poor and rural communities. The logic here is that the army of surplus law-trained labor, rendered unemployable due to the massive glut of graduates, will then be available to provide free or deeply discounted legal services in furtherance of social justice. I guess they are to live in wigwams and eat squirrels scavenged from the side of the road as they do so…

Imagine landing a $35,000 associate position – which might be generous for rural practice – when you have $180,000 in student loan debt, and $12,000 per year in payments of interest alone. The penalty for going to law school and failing to become a lawyer is complete financial annihilation, which is also increasingly the reward for success…

Encouraging more young people to flush away their financial future on law school knowing that employment opportunities are severely limited is counterproductive, unethical, and downright vicious..

My Take:

Read the whole thing. Send it to anyone you know who is thinking about attending law school.

I’m not advocating that no one go to law school. If you have a job lined up before you start because you will practice with a family member, then your analysis is different. Two of the most impressive young attorneys I’ve encountered in the last few years practice with a parent who is a great lawyer.

Thinking a family member can get you a job doesn’t count. The family member has to be able to hire you.

Your dad may golf with the managing partner at Butler Snow. That could help–if you finish in the top 5 in your class. In which case, you would have gotten an interview anyway.

Many people attend law school for the wrong reasons. A lot of trial attorneys are ex-jocks. Many of them become lawyers because of a thirst for competition. That was likely the main factor in me becoming a trial lawyer even though I was just a jock wanna-be.

The problem with competitiveness fueling a legal career is that it does not translate well. This is not a game of pick-up basketball. This is nothing like a game of pick-up basketball. This is more like trying to build a house with someone following behind you trying to tear it down.

And that’s before we even wade into to mind of the decision makers in litigation. Clients, in-house counsel, supervising attorneys, adjusters, judges, jurors, appellate judges. They all have their own way of viewing things. It may be different from yours. That can create a lot of frustrations and anxiety in the profession.

The worst reason for going to law school is because you can get in. Figure out what you want to do.

I am a huge fan of this profession. I like my colleagues. I find many lawyers who are hard to deal with endearing in a weird way. I get that they are trying to do their job–not do mine for me. It’s not personal.

But this is a hard profession. It’s not for everyone.

Lawyers Should Know How to Use Adobe Acrobat

Posted in Legal Technology

A few weeks ago an attorney complained about how time consuming it was to find specific deposition testimony in a huge transcript. He still does it by hand with the transcript and word index.

There are two easy software solutions to this problem. One is optional for attorneys. One is a must that many attorneys already have.

The optional product is Textmap. With Textmap, you load all your transcripts from a case and can search them all simultaneously. I don’t know how helpful this sounds. But it is very helpful.

To make it work you need non-pdf formats from the court reporter, such as Ascii. Court reporters will email a transcript in this format to you if it did not come with the deposition.

Searching in Textmap is fast because you can read just the portion with your keyword instead of having to review the actual transcript. In particular, Textmap saves a lot of time when writing briefs.

The mandatory product is Adobe Acrobat, or a similar pdf tool. I prefer the Pro version, but perhaps standard has all you need. I don’t think Reader does much of what I discuss below.

With Acrobat, you can OCF documents to make them searchable. Say you don’t have Textmap or even if you do, you only have a pdf of a deposition. Acrobat lets you search the transcript. It doesn’t work quiet as well as Textmap, but it beats searching by hand.

Acrobat’s search function is great for all documents–not just depositions. I know many lawyers know and use this. But I also know that a surprising number don’t.

Acrobat also lets you bates number and add text to a document. What text might you want to add? How about “Ex. 1”? I am not sure if you can do this with the standard version. I use Acrobat Pro. It makes labeling exhibits and documents for production a breeze.

Another great Acrobat function is ‘Extract.’ Say have you a 100 page pdf containing multiple documents. Extract allows you to pull out specific pages and save as a separate document. If you aren’t doing this already, you waste a lot of time looking for particular pages in a pdf. Or worse, you still print your favorite pages.

Often people looking for new software just need to learn more about the software they have. I do not exclude myself from this. I need to learn more about Word and Acrobat.

Judicial Derby Update

Posted in Politics in Mississippi

Here is the latest qualifying list for judicial races on the Senator in Waiting Secretary of State’s website: 2018 Candidate Qualifying List.

Looks like Hinds County is headed for a real shakeup with two incumbent Circuit Judges not qualified to run for re-election (Weill and Gowan).

These lists do not mean that much until the dust settles after the deadline for signing up passes.

Recommended Podcasts – Legal and Non-legal

Posted in Legal Technology

Podcasts have changed the way people consume audio. There are more great podcasts available than anyone has time to listen to. If you don’t already listen to podcasts when you are driving or working out, then you are in for a real treat. Podcasts are to audio what DVRs are to video.

Take the podcast for PTI (Pardon the Interruption). Rather than sit through the t.v. show with commercials, I listen to the next morning it driving to work in half the time of the t.v. show. Or Jim Rome’s Daily Jungle. It’s a 1 hour version of a 3 hour radio show.

My best advice is to not listen to podcasts on the podcast player on i-phones. Podcast apps are better.

I listen to podcasts on the Overcast app. It’s free. It organizes podcasts better than the Apple app and has buttons for fast-forwarding and rewinding in 30 second increments. This allows avoiding commercials.

The Legal Talk Network has many legal related podcasts. These are the legal related podcasts I regularly listen to:

  • The Digital Edge
  • Law Technology Now
  • New Solo (the name is a misnomer- it’s more of a legal tech podcast)
  • Mitnik’s Monthly Brushstroke.

Outside the legal sector, S-Town is the best podcast in history. It’s The Wire of podcasts.

Non-legal podcasts I currently regularly listen to:

  • PTI (sports)
  • Jim Rome’s Daily Jungle (sports)
  • The Jim Rome Podcast (sports)
  • The Forward (Lance Armstrong’s podcast)
  • Stages (Lance Armstrong’s other podcast [Armstrong is a podcast talent])
  • The Meb Faber Show (investing)
  • Pod Save America (politics)
  • wealthtrack (investing).

There are thousands of podcasts on all kinds of subjects. Many last for hours with a new episode every week. I have burned out on many podcasts. See, e.g., Bill Simmons podcast.

Defense Verdict in Jasper County Alienation of Affection Trial

Posted in Alienation of Affection Lawsuits, Verdicts in Mississippi

A Jasper County jury in the Bay Springs district recently rendered a defense verdict in King v. Smith. Here is the Complaint.

This was an alienation of affection case with allegations and defenses typical for those cases.

The jury was stuck at 8-4 until sending out a note asking for the definition of ‘lost’ in the alienation of affection jury instruction. After receiving the dictionary definition of the word, the jury returned with a 10-2 defense verdict.

Ricky Ruffin of Bay Springs represented the plaintiff. Daniel Waide with Johnson, Ratcliff & Waide in Hattiesburg represented the defendant. Judge Eddie Bowen presided.

My Take:

All these cases sound the same to me. I can’t really say that about personal injury cases or commercial disputes.

Looking at Mississippi PERS Downside Risk

Posted in PERS Crisis

In December I posted links to the PERS 2017 financial reports here. Today I look at downside risks.

Here are the two pages I focus on, which are pages 58-59 of the Comprehensive Report:

2017 funding ratio pages.

These pages show PERS has a funding ratio of 61.49%. That means Mississippi is scheduled to pay only 61.49% of promised benefits. That’s scary.

The official PERS party line is that we should not worry about it, because the shortfall will be offset by investment gains in the stock market. PERS allocates 63% of its investment portfolio to the stock market.

The bottom of the second page shows net pension liability at a 1% increase and decrease from the assumption of a 7.75% annual return in investment earnings. Unhelpfully, the report does not provide the funding ratio, just the raw numbers.

But I did the math (warning: I’m a history major) and these are the funding ratios:

  • 6.75% annual investment earnings- 49.5%
  • 7.75% annual investment earnings- 61.49%
  • 8.75% annual investment earnings- 71.5%

These numbers tell us two things. First, it will be hard to invest our way out of this mess. Second, the downside risks of earning less than assumed are catastrophic.

The 61.49% funding ratio translates to a shortfall of $16.6 billion dollars. Earn 1% less, and the shortfall goes up to around $22 billion. Remember that there is no guarantee of 6.75%.

This isn’t in the report, but I wanted to know the funding ratio if the stock market drops 50%–like it did in 1999 and 2008. If that happens, the value of PERS’ $16.5 billion in stocks drops to $8.25 billion. How would that impact the funding ratio?

By my calculations, a 50% drop in the stock market would drop PERS’ funding ratio to around 42.4%.  Something around $25 billion.

Forecasts for realistic investment rates of return in the investment markets for the next 10 years are sub-6.75%. Earnings of 10%-plus to dig out of this mess will not happen unless something weird happens to the world economy.

Put it all together and the inescapable conclusion is the downside risks of PERS’ funding shortfalls are much greater than the possibility of rolling Yahtzee in the investment markets. You will not hear this from PERS leadership. You should. But you won’t.

A bunch of disclaimers go with this. Again, I’m not a mathematician. It’s not my job to conduct this analysis. It wasn’t easy and I’ve spent more time than I anticipated. Still, I could be making mistakes. If this interests you, do your own analysis and let me know what you come up with.

If the stock market drops 50%, the losses may be offset by gains in the bond portfolio. My guess, however, is any gains in the bond portfolio will be offset by losses in the real estate and private equity portfolio.

PERS is priced for perfection. It will take better than perfection for PERS to solve its funding problems without government intervention. If that sounds impossible, it probably is. The 2018 legislative session is winding down. Another year where the legislature ignored the PERS crisis. Not good, but unsurprising.

February 2018 Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $636,508 verdict- Harrison County mortgage fraud case covered here (1/10/18);
  • $515,000 verdict- Lamar County truck accident case covered here (1/10/18);
  • $185,000 verdict- Copiah County underinsured motorist case (12/6/17);
  • $7,000 verdict- Forrest County car wreck case (12/6/17);
  • defense verdict- Jackson federal court civil rights case (2/7/18);
  • defense verdict- DeSoto County medical malpractice case (1/25/18); and
  • double defense verdict- Covington County breach of contract case covered here (1/11/18).

My Take:

It’s only February. but it will be tough to beat the Lamar County verdict for most impressive verdict of 2018.

Book Review: Deep Work, by Cal Newport

Posted in Book Reviews

Although its subject is not the law, Cal Newport’s book Deep Work, Rules for Focused Success in a Distracted World is worth the read for legal professionals.

Newport defines Deep Work:

Professional activities performed in a state of distraction-free concentration that push your cognitive capabilities to their limit. These efforts create new value, improve your skill, and are hard to replicate.

He defines Shallow Work:

Noncognitively demanding, logistical-style tasks, often performed while distracted. These efforts tend to not create much new value in the world and are easy to replicate.

Newport theorizes that ‘knowledge workers’ (like attorneys) are losing their ability to perform Deep Work due to network tools (email, social media, web surfing and the like). Constantly sending and receiving emails erodes the ability to perform Deep Work. Image result for deep work images

He concedes that knowledge workers can’t devote 100% of their time to Deep Work: “a nontrivial amount of shallow work is needed to maintain most knowledge work jobs…the goal of this rule is taming shallow work’s footprint in your schedule, not eliminating it.”

A 2012 study found that knowledge workers spend 30% of their time on email. Newport views that as a bad thing. But I’m not sure it is for attorneys, which I’ll get into below.

Newport offers advice for draining the ‘shallows.’ He advocates limiting internet time and not allowing yourself to be distracted when performing Deep Work.

In other words, don’t take calls, check email or take a web surfing break. Also, don’t constantly check for new emails or messages.

He thinks it’s important to not use your phone for distraction/entertainment when doing things like waiting in line or killing time somewhere. He advocates dumping social media completely because it is designed to be addictive and doesn’t have much utility.

My Take:

Much in this book rings true. Deep Work is required for many aspects of litigation.

But I don’t think Newport recognizes the utility of email. He’s 35. He did not work in the pre-email world.

Email is a godsend for attorneys. Before email, lawyers traded phone calls for days and spent an inordinate amount of time on mail. As far as occupying time, email saves significant time for attorneys compared to communicating in the pre-email era. If email eats 30% of attorneys’ time, I’d guess it replaces letters and phone tag that used to eat 50% of attorneys’ time.

On the downside, I believe email increases stress and anxiety for attorneys. Before email, most work news arrived once per day with the morning mail delivery. Now, news appears in the inbox all day, everyday. I don’t know why this makes the day more stressful, I just know it’s true.

I concede that email is distracting. It’s easy for me to not use social media. Staying off the web is harder. I can do it if I want to.

But not constantly checking email is very hard. It’s just too tempting with electronic filing notices coming in all day and attorneys using email as their main form of communication.

Different practices require different amounts of Deep Work. Some practices require very little–some a lot.

Different attorneys approach it differently. Some are more adept and switching between cases in a day. Some attorneys are known for basically focusing on just one case for an entire work day. Everyone needs to figure out what works best for them.

It’s worthwhile for attorneys to think about how Deep Work fits into their practice and how they can perform it better. And by ‘better’ I mean both more efficiently and higher quality.