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.

The Mississippi Business Journal reports that a $28.7 million 55,000 square foot federal courthouse will open in Greenville in 2022. From the article:

The $28.7 million, 55,000-square-foot project will be built on Washington Avenue in downtown, with construction to start in the spring and completion expected for the fall of 2022, said Jackson architect Roy Decker, whose firm, Duvall and Decker, submitted the winning bid.

It will replace one built in 1960 that has become outdated and inefficient.

My Take:

Great news for Greenville and the Delta.

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

  • $3.5 million verdict- Harrison County truck negligence case covered here (8/20/19);
  • $625,000 verdict- Yazoo County truck negligence case (7/16/19);
  • $186,400 verdict- Neshoba County workplace negligence case (7/3/19);
  • $2,500, $2,500 verdicts- Pike County car wreck case (7/24/19);
  • defense verdict- Hattiesburg federal court employment retaliation case (8/21/19); and
  • defense verdict- DeSoto County car wreck case (8/6/19).

My Take:

Based on the info. in the reporter, I give the plaintiffs an overall record of 2-2-2 in these six trials. The wins were the Yazoo and Neshoba verdicts. You can figure out the rest.

Above the Law is reporting that national firm Morgan Lewis & Bockius is offering voluntary buyout packages to all legal secretaries. The reason: “technology innovation” and “the practice needs of our lawyers.”

My Take:

I know where they are coming from.

Forcing attorneys to become tech proficient and slashing the ranks of support staff is a big thing on the horizon in the industry. My experience with support staff is illustrative.

When I opened my own practice in 2002, I had an assistant hired and ready to start day one. It was every bit as necessary as phones and computers. I could not practice without someone to answer the phone, type, handle bookkeeping and manage the paper flow.

The paper flow was ridiculous. Every couple of months, we filled another filing cabinet. Soon, we had to store files off site. Not to mention all the paper we were shipping to clerks, judges, attorneys and clients. I can still hear the sound of our copier churning out paper.

I didn’t type anything except emails. Dictation didn’t work for me. For whatever reason, the quality wasn’t there. I wrote everything out longhand and had my assistant type it. I revised by hand and she typed those. We exchanged drafts all day.

Answering the phone was more important than it is today. I primarily wrote in the morning, went to lunch and spent the afternoon on the phone. I had to be in the office because there was a lot of phone tag until you connected. Most communications done by email today was done by phone. Email is quicker and more efficient.

All of this made my assistant very busy. It was common for us both to work on Saturday.

Flash forward to 2019. I don’t have staff. I can’t keep someone busy. Why? Tech.

Somewhere along the way, all the emails taught me to type. Electronic filing allowed for a virtually paperless practice. I went from keeping someone busy over 40 hours a week to keeping them busy a couple of hours a day. It was hard to justify the expense of having staff, but I still had an assistant.

Then one day, something happened that required her termination. I decided to wait to fill the position. I signed up for a virtual receptionist to answer the phone and learned how to do the bookkeeping on Quickbooks. I quickly realized that I no longer needed or wanted an assistant.

There is no doubt that if I was still at a big firm, I would not know how to electronic file or that it only takes a couple of minutes. I would depend on others to do many things that I could do myself in virtually no time. I would not have learned to do all I have with tech because I wouldn’t have been forced to.

The Morgan Lewis buyouts suggest big firms are figuring this out. One way or another, attorneys are becoming tech proficient, reducing the need for secretaries. It’s a copycat industry. It’s probably a trend setting move.

I recently wrote about the change in law firm structures here.

Several readers emailed me and pointed out I did not discuss the effect of corporate mergers or the impact of companies adopting ‘the Dupont legal model’.

Here is some background for current and future lawyers under age 40. When I graduated from law school in 1993, there were healthy defense-centric practices all over Mississippi. There were well-known great insurance defense firms in towns like Columbus, Laurel and Pascagoula. While there may not have been a ton of defense work in these towns, they had little competition. Insurance companies hired the local defense attorneys.

In a big case with a corporate defendant, a company might hire a Jackson firm. But the Jackson firm turned around and associated the local defense firm as ‘local counsel.’ This meant the small town defense lawyers had two ways of getting hired: (1) directly by the defendant; and (2) indirectly by other lawyers as local counsel. So not only were these firms not at a disadvantage to the big Jackson firms, in some ways they had advantages.

You may ask why the companies didn’t just hire a firm with multiple offices all over the state? Because there weren’t any. I can’t think of one firm with offices in multiple regions of the state. For sure, none of the ‘Big 5’ Jackson firms did.

This changed in the mid-90’s with the Dupont legal model. Here is an explanation from a 2004 ABA article:

In just over 11 years, the DuPont legal model has become enshrined as the way to get value for money in legal services. More than 160 corporations and government agencies have been in touch with E.I. DuPont de Nemours Co. to take a close look at the mod­el, and there are a lot of variations at work around the country.

Devotees use fewer law firms and other legal-related service providers, develop a close relationship and a detailed playbook with them, then measure results to determine best practices. (See www.dupontlegalmodel.com.) DuPont was working with more than 350 law firms before it created the model. Now it uses just 41.

The first to get squeezed out by the Dupont model were the small town defense firms. If companies were going to hire a firm to cover a whole state, they wanted a statewide firm. Two things started happening almost simultaneously.

First, Jackson firms quickly opened outposts all over the state. Sometimes they hired established local attorneys to open the office, sometimes they dispatched talented young attorneys to the new offices. Second, regional firms opened offices in Mississippi. Suddenly the small town defense firms had competition from firms who could offer the Dupont model.

While all this was going on, the number of U.S. companies hiring attorneys was shrinking. From 1996 to 2016, the number of publicly traded companies shrank from 7,322 to 3,671. Locally, many companies that hired local attorneys were taken over by national companies that stopped hiring local attorneys.

Attorneys as old as me don’t need the stats. We just know there are a lot fewer corporate/insurance clients than 30 years ago. In Mississippi, I don’t believe there are half the corporate/ insurance clients there were in 1995.

For many of us–myself included–our best clients were bought by other companies where other people made hiring decisions and hired other lawyers. There was nothing worse than having a great relationship with an in-house attorney, only to have the caseload taken over by someone you didn’t like and who had stupid ideas for defending cases.

Everyone who did any defense work from 1990 – 2005 knows what I’m talking about.

In the 2000’s, we have fewer clients hiring fewer attorneys.

For litigation, that’s where there is litigation. Because while all that consolidation was happening, there was also consolidation of litigation itself. There are a lot fewer cases being litigated in fewer places.

These trends magnified the pressure on rainmaking. Thirty years ago, rainmaking wasn’t as important because there was a lot more rain. With so many clients hiring so many attorneys, it wasn’t as hard to have a book of business.

Compared to how it used to be, the legal industry is in a drought. In a drought, rainmakers are king.

Defense firms aren’t the only attorneys who have felt the pain. In a follow up post, I may discuss why attorneys with practices like mine are dinosaurs destined for extinction.

On August 16, 2019 a Harrison County jury in Gulfport rendered a $3.5 million verdict in Gonzales v. Coastal Industrial Contractors Inc.

Here is a Sun Herald article on the verdict. It states:

A Gulfport jury recently awarded $3.5 million to 41-year-old Leighann Gonzalez of Biloxi, who suffered life-altering injuries when a truck driver ran a stop sign in June 2017 and slammed an 18-wheeler into her car.

Coastal Industrial Contractors Inc. of Biloxi owned the truck and assumed liability, leaving the jury to determine the amount of damages.

Plaintiffs asked for $5.7 million at trial. I have an unconfirmed report the verdict was in the same ballpark as the last settlement offer, but a bit lower.

Former Supreme Court Justice Chuck McRae of Jackson and Michele Biegel of Long Beach represented the plaintiff. It was Biegel’s first just trial.

Mathew Williams of Galloway Johnson represented the Defendant. Circuit Judge Christopher Schmidt presided.

My Take:

Sounds like it was close to a tie, which is common in car wreck trials– except here, there were two more zeroes than in most trials.

I remember winning my first jury trial. Confidence wise, it was the high water mark of my career. I naturally assumed I would never lose. Now, 23 years later, I wonder how I ever won a trial and whether I’ll ever win again.

Experience is valuable in the legal profession. But it’s hell on a cocky young lawyer’s confidence.