Only legal tech nerds like me know there is actually a legal industry specific keyboard. But for many, the fact it wasn’t wireless was a deal-breaker. No more.

Bob Ambrogi reports that the LegalBoard now has a wireless model. So if you go out tonight and see a bunch of lawyers celebrating, don’t assume they had a big trial win. Maybe they just got their wireless LegalBoards.

You may ask, who cares? Apparently, lots of folks. Ambrogi writes:

“Never in my 14 years of blogging and more than two decades of covering legal technology have I seen the legal world react to a new product as it did this week to the LegalBoard, a keyboard designed for lawyers.”

That is what I wrote in 2017 after I published a blog post announcing the LegalBoard, a keyboard designed for lawyers by a lawyer. Hits to that post went through the roof, far exceeding any post I’d ever published.

Thus proving the axiom that many lawyers can’t see the forest for the trees.

I guess I’m going to have to see it in action before I buy into the hoopla. It’s an awfully wide keyboard, which isn’t great for shoulders and arm tendons.

Plus, I know how to insert the dreaded symbols ¶ and § in Word. Footnotes are no problem either–it’s on my shortcut bar.

If anyone has one, please leave a comment on whether you like it.

The Legal Skills Prof blog reports on Robert Ambrogi’s LawSites blog report that Georgia may join 37 states in addressing technology competence in its Rules of Professional Conduct.

The new proposed Rule 1.1 (Competence) would read in part:

Maintaining competence

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject. (emphasis added).

My Take:

Mississippi is virtually surrounded by states with a similar rule, with Alabama the exception. Suffice it to say that Mississippi might be the last one to the party, but it’s coming here too.

Technology competence is a big can of worms. It means different things to different people.

How much does anyone really know? How do you measure it? Being the cynic I am, 20 years ago when office computers didn’t work close to as well as they do now, I wondered how much some of the IT folks really knew. As long as they knew more than everyone else in your office, they looked like experts.

I have a better read on it now. Most IT folks address a problem by Googling for the solution. If you can Google, you can fix a lot of your tech problems.

I consider myself to have tech competence compared to most lawyers. But I’m always learning more and that I have much more to learn.

Currently, I’m reading a book on electronic discovery and digital evidence. There is a lot of law on the subject out there I didn’t know. That seems to be a theme in addressing tech competence–the more you learn, the more you realize how little you know.

Which brings me back to the professional rules requiring attorneys to have tech competence. I applaud them. But I have no idea how someone would define it. One man’s tech genius is the next man’s tech fool.

On Wednesday a Jackson County jury rendered a $1.5 million verdict in Warren v. Hernandez.

This was a car/tractor trailer case. Ms. Warren alleged she was making a right turn off Highway 63 south of the intersection with I-10 to go to the Exxon station. She was stopped in the turn lane waiting for the light to turn.  She saw the defendant’s 18 wheeler approaching behind her in her rearview mirror when he attempted to pull around her. When he did so, the driver failed to make a wide enough turn, and the trailer hit Ms. Warren’s vehicle.

The driver of the 18 wheeler testified he was first in line, waiting at the traffic signal in the turn lane. After it turned green, he made his right turn. As he was doing so, the truck driver alleged that Ms. Warren’s vehicle must have come up behind his trailer and ran into the back portion of his trailer or was attempting to pass him on the shoulder. Liability was disputed.

 Ms. Warren suffered major neck injuries, leading to fusions at two levels, and a disk replacement. She also had a partial tear of her left rotator cuff. Finally, Ms. Warren suffered severe headaches and was diagnosed with occipital neuralgia.

Warren had $359,000 in medical bills. A treating physician indicated she would need expensive injections.  Causation was disputed based upon her allegedly not complaining to her doctors of neck and shoulder pain until several months after the accident. 

After deliberating two and half hours, the jury rendered a verdict of $500,000 for Warren’s pain and suffering and mental and emotional distress and $1 million in economic damages.

Tedd Connell and Charlie Merkel with Merkel & Cocke in Clarksdale represented Warren.

Kristi Rodgers Brown and Ryne Hand with Daniel Coker represented Defendant.

Circuit Judge Kathy King Jackson presided.

In Crawford v. Hinds County the plaintiff sued the county over the Hinds County Courthouse not being accessible to the disabled. Plaintiff sought damages and injunctive relief requiring the county to make all seven courtrooms and all bathrooms accessible.

Before trial, plaintiff rejected the county’s offer to renovate two courtrooms, one bathroom per floor and miscellaneous items.

A bench trial was held before U.S. District Judge Tom Lee on February 12-13, 2019.

The Court ruled on October 18, 2019. Here is the Memorandum Opinion.

Before trial, the County and Plaintiff settled Plaintiff’s damages claim. That left his claim for injunctive relief.

The Court revisited the standing issue Hinds County raised in its summary judgment motion and determined that Plaintiff lacked standing. The Court concluded:

The court does not doubt the sincerity of plaintiff’s interest in the County’s compliance with its obligation under the ADA to ensure that programs, services and activities it operates at the courthouse are readily accessible to and usable by individuals with disabilities. However, as nothing in his actions suggests to the court that plaintiff had a genuine intent to return to the courthouse for any purpose, the court concludes that plaintiff lacks standing to obtain injunctive relief because he has not proven that he faces an immediate and real threat of future injury. Accordingly, it is ordered that plaintiff’s claim for injunctive relief is denied.

Andrew Bizer with Bizer & Dereus in New Orleans represented plaintiff.

Pieter Teeuwissen of Jackson and Will Allen of Brookhaven represented the county.

My Take:

Tough loss for the plaintiff. No one disputes that the courthouse (built in 1932) needs to be updated for persons with disabilities. But federal judges take jurisdiction and standing issues very serious.

Seems like plaintiff should have taken the offer for partial remediation, waited a while and then gotten someone else to sue for the rest later.

Here is a preview of the October 2019 issue of the Miss. Jury Verdict Reporter:

  • $2,107,351 verdict- Harrison County medical malpractice case covered here (9/6/19);
  • $300,000 verdict- Harrison County underinsured motorist case (8/26/19);
  • $30,000 verdict- DeSoto County real estate agent negligence case (9/6/19);
  • directed verdict- Hinds County premises liability case (9/4/19);
  • defense verdict- Jones County workplace negligence case (9/26/19); and
  • defense verdict- Jackson County roadway negligence case (7/19/19).

My Take:

You see the filings. You see the verdict reports. And you wonder: how can there still be so many people making a living practicing law in Mississippi?

On October 9, 2019 a Hinds County jury in Jackson rendered a $226,000 verdict in Lewis v. Blakeney. The case involved a 2016 car wreck in Clinton.

Here is the Complaint.

The two day trial before Circuit Judge Tomie Green began on October 8.

The jury awarded $26,000 for past and future medical expenses and $200,000 for pain and suffering. Here is the Judgment.

Word on the street is defendant’s pre-trial settlement offer was $72,000.

Mike Saltaformaggio of Maggio Thompson in Jackson represented the plaintiff.

Scott Rogers of Vernis and Bowling of Mississippi, LLC in Flowood represented the defendant.

My Take:

A win for the plaintiff.

Rejecting a $72,000 offer with $26,000 in medicals seems like a gutsy call. It’s common to see jury verdicts in car wreck cases for less than 2x the meds.

Can’t really fault the defendant if they offered $72,000 pre-trial. Insurance companies have driven the settlement value of car wreck cases under 3x the meds.

The fact the verdict was higher doesn’t necessarily mean defendant’s decision on the offer was bad. This might be one where everyone played their hand correctly and the plaintiff won at showdown. It happens.

Adam Ganucheau’s article on Mississippi Today is the best I’ve read on the IHL board’s hiring of Glenn Boyce to be the next chancellor of Ole Miss. It captures a lot of my thoughts on the process.

I have no opposition to Dr. Boyce, in theory. I like his story. He seems qualified on paper. It was fine to hire him. Just not like this.

My biggest reservation about Boyce is that anyone who would agree to being hired under these circumstances may not be smart enough to handle such a high profile position that oversees a lot of moving parts. He should not have allowed himself to he hired under these circumstances.

I liked this assessment by former Ole Miss Law School Dean Richard Gershon:

“I really am sorry for Dr. Boyce in a lot of ways,” said Richard Gershon, former dean of the University of Mississippi School of Law and current law professor, who tweeted over the weekend that Boyce should resign. “He was put in a position where instead of celebrating his appointment, there’s a lot of dissension. Had the campus had the opportunity to meet him as was set forth in the procedures of the IHL, there might have been some disagreement but not this dissension. We’ve now got a much worse situation because they bypassed this input. That’s unfortunate because he could be really good for this university, but he’s starting out behind the curve.”

Exactly. He’s set up to fail. And he let himself be set up to fail.

Boyce had a conflict of interest since he was involved in the hiring process as a paid consultant. If IHL wanted to hire Boyce, it needed to go slower–not faster. It should have taken steps to remove the conflict by reopening the application process, making Boyce apply and interview and return his compensation related to the search. They did none of that.

So people are rightly skeptical:

“The process is obviously flawed,” said Chuck Ross, history professor and chair of African American Studies Program who has taught at the university since 1995. “When you select an individual that was a consultant, that’s very problematic on its own. But why didn’t (the IHL board) feel comfortable putting this person into the process? That calls into question his credentials. The fact they didn’t do that could indicate they didn’t necessarily feel that strongly about his credentials relative to those of other candidates.”

I’m an Ole Miss Law School graduate and Mississippian. I’m not mad about the hiring. I’m embarrassed. It makes us all look dumb. Twelve people on the IHL Board and no one realized how bad this was going to look? Or worse, just didn’t care?

Apparently, there were a lot of applicants for the position. Some were current or former business people, judges, attorneys and politicians. People I don’t know well, but have heard of. They were all competent.

Perhaps their backgrounds made them an unconventional candidate for Chancellor, but they were smart enough to quickly learn the job. Certainly there were good enough candidates so the IHL should not have blown-up its own process and given the position to an insider.

It seems like the IHL liked Boyce the most. Of course they did. They knew him best. But it should not be about who they would like to tailgate with this weekend.

One sure fire way to lose credibility–professionally and personally–is to not do what you say. The IHL said it was going to use a certain process to hire the Chancellor. They didn’t do what they said, in about the worst possible way. The optics are bad for Boyce, but they are terrible for IHL.

Hopefully, current and future IHL members learn from this. Because let’s face it, there’s a good chance they will be looking for another Ole Miss Chancellor within the next few years. Because based on where Boyce is starting, there is a huge chance this does not work out.

I’m going to put the over/under line on Boyce’s tenure at 30 months.

The Nonsense Factory by Bruce Cannon Gibney is a scathing critique of the American Legal System. A venture capitalist and former big firm litigator, Gibney knows his subject.

There is a lot to criticize in the legal system starting with law school, and Gibney touches on most of it. His criticism of law schools is pointed, but in a funny way:

American law schools have settled for the worst of all worlds–an abstracted research faculty presiding over an outmoded trade school. The results have not been good….Many students flub the bar exam and will never practice law, while the rest require years of expertise before they can produce competent work on their own….American law schools, then, are something of a bust.

Many students, even from relatively good schools. fail the bar exam–a test for which law school does not really prepare them…Naturally, people who should fail do fail. But some people who should pass also fail….

What is consequential is that the bottom half of law schools routinely admit battalions of students who will not thrive…

new lawyers face troubling levels of unemployment.

Gibney does not stop with law schools. He also criticizes the lack of formal judicial training:

one federal appointee, lacking trial experience, was confounded by routine oral motions, scurrying back to chambers to research basic questions that a trained judge could handle automatically; another recently appointed judge in California has been known to solicit advice from colleagues via text message in open court.

There is a chapter on mandatory arbitration, which Gibney criticizes as catastrophic for employees and consumers. But he does a good job explaining not all arbitration is bad:

arbitration arose to serve specific purposes and remains a fair and useful mechanism for the kinds of disputes that occasioned its invention.

It’s clear Gibney worked in a big law firm when he discusses hourly rates and legal fees:

Clients might accept the risk of minor imperfections, but lawyers won’t and can’t. For junior lawyers, a mere typo can be a source of profound embarrassment, while a substantive mistake is seen as a potentially career-ending disaster….Opponents will gleefully exploit any blunder, and law’s adversarial culture is so deeply entrenched that even senior partners revel in exposing mistakes made by their own teams, however trivial.

Unfortunately, this is 100% true. I also suspect it has spilled into the judiciary as lawyers who worked in this culture became judges.

Much more than when I began practicing in the early 90’s, litigation has become an exercise in dodging trap doors that allow cases to be decided on issues other than the merits. While most of these trap doors–such as pre-suit notice requirements–apply to plaintiffs, many also apply to defendants. Too many cases are decided based on what happens during litigation, as opposed to the underlying dispute.

This is bad for litigants, impedes the public’s trust in the judicial system and makes practicing law miserable. And it will get worse before it gets better.

Gibney’s critique of the legal system is the best I’ve read. The only drawback is he’s light on solutions. For that, I recommend David Tunno’s Fixing the Engine of Justice, which I reviewed here.

In summary, The Nonsense Factory is an enjoyable and thought-provoking read that I highly recommend.

Courtesy of Bigger Pie Forum via Jackson Jambalaya, it seems Mississippi’s PERS system is getting reamed in management and investment fees. Here’s a list of how much area states paid in 2018 in PERS management fees:

  • $103 million- Mississippi
  • $5 million- Alabama
  • $27 million- Arkansas

My Take:

Sounds about right.

Read a book or two (Liar’s Poker, books on the 2008 financial crisis, etc.) on how Wall Street investment banks screw their ‘fish’ customers like public pensions. Looking at the list of outside investment managers at the front of the PERS annual financial report, I assumed Mississippi PERS is a ‘mark’ in the pension investment world.

No doubt there is a steady stream of calls and visitors to the PERS investment office selling some ‘great’ investments. The commenters on Jackson Jamabalaya have it right. The investments could be cheaply managed in passive ETFS in-house.

Many broadly diversified ETF’s are so cheap from an expense ratio perspective they are nearly free. And maintaining target allocations is getting easier with companies like Betterment. It’s forcing the Schwab and Vanguards of the world into the poorly named ‘robo-advisory’ business.

I also bet these institutions who we pay an arm and a leg to have sold us some dog-crap investments that they wanted off their books. It’s the Wall Street way.

PERS needs a complete overhaul. Not surprisingly, it’s not a topic on the campaign trail for those running for statewide office.

If you’re looking for an easy way to gain insight into the investing, follow Meb Faber on Twitter and listen to his podcast the Meb Faber Show.

On September 6, 2019, a Harrison County jury in Gulfport returned a plaintiff verdict totaling $2,107,351 in Foote v. Burwell.

Dr. Dudley Burwell replaced plaintiff’s hip at Memorial Hospital in Gulfport. Plaintiff suffered an injury to his left illiac vein during the operation. Plaintiff alleged Burwell used a screw that was too long.

Burwell consulted a vascular surgeon (Dr. Graham) during the surgery. They decided to complete the surgery. Plaintiff’s condition worsened and Dr. Graham performed a repair surgery the same day.

Plaintiff endured a lengthy recovery that included renal failure.

Plaintiff’s theory was Dr. Burwell was liable for the surgical error and Dr. Graham was responsible for not performing a repair before Burwell closed.

Dr. Burwell argued it was a surgical complication. Dr. Graham contended he acted reasonably. The jury found for the plaintiff and apportioned 75% fault to Burwell and 25% to Graham. Here is the jury’s verdict.

The jury assessed the following damages:

  • $994,000 – pain and suffering (subject to $500,000 cap).
  • $880,074- past medicals
  • $107,508 – lost wages
  • $125,769- future disability or impairment.

Dr. Graham worked for the hospital, so the claim against him fell under the Tort Claims Act and was advisory only. On September 18 the Court entered judgment against Dr. Burwell for $1,210,013. Here is the Judgment. 

Joe Sam Owen of Owen, Galloway and Meyers in Gulfport represented the plaintiff. William Whitfield and Kaara Lind of Copeland Cook in Gulfport represented Dr. Burwell. Roland Samson represented Dr. Graham.

Circuit Judge Lawrence Bourgeois presided.

Thanks to the Mississippi Jury Verdict Reporter for telling me about this verdict.

My Take:

I can’t imagine what it was like to wake up from hip replacement surgery and not only were things not better, they were worse. This makes me feel better about my decision to have my hip replacement at the Mayo Clinic in Minnesota.

Not only was my doctor top-notch, but the hospital care exceeded what I’ve seen in Mississippi. When I rang the call button, a real nurse walked in my room immediately. In a Mississippi hospital, it would have sounded like I had been connected via speaker to the drive-thru at Wendy’s and I might not see someone for 15 minutes.

A $500,000 pain and suffering cap on an injury with $880,000 in past medicals seems unfair. It’s been 17 years since the caps were enacted, but there has been no adjustment for inflation. So basically, the caps get lower every year. I expect the legislature to address this issue at around a quarter to never.