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.

Back to School for Rookie Judges

Posted in Politics in Mississippi

The Clarion-Ledger reports today on the record-breaking class of new judges taking office in January. According to the article:

40 new judges who will take the bench across the state, the largest number of new judges in modern times….

The new judges include 18 chancery judges, nine circuit judges, 10 County Court judges and three Court of Appeals judges. They will be sworn in Jan. 7.

The new judges have spent this week at the Mississippi Judicial College:

Mississippi Judicial College Executive Director Randy G. Pierce, a former chancery judge and state Supreme Court justice, said the training teaches the incoming judges to begin the process of thinking like a judge, not an advocate lawyer.

“I remember when I took the bench as a new judge,” Pierce said in a statement. “When I put that robe on, I had butterflies. However, the training and resources I received from the Judicial College were invaluable.”

My Take:

With that many new students, the judicial college’s lawyers/judges bowling league team will be stacked.

That combined with Justice Ishee’s promotion to the Supreme Court, and the Court of Appeals’ streak of league titles is in serious jeopardy. Newly appointed Chief Judge Kenny Griffis has got to be feeling the pressure.

Proposed Amendment to Fed. R. Civ. P. 30(b)(6) Rankles Defense Bar

Posted in General

A proposed amendment to Fed. R. Civ. P. 30(b)(6) is drawing fire from the defense bar and their clients. Here is the proposed amendment: FRCP 30(b)(6).

Here is the Lawyers for Civil Justice’s comment: Lawyers for Civil Justice Comment.

Lawyers for Civil Justice is a national coalition of corporations, law firms and defense trial lawyer organizations. Based on their comments, it’s a group that thinks discovery is about gamesmanship and keep-away instead of exchanging relevant information.

The current problem with Rule 30(b)(6) in practice is companies and their lawyers often do not prepare the 30(b)(6) witness for the deposition. This results in the questioner getting a lot of “I don’t know” answers.

The witness does not know because he wasn’t adequately prepared or the plaintiff didn’t give fair notice of the topic. The corporation does know. The 30(b)(6) witnesses’ job is to provide the information the company knows, regardless of whether the witness knew it.

And it doesn’t have to be that hard. There have been times when defending 30(b)(6) depositions where I ask for a recess and tell the witness the answer so they can say it on the record. What did the plaintiff lawyer say? Thank you.

Instead of preparing or going and finding out, many defense lawyers stand pat on “I don’t know.” In my opinion, that’s a mistake that could rise to the level of malpractice if “I don’t know” gets broken off in the company at trial. If the topic was fairly noticed, the defense lawyer might should interject that we’ll work on getting an answer for you.

Something is needed to address the problem. The proposed amendment takes a crack at it.

The LCJ comment is kind of stupid. It asserts that the amendment allows plaintiff lawyers to have a say in the identity of 30(b)(6) designees. It doesn’t.

It argues that what is really needed is a 10 topic limit to 30(b)(6) depositions. It’s not.

I list a lot of 30(b)(6) topics to help the company prepare witnesses for the deposition. I can give you 5 topics. But good luck preparing your witnesses for my questions. Limiting to 10 topics will make the problem of unprepared witnesses worse.

I can’t help but think that what these people really want is to abolish Rule 30(b)(6). Make it impossible to pin a company down.

A lawsuit is supposed to be about resolving a dispute between the parties. But many lawyers–particularly East Coast big firm lawyers–think litigation is a game of keep-away chess.

They don’t want to cooperate in discovery because, how can they win the case in discovery by turning over the evidence? Much better to resist providing information that should be included in mandatory disclosures.

Better yet, object to every single interrogatory and request for production. Yes, objecting to the request for production asking for your trial exhibits looks stupid and screams insecurity. But that’s how many lawyers under the age of 60 were trained. Tell them it’s stupid and they look at you like you said the Earth is flat.

It doesn’t matter if the amendment is enacted or not. The gamesmanship in litigation has become too ingrained in the profession to stop. And it slowly gets worse.

It doesn’t help that at least one side’s attorneys have a financial interest in gamesmanship, since it increases attorney fees.

Name Recognition Big Advantage in Judicial Elections

Posted in Hinds County Circuit Court, Politics in Mississippi

The Hinds County Circuit Court will see two new judges in January, with election runoff winners Faye Peterson and Adrienne Wooten joining the bench. Three of the county’s four judges will have something in common–and I’m not talking about being African-American women.

Peterson, Wooten and Circuit Judge Tomie Green all held elected office before winning judicial elections. It also applied to Judge Jeff Weill when he won his seat that Wooten is filling.

Voters were familiar with their names. Many had voted for them in prior elections. Even those who didn’t were likely to recognize their names on the ballot. It’s a huge advantage.

In other races, David McCarty defeated Judge Weill in a Court of Appeals race. That result suggests that local name recognition can be overcome in an election covering a large geographic area. I doubt many people in Pike County were familiar with Judge Weill. Word on the street is McCarty campaigned harder.

In the other Court of Appeals runoff, well-known Deborah McDonald defeated Eric Hawkins.

Tiffany Grove won the runoff against Monique Brown-Barrett for Hinds County District 4 chancery judge. In a multi-level stupid move, Governor Bryant had endorsed Brown-Barrett before the general election when there were 4-5 candidates. It was not enough to overcome Grove’s hard work campaigning and popularity among the Bar.

In Madison-Rankin elections, Dewey Arthur won the circuit judge runoff over Andy Stewart and Troy Odom defeated Mel Coxwell for chancery judge.

On the Coast, Youth Court Judge Margaret Alfonso unseated incumbent Judge Sandy Steckler by 600 votes in a Harrison/ Hancock/ Stone chancery race. Judge Alfonso was a chancellor before running for youth court judge and has held elected office longer than Steckler.

Attention now turns to who will Governor Bryant appoint to fill Chief Justice Bill Waller’s seat on the Mississippi Supreme Court? Early speculation has been on Court of Appeals Judges Kenny Griffis and Dave Jack Wilson.

The rumor mill dark horse is state treasurer Lynn Fitch.

The REAL PERS Financial Report

Posted in PERS Crisis

I recently posted about the latest PERS annual report. Last week Kingfish weighed in on Jackson Jambalaya with a great summary and explanation.

Here are some of his observations:

The funding level has fluctuated between 60.4% and 61.8% over the last five years even though the PERS portfolio generated an average rate of return of 9.4% during the same period. A comparison of the funding level and rate of return graphs show that the funding level fell in 2011 and 2012 while the rate of return was 14% and 25% How many times have PERS defenders said the market just needs to come back for PERS to recover? The market did come back but the funding level failed to do so…

The decline in active members worsens the problem as the active payroll shrank in 2018 by 1,695 employees…Unfortunately, the assumed employee payroll growth is 3.5%…

Payments to retirees continued to rise in 2018 as they jumped over $11 million to $2.609 billion….

The deficit between payments and contributions has grown every year since 2000. Remember how PERS defenders howled in 2011 when Governor Barbour created the study commission? The deficit was only $470 million when he sounded the alarm. The deficit has more than doubled in only seven years….

Those are facts.

My Take:

How can there be an assumed annual payroll growth? Surely technological advances is reducing labor needs in government offices the same as in other industries? It takes fewer people to do the same amount of work.

Even if labor needs weren’t shrinking, the state and local government budgets are not expanding to allow for the hiring of new government employees beyond replacing departures. That trend is highly unlikely to change in the next decade.

Perhaps Mississippi could expand government payrolls by expanding Medicaid, but that seems unlikely in the current political climate.

The best case for PERS is a slow implosion. But it’s not the most likely outcome.

The most likely outcome is PERS blows up in connection with the next stock market crash. And the driving force will be bond rating agencies that lend money to governmental entities.

Is Document Review Really That Bad?

Posted in General

Above the Law posted about Michelle Obama telling Oprah how great being a lawyer was how terrible document review is:

…she preaches about the soul-crushing nature of document review. “I was doing document production in Washington, D.C., and I was like, ‘I can’t do this for the rest of my life. I can’t sit in a room and look at documents.’ I won’t get into what that is, but it’s deadly. Deadly. Document production.”

My Take:

Deadly? Only if you count making you want to kill yourself as ‘deadly.’

I have a weird relationship with large document review projects. I kind of like it, but I know it’s not good for me. I suspect it’s how smokers feel about cigarettes.

Or maybe it’s like alcohol? A little can be fun. Too much will always hurt you.

Document review is an area where lawyers can make a real difference in a case. Whether representing plaintiff or defense, finding and dealing with the ‘smoking-guns’ can make a huge impact.

Sometimes defendants produce smoking-guns, but plaintiff’s counsel don’t spot them. The nightmare for defense lawyers is producing a smoking-gun without recognizing its significance and preparing witnesses to answer questions about it.

It’s a lot easier today than when Michelle Obama did it.

Back in the day, attorneys had to go to the documents and review them in dungeons. More than once I can remember pulling client documents out of mini-storage units in far-flung locales for review and production. I spent a lot of time in places like Logan, Utah.

Now, everything is on searchable pdfs, with some platforms using artificial intelligence to help the reviewers.

November 2018 Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $291,331 verdict- Madison County breach of contract case (10/12/18);
  • $147,745 verdict- Jackson federal court breach of insurance contract case (9/20/18);
  • $24,012 verdict- DeSoto County underinsured motorist case (10/3/18);
  • $20,000 verdict- Jackson County car wreck case (3/15/18);
  • $13,000 verdict- Forrest County car wreck case (9/25/18);
  • $500 verdict- Gulfport federal court civil rights case (9/27/18);
  • defense verdict- Warren County medical malpractice case (10/22/18); and
  • directed verdict- Hinds County medical malpractice case (10/19/18).

My Take:

The most interesting case is the $500 federal court verdict. The plaintiff was a pro se inmate who won a summary judgment appeal at the 5th Circuit before winning the $500 verdict at trial. Check out the MJVR for all the details.

The New New Computer to Get

Posted in Legal Technology

I can’t remember how much I’ve written about it here, but I’ve talked at CLE’s about my strong recommendation of using a Microsoft Surface Laptop as a work computer. Wired has a review of the latest model, the Surface Laptop 2.

As far as options, if you are an attorney, you want the most expensive one. I’m quoting a professional technology consultant to law firms here.

And I agree. The problem for attorneys picking out how powerful of a computer they need is that the retail descriptions are written for the mass public–not attorneys. So the descriptions say things about gaming and playing a lot of videos and stuff, which we don’t do.

But we do run a lot of software programs at the same time. That’s why you want the latest and fastest processor and a lot of memory.

Do you really need 16 GB of memory instead of 8? Maybe not. But get it any way and don’t worry about it.

It took me a long time to figure this out, but you get what you pay for with computers. If you hardly ever use one then sure, you don’t need a high performance model. But if like most attorneys you are on it all the time, get a great one.

As far as screen size, go with 13″ instead of 15″. I’ve had both. I’ve researched it a lot. The 2 extra inches is not worth the weight and size difference. Plus, most people will dock it and use monitors most of the time anyway.

When I had a 15″ screen, it was too big and heavy to travel with. The 13″ Surface laptop is about like packing an I-pad.

This computer, Microsoft Office 365, Adobe DC and Clio case management software. I can’t recommend these enough.

Mississippi Judicial Elections Produce Some Surprises

Posted in Hinds County Circuit Court, Mississippi Court of Appeals, Politics in Mississippi

Trying to get election results for down ballot races in Mississippi is tough. I watched WLBT’s website last night and early this morning. Now (5:20 a.m.) it’s results are down. And now back up here.

Before I get into it, take all this for what it’s worth. The way results came in for local races has not bolstered confidence that the early reports will be 100% accurate.

Also, I’m not trying to cover every judge race in the state. If you don’t know why, see Rule of Blogging 1.

Mississippi Court of Appeals

Starting with the court of appeals, from the NE Daily Journal, Deborah McDonald has 49.36% of the vote with 408 of 435 precincts reporting. If there is a runoff, it will be against Eric Hawkins.

Also on the court of appeals, David McCarty (49.15%) appears headed to a runoff against Hinds Circuit Judge Jeff Weill (28.36%). Those figures are with 400 of 403 precincts reporting.

Jackson County District Attorney Tony Lawrence was unopposed for Court of Appeals. I crossed paths with Tony in a Miller re-sentencing case I assisted with. He and his assistant D.A.’s were pros’ pros and easy to work with. They showed you can clean someone’s clock in a nice, professional way.

Also unopposed was Judge Sean Tindell, who replaced Justice David Ishee on the court of appeals. Judge Donna Barnes also ran unopposed.

Other Judicial Races

Crystal Martin will replace her mother Judge Pat Wise as Hinds County Chancellor.

In the other Hinds Chancery race, Monique Brown-Barrett (29%) and Tiffany Grove (28%) are headed to a runoff.

Adrienne Wooten (45%) and Matt Allen (37%) will face off in a runoff for Judge Weill’s Circuit Court seat.

In the race for Judge Gowan’s old seat that Judge Joseph Sclanfani now holds, former Hinds District Attorney Faye Peterson (39%) faces Sclafani (27%) in a runoff. Sclafani has done a lot of work to clean up the docket he inherited and has impressed a lot of people along the way. I don’t think his judging days are over even if he loses the runoff.

Judge Tommie Green was easily reelected.

The stunner of the night was that long time Copiah/ Claiborne/ Jefferson County Circuit Judge Lamar Pickard lost a close race 51-49 to Tomika Harris-Irving. Judge Pickard has been on the bench a long time and presided over some of the biggest cases in the history of the state in the Jackpot Justice era. He needs to find a ghost writer and write a tell all book about at the crap he saw.

Pike, Lincoln, Walthall Circuit Judge Mike Taylor won 56-44, after early results showed him behind until at least my bedtime.

In the vacant Madison/Rankin Circuit seat, Dewey Arthur (33%) and Andy Stewart (28%) are headed to a runoff.

Troy Odom (43%) and Mel Coxwell (35%) are in a runoff for a Rankin County Chancery seat I know nothing about.

The Sun Herald has results for Coast races.

Chancelor Sandy Steckler and former Chancellor Margaret Alfonso virtually tied and will be in a runoff. One race shows two candidates with neither getting 50%:

Chancery Court District 16, Place 3

Candidate Percent Votes
Stacie E. Zorn 49.96% 16,562
Mark A. Maples 49.82% 16,515
32 of 32 precincts

The Sun Herald calls it a win for Maples.

That’s it for this report. Congratulations to the winners and losers. My condolences to everyone headed for a runoff. Having to keep running sounds like a fate worse than losing.

If you ran and lost, just remember what Hunter S. Thompson said about people who have the guts to run for public office. I can’t remember exactly what it was, but it was pretty good.

Drug Dealers are Businessmen — Ponzi Schemers are Thieves

Posted in Madison Timber Ponzi Scheme

The Clarion-Ledger reported that con man and thief Lamar Adams was sentenced to 19.5 years in prison:

Former Madison County businessman Arthur Lamar Adams was sentenced Tuesday to 19½ years in prison for his $100 million Ponzi scheme…

Investors didn’t know Adams’ business, Madison Timber Properties, was a Ponzi scheme, prosecutors said. He promised the approximately 300 investors a return of 13 percent interest…

My Take:

What exactly made Lamar Adams a ‘businessman’ or his criminal enterprise a ‘business’?

Like all con men, he’s a thief.

Compare a thief to a drug dealer. A drug dealer sells a product sought on the market and has competition. Drug dealers have employees. The product is illegal and and the competitors sometimes kill each other, but there is a real business that underpins the enterprise.

Avon Barksdale and Stringer Bell were businessmen. Al Capone was a businessman.

A ponzi schemer is a con man who’s just a thief. The ponzi schemer is no better than a purse snatcher, burglar, shoplifter or bank robber. He’s just another variation of a thief. He has no product or service. He’s a crook.

Lamar Adams had no business. He just stole. So what exactly made him a businessman?

He may look and talk like a businessman. But he’s a thief. Call it like it is. And leave the ‘businessmen’ descriptions for drug dealers headed to jail.

Reading Between the Lines of the PERS Valuation Report

Posted in PERS Crisis

PERS recently had a board meeting where it released its 2018 Valuation Report.

The report covers the period ending June 30, 2018. The cover letter notes that since the last valuation, the PERS board increased employer contribution rates from 15.75% to 17.40%. That translates to better funding levels for PERS and more potholes for roads.

Here are the key stats:

  • active members down from 152,382 to 150,687
  • retirees up from 102,260 to 104,973
  • funding ratio up from 61.1% to 61.8%
  • unfunded actuarial accrued liability: $16,940,458,907
  • estimated investment return for 2018: 9.16%
  • assumed investment return: 7.75%

It’s useful to review 10-year (2009-2018) changes to see key trends:

  • participants down from 167,122 to 150,687
  • retirees up from 76,143 to 104,973
  • funding ratio down from 67.3% to 61.8%

Also, from the start of 2012 to June 2018, benefit payments climbed from $1,627,813,430 to $2,500,750,392.

My Take:

A ten year bull market and the funding ratio just does not improve. Imagine what will happen to it when the bull market ends.

The ship is sinking. Even if the investments do return the assumed 7.75% per year (and they probably won’t), it’s still going down because of the reduction of participants and growing number of retirees.

Raising the employer contributions rates will not stop the ship from sinking. It just prolongs it.

Nothing is going to stop the PERS ship from sinking. The only question is when and what happens to the system when it goes under.

There is an emerging view among observes with a clue that PERS systems will blow up nationwide with the next big stock market crash. Maybe that will not be for a few years. Maybe it’s already started. Really, what difference does it make?

It’s going to happen. The only question is when.

Interesting questions include how current participants will grandfather into the new system and how big will cuts be to retirees?

Should participants eligible to retire now go ahead and retire so they are locked into the system? Good question. No one knows because no one is planning the fix.

It’s the ultimate game of kick the can.