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.

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.

President Trump Nominates Texan to 5th Circuit Court of Appeals

Posted in 5th Circuit Court of Appeals, National Politics

President Trump nominated Texan Andrew Oldham for the 5th Circuit Court of Appeals on Monday. Oldham currently serves as General Counsel to the Governor of Texas.

There was a lot of debate in the fall about whether Mississippi lost one of its three seats on the 5th Circuit. I thought we had at first, but a consensus emerged that we hadn’t.

With Oldham’s nomination, there is no 5th Circuit vacancy listed on the judicial vacancies website.

Back in the fall, Senators Wicker and Cochran promised Mississippi was going to retain its third seat.

I’m going to let this one percolate before going nuts.

Services to Improve ECF Notices Worth A Look

Posted in Legal Technology

A developing area that helps litigators are companies that provide cloud based forwarding of federal court ECF notices. At their most basic level, the services download and email ECF filings for your participating cases.

The key benefit of this feature is that it removes the one free look restriction with ECF notices. I hate getting an ECF notice when I am out of the office and not using my computer. I don’t want to open the document because I will blow my one free look. These services solve this problem.

The two companies I am aware of offering the service are CourtDrive and DocketBird.

I have used CourtDrive pacer forwarding for months. Now I simultaneously receive two emails, the normal ECF notice with the one free look restriction and the forward from CourtDrive. I just delete the normal ECF notice and work with the CourtDrive forward.

It also saves the downloads in case folders on the cloud. It cost $10.00 per month.

CourtDrive also has plans that offer more robust features at higher prices. I’ve tried it and liked it, but am not currently using because I was not using it much.

DocketBird recently came on my radar because it integrates with Clio case management software. It appears to work like CourtDrive.

The only downside is that these services are currently limited to federal court. Hopefully, they will eventually add state court coverage.

What’s the Best Solution for Computer Legal Research?

Posted in Legal Technology

I don’t know the best solution for computer legal research. I’ll tell you what I use and have learned over the years. Please post a comment if you have a better solution.

Since last summer I’ve used Fastcase. I pay $95 per month for state and federal law. I don’t have a contract. If I wanted to cancel for a month I could.

About the only difference I have noticed from Westlaw/Lexis is that Fastcase doesn’t use headnotes. I thought I would miss headnotes, but I don’t.

Fastcase is an integration partner with Clio case management software. This allows me to save Fastcase research into my Clio matter files. It’s a nice feature.

The best thing about Fastcase is their business practices. Unlike Westlaw and Lexis-Nexis, Fastcase doesn’t have contracts.

My biggest problem with Westlaw and Lexis-Nexis is not the price ($200 per month-ish) or the contracts (1-3 years). My biggest problem is that both companies go out of their way to try to screw you on the back end.

Both Westlaw and Lexis-Nexis contracts have automatic renewals at increased monthly rates. If you are in a contract with one of these companies, you should cancel renewal now. If you enter into a contract in the future, you should cancel renewal the day you sign the contract. Do it in writing and get a confirmation from them–because you will hear from them again.

In late 2015 I signed a 1 year contract with Lexis. I cancelled renewal immediately and received a confirmation from my happy sales rep. (they clearly work on commission). The contract expired in early 2017. Lexis did not contact me trying to extend or lock down a new contract. Instead, they kept billing me even though I had stopped using the service.

I wrote the company and explained that I non-renewed at inception. Crickets for a few months other than the invoices, which continued.

Eventually a Lexis rep. started calling daily trying to collect. My sense is that he thought this was intimidating, which is a stupid thought when calling a lawyer who knows your game. He disappeared when I explained that I wasn’t under contract. But the invoices continued.

A few months later someone different emails me trying to collect all this money they say I owe Lexis. So I email back copies of my non-renewal email, the Lexis rep’s confirmation and my letter explaining the mistake. Crickets. Think they apologized? No. Think I’ve heard the last from them? Me either.

Westlaw does the same thing. Both companies would rather try to screw you on the back end of a contract than maintain business practices that generate customer loyalty. It would be like Wal Mart charging you $20 to get out of the parking lot. They’d make more money that day. Long term? Not so much.

A company like Fastcase is bad news for Westlaw and Lexis because to deal with them, is to dislike them. They have stupid business practices that are hard to understand.

Count yourself lucky if you are in a big firm or other job where you don’t have to deal with the administrative side of computer legal research. It’s a hassle.

January 2018 Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $45,621 verdict- Gulfport federal court employment contract case (1/10/18);
  • $34,376 verdict- Forrest County car wreck trial (9/25/17);
  • defense verdict- Harrison County (Biloxi) medical malpractice case (11/15/17);
  • defense verdict- Madison County car wreck case (11/6/17);
  • defense verdict- Newton County medical malpractice case (8/1/17); and
  • defense verdict- Harrison County car wreck case (12/14/17).

My Take:

The thing that surprises me about medical malpractice trials is that there are still medical malpractice trials.

Defense Verdict in Covington County Open Account Case

Posted in Verdicts in Mississippi

On January 11, 2018 a Covington County jury returned a defense verdict in Suchy v. DM Echols.

The case involved Suchy overhauling a diesel engine. Echols paid $11,177.43 for the work. He alleged that he quickly began having problems with the engine and placed a stop payment on the check. Echols’ mechanic found aftermarket parts and other problems with the engine.

Suchy sued Echols on an open account theory. Echols counter-claimed for $13,078 in lost income. The jury awarded a verdict for Echols but awarded $0 in damages, finding that his lost income was speculative.

Plaintiff’s counsel was Al Shiyou of Hattiesburg. Defense counsel was Daniel Ware of Florence. Judge Eddie Bowen presided.

My Take:

When I was younger, I blew a lot of money on shade-tree mechanics by trying to ‘save’ money on car repairs. The last straw was when a mechanic’s junkyard part had the same problem as the part it replaced.

Now I go to the dealership and get overcharged to fix it right.

$686,508 Jury Verdict in Harrison County Wrongful Foreclosure Case

Posted in Verdicts in Mississippi

A couple of weeks ago a Harrison County jury rendered a total verdict of $686,508 in Bell v. Gibson. Here is the Complaint.

The plaintiffs obtained a relatively small loan from Tower Loan that they secured with their house. When plaintiffs fell behind in payments, Tower employees referred them to Mark Gibson. Gibson defrauded plaintiffs out of their home through a scheme of lying and cheating. Gibson evicted plaintiffs from their home and netted over $65,000 in profit.

The jury awarded $186,508 in compensatory damages and $500,000 in punitive damages. The compensatory damages included the following:

  • $83,508- conversion
  • $50,000- fraud
  • $3,000- trespass.

Here is the compensatory Final Judgment.

Here is the punitive Final Judgment.

Jason Graeber of Biloxi and Matthew Lott of Pascagoula represented the plaintiffs. Jeffrey Hall of Hattiesburg represented Gibson. Judge Robin Midcalf presided.

My Take:

Impossible to read the Complaint and not cheer for the plaintiffs.

Plaintiffs and their attorneys performed a public service by exposing this outfit.

WSJ Explains the PERS Investment Assumption Fairy Tale

Posted in PERS Crisis

In Saturday’s WSJ, Jason Zweig discussed the unrealistic investment assumptions in the nation’s public pensions, which includes Mississippi’s PERS.  The opening:

With U.S. stocks at all-time highs, it’s more important than ever that investors be brutally realistic about future returns.

Some of the most purportedly sophisticated investors in the world, the managers of giant pension funds for state and local government employees, might not have absorbed that lesson yet. You can learn a lot from these folks — if you listen to them and then do the opposite.

Zweig dissects each asset class held by public pensions and explains why the assumptions for each class are based on hope rather than reality. As to why public pensions use unrealistic assumptions, he explains:

Why do expectations among pension plans run so high? Because they have to, the chief investment officer of a large public pension plan tells me. State laws guarantee generous retirement benefits for millions of current and former government employees. To appear as if they can meet those obligations, the pension plans have no choice but to set their expected returns higher than reality is likely to deliver.

My Take:

If I was running an insurance company, I would refuse to insure any actuarial or other company with a hand in generating public pensions’ underlying actuarial assumptions and reports.

My reasoning would be based on fear that the companies are giving pensions what they want in exchange for the work. If a public pension blows up, governmental entities will be looking for someone to sue to help cover shortfalls. Why wouldn’t the actuaries who certified unrealistic investment assumptions be a prime target?

If lawsuits like that are filed, insurers will be tempted to deny coverage. Insurers don’t like to cover intentional acts. Also, insurers might argue that the companies should have put them on notice of a potential claim no later than the time that it became public knowledge that the underlying assumptions are not realistic.

On the plus side, it could generate some much needed work for litigation attorneys.

$515,000 Jury Verdict in Lamar County Car Wreck Case

Posted in Verdicts in Mississippi

On Wednesday a Lamar County jury rendered a plaintiff verdict of $515,000 in Boudreaux v. Gororth.

Here the Complaint.

The plaintiff suffered injuries in a collision on I-59 in Lamar County.

Here is the jury’s Verdict.

The jury awarded the following damages:

  • $200,000- pain and suffering;
  • $50,000- emotional distress;
  • $195,000- past and future medical bills;
  • $70,000- lost wages.

Ken Altman with Morris Bart in Gulfport represented the plaintiff. David Morrison with Adcock Morrison in Ridgeland represented the defendant. Judge Anthony Mozingo presided.

My Take:

I don’t know anything about this verdict other than the above. It looks like a huge win for the plaintiff. Lamar County’s reputation is that it is an ultra-conservative venue.

But in most conservative venues there is the occasional big verdict. Just like there are defense verdicts in plaintiff oriented venues like Jefferson County. Uncertainty is what fuels settlements.

Ken Altman is a dedicated student of the art of trial practice and tries his share of cases. His name does not surprise me as a plaintiff lawyer who could get a big verdict in a conservative venue.