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.

Some Politicians No Longer Ignoring PERS Crisis

Posted in PERS Crisis

As 2018 comes to a close, its getting harder for Mississippi politicians to ignore the PERS crisis. And some are not. The Sun Herald reported recently on Coast lawmakers Brice Wiggins and Michael Watson acknowleding the elephant in the room. From the article:

Lawmakers who bring up the Public Employees Retirement System do so at their own peril, members of the Coast delegation said, but they say it needs to be brought up anyway.

“We have to have that conversation,” Sen. Brice Wiggins, R-Pascagoula, told the crowd at the Pre-Legislative Briefing hosted by the Mississippi Gulf Coast Chamber of Commerce. “When Sen. Tindell filed a bill, he got death threats. That’s crazy. In his case, he was trying to tweak it, to make it better able to do what Sen. (Michael) Watson was saying, extend it.”

Watson and Wiggins told the 200 or so people at the Golden Nugget earlier this week that part of the problem is PERS officials paint too rosy a picture of the state of the retirement fund.

“The executive director comes to the Finance Committee every year,” said Watson, a Pascagoula Republican. “And I literally ask just about the same question every year. And every single year, the answer is the same: We’re going to be fine; everything is OK.

“That’s what we’re fighting. You get the executive director of PERS sending out letters to all retirees, Everything’s fine. And the Legislature over here says, wait a minute, everything is not fine.”

And Watson said he’s talked to experts in the banking and pension industries who agree with the lawmakers.

“We’re in trouble,” he said. “We signed a contract. We can’t unilaterally back out of that contract. What we can do is rework the contract with two willing parties.”

The problem is clear. PERS doesn’t have enough money to pay all the present and future retirees.

My Take:

Kudos to Wiggins and Watson.

Everything is not fine. That is said in the context of comparing Mississippi’s PERS crisis to other public pensions, which are also in an under-funded crisis. The passengers on the Titanic were not fine because others were on the same boat.

Mississippi is shrinking its government. Debate all you want about whether it should–but it’s a fact. Shrinking government payroll lowers PERS contributions. Pair that with the system’s unrealistic investment assumptions, and pretty much all experts agree that the crisis will get worse.

This is like a lot of problems. The fix gets more expensive the longer you wait to address the problem. Hoping lighting strikes in the investment markets isn’t a plan. It’s a prayer that’s unlikely to be answered.

Mississippi does not have the money to cover a huge PERS deficit. Adjustments to the system have to be made. This is not an issue that will only impact PERS participants. If you pay state taxes, your money is in play. The legislature needs to get on this in January.

My Take on Trump Visit to Mississippi

Posted in Politics in Mississippi

President Trump was in Jackson Saturday for the opening of the Civil Rights and Mississippi Museums. Here are my thoughts:

Paved streets— Trump’s visit got us some streets paved downtown. The streets the motorcade came down were paved in the 1-2 weeks before Saturday. The Pearl Street off-ramp, Jefferson St. and Amite St. were all paved. I assume it was a Secret Service requirement related to the POTUS vehicles. But who cares? Jackson should have a standing request to the sitting President to serve as grand marshal of all parades.

Governor Bryant was right— On the news last week I saw Governor Bryant saying that regardless of Trump’s divisive rhetoric, the coverage from his visit would be a net positive for the museums and Mississippi. He was right. The visit was covered live on the national news channels and left the impression that the museums are a big deal. That’s good for Mississippi and Jackson.

Trump respects Governor Bryant— I’ve noted before that Trump should be grateful to Bryant because he was one of his first mainstream Republican supporters. Trump’s demeanor, speech and fact he stayed on script suggests he did not want to do anything that would make Bryant look bad for inviting Trump here.

Mayor Lumumba handled the visit well— Notwithstanding the above comments, I can’t disagree with Mayor Lumumba’s decision to skip the event and conduct a press conference nearby.

Protestors made a misstep— The Trump protestors were lined up on High Street. The motorcade came down Pearl Street. Pre-event scouting would have revealed that was a possibility–perhaps even likely give how hard it is to pave streets.

Event organizers did a great job— From the television coverage I saw this looked like a first rate event. Reuben Anderson as the master of ceremonies was a good choice, as was including Myrlie Evers and Governor Winter. Having Evers on the stage is a stark reminder that this wasn’t that long ago. I wish my neighbor and Civil Rights pioneer Duncan Gray Jr. had lived long enough to attend.

WSJ Looks at Sleeping Jurors

Posted in Improving the Jury System

Nicole Hong penned this entertaining Wall Street Journal [paywall] article about sleeping jurors in Saturday’s print edition. The opening:

The right to a jury trial is a pillar of America’s justice system, enshrined in the Constitution from a tradition dating back more than 1,000 years.

The problem these days is making sure jurors stay awake…..

From time immemorial, jurors have been falling asleep because from time immemorial, lawyers have been boring,” says John Gleeson, who was a federal judge in Brooklyn for 22 years. “We’re the dullest people in the world, for Christ’s sake.”

Sidebar: Come on judge. Us lawyers are just playing by you judges’ rules. Us lawyers would love to insert some interesting commentary on the testimony. You won’t let us.

My favorite line in the story:

When lawyers see a slumbering juror, “it is a total blow to the ego,” says Sarah Coyne, a former federal prosecutor and now a partner at Weil Gotshal & Manges LLP.

The article also talks about sleeping judges.

The only solution the article suggests to the issue is letting jurors take notes.

My Take:

I have a different take on lawyers’ reactions to a sleeping juror. A lawyer does not need to do trial work if their ego is fragile enough to take a hit when a juror sleeps.

Trial lawyers need thick skins and a lot of confidence in their abilities. Confident trial lawyers think a sleeping juror (or judge) has the problem–not the lawyer. That’s just how trial lawyers have to be wired.

Plus, potential jurors who seem engaged in voir dire usually get struck by one side or the other. People who look docile tend to not get struck as readily. The attorneys are trying to spot the leaders, get their leaders on the jury and strike the other side’s leaders. They aren’t worried if the non-leaders sleep because they are banking on them going with the vocal leaders.

Many cases are deathly exciting for the lawyers involved and deathly boring for everyone else. And there’s only so much the lawyers can do to make it more interesting.

After opening statements, lawyers just get to ask questions until closing. Exactly how interesting can the lawyer make it when their decision is: what do I ask next? Somewhat more interesting, at best.

I worry about how jurors process information and decide cases. I’ve written a lot about the topic under the Improving the Jury System Topic. I’m more worried about jurors not deciding cases based on the evidence and law that sleeping through some of the testimony.

The whole system for trying cases needs a fresh look at whether it can be improved based on modern technology and decision makers. But I don’t see it happening in my career.

Replacing a Computer — Hurts So Good

Posted in Legal Technology

For the last 3 years I’ve been using a 15″ Dell Latitude Laptop as my computer. I dock it with two monitors at the office. It’s never been that fast and has become clunky in the last year or so.

Finally, it started making weird noises. In my experience, if your computer starts making weird noises it’s thinking about crashing. A crashed hard drive is a huge pain. So I decided to pull the trigger on a new computer.

The emphasis would be on speed. I am always on my computer and continuously bounce around between multiple programs,documents, websites and pages. The less time I lose to the computer loading, the less time I waste. I was willing to spend money for speed.

I pulled the trigger on a 13″ Microsoft Surface Book 2. I did not try to save money, going with the 512 gb with the latest Intel Core i7 processor. The price was an eye popping $2,500. But I’m not complaining based on the early performance.

I spent a lot of time trying to decide between a 13″ and a 15″ screen. It may sound like picayunish issue, but there is a big difference in size and weight. It’s a big enough difference to affect a decision about whether to travel with a laptop or an I-pad. I ended up going with the 13″. My rationale is a golf saying: if you’re going to layup, layup.

The graphics look great–much better than on my 10 year old monitors, Dell or i-pad. And I don’t wish I had the bigger screen. A bigger screen just doesn’t help the same way multiple monitors do.

Last week was the typical frustration I suffer when installing a new computer. Getting everything installed and working right never goes smoothly for me. I lost probably 5 hours trying to figure out what was wrong with OneNote. The problem was I was running the scaled down app. version pre-loaded on the computer instead of the full version I get with Office 365.

And I’m still trying to get CaseMap to play nice with the new Adobe DC I’m using because of difficulty installing my desktop Adobe Pro license.

But otherwise, so far so good. This thing is not much bigger than an i-pad, docks with a plug and is super fast. It’s so much faster than my old Dell. I am finally seeing the faster internet speeds that were supposed to come with C-spire internet. I also like the feel of the keyboard.

Another plus in the battery life. My Dell wasn’t holding a charge. I probably needed to replace the battery and the hard drive. The Surface Book 2 is getting great battery life.

The 1 sentence early review of the Surface Book 2: expensive, but fast.

$14.3 Million Default Judgment in Humphreys County Construction Accident Case

Posted in Verdicts in Mississippi

The Clarion-Ledger reported Sunday on a $14.3 million dollar judgment in Humphreys County in Stewart v. Hankins Home Builders.

Here is the Complaint.

The plaintiff fell off the second floor at a construction site and was paralyzed. He sued Hankins and Farrar Construction. Farrar was dismissed via summary judgement Here is that Order.

No one showed to defend Hankins and in 2016 the Court entered a default judgment.

On November 28, 2017 the Court entered a Judgement for Damages.

All but $1 million of the judgment is for economic damages. $10.9 million is for future medical care. The total judgment is $14,346,574.

John Satcher of Jackson represented the Plaintiff.

$188,622 Bench Verdict in Doctor vs. Doctor Business Dispute

Posted in Verdicts in Mississippi

In April the Pearl River County Chancery Court rendered a verdict of $188,622 in Yost v. Okoloise. Here is the Opinion and Final Judgment.

Doctors Yost and Okoloise became side-ways while operating a pill mill pain-management clinic in Picayune.

In you’re wondering whether the DEA makes an appearance in the case, the answer is yes. I kept waiting for MBN Director John Dowdy to show up, but then I realized this happened before he went to MBN.

Dr. Yost alleged that Dr. Okoloise stole his patient lists and defamed him by telling patients that he wasn’t licensed. Dr. Yost filed suit with an 18 count complaint.

The Court ruled for Dr. Okoloise on most of the counts. The Court ruled for Dr. Yost on the counts of conversion, tortious interference and defamation.

The Court rejected both sides’ valuation experts and awarded equitable damages of $188,622.

The case is now on appeal.

Manion Anderson and Samuel McHard with McHard Anderson in Hattiesburg represented the Plaintiff.

Clark Hicks and V.K. Smith of Hattiesburg represented the Defendants.

Chancellor Ronald Doleac presided.

My Take:

Properly embellished, the facts underlying this case would lead to an entertaining novel. John Grisham, Michael Connelly, Robert Crais and Tim Dorsey could write four different entertaining novels based on the facts of this case. It would be lame as a true story compared to what goes on in Florida road-side pill mills.

PERS and the Next Financial Crisis

Posted in PERS Crisis

The Cayman Financial Review posted this article last month titled: “The state has been set for the next global financial crisis.

The article discusses how the last financial crisis, PERS and the next financial crisis are related. As a result of the last crisis, central banks have kept interest rates near or below zero for years. In search for investment returns, pension funds like PERS feel forced to invest in private equity, real estate, stocks and other investments that are riskier than bonds. From the article:

Not surprisingly, over the recent years, traditionally conservative investment portfolios of the insurance companies and pensions funds have shifted dramatically toward higher risk and more exotic (or in simple parlance, more complex) assets….

The reason for this is that the insurance companies, just as the pension funds, re-insurers and other longer-term “mandated” investment vehicles have spent the last eight years loading up on highly risky assets, such as illiquid private equity, hedge funds and real estate. All in the name of chasing the yield:..

The problem is monetary in nature. Just as the entire set of quantitative easing (QE) policies aimed to do, the long period of extremely low interest rates and aggressive asset purchasing programs have created an indirect tax on savers, including the net savings institutions, such as pensions funds and insurers. However, contrary to the QE architects’ other objectives, the policies failed to drive up general inflation…..

And all the QE didn’t buy is much:

Much of this debt buying produced no meaningfully productive investment in infrastructure or public services, having gone primarily to cover systemic inefficiencies already evident in the state programs. The result, in addition to unprecedented bubbles in property and financial markets, is low productivity growth and anemic private investment.

Where we are now:

Whether we like it or not, since the beginning of the Clinton economic bubble in the mid-1990s, the West has lived in a series of carry trade games that transferred real economic resources from the economy to the state. Today, we are broke. If we do not change our course, the next financial crisis will take out our insurers and pensions providers, and with them, the last remaining lifeline to future financial security.

What can pensions do:

As a part of spending reforms, public investment and state pensions provisions should be shifted to private sector providers, while existent public sector pension funds should be forced to raise their members contributions to solvency-consistent levels.

My Take:

A bad case scenario is that we have another financial crisis that will really be part of the last financial crisis. Central bank efforts to spend their way out of the problem isn’t working because economic growth is too small to offset the increases in spending. If this happens, there will be economic and social upheaval and many fiat currencies will fail. Investors should ask themselves if they have any insurance against a global currency crisis.

A less bad scenario is that the economy continues to muddle along. PERS will not be saved in a muddle along economy. Participants will continue to decline as the state government cuts spending and investment returns will not meet the assumptions required to maintain PERS. Eventually, PERS stops kicking the can and raises contribution rates for employees and the government. Benefits will also take a haircut.

Those are the only two realistic scenarios. The scenario PERS leadership has been selling the last few years that we will grow our way out of the funding hole is so improbable that it should not be viewed as a real possibility.

PERS is in crisis with or without another financial crisis.

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.