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.

January 2019 Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $1.6 million verdict- Harrison County termite damage case covered here (12/13/18);
  • defense verdict- Hinds County car wreck case (12/5/18);
  • defense verdict- DeSoto County medical malpractice case (11/29/18);
  • defense verdict- Tate County car wreck case (12/5/18);
  • defense verdict- Jackson County wrongful termination case (12/12/18); and
  • defense verdict- Hancock County car wreck case (12/10/18).

My Take:

For those keeping score at home, that’s a .166 batting average for plaintiffs.

Maybe it’s a coincidence, but the more attorneys advertise on television, the worse plaintiffs seem to do in trials.

In the mid-90’s, in general, trials were coin flips. Now, plaintiffs are trying to roll a hard 8.

Perhaps instead of showing happy clients without a scratch, plaintiff attorneys should show the wreckage (both human and property) suffered by clients who get big settlements.

About That No Discovery Proposal

Posted in Improving the Jury System

Last month two federal court of appeals judges sucking up to speaking at the Federalist Society Convention advocated no discovery in cases worth less than $500,000. From the Slate article:

Thomas Hardiman, a judge on the 3rd U.S. Circuit Court of Appeals, made what should have been viewed as a shocking declaration for a federal judge. Hardiman told the crowd at the 2018 Federalist Society Convention: “If I were able to do something unilaterally, I would probably institute a new federal rule that said that all cases worth less than $500,000 will be tried without any discovery.” The audience applauded. A fellow panelist, Judge Amul Thapar of the 6th Circuit, chimed in, “Can I say amen?” Thapar later repeated his endorsement of the idea.

My Take:

Thank god those guys aren’t orthopedic surgeons. “Your knee hurts? I’ve got just the solution. We’ll chop off your leg.

I doubt they were serious. In a tactic known well to touring musicians and professional wrestlers, this sounds like ‘cheap heat’ playing to the crowd. Ever heard “It’s great to be here tonight in Memphis, Tennessee” (or wherever you saw the show)?

I don’t know who is in the crowd at a Federalist Society Convention. But if it was lawyers and judges, I doubt their cheers were serious either. The judicial system is not known for embracing change.

I know it was not a bunch of insurance company people. The last thing in the world insurance companies want is to roll the dice in a trial where they haven’t been able to evaluate the risks due to insufficient information.

The first problem I see is who and how is it determined that a case is worth less than $500,000? Are we talking the amount the plaintiff is suing for, or the value of the case factoring in possible outcomes?

There are cases where plaintiffs sue for $2 million, but the case is worth less than $500,000. There are cases worth less than $500,000, where the plaintiff recovers $2 million. There are cases worth $2 million, where the plaintiff recovers $0.

District and Magistrate Judges have their fingers on the pulse of litigation enough to understand this. Court of Appeals judges? Let’s just say they view the landscape from a height far above reality on the ground.

I am all for improving the litigation system. I agree that discovery is not efficient. But the main reason it is not efficient is that in a system designed to prevent trial by ambush, many litigants try to conceal evidence and conduct trial by ambush.

Maybe we should try to improve the system work before we eliminate it?

In many cases, there is way too much mindless discovery conducted. Every witness in every case does not need to be deposed.

Why depose someone who you know what they are going to say? Some would respond that they don’t know what someone will say until they depose them. I disagree. Most witnesses say what you would expect them to say.

Deposing experts, in particular, is often counter-productive for the party taking the deposition. Think you are going to flip an expert in a deposition? Of course not.

Does there need to be a 7 hour time limit for depositions in all cases? Isn’t 3 hours plenty of time in most cases?

Should the mandatory disclosure system be updated and improved?

Should there be two summary motion deadlines in case management orders, one for affirmative defenses not dependent on discovery and a later deadline for other grounds?

These are just a few ideas off the top of my head. The system can definitely be improved. I’m just not sure a blanket ban on discovery in cases deemed to be small potatoes is the best way to do it.

A Look at Civil Filing Statistics

Posted in General, Tort Reform

This post is a follow up on a 2014 post about civil filings in Mississippi. Cliff Johnson, the Director of the MacArthur Justice Center at Ole Miss Law School, provided me with these updated statistics: Civil Cases filed 2001 – July 2018 .

Another helpful document for analyzing filings is the Mississippi Supreme Court’s Annual Report. Here is the 2017 Report. Reports dating to 1998 are on the Court’s website.

This page from the 2017 Annual Report breaks down state court filings by year for 2010 – 2017: State trial court filings and dispositions. Interesting stats for these years:

  • Chancery Court filings down from 88,424 to 59,221
  • Chancery Court disposed cases down from 64,994 to 56,079
  • Circuit Court civil filings down from 25,800 to 19,328
  • Circuit Court civil disposed cases down from 22,249 to 15,557

The drop in Circuit Court filings ended in 2013. Filings were fairly flat from 2013 through 2017.

In the federal courts, personal injury case filings for the 2010’s decade are consistently lower than in the 2000’s.

But in state’s of similar size, federal court filings are higher than in Arkansas, Kansas, Utah and New Mexico and lower than Nevada.

None of those states has seen the drop in filings experienced by Mississippi.

My Take:

These stats should help civil litigation attorneys analyze their career plans. If your practice is working, there is less to fear about it drying up than in prior years when filings were dropping.

If your practice is not working, you are going to have to cut into someone else’s business or find another job.

If you are thinking about starting a practice, you need to plan how you will get cases and realize industry growth will not be a tailwind. Competition for work is fierce.

What Happens After Federal Courts Shutdown Friday?

Posted in 5th Circuit Court of Appeals, National Politics, U.S. District Courts in Mississippi

With the President’s “I’ll own it” ‘Schumer shutdown’ of the government entering its third week, the federal judiciary is running out of money.

Fortune reports:

Companies that turn to the federal courts to resolve fights with rivals and customers may find themselves in limbo if the government shutdown continues beyond next week.

The system has enough money left over from fees and other sources to run through Jan. 11, according to the Administrative Office of the U.S. Courts, which supports the judiciary. After that, nonessential workers at the 94 federal district courts, and at higher courts across the country, may have to stay home even as skeleton crews show up — without pay — to handle matters deemed essential under U.S. law, including many criminal cases.

My Take:

Just a guess for you civil litigators out there, but I doubt ruling on your motion to compel will rise to the level of an essential matter under U.S. law. But that’s not my big concern.

Let’s assume–hypothetically of course–that you have cases in federal court. And let’s assume–also hypothetically–that some of your cases have deadlines for briefs or whatnot that run after the January 11 shutdown.

Does the shutdown work like a judicial holiday? So your due dates are extended until the first day the courts reopen?

Just asking for a ‘friend.’

Thanks

Loss of Congressional Seniority a Real Problem for Mississippi

Posted in National Politics, Politics in Mississippi

Mississippi’s loss of seniority in Congress is a threat to the state’s economy. I have touched on the subject when discussing judicial appointments. Sid Salter explains in this column. He states:

Clearly, the 2018 retirement of 45-year veteran Republican U.S. Sen. Thad Cochran — who held the vastly influential post of Senate Appropriations Committee chairman — represents a tremendous loss of clout for the state. Republicans and Democrats alike statewide recognize that fact.

Couple that loss with the decision by Republican congressional leaders in 2011 to do away with the practice of congressional “earmarks” (allowing lawmakers to direct spending to specific projects in their home states and districts) and Mississippi’s longstanding ability to attract federal funding for a myriad of state projects is significantly impaired.

It’s unlikely all the military bases in Mississippi would still be open without the clout Salter writes about.

The fact it will be years–if ever–before the state regains lost seniority in Congress will be a threat to the state economy for a long time.

Bigger Pie Forum Examines PERS’ 13th Check

Posted in PERS Crisis

The week before Christmas Bigger Pie Forum looked at PERS’ cost of living adjustment (COLA), commonly known as the 13th check. PERS recipients get a 3% raise every year as a COLA. Many retirees take it in a lump sum at the end of the year–the 13th check.

PERS’ COLA exceeds commonly recognized inflation indexes. The average gain of the consumer price index since the legislature raised COLA to 3% was 2.18%. According to BPF:

Just reducing the size of the COLA payout by a third over the past 18 years would’ve saved more $2.2 billion, which would’ve helped address the plan’s $16.6 billion in unfunded liabilities….

The easiest way to stem the bleeding on PERS’ bottom line is to change the way the COLA is computed. Many states index the COLAs for their pension funds on the CPI. Others base the annual COLA percentage on the plan’s funding ratio, which is the share of future obligations covered by current assets. Some do a combination.

Legislators need to study how other states with healthier pension funds are holding down the costs on the COLA for PERS. Doing so would be an easy fix and allow retirees to continue to boost the buying power of their benefits while ensuring the plan’s future.

My Take:

Good point. Defenders of the 3% COLA need to understand that it is blowing a hole in the system. The longer the legislature waits to fill the hole, the harder it will be.

Taxpayers for sure–and likely retirees–will suffer a lot more pain because PERS and the legislature have not addressed the problem sooner.

We are now going on year nine since the Governor’s PERS Study Commission’s report. PERS and state leadership continue to ignore or downplay the magnitude of the problem.

Supreme Court Search Ends Back Where it Started

Posted in Mississippi Court of Appeals, Mississippi Supreme Court, Politics in Mississippi

As reported elsewhere, Governor Bryant announced yesterday he is appointing Court of Appeals Judge Kenny Griffis to fill Chief Justice Waller’s seat on the Supreme Court.

Bryant also appointed State Rep. Cory Wilson to fill Judge Griffis’ seat on the Court of Appeals.

My Take:

Thus concludes the judicial silly season.

I say that because there has been a LOT of speculation about these seats. A few months ago when Justice Waller’s resignation was only a rumor, Griffis was the betting favorite for the Supreme Court and Wilson was often mentioned as a possibility for Griffis’ seat if it came open.

Then Waller resigned and all bets were off. It’s going to be Judge Griffis….it’s not going to be Judge Griffis….it might be Judge Griffis….I heard it all. The most persuasive argument against was that it would make too much sense.

In the end, not surprising. He’s earned the promotion after 15 solid years on the Court of Appeals.

Wilson is also a good choice. He’s practiced law for 20-plus years and paid his dues in the public service arena. I expect him to be engaged and active in oral arguments from day 1.

Elsewhere:

Chief Justice Waller is barely denying that he is running for governor. That would be a monkey wrench for some other candidates.

December Mississippi Jury Verdict Reporter Preview

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

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

  • $25,000 verdict – Lamar County car wreck case (11/30/18);
  • $17,500 verdict – Madison County County Court breach of contract case (4/18/18)
  • defense verdict – Jackson federal court products (motorcycle) case (12/7/18);
  • defense verdict – Choctaw County tractor negligence case; retrial of case where first trial resulted in $125,763 plaintiff verdict (9/13/18);
  • defense verdict- Madison County medical malpractice case (10/24/18); and
  • defense verdict – George County car wreck case (10/31/18).

My Take:

Both the federal court products case and Choctaw County tractor case are interesting. What I say below is not a substitute for buying a copy of the MVJR for the details.

The motorcycle product defense verdict ended a 5 week trial. That is a heart-breaker for the plaintiff and plaintiff’s attorney. Losing any trial is tough. But one that long and expensive? Wow. I’m hearing a lot of sympathy on the street for those involved.

The Choctaw County retrial was based on the grant of a new trial because the jury’s verdict in the first trial was a compromise verdict. Sounds like the right decision by the trial judge based on the description in the verdict reporter, but things got worse for the plaintiff on retrial.

Another motion for new trial is pending, which I’m guessing will be denied since the trial judge gave a lot of time and thought to what the second trial needed to look like.

$1.6 Million Verdict in Harrison County Termite Case

Posted in Verdicts in Mississippi

On Thursday a Harrison County jury in the Biloxi division returned a $1.6 million verdict in Spiers v. Terminix. The plaintiffs sued Terminix for not disclosing the extent of termite damage to a home.

The case related to an incorrect WDIR report prepared by Terminix before plaintiffs closed on a house on Back Bay. The year before closing, Terminix performed over $55k in termite repair damage on the home, but failed to disclose the extent of the damage. Several months after closing, extensive termite damage was found which resulted in plaintiffs vacating the home for 14 months and performing over $400k in repairs.

Here is plaintiff’s response to motion to summary judgment, which gives their side of the case going into trial: Spiers Jury’s Verdict.

Terminix argued it did not have to disclose the extent of the damage and that the sellers should have disclosed.  Plaintiffs showed Terminix’s decision to not fully disclose the prior treatment was a calculated action in order for the home to sell so it could exercise a termination provision in the Lifetime Termite Repair Contract.

Here is the jury’s Spiers Jury’s Verdict.

Plaintiffs were represented by Manion Anderson with McHard, McHard, Anderson in Hattiesburg and Tom Campbell with the Campbell Law Firm in Birmingham.

Terminix was represented by Skipper Jernigan with Jernigan Copeland in Ridgeland, Aaron Lyons with Rossway Swan in Melbourne, Florida, and David Creagh with Hinshaw & Culbertson in Chicago, IL.

The trial lasted 8 days. Circuit Judge Lawrence Bourgeois presided.

My Take:

Sounds like the jury didn’t like Terminex.

A Shrinking Industry?

Posted in Law School

The Legal Skills Prof Blog ran this post about the legal industry losing 2,400 jobs in November. This followed gains in September-October.

Overall, the industry lost 100 jobs in the last 12 months.

My Take:

Another reason to avoid law school.

I don’t know why the industry isn’t growing. My guess is technology is eliminating jobs. But the reason doesn’t matter.

It’s hard enough to get a good job in growing industries. Going to professional school in a shrinking industry is fighting a dropping tide.You can do it and things may turn out fine. Still, there are better options for many.

Most people would be better off avoiding law school and pursuing a career in a growth industry.

Apparently, one of the hottest growth industries is weed. Something many college students already study.