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.

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?

 

Was It Worth It?

Posted in U.S. Supreme Court

Was it worth it? That’s the question I’m left with following Judge Brett Kavanaugh’s confirmation to the Supreme Court.

On the plus side, at a normal life expectancy, he will serve on the Court for 30-plus years.

On the negative side, I’m not sure lawyers and judges who saw his loss of self-control at his Senate hearing can ever look at him the same.

Professional decorum is a fundamental tenant of our profession. To be blunt, lawyers and judges can’t lose their shit in formal proceedings. Ever. No matter what someone else says. It’s maybe, the first rule.

How long will law schools show Kavanaugh’s performance as an example of how students can’t act when they become attorneys? 100 years? When will there ever be a better example?

I don’t think Kavanaugh lost his shit. I think it was a performance. He planned to act unprofessionally because–apparently–someone told him he had to to save his nomination. Which makes it even worse.

Lawyers who are willing to break rules and cut corners sometimes benefit more fame and fortune than they otherwise would. Yet most lawyers think it’s a mistake to sacrifice their professional reputation. I’m guessing just about all judges agree, since judges choose to be public servants.

Which leaves me deeply perplexed by Kavanaugh’s performance. It’s the last thing I would have expected from a federal court of appeals judge.

Maybe it was worth it. But even so, most of us wouldn’t have done it.

October Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $3,500,000 verdict- Jackson federal court truck negligence case (9/14/18);
  • $754,366 verdict- Madison County breach of contract case (7/18/18);
  • $350,000 verdict- Gulfport federal court truck negligence case (9/28/18);
  • $5,100 verdict- Lee County car wreck case (8/28/18);
  • defense verdict- Hinds County dental malpractice case (9/7/18);
  • defense verdict- Oxford federal court car wreck case (9/18/18); and
  • defense verdict- Lamar County medical malpractice case (9/19/18).

My Take:

These verdicts help explain why: (1) lawyers bomb the airwaves with commercials for car wreck cases; and (2) many plaintiff attorneys refuse to even screen a medical malpractice case.

Receiver Files First Madison Timber Third-Party Action

Posted in Madison Timber Ponzi Scheme

The receiver in the Madison Timber ponzi scheme filed the first third-party action yesterday. It’s a doozy. Here’s the Complaint filed against Michael Billings, Terry Kelly, Jr., William McHenry, Jr. and related entities. It’s a good read.

The Complaint alleges Defendants received $16 million in Madison Timber commissions. I repeat, $16 million!

The Receiver also filed a Motion for Entry of Scheduling Order for Summary Proceedings.

The Receiver is posting the case pleadings on the Madison Timber Receiver website.

My Take:

$16 million? In commissions? For timber? Timber? For real?

The only way that would sound legit would be if the timber was stuffed with cocaine or heroin. Illegal, yes. But the amount of the commissions would make sense.

It will be interesting to see how the stupid defense plays.

Do Your Neck a Favor, Invest in the Varidesk Dual-Monitor Arm

Posted in Legal Technology

Legal professionals stare at computer monitors all day. Chiropractor officers are filled with legal professionals with sore necks. Coincidence? I don’t think so.

I stumbled on a product that does wonders for my neck when working on a computer: the Varidesk Dual-Monitor Arm. It is a monitor arm that easily mounts on a desk and holds 2 monitors. It is super easy to adjust the position of the monitors.

In particular for many people with neck pain, it helps to raise the monitors to a higher height than available with monitor stands. As I write this post, the bottom of my monitors are 14 inches above my desktop. They are also closer to my eyes than I could get with standard stands.

I’ve been using the dual-monitor arm on my Varidesk at the office for two years. When I recently added a full office in my house, I though I could live without one there. That lasted about a week. 

They are easy to install and mount on any desk–not just a Varidesk. The downside is the price: $195.

Yes, that’s a lot for something to hold your monitors. But chiropractors aren’t cheap and sore necks aren’t fun.

 

Predictably, Lawmakers Now Say They Didn’t Know PERS in Bad Shape

Posted in PERS Crisis

Jeff Amy with the Associated Press wrote this article about PERS published in Monday’s Clarion-Ledger. There are three key takeaways:

  1. in a sea change, PERS new leadership will no longer pretend there is not a big problem with PERS’ funding;
  2. there is a big problem with PERS funding; and
  3. legislators fully intend to throw former PERS Executive Director Pat Robertson under the bus by citing her history of rosy statements about PERS.

From the article:

Lawmakers also said they felt like former Executive Director Pat Robertson had promised them as late as last year that all was well with the retirement plan, and that they had been promised that no additional contribution increases would be needed after the employer rate went to 15.75 percent in 2013.

Robertson’s refusal to acknowledge the PERS crisis was a disservice to Mississippi taxpayers and set herself up to be the bad guy for a problem she didn’t create. I talked about how Robertson was making a mistake in posts dating back two years.

08/2017

12/2016

10/2016

Don’t get me wrong, lawmakers knew or should have known about the problem before now. But Robertson’s unwise statements allow them to feign ignorance.

House Speaker Philip Gunn nails why PERS is an important issue for everyone:

“When we talk about employer contributions, I don’t think it needs to be forgotten that at the end of the day, the employer is the taxpayer,” said House Speaker Philip Gunn, a Clinton Republican. “So when you’re asking for an increase, you’re asking for the taxpayers to step up and pay more.”

New PERS Executive Director Ray Higgins is taking the right approach in acknowledging and asking lawmakers to address the problem. This is good news. People should not get mad at him. They should thank him for ending the practice of ignoring the elephant in the room.

Now it’s time for the Legislature to start planning the big fix everyone knows has to happen. The PERS pension has to be grandfathered out and state employees put on 401(k) type retirement plans that reduce and cap the State’s obligations to retirees.

Oh yea, and about that 13th check….

September MJVR Preview

Posted in Verdicts in Mississippi

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

  • $2,208,311 verdict- Lowndes County medical malpractice trial covered here (8/31/18);
  • $235,000 verdict- Madison County negligent misrepresentation case (8/31/18);
  • $175,453 verdict- Jackson County breach of contract case (8/1/18);
  • $32,500 verdict- Marion County car wreck case (8/16/18);
  • $26,400 verdict- Hinds County County Court assault case (6/21/18); and
  • defense verdict- Madison County malicious prosecution case (8/28/18).

My Take:

Big month for the plaintiffs. I don’t recall a month where the plaintiffs had this high a winning percentage.

It will be a long time before someone tops that verdict in a med-mal trial. All the more impressive because of how conservative Lowndes County is. But the verdict is not as shocking as it might seem, as I discussed in the post linked above.

Finally, occasionally lawyers asked me why I didn’t write about their verdict. Usually, the answer is because they didn’t tell me about it.

I don’t scour the court files looking for verdicts. I don’t write about verdicts that I learn about for the first time when it is reported in MJVR. I don’t write about verdicts in cases I was involved in. That applies to the $3.5 million verdict in federal court in Jackson a couple of weeks ago. I didn’t try the case, but I represented a party who settled his claim earlier in the case.

Trial experience is important. More so when people know about it. A trial loss has almost as much reputational value as a trial win, unless the lawyer did a bunch of stupid stuff at trial. No one blames the lawyers for the facts. Food for thought after your next trial.

Bar Passage Rates Are In

Posted in Law School

The new phone book is here! The new phone book is here!

Maybe not. But that’s still one of my favorite movie scene 40 years later.

But the passage rates from the July 2018 Mississippi Bar exam are in: 58.8% passed.

A bit over 4 out of every 10 failed. Some would call them the lucky ones.

175 people took the exam.

The passage rate for Ole Miss’ first time takers was 73.7%. Here is the school’s press release. It says 38 students were first time takers.  I don’t have MC’s stats.

My Take:

Congratulations if you passed. Now you know how Navin Johnson felt.

The passage rates shouldn’t be what they were before 2008 because a legal career is not as attractive a profession as it used to be. Many smart people who don’t burn to be a lawyer wisely pursue other careers.

That’s how it should be. This is a tough profession. It should be reserved for idiots like me who burned for it and, despite all my bitching, couldn’t imagine doing anything else.

I feel bad for the people who failed. If it’s anything like when I took the exam, it’s the most stressful experience of your life. Until then, that is. Life gets a lot more stressful with jobs, marriages, kids, divorces, loved ones dying and someone eating your lunch you stashed in the break room fridge.

Sidebar: I suspect the movie ‘The Usual Suspects’ was actually inspired by efforts to identify the break room food thief at a law firm.

It’s been 25 years, but I remember bar exam week better than I remember last week. The memories:

  • the jackhammer going off out on the street outside the Robert E. Lee building where we took the test;
  • some people were too nervous to sleep at night;
  • one guy was so nervous he chain smoked a carton of cigarettes;
  • one dude punched a classmate in the nose at the after party;
  • a bit later, the punchee was woken by a cop taping on his car window while passed out at a red light on State Street (he let him go because he was covered with blood and the cop didn’t want to take him to the hospital); and
  • my then wife and me driving to D.C. for a wedding and her asking me my answer on what seemed like all 200 multi-state questions, usually with her crying and saying she failed (she passed).

The bar exam was one of those horrible life experiences that you remember fondly. When you pass.

Try not to get too discouraged if you are one of the unlucky ones who failed. I know some great lawyers who failed on their first attempt.

My advice is to focus on your process for studying for the test. Figure out how you can prepare better next time.

There is too much material to just sit down and study for hours. You need a study plan. Build a couple of extra weeks into your plan so that you are ready early or have extra time on the back end to focus on trouble subjects. You should not need to study the weekend before or at night during the exam.

I studied 8 hours a day, seven days a week for a month. Then I went to 14 hours a day, seven days a week for another month. Maybe I cut it back at night on the weekend–I don’t remember. It was not sit down and study. I made outlines for the state sections and took practice tests for the multi-state. I attended the bar review, but I wouldn’t today if I had to take another state’s exam (always possible for Mississippi lawyers). The time would be better spent on my own.

Yes, I do know people who never passed. And you know what? They are glad. They see the rest of us today and realize that odds are, they are happier today than if they had practiced law the last 25 years.