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.

$250,000 Verdict in Aberdeen Federal Court Civil Rights Trial

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

Last week an Aberdeen federal court jury rendered a $250,000 verdict in Jauch v. Choctaw County. Plaintiff alleged the county and Sheriff Cloyd Halford deprived her of her civil rights by jailing her for 96 days before seeing a judge.

Here is the Complaint.

The AP wrote about the case here. From the AP:

A Mississippi jury awarded $250,000 in damages Tuesday to a woman jailed 96 days without seeing a judge, a case spotlighting how Mississippi still struggles to provide access to lawyers or bail to people jailed before trial.

The verdict included $200,000 in damages against Choctaw County Sheriff Cloyd Halford and $50,000 against the county. It was handed down Tuesday after a two-day trial in federal court in Aberdeen. The jury was only determining how much Jauch was owed, after U.S. District Court Judge Sharion Aycock earlier ruled that the county and Halford were liable.

Jessica Jauch was originally arrested on traffic charges in 2012 and held in Choctaw County after being served with a drug indictment. While in jail, she was forced to temporarily sign over her daughter’s custody rights to her mother. After finally seeing a judge, she was appointed a public defender and quickly made bail. Eventually, she was cleared of the drug charge after undercover video didn’t show her committing any crime.

The trial was on damages only. The court previously granted Defendants summary judgment, but the 5th Circuit reversed. Here is the District Court’s Jauch Order on liability.

Here are the jury instructions.

Here is the verdict.

Here is the $0 punitive damages verdict.

Vic Fleitas of Tupelo represented the plaintiff. Dan Griffith of Cleveland represented the County.

District Judge Sharion Aycock presided.

My Take:

Kudos to Fleitas. After a verdict, it’s easy to pass judgment on a case. But this was a tough case that was hard to win. Usually, plaintiff lawyers are not rewarded for taking tough cases.

$40,000 Verdict in Panola County Car Wreck Case

Posted in Verdicts in Mississippi

On March 18, 2019 a Panola County jury rendered a $40,000 verdict in Griffin v. Hartman.

The rear bumper of Plaintiff’s vehicle was “bumped” by the front bumper of Defendant’s vehicle, resulting in dislocation or loosening of the rear bumper.  The low impact collision was in a parking lot in Batesville in March 2017.

Plaintiff sustained permanent chronic lumbar sprain strain according to her family physician, Dr. Johnny Cummings. Dr. Cummings opined that she would be dealing with this condition for the rest of her life and would require prescription pain medication as needed.  He further opined that she should avoid lifting over 15 pounds. His opinions were based on plaintiff’s having no prior history of back pain and that her complaints follow objective indicators to include spasms and tenderness on exam and recommended that she could stand for four hours at a time and then rest for 15 minutes.

Plaintiff’s medical expenses were $6,700. Plaintiff, a self-employed hairstylist, offered proof of decreased earnings as a hairdresser due to inability to stand for extended periods and missing work due to chronic pain.

Defendant admitted liability, but disputed that Griffin’s injuries were related to the minor bump and that such a low impact could not cause chronic lumbar strain and an injury of indefinite duration.  Defendant based her argument on photographs showing no visible property damage. Defense counsel argued that Plaintiff should not receive a “windfall” for being bumped in a drive through parking lot.

Plaintiff’s attorney was Yancy B. Burns of Burns & Associates in Jackson.

Defendant’s attorney was William Whitehead, Jr. of Bryan Nelson in Hattiesburg.

Circuit Judge Jimmy McClure presided.

Taking a Look at PERS’ Investment Allocation

Posted in PERS Crisis

This post looks at PERS’ investment allocation. The chart below lists PERS’ target allocation for each asset class, return, and the allocations four years ago and today.

Asset class

Target allocation

1 year return

10 year return

12/31/14

allocation

12/31/18

allocation

U.S. equities

27%

-5.68%

13.2%

35.80%

25.51%

Foreign equities

22%

-7.38%

7.25%

21.51%

20.67%

Global equities

12%

-7.38%

9.83%

6.03%

11.58%

Fixed income

20%

-.05%

5.1%

20.63%

20.85%

Real estate

10%

7.25%

8.12%

10.22%

10.91%

Private equity

8%

18.02%

-.06%

4.77%

8.85%

Cash

1%

1.04%

1.64%

Ponzi schemes

0%

0%

0%

Total fund

-3.71%

9.81%

Other stats:

3 year return: 7.29%

5 year return: 5.84%

Investment assumption: 7.75%

 

My Take:

The investment mix seems reasonable.

The 3 and 5 year returns are unsurprising. The 10 year return benefits from the recovery from the biggest financial crisis since the Great Depression.

The 7.75% investment assumption is still unrealistic. I don’t know that you can find even a decent argument supporting a 7.75% assumption.

Everything I read says a realistic investment assumption for the next decade is around 5%. That does not include investment management fees and expenses. It’s probably safe to add 1% to the required return to cover these.

Private equity is kind of a black box. But it’s a growing asset class for pension funds. Hopefully, it will be a good long term decision.

Besides the inflated investment assumption, the biggest problem for PERS is government is shrinking and the number of retirees exceeds new participants.

PERS is going to end badly. We just don’t know when.

Everyone Trusted the Employee Who Was Stealing From Them

Posted in General

This recent news about the comptroller of a New Orleans law firm stealing $2 million from the firm reminded me how common employee embezzlement is in the legal industry.

I have several friends over the years who were victims of employee embezzlement. Invariably, it was the last employee they would have suspected who was doing the stealing. I mean that literally. The embezzling employees seemed exceptionally trustworthy. Maybe that’s what gave them the confidence to steal.

Years ago, I read an article about how to eliminate the possibility of employee embezzlement. In a nutshell, the owners have to do everything themselves. It seemed like too much work to implement. But like many other areas, technology has made it more feasible.

Mobile bank deposits, credit card bill payments and cloud based accounting systems mean it takes much less time to do the firm’s bookkeeping. I now do my bookkeeping. It takes little time.

And even if you decide not to permanently do the job, you should at least know how to so you can look over someone else’s shoulder.

Bar Tech. CLE Scheduled For April 16

Posted in Legal Technology

The Mississippi Bar’s Technology Committee will hold its biannual CLE on April 16 at the Hilton on County Line Road in Jackson. This is a great CLE that I highly recommend for all lawyers and legal assistants.

This CLE is for legal professionals who want to make their practice and life easier. It’s also for professionals who want to reduce overhead by implementing easy tech. solutions that will save money.

Big firm lawyers may think there will be nothing useful for them here because they have in-house IT people. I used to be a big firm lawyer, and I disagree. You’re going to learn stuff too. You might learn more than most attendees because you overly rely on your in-house IT people.

Also, many of your clients expect you to be tech. competent. If you aren’t, you could make bad impressions on them without knowing it. All lawyers in private, public and in-house practice need to be tech. competent.

Here is the agenda and speakers’ bios:

8:00 a.m. – 11:00 a.m. Registration Desk Open

9:00 a.m. – 9:15 a.m. Welcome
Hunter Twiford, IV- Technology Committee Chair

9:15 a.m. – 10:15 a.m. Why Case Management is Essential to a Secure and Successful Law Firm
Allan McKenzie

10:15 a.m. – 10:30 a.m. Mid-Morning Break (Included in Registration Fee)

10:30 a.m. – 11:30 a.m. Top Tech Tips for Microsoft Word and Outlook
Adriana Linares

11:30 a.m. – 12:15 p.m. How Being a Professional Drummer Taught Me to Be a Tech-Savvy Lawyer
Henry Herrman

12:15 p.m. – 1:00 p.m. Lunch (Included in Registration Fee)

1:00 p.m. – 2:15 p.m. Excel for Data Management and Manipulation-Allan Mackenzie

2:15 p.m. – 2:30 p.m. Mid-Afternoon Break (Included in Registration Fee)

2:30 p.m. – 3:30 p.m. The Electronic Form- Efficiently Collect and Use Client Data
Allan Mackenzie

3:30 p.m. – 4:30 p.m. Ethics Hour- Recognizing and Addressing Common Security Threats in Your Own Law Firm
Adriana Linares

Speakers:
Adriana Linares– Adriana is a legal technology consultant with her company, LawTech Partners. Using her practical and personal approach to technology she helps legal professionals use technology to maximize skills and investments through training and consulting. She served as Chair of ABA TECHSHOW 2017; works as a technology consultant to the Florida Bar Board of Governors and the San Diego County Bar Associations as well as hosting monthly episodes of the New Solo podcast on the Legal Talk Network.

Allan Mackenzie– Allan is a law practice management consultant and legal technology trainer. His experience ranges from that of a once night-shift word processor to a Wall Street IT Director. He has a specialty in litigation technology and support. He has led the charge in multiple-year litigation with discovery volumes measured in terabytes and as end-user trainer, he has demystified Word Styles and the mouse’s right-click. Today, Allan is serving his fourth year on the Planning Board of ABA TECHSHOW.

Henry A. Herrman– Henry is a licensed attorney in CA and NY. His work focuses on commercial real estate. His practice includes: drafting and negotiating all real estate related transactional and joint venture agreements, loan documents, construction agreements (including AIA), development agreements, and related real estate development documentation. Having been a partner in a premier LA-based law firm, he now runs a mobile solo practice coast to coast.

Linares and McKenzie were the presenters at the Committee’s CLE two years ago. They were great.

Everyone Wants Their Own Fixer

Posted in General

Most Michael Cohen/ Donald Trump stories call Cohen Trump’s former fixer. That worries me.

If there’s anything solo and small firm lawyers don’t need, it’s more people calling wanting a lawyer to fix their problem.

Most people aren’t Donald Trump. Regular people with regular problems have to fix their own problems. A lawyer can’t fix their problem.

Here’s an example. Someone is building a house. Their tile guy botched the tile.

They call me, wanting me to fix their problem. I tell them I can’t–I’m not a tile guy. They don’t need a lawyer. They need someone to fix their tile.

Their response is some variation of they want a lawyer to make their tile guy fix the problem. Here’s how it goes:

Me: If your tile guy screwed it up, he either can’t or won’t fix it. You need a new tile guy–not a lawyer.

Them: I’ll have to pay a new tile guy.

Me: True.

Them: That’s not fair.

Me: I agree.

Them: I want you to fix it.

Me: I don’t do tile.

Them: What should I do?

Me: Get someone else to fix the tile.

Them: Can I make the tile guy pay for it?

Me: Have you already paid him?

Them: Yes.

Me: No, you’re screwed.

Them: I want you to write him a letter.

Me: It will be a waste of time.

Them: So what do I do?

Me: Fix the tile and move on.

Them: Why won’t you help me?

Me: Again, I can’t fix tile.

Them: Stop saying that!

A more common variation is someone calls wanting a legal malpractice lawyer because their lawyer is not working on their case. For example, a divorce case. The case is still ongoing.

Me: sorry, I don’t do divorces.

Them: Yea, but it’s malpractice.

Me: No, it’s not. You haven’t lost your case.

[repeat variation of the tile story].

They don’t need a legal malpractice lawyer. They need a new divorce lawyer. But they don’t want to pay a new lawyer. So they hope a ‘legal malpractice’ lawyer will, somehow, fix their case for free.

That’s not how it works for Donald Trump or anyone else. A problem is a problem and it is going to cost something to fix.

And a lawyer writing a nasty letter is probably not going to fix their problem. I say that because I am a lawyer, and it’s never worked for me and my problems.

I understand why some ill-informed people think they can recover a lot of money in a lawsuit when they can’t. I don’t understand why many people think lawyers can make problems disappear with their pen. That’s a magician’s job–not a lawyer’s.

$4,170,000 Verdict / $2,936,138 Judgment in Gulfport Federal Court 18-Wheeler Crash Trial

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

On February 15, 2019 a federal court jury in Gulfport rendered a total verdict of $4,170,172 in Woulard v. Greenwood Motor Lines. The case involved an 18-wheeler colliding with a car on I-10 in Jackson County. Here is the Complaint.

Here is the Final Judgment.

The jury apportioned 80% fault to the driver of the 18-wheeler. Economic damages were $2,670,172. Non-economic damages were $1.5 million.

The court applied the $1 million cap on non-economic damages before deducting the 20% fault not apportioned to the defendant.

John Satcher of Jackson and Sean O’Rourke of Webster, Texas represented plaintiff.

Brent Cole, Sterling Kidd and Stephen Kennedy of Baker Donelson in Jackson and Joe Sam Owen with Owen & Galloway in Gulfport represented defendant.

District Judge Sul Ozerden presided.

My Take:

If the purpose of caps is to protect defendants from huge judgments based on non-economic damages, they should apply to verdicts after apportionment of fault. Here, the judgment for non-economic damages would be $1 million ($1.5 million – $300,000 = $1.2 million).

If the purpose of caps is to lower verdicts as much as possible, then caps should apply before apportionment, as done here.

Unless I’m mistaken, the way the Court applied caps here, if the jury had apportioned 20% fault to the defendant, the non-economic damages judgment would have been $40,000 ($200,000 – $160,000 = $40,000).

That doesn’t seem fair. Particularly since 18-wheelers have to be heavily insured.

At least caps do not apply to non-economic damages. In tort cases, I wouldn’t count on that being the law forever in Mississippi. It’s already not the law in Tort Claims Act cases.

February Miss. Jury Verdict Reporter Preview

Posted in General

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

  • $2 million verdict- Hinds County car wreck case reported here (2/7/19);
  • $968,000 verdict- George County uninsured motorist case (1/31/19);
  • $2.5 million verdict (15% fault)- Hinds County medical malpractice verdict reported here (1/18/19);
  • $350,000 verdict- Jackson federal court civil rights verdict reported here (1/16/19);
  • historic Mississippi jury verdicts- there is an interesting section on a 1984 Holmes County verdict and 1971 and 1976 Washington County verdicts.

My Take:

Plaintiffs go 4-0, including a rare win in a medical malpractice case. It’s unprecedented in the MJVR era.

I wonder if the $968k verdict is a George County courthouse record?

Tate Reeves Should Withdraw From Governor’s Race — Run for U.S. Senate in 2020

Posted in Politics in Mississippi

Tate Reeves should be the one having a good time in Washington, D.C. today. He should have taken the appointment to replace Thad Cochran and fought off Mike Espy’s campaign in 2018. He should be in Washington learning, building relationships and biding his time.

It might not be ideal, but it’s not too late. For the good of Mississippi, Tate Reeves should withdraw from the governor’s race and instead run for U.S. Senate in 2020.

Politically, running for Senate looks safer for Reeves than running for Governor. He’s behind Jim Hood in the polls. But he may not even get to Hood with Chief Justice Bill Waller’s entry into the race. Do not sleep on Waller’s chances.

If you see Waller at lunch and greet him, he’s very friendly. You like him. You think he likes you. That’s a gift most of us don’t have. It’s in Waller’s DNA.

I had Waller’s father (the former Governor) as opposing counsel in one case. He was late in his career and could be crusty. But by the end of that case, I loved that man. He was honest, straightforward and endearing. Waller, Sr. once made my all time favorite deposition objection: “What in the hell does that have to do with any damn thing?

Reeves doesn’t have that. But he doesn’t need it to be a Senator. See, e.g., McConnell, Mitch.

Mississippi needs a powerful senator. Jim Eastland, John Stennis, Thad Cochran, Trent Lott, Roger Wicker, Cindy Hyde-Smith. We are moving in the wrong direction. We’ve replaced powerful senators with empty suits. This is going to haunt us if it doesn’t change.

Wicker doesn’t have it. He is weak and doesn’t understand power. Letting someone else (whether it’s a Texas Senator or Phil Bryant) pick the replacement for Fifth Circuit Judge Grady Jolly proves that.

Word on the street is Wicker doesn’t care about judges. Well then he’s a moron. It’s not about caring about judges. It’s about caring about power. Wicker doesn’t care or doesn’t understand the accumulation and exercise of power.

But what about Reeves? What’s his biggest knock as Lieutenant Governor? That he cares too much about the accumulation and exercise of power. He would be perfect for the Senate. That’s a feature, not a bug in the Senate.

Wicker was just re-elected to a 6-year term, so we’re never getting rid of him.

But Cindy Hyde-Smith has to run again in 2020. That’s the seat Reeves needs to slide into. If necessary, Reeves will have to primary Cindy Hyde-Smith in 2020. But it shouldn’t be necessary. Republican leadership needs to convince her to not run in 2020. She’s not a good fit. She had to draft Roger Wicker to be her mouthpiece in the 2018 campaign. She will never be an influential senator.

Yes, Reeves could probably have that job now if he had wanted it. But that’s water under the bridge.

Change of plans. What’s a terrible mistake attorneys repeatedly make? Forgetting litigation is fluid and not adjusting strategy, tactics and/or valuation as the case proceeds. For Reeves, this is a fluid situation. He should shift his political strategy.

Reeves would be a better senator than governor. His role model should be Mitch McConnell, not Phil Bryant. That’s not a knock on Bryant. He does his thing very well. But Bryant couldn’t be a McConnell. Maybe Reeves could.

Reeves would be a better senator than the ones we have now.  He would only have to run once instead of the twice if he had been appointed to replace Cochran. He would not have to run again until 2026. By 2035, he could easily be one of the most powerful men in Washington.

Reeves is a better fit for the Senate. Waller or Hood would be better fits for Governor. Reeves would be a better Republican candidate against Mike Espy in 2020.

That election may not be a replay of 2018. In a presidential election year, black voter turnout should be higher than 2018. Espy needs that to offset where he lost the 2018 race: the Coast. Espy clearly thinks he can beat Hyde-Smith in 2020–he’s already qualified to run.

By the way, Jim Hood needs to spend half his time on the Coast between now and November.

Reeves could score points if he did this right. He could have a press conference and say he’s always wanted to be Governor. But he realizes that Mississippi needs him more in Washington, D.C. So he’s sacrificing his lifetime dream for Mississippi.

Have you seen how old U.S. Senators are? Reeves is in his 40’s. He could be in leadership by 60. He would have more power, make more money and never have a serious challenger in an election. It’s a better move for him and Mississippi.

So what are the chances of this happening? None. Mississippi never does the smart thing.

$55,000 Verdict in Hinds County Chancery Court Defamation Trial

Posted in Verdicts in Mississippi

On February 11, 2019 a specially appointed Hinds County Chancellor (Judge James Bell) rendered a $55,000 verdict in Tyrone Lewis v. Lewis et al.

You can view the Court’s ruling at this post on Jackson Jambalaya.

JJ states:

Former Hinds County Sheriff Tyrone Lewis won a defamation lawsuit against his ex-wife, Tony Davis, and several other defendants in Hinds County Chancery Court yesterday. Hinds County Sheriff Tyrone Lewis sued in June 2015 for an injunction as well as damages against the defendants. Sheriff Lewis claimed they acted together to slander and defame him through social media over several months in 2015 prior to the August primary.

Two Dennis Sweets of Jackson represented ex-Sheriff Lewis. William Bell of Ridgeland of Jackson represented the Defendants.

My Take:

I don’t see a lot of defamation cases in Mississippi.