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.

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.

Ditch the Fax Machine

Posted in Legal Technology

Bad news for lawyers who still have a fax machine. It’s a security risk that hackers can use to access your whole computer system. This includes all-in-one printer/copier/fax machines.

Here is a recent Washington Post article discussing the problem. It says the legal industry still relies on fax machines:

The re­port es­ti­mates that there are more that 17 million fax ma­chines in use in the United States alone. The legal and med­i­cal fields both con­tin­ue to rely heav­i­ly on fax ma­chines to con­duct busi­ness be­cause they are wide­ly con­sid­ered to be a more se­cure form of trans­mit­ting sensi­tive in­for­ma­tion and sig­na­tures com­pared with email.

It should have said the legal and medical fields continue to use fax machines because they are stupid.

You don’t have to get rid of your fax capability to ditch the fax machine. Open an account with efax or a similar service ($16-ish per month) and you can send and receive ‘faxes’ without actually having a fax machine. It uses the newfangled internet machine.

I’ve had an efax account for over a year. I’ve sent, at most, one fax. I’ve received, at most, 5 faxes. I’m thinking about ditching efax, but at $16 a month, it’s practically free.

You also don’t need faxes for signatures. Figure out how to use electronic signature software like SignNow. It’s easy.

Your documents will come back signed faster than you ever imagined possible. It’s particularly useful when you need something signed by someone who is not tech savvy enough to scan and return a document.

The funny thing is, I bet a high percentage of lawyers still using fax machines are afraid of the cloud because of the security risks.

Industry Survey: Technology Threatens Legal Industry — Mr. Sunshine Reflects

Posted in General, Legal Technology

Altman Weil recently released: 2018 Law Firms in Transition, an Altman Weil Flash Survey.

From the introduction, comparing today to 2009 during the Great Recession:

The threat in 2018 is broader and more nuanced, arising primarily from the sweeping force of technology evolution over the last two decades that has resulted in the commoditization and commercialization of more and more legal services….

Most law firms continue to plan for short-term incremental improvements in performance, while deferring or slow-walking more forward-looking actions to address long-term, systemic threats.

That last line reminded me of many defense lawyers during the tort reform era of the early 2000’s. They were swamped with work and could not imagine ever not being busy.

At the time, I was a defense lawyer transitioning into a plaintiff practice (talk about rotten timing). Many fellow defense lawyers told me they would always be busy because plaintiff lawyers would always file cases. I know how crazy that sounds today, but it was a common belief in 2005.

Plaintiff lawyers certainly knew better. On the defense side, there were many lawyers drawing great paychecks sitting in mass tort depositions all day who never thought about workload next month, much less in a few years. Many of those legal eagles no longer practice law or have long since left the state for easier work.

Of the defense lawyers who did think about the future, maybe 20% had an inkling what was coming. The ones who did have done a better job adjusting to the new reality.

Divorce and criminal lawyers said less personal injury and consumer fraud litigation would not impact them because it wasn’t their practice area. Now they compete with former plaintiff and defense lawyers for that work.

The Altman survey is an interesting read. Among its conclusions:

  • there is an oversupply of lawyers,
  • billable hour demand is down,
  • there are still too many lawyers in many law firms,
  • more work is going in-house [to lawyers making less money but with a better quality of life],
  • work is being redefined or eliminated through the application of technology, and
  • the legal market will not be immune to the staggering changes wrought by modern tech.

The suggestions are bad news for big firm lawyers. They include weeding out more lawyers.

Final thoughts from Mr. Sunshine:

It’s sucked for people like me who graduated from law school in 1993. Ten years earlier, and we would have made a killing in the 90’s. Ten years later, and we wouldn’t had to so drastically adjust our professional expectations. On top of that, our retirement accounts have been halved. Twice.

We had to go through the period where no one knew how to use email yet and asshole emails were flying back and forth all day. We saw total idiots make millions. We saw great lawyers have breakdowns because their practices dried up. Many of those we started our careers with have left the state for greener pastures.

Of course, it hasn’t been all bad. I haven’t heard of a coke head lawyer in years. They can’t afford it anymore and have to stick to booze.

The worst part is that it used to be fun. Now, it’s just….not. Ask any lawyer–plaintiff or defense–if they are having fun. The answer will be ‘no.’ If you weren’t having fun practicing law in 2000, then you didn’t need to be a lawyer. Because it was a blast.

Why is the Legal Industry Shrinking?

Posted in Law School, Legal Technology

The ABA reports that the legal industry lost jobs for two months in a row. The combined jobs lost for July and August was 4,200 jobs. 200 fewer people work in the industry than this time last year.

Among the fields categorized as ‘professional and business services’, the legal industry is the only one losing jobs. For instance, accounting/ bookkeeping and architectural/ engineering are both up.

My Take:

Stats like these are a big deal. In a growing economy where more and more jobs are service-based, you would hope to see jobs growth in an industry. Why is the legal industry shedding jobs?

Technology? Fewer lawsuits? Continued centralization of litigation in MDL’s?

All of the above.

This is another reason to avoid law school. Career prospects are better in growth industries.

Five Basic PDF Skills All Lawyers Should Know

Posted in Legal Technology

I am uncomfortable writing about technology proficiency because many people who read this blog are more proficient than me. So there is a danger of sounding stupid to some readers.

But, I am often amazed at the lack of tech. proficiency many great attorneys have. Two examples:

  1. Two years ago an attorney copied me on an email to his legal assistant asking how to save a spreadsheet he changed [if this is you, a button says “save”]; and
  2. a few months ago an attorney complained about how he spent half a day finding deposition testimony to cite in a brief.

At the 2017 Mississippi Bar Convention, I talked to Jackson attorney Mark Chinn about how much I enjoyed an article he wrote in SuperLawyers Magazine about becoming technology proficient. The gist of it was that attorneys’ lives would be much easier if they learned the basics of the software they already have on their computers.

PDF skills are a prime example. Everyone has pdf software on their computer. Most use Adobe. Some prefer other software. I use Adobe DC. It’s Adobe’s monthly subscription cloud-based pdf software. I think I pay about $16 per month.

You are wrong if you think you are better off buying a license than paying the monthly subscription fee for Adobe or Microsoft Office. I will not explain it here. But that used to be me. The monthly licensing is better because it is cloud-based, can be installed on multiple devices and updates automatically.

Here are five pdf skills every lawyer should know:

  1. downloading an ECF document as a pdf and save it to your firm’s pleading file;
  2. extracting pages from a pdf and save them as a separate document;
  3. running OCR (optical character recognition) to make a pdf searchable (save the doc. after you run OCR);
  4. adding text to a pdf (for instance: “Ex. 1”); and
  5. bates numbering pdfs.

If you don’t know how to do these things, learn. Just google “how do I OCR a pdf in Adobe (or whatever you use). It can take a few minutes for OCR to run on a long document. Otherwise, it takes seconds to perform all these tasks. Trust me. These are skills you will wonder how you lived without.

Meanwhile, for the people who think I’m an idiot, post a comment with an important pdf skill I left out.

The Tenth Trial

Posted in Verdicts in Mississippi

On Friday a Lowndes County jury in Columbus awarded $2.4 million to the plaintiff in Blevins v. Holzhauer. Here is the Columbus Dispatch article on the verdict.

From the article:

According to circuit court records, Hamilton resident Talanda Blevins sued Dr. James Holzhauer for negligence in 2016, two years after her uterus ruptured while she was at Baptist Memorial Hospital-Golden Triangle giving birth. After Blevins delivered the baby, Holzhauer performed four surgeries within a few hours, the last of which was an abdominal hysterectomy, in an attempt to stop Blevins’ blood loss.

The same day as the hysterectomy, another physician performed a fifth surgery, during which, Blevins argued, the physician had to repair damage to Blevins’ bladder and other organs which had been caused during the earlier surgeries.

Plaintiff has permanent urinary incontinence and difficulty standing for long periods.

It was a 9-3 verdict, meaning Plaintiff had no votes to spare.

The award included $1.2 million in economic damages and $1.2 million in non-economic damages. The $500,000 non-economic damages cap will reduce the judgment to $1.9 million.

Defendants were on an 18-0 winning streak in Lowndes County medical malpractice trials.

Charlie Merkel and Charles Merkel III with Merkel & Cocke in Clarksdale represented the Plaintiff. Whit Johnson with Currie Johnson in Flowood represented Defendant.

My Take:

Plaintiffs were due in Lowndes County. The thing about defendants winning 9 out of 10 trials is that plaintiffs still win sometimes. This was the tenth trial.

This is a good time to revisit the $500,000 non-economic damages cap. Due to a 2.1% annual inflation rate, the $500,000 is worth only $358,000 in 2002 dollars when the caps were enacted. That’s a loss in value of almost 30%. Is that fair? When does it become unfair?

At what point does the cap not increasing due to inflation make it unconstitutional? Opinions range from 2003 to never.

What’s Behind the Alt-Right’s Attack on Judge Ozerden?

Posted in 5th Circuit Court of Appeals, National Politics, Politics in Mississippi

It’s been known for a while that Mississippi’s Senate delegation submitted U.S. District Judge Sul Ozerden’s name to the White House to fill the seat on the 5th Circuit Court of Appeals vacated by Judge Grady Jolly.  But the pick has run into trouble from an unlikely source: the right. Specifically, the alt-right.

Over the summer, the white nationalist cite Breitbart ran hit pieces on Judge Ozerden. Here is the latest. If you want to be disgusted, look at the comments of these editorials. For many on the right, Judge Ozerden’s problem is his name and the fact his father was from Turkey and Muslim.

By the way, Briebart doesn’t have to publish those Anti-American, racist, xenophobic comments. They choose to. Think about that. And think about the mindset of those Briebart commenters. The United States may have been founded based on freedom of religion, but to those guys, being Episcopalian is not pure enough.

That the son of a Turkish immigrant can serve on a federal court of appeals is what makes America great. If that doesn’t ring true to you, you’re just going to have to trust me. In Mississippi, we know something about being on the wrong side of history. That’s you–right now.

So what did they gin up to hit Judge Ozerden with? Not much.

Their big find was Judge Ozerden’s 2012 opinion in Catholic Diocese of Biloxi v. Sebelius. Here is the Memorandum Opinion.

The Diocese challenged ACA regulations requiring insurance coverage for birth control. They could have filed anywhere in the state. They chose the Coast because they liked the draw. They wanted Judge Ozerden or Judge Guirola.

The problem was the regulations had not gone into effect. So it wasn’t the law. The claim was not ripe for adjudication.

It was not a close call. As the opinion explained, the ripeness doctrine prevents courts from wading into disputes based on future events that aren’t set in stone. There was no appeal.

The Catholic Church filed similar lawsuits all over the country and was losing them all for the same reason. Judge Ozerden’s opinion cited a list. Here is another later decision: Archdiocese of St. Louis Opinion. Federal courts all over the country dismissed over twenty similar cases because of the ripeness issue.

Judge Ozerden’s dismissal was without prejudice. That means the Church could refile the case when the regulations went into effect.

He followed 5th Circuit and Supreme Court precedent and cited the Constitution. He would have looked like a nut if he had gone the other way. It probably would have disqualified him from serious consideration for the 5th Circuit.

Briebart explains none of this because the whole point is to take out Judge Ozerden’s nomination.

An earlier Briebart editorial cited a 5th Circuit reversal in Time Insurance Co. v. White. In that case, the 5th Circuit vacated a Rule 12(c) dismissal of judgment on the pleadings. It was not a big deal. Here is the opinion: Time Insurance Company v. White. 

Briebart didn’t disclose what happened next. The case went back down, Judge Ozerden granted summary judgment for the insurer he ruled for previously, and the case was again appealed to the 5th Circuit. A unanimous panel affirmed. In other words: “Our bad. You were right last time.” Here is the Opinion.

Two cases. Judge Ozerden was right both times.

Briebart did not explore the argument for Judge Ozerden’s nomination. He is a Mississippian with degrees from Georgetown and Stanford Law School. Most native Mississippians with that resume are now Californians or New Yorkers. To the amazement of many, Judge Ozerden returned home to pursue public service.

Between college and law school, he was a Navy officer and aviator for six years. He flew combat missions. What are the odds of a veteran not being conservative? But being a Navy veteran doesn’t mean anything to the the alt-right.

Judge Ozerden has garnered support from four Mississippi Senators (Lott, Cochran, Wicker, Hyde-Smith). That’s four conservative senators from the the most conservative state in the Union.

Briebart’s suggestion that Ozerden might not be conservative is stupid. He and his family weren’t hiding out in Gulfport. Everyone knew them. They lived one street over from Ole Miss head coach Matt Luke’s family. Of course it wasn’t today’s hyper-partisan world, so people didn’t have to join conservative clubs to prove their bonafides. His father, who the crackpot Briebart commenters worry about, was beloved on the Coast.

And the Coast has conservative bonafides. Voters were electing Trent Lott to Congress in the 1970’s when the rest of Mississippi was solid blue. The same Senator Lott who spoke in glowing terms about Judge Ozerden’s father at the investiture for his District Judge seat.

I don’t know the who or the why behind the attack on Judge Ozerden. I just know it’s not the who and the why given on the surface. The surface attack is too weak to be real.

I hate to even contemplate the worst case scenario, so I won’t go there. At least not now.

There have been rumors for years that political forces in Texas and Louisiana are making a play for Mississippi’s federal judiciary seats. Given those rumors, and Senator Cochran’s recent retirement, you must consider whether the real forces behind the attack are Republicans in Texas and/or Louisiana.

Sure Briebart says Trump could nominate someone else from Mississippi. But Briebart wouldn’t know if it was getting played. And who exactly could Trump nominate? Judge Dan Jordan? He was apparently rejected as not conservative enough.

Or someone with no judicial record at all? Would they rather have what’s behind door number 2 than a known commodity? I’m guessing no. And that would be the argument for giving the seat to a judge from Louisiana or Texas once Judge Ozerden is eliminated.

As long as Thad Cochran was Chairman of the Senate Appropriations Committee, there was only so much other Republicans could safely do to challenge the decisions of Mississippi’s Senators. That protection is gone now.

Someone might be putting Senators Wicker and Hyde-Smith to the test. If they roll on Judge Ozerden’s nomination, they will be viewed as weak and get steamrolled in the future.

Mississippi has military bases and a NASA facility with many civilian employees. Senate clout is important to protecting those jobs. A base closure would be devastating for the state economy.

Wicker and Hyde-Smith not backing down is not just important for Ozerden’s nomination. It’s important for the next time someone tries to go around them or doesn’t take them seriously. It’s important for the economic security of Mississippians who do not know or care about Court of Appeals seats.

$20,000 Jury Verdict in Aberdeen Federal Court Employment Retaliation Case

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

On July 20, 2018 a federal court jury in Aberdeen rendered a $20,000 plaintiff verdict in Garrett v. City of Tupelo.

Brandon Garrett was a detective with the Tupelo Police Department. The department wrote him up for mishandling evidence 7 days after his attorney (Jim Waide) wrote a letter requesting that the department relocate the detective division from a mold contaminated building. The Department then demoted Garrett to patrol officer. Garrett quit and sued for retaliation.

The City won on the demotion issue, convincing the jury that it wasn’t a demotion because Garrett was a “top officer” who was needed on the streets. The City lost on the write-up. In addition to the $20,000 verdict, Garrett can file a motion for attorney fees.

Jim Waide of Tupelo represented Garrett. David O’Donnell and Ray Hill with Clayton O’Donnell in Oxford represented the City.

District Judge Debra Brown presided.

My Take:

Smells like a compromise verdict. Impressive job by the defense lawyers convincing the jury the demotion to patrol was not a demotion.

My expertise is based on extensive reading of Michael Connelly’s Harry Bosch novels, so you know it’s solid. Can’t wait for Connelly’s Bosch / Renee Ballard book this fall. Now if we could just get Mickey Haller involved.



What Does the Proliferation of Lawyer Commercials Tell us about Law Practice in Mississippi?

Posted in General

I’ve been working out in the afternoon at a gym with a wall of TVs in the cardio room. A TV is tuned into each of the local channels and the popular cable channels. I find myself mystified by the number of lawyer commercials.

Both the number of commercials and the number of different law firms doing the advertising is amazing. It’s a free-for-all. Local lawyers competing with national firms that must spend millions on advertising.

Saying there are “a lot” of lawyer commercials on daytime TV isn’t descriptive enough. They run–one after the other–for entire commercial breaks.

The newest entry into the market is William Shatner starring in ads for the “Hurt Line.” I can’t figure out where the ‘Hurt Line’ law firm is out of. A google search reveals offices all over. But I like the celebrity pitchman. I always thought Ric Flair would make a great pitchman for lawyer commercials.

Filings are low, defense lawyers complain about not having enough to do and compared to the medical bills, the settlement value of cases is the lowest in my 25 years of practice.  Yet TV advertising is more prominent than ever.

What conclusions does this suggest? Why does it seem more competitive than ever for routine personal injury cases?

It’s probably a reflection of how few people in Mississippi can afford to pay a criminal or domestic lawyer. That drives solo and small firm lawyers into competition for personal injury cases.

Non-television forms of advertising must not work well. John Morgan says you need to advertise on TV. It’s not a secret. He says it in his books.

What about internet marketing with pay-per-click search engine ads? Apparently, it’s not enough.

15-20 years ago Jackson lawyers were spending $5,000 a month on double page Yellow Page ads. Not anymore. That $60k will buy a lot of daytime TV commercials.

High risk litigation in Mississippi is on life support. Medical malpractice, nursing home, products liability….all very expensive to litigate and easy to lose. Garden variety personal injury is much safer.

But wow. The competition for garden variety PI cases has never been fiercer. More lawyers competing for fewer viable cases.

Success is not guaranteed. The thing about blowing a bunch of money on advertising is there are no guarantees of a return on the investment. You can lose money.

My conclusion is it’s a reflection on how hard it is to make money in other areas of the law.

And it doesn’t make me want to spend more on advertising and marketing. In fact, just the opposite. Good old fashion ‘networking’ is still the best way to get cases.

August Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $339,912 bench verdict – Hattiesburg federal court conversion/ unjust enrichment case (7/24/18);
  • $26,404 verdict- Madison County car wreck case (8/7/18);
  • $20,000 verdict- Aberdeen federal court employment retaliation case (7/20/18);
  • defense verdict- Hinds County legal malpractice case (7/19/18);
  • defense verdict- Rankin County medical malpractice case (7/18/18);
  • defense verdict- Bolivar County medical malpractice case 96/29/18);
  • defense verdict- Hancock County alienation of affection case (6/7/18); and
  • defense verdict- Jones County dog bite case.

My Take:

Big verdicts in personal injury cases are few and far between. Yet the Jackson local television market is carpet bombed with lawyer commercials for car wrecks and other PI cases. What gives?

I’ll continue this thought in a post tomorrow.