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.

PERS and the Next Financial Crisis

Posted in PERS Crisis

The Cayman Financial Review posted this article last month titled: “The state has been set for the next global financial crisis.

The article discusses how the last financial crisis, PERS and the next financial crisis are related. As a result of the last crisis, central banks have kept interest rates near or below zero for years. In search for investment returns, pension funds like PERS feel forced to invest in private equity, real estate, stocks and other investments that are riskier than bonds. From the article:

Not surprisingly, over the recent years, traditionally conservative investment portfolios of the insurance companies and pensions funds have shifted dramatically toward higher risk and more exotic (or in simple parlance, more complex) assets….

The reason for this is that the insurance companies, just as the pension funds, re-insurers and other longer-term “mandated” investment vehicles have spent the last eight years loading up on highly risky assets, such as illiquid private equity, hedge funds and real estate. All in the name of chasing the yield:..

The problem is monetary in nature. Just as the entire set of quantitative easing (QE) policies aimed to do, the long period of extremely low interest rates and aggressive asset purchasing programs have created an indirect tax on savers, including the net savings institutions, such as pensions funds and insurers. However, contrary to the QE architects’ other objectives, the policies failed to drive up general inflation…..

And all the QE didn’t buy is much:

Much of this debt buying produced no meaningfully productive investment in infrastructure or public services, having gone primarily to cover systemic inefficiencies already evident in the state programs. The result, in addition to unprecedented bubbles in property and financial markets, is low productivity growth and anemic private investment.

Where we are now:

Whether we like it or not, since the beginning of the Clinton economic bubble in the mid-1990s, the West has lived in a series of carry trade games that transferred real economic resources from the economy to the state. Today, we are broke. If we do not change our course, the next financial crisis will take out our insurers and pensions providers, and with them, the last remaining lifeline to future financial security.

What can pensions do:

As a part of spending reforms, public investment and state pensions provisions should be shifted to private sector providers, while existent public sector pension funds should be forced to raise their members contributions to solvency-consistent levels.

My Take:

A bad case scenario is that we have another financial crisis that will really be part of the last financial crisis. Central bank efforts to spend their way out of the problem isn’t working because economic growth is too small to offset the increases in spending. If this happens, there will be economic and social upheaval and many fiat currencies will fail. Investors should ask themselves if they have any insurance against a global currency crisis.

A less bad scenario is that the economy continues to muddle along. PERS will not be saved in a muddle along economy. Participants will continue to decline as the state government cuts spending and investment returns will not meet the assumptions required to maintain PERS. Eventually, PERS stops kicking the can and raises contribution rates for employees and the government. Benefits will also take a haircut.

Those are the only two realistic scenarios. The scenario PERS leadership has been selling the last few years that we will grow our way out of the funding hole is so improbable that it should not be viewed as a real possibility.

PERS is in crisis with or without another financial crisis.

Every Lawyer Should Use Outlining Software

Posted in Legal Technology

I repeat: every lawyer should use outlining software.

Yet I can’t find anyone who does.

Back in the mid-90’s, I attended a Bryan Garner CLE on improving legal writing. Twenty years later, the three big takeaways I still remember are:

  1. outline before you write;
  2. shorter is better; and
  3. ditch the legalese (hereby, wherefore, hereto, etc.)

Here’s an article that says John Grisham spends more time on the outline than the book:

Ask John Grisham, and he’ll tell you he can’t write a novel without doing an outline first. He does a 50-page outline with a paragraph or two about each chapter, setting out the major events and plot points. He spends more time on the outline than on the writing. Robert Ludlum once told me the same thing — his outlines were often as long as 100 or 150 pages!

Sometimes I’ll write something without an outline because I think it will be so short I don’t need one. Usually, it’s a mistake. However great you think you do without outlines, you would be better with outlines.

I don’t outline blog posts because of time factors. If I did, the posts would be better organized and read better. Take this post for instance. The organization is not great.

For outlining, I’ve used the software NoteMap for years. It works well. I can’t practice without it (or something comparable). I use it for every deposition and witness outline and every brief.

I recommend using dedicated outlining software rather than outlining functions in Microsoft software like Word and OneNote. The key benefit of outlining software is that it makes it easier and faster to re-organize. With the click of a mouse, you can move questions or topics around, create new topics or sub-topics or delete topics or questions.

Drafting questions with outline software also makes it easier to recognize needed follow-up questions.

Organization of questions makes a huge difference in the clarity of witness outlines.

If I still worked at a big firm, I would train associates on outlining and force them to use outlining software for briefs and witness outlines. It would improve their work product and their analysis.

November Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the November 2017 issue of the Miss. Jury Verdict Reporter:

  • $218,000 verdict- Oxford federal court denial of faculty tenure case covered here (10/27/17);
  • $55,000 verdict- Lowndes County underinsured motorist case (9/1/17);
  • $8,090 verdict- Lamar County County Court underinsured motorist case (11/10/17);
  • $3,437 verdict- Madison County County Court car wreck case (10/30/17);
  • defense verdict- Hinds County medical malpractice case, retrial of this screw-up for the ages (10/6/17);
  • defense bench trial verdict- Hinds County (Judge Green) medical malpractice trial covered here (8/18/17); and
  • defense summary judgment- Oxford federal court negligent bus safety case with pro se plaintiff (10/17/17).

My Take:

This is what an average month of trial practice looks like in Mississippi. General conclusions that can be drawn are:

  • not many cases are being tried;
  • defendants have limited (sub-seven figure) exposure in tried cases;
  • defendants almost always win medical malpractice trials;
  • plaintiffs win low damage verdicts in car wreck cases; and
  • plaintiffs seem to do ok in employment-related cases.

Miss. Supreme Court Quietly Puts Fax Machines Out of Their Misery

Posted in Legal Technology, Mississippi Supreme Court

On Thursday the Mississippi Supreme Court amended Canon 5F of the Code of Judicial Conduct. The Canon relates to actions during judicial campaigns. Here is the Court’s Order.

Here is a post analyzing the decision on Miss. Court of Appeals Judge Kenny Griffis’ blog.

It’s all kind of ‘inside baseball’ to me. But I saw something in the Order that interested me.

Here is the part of the amended Canon I focused on:

….the Commission staff shall immediately forward a copy of the allegation by e-mail or facsimile, if available, and U.S. mail to the Special Committee members and the judicial candidate…

Boom. Faxing is no longer an option. Notice is by e-mail followed by snail mail.

This interests me because I wondered for a couple of years why I still had a fax machine. I’d wander by it every once in a while and see that the only faxes received were spam offering discounts on cruise vacations. [I’ve never been on a cruise].

One day I unplugged the fax machine and waited to see if anyone complained. They didn’t. Still nervous, I opened an account with efax, which basically turns a fax into an email. After several months I’ve received 1 fax. But with this Miss. Supreme Court decision, I feel safe terminating my efax account.

For all I know the Miss. Supreme Court has been waging a war of fax machines for a decade. I haven’t paid attention until now. And I’m glad I did.

$25,000 Jury Verdict in Forrest County Car Wreck Case

Posted in Verdicts in Mississippi

Last Monday a Forrest County County Court jury returned a verdict of $25,000 in Scott v. Rawls.

The case involved a car wreck. Defendant pulled out of his driveway and hit Plaintiff’s vehicle. Plaintiff had soft-tissue injuries and medical bills totaling $8,178. The medicals included one visit to the emergency room and six weeks of physical therapy. There was no lost wages claim.

Plaintiff requested a verdict of $30,000. Defendant argued that the impact was too minor to cause damages.

Daniel Ware of Florence represented the Plaintiff. Stephanie Beaver of Gulfport represented the Defendant on behalf of State Farm Insurance.

Judge Michael McPhail presided.

Above the Law Adds Platform Dedicated to Legal Technology

Posted in Legal Technology

Last week the most popular legal blog in the world (Above the Law) announced a new platform dedicated to legal technology. It’s called Evolve the Law. From the announcement:

As technology and innovation become more and more integrated into the practice of law, and a requirement for lawyers, Above the Law is announcing a new platform for this coverage: Evolve the Law, ATL’s Legal Innovation Center. This Center will be a platform to connect lawyers with technologists, legal-design thinkers, innovators, alternative service providers, and Evolve Law members. It will feature op-eds from the innovation community in law, as well as across industries in healthtech, fintech, regtech.

Attorneys would be rise to follow Evolve the Law. We’re to the point where technology proficiency is no longer optional in the legal profession.

Law schools need to teach it and law firms need to require their attorneys to be tech proficient. Clients are getting tech savvy too and understand that a lawyer who isn’t tech proficient is not efficient and wasting the client’s money.

$218,000 Jury Verdict in Oxford Federal Court Denial of Faculty Tenure Case

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

On Friday a federal court jury in Oxford rendered a verdict of $218,000 in Wiggington v. Ole Miss. Here is the verdict.

Here is a good report on the case on Jackson Jambalaya. The verdict was for depriving plaintiff of his due process rights in considering his application for tenure and promotion. The jury rejected plaintiff’s age discrimination claim.

The verdict consisted of the following:

  • $18,000- lost wages and benefits
  • $100,000- past pain, suffering, mental anguish, etc.
  • $100,000- future pain, suffering, mental anguish, etc.

Mike Farrell and Sam Begley of Jackson represented the Plaintiff. Cal Mayo of Oxford represented Ole Miss.

My Take:

I heard the recently fired Black Bear mascot is looking for an attorney.

Wordrake is Great Editing Software

Posted in Legal Technology

Last week I wrote about PerfectIt, which is proofreading software. Today’s topic is Wordrake.

Wordrake is editing software. Like PerfectIt, Wordrake is a Word ad-in that launches from the top ribbon in Word. There is also a version for emails that I have not tried.

The Wordrake homepage contains a good 30 second video demo about how the product works.

Run Wordrake in your Word document or Outlook email and it suggests revisions. The suggested revisions shorten sentences. With the click of a button, you can accept or reject a suggested revision.

Here are the price plans. $129 per year for Word or Outlook; $199 for both. There are also discounts for multiple orders by law firms. Those discounts can get quiet steep.

In my experience, Wordrake’s revisions almost always improve the text by making sentences clearer. If a sentence can be made shorter, Wordrake will suggest it. This is an important feature for lawyers.

What’s the number 1 suggestion from judges to lawyers about legal writing? “Shorter is better” has to rank at the top. Wordrake ‘rakes’ away the words to make the text shorter. Judges will appreciate you raking your documents. Heck, if I was a judge I would use it to rake my opinions.

To be fair, some attorneys need to use Wordrake more than others. People who write short sentences in active voice will not see as many suggested revisions as people who write in passive voice. Consistently writing in passive voice is the easiest way to make your legal writing long and hard to follow. Identify good legal writing and it’s going to be in active voice.

They don’t teach the active-passive dichotomy in law school. Or if they do, no one pays attention. Over use of passive voice is a common error by young attorneys.

I wasn’t aware of the importance of the active-passive concept until the late 1990’s when I went to a Bryan Garner legal writing CLE in response to my boss Bill Reed telling me that my writing sucked. Reed was fanatical about short clear sentences. He must have gone through two red pens a day editing associates’ documents. The most frustrating part of the exercise was that his edits almost always improved the draft.

The first time I ‘Wordraked’ a brief, I looked at my computer like Bill Reed was about to jump out of it. He could have written the software.

Wordrake and PerfectIt perform different jobs. They are both great. I highly recommend them for all attorneys who write.

PerfectIt Proofreading Software a Great Fit for Solos and Associates

Posted in Legal Technology

For the last few months I’ve been using PerfectIt proofreading software for professionals. The software functions as a Word add-in. The software reduces proofreading time for the drafter.

PerfectIt checks for typos, misspellings and formatting inconsistencies. It was programmed by lawyers and knows the dreaded Bluebook. This means it knows the proper abbreviations and where the spaces go in common legal citations. If you want to use this feature you need to set it up for ‘American Legal Style’ once you download the software.

If you are a solo or other attorney who doesn’t have the benefit of a second set of eyes proofreading your documents, PerfectIt is great for identifying inconsistencies that jump off the page at some readers.

If you are an associate at a law firm, you may not be aware of how much typos and format inconsistencies drive partners crazy. When you give them a document with these types of errors, they often think that you are lazy or sloppy. They remember it. You may think that something so minor can’t cost you your job. You would be wrong. Any reasonably priced software that helps clean up documents is worth the price for firm associates.

The current price for PerfectIt is $99 for a permanent license. I understand that the pricing structure will soon change to a yearly license for $70. So now is a good time to buy.

Office 365 is Better than Traditional Desktop Version

Posted in Legal Technology

This post is about Microsoft Office 365. I am not going to explain what Office is. If you don’t know, go figure it out. Chances are, you use it (Outlook, Excel, OneNote, Powerpoint).

The question you are asking is: why Office 365? The answer is: it just works better.

Emails especially just work better between all my devices.

I’m a late adopter to cloud based software, especially for something like Office that I already have.

It’s on my computer already, why do I need to move it to the cloud? It’s a good question. Here’s the answer: it just works better in today’s multi-device always working from somewhere world.

You may or may not know or remember this, but that Office suite on your computer was not free. You (or someone else) paid for it when you got that computer. It cost maybe $200. It’s good for that computer. Buy a new computer and you’ll need another Office license, unless you move to Office 365. Then you don’t buy the license with the computer and you pay by the month or year.

Each license is good for five devices. That covers office, home, phone, I-pad with 1 extra.

It’s very affordable. Here are the business plans. I am paying about $15 per month for business premium. I probably don’t need the ‘premium’ features, but they add only a few bucks per month.

I get hung up on some picayunish legal tech issues. Do I need a fax machine? Ok, no, but do I need a fax line? Probably not, but I have one anyway. More on this in a later post.

Moving to Office 365 is not something to get hung up on. It’s a no-brainer. Because it just works better.