As discussed at TBA last week, on Thursday the Mississippi Supreme Court reversed and remanded a 2011 jury verdict of $1 million in a Hinds County case. Plaintiff alleged medical malpractice against Dr. Charles Laney. Here is the Court’s opinion in Laney v. Vance.

The facts of the case were not important for purposes of the Court’s opinion. In summary, the plaintiff’s decedent died at St. Dominic’s Hospital. Plaintiff alleged that Dr. Laney’s breaches in the standard of care caused the death.

The Court stated the issue as:

whether Plaintiff’s counsel’s improper comments and arguments, including that the damages should represent ‘the value of a human life,’ when combined with the erroneous jury instructions, mandate reversal and a new trial.

The jury instruction at issue included the damages factors identified in Mississippi’s wrongful death statute and “the value of the life of Mamie Vance Hemphill.” The Court ruled that this part of the instruction ran afoul of Miss. Code Ann. § 11-1-69(2), which bars recovery for hedonic damages.

There was a dispute about whether the defendant objected to the instruction at trial. Apparently, the objection was not very clear. In any event, the Court determined that the objection was good enough.

The Court also found that reversal was justified by Plaintiff counsel’s comments in closing argument, including that: “the first thing they do in a communist Nazi Country is destroy the jury system.”

I always thought that the first thing the Nazis did was invade France, but you get the picture.

Justice Pierce wrote the Court’s unanimous opinion, with Justices Waller, Dickinson and Chandler sitting this one out.

Isaac Byrd of Jackson represented the Plaintiff. John Coleman, Diane Pradat Pumphrey and Bradley Overcash of Jackson represented the defendant. Justice Winston Kidd presided in the trial.

My Take:

We are going to continue to see these types of ticky-tack jury instruction and improper closing argument reversals until state court judges change the way they handle jury instructions.

Every state court judge that I’ve tried cases to handles jury instructions the same way. State court procedure for jury instructions is:

1. parties file instructions the day before trial;
2. the court seats a jury;
3. parties try the case;
4. everyone ignores instructions until last day of trial;
5. parties and judge have a rushed jury instruction conference when everyone is tired and in a hurry;
6. in the most boring part of trial, judge instructs the jury on the law for the first time at the close of evidence and just before closing arguments.

This system does not work well–if at all. A better system would be to require the parties to file jury instructions weeks before the trial and then hash out the instructions at an otherwise worthless pre-trial conference. Then instruct the jury at the start of the trial and at the end.

You would get better instructions if they were not argued and ruled on under the gun at the end of a trial. With better instructions, the parties would try better cases and there would be fewer reversals because of jury instructions.

It might also reduce the number of improper arguments in closing. Ideally, a lawyer would build their closing argument around the jury instructions. But that’s hard to do when the instructions are decided right before closing. Setting the jury instructions before the trial would give the lawyers time to prepare better closing arguments.

Although not going quiet as far as I advocate, I’ve tried cases before Federal District Judges Bramlette and Guirola, who at least had the lawyers submit jury instructions days before the trial and were working on the instructions before the last day of trial. In both cases, the result was instructions that were better than in the typical trial. It also made for much smoother instruction conferences than is typical.