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.

The New York Times announced last night that the federal government is banning arbitration clauses in nursing homes that receive Medicare and Medicaid funding, which is pretty much all of them.

It’s nice to see that the nursing home industry isn’t happy, since they are lying about arbitration:

The nursing home industry has said that arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry has said, could drive up costs and force some homes to close.

It’s a lie. Arbitration isn’t less costly than court. It’s more costly. The parties don’t pay the judge in court. In arbitration they do. Otherwise, the costs are the same. How are the parties saving money forking over $15,000 or $20,000 to the arbitrator?

Why can’t they just tell the truth? “We like arbitration because it scares off some lawyers and arbitrators aren’t going to light us up like a jury might. Some arbitrators might even shade it in our favor to try to get some repeat business.” That would be a crappy thing to say, but people hate getting lied to more.

This is a great first step to the eventual ban of pre-dispute arbitration clauses in all consumer contracts. When it will be really good is when banks, car dealerships, credit card companies and the like can’t escape accountability with arbitration clauses buried in terms of service or contracts that no one reads and has no choice but to sign even if they do. That day is coming.

As for nursing home litigation in Mississippi, I don’t see it changing much in the current environment. Nursing home cases don’t work well for plaintiffs in Mississippi because of:

1. the $500,000 non-economic damages cap;
2. nursing home cases are expensive and labor intensive–much more so than a med-mal case;
3. most nursing homes carry little or no insurance as a defense strategy; and
4. medicare and medicaid liens eat up a lot of any recovery.

Add all that together and you can’t get much of a recovery for a client. The biggest problem for plaintiffs in nursing home cases in Mississippi is the math. Plaintiff lawyers look at it and think:

• if we win or settle I will get a nice fee, but after the fee, expenses and liens, the client will get little money–a fraction of the recovery. Is the client going to be happy? Probably not. I think I’ll pass.

Plaintiff lawyers have to worry about unhappy clients in a different way than defense lawyers. Unhappy defense clients switch lawyers on the next case. Unhappy plaintiff clients file bar complaints and fish around for a lawyer to file a legal malpractice case.

The Mississippi Supreme Court already wasn’t a fan of arbitration clauses in nursing home contracts anyway. Half the time they weren’t enforceable because the nursing home would size the family up and get someone to sign who they could sue to collect the bill after the patient died instead of the actual patient (who was sick but not incompetent).

For things to get really better we’d need to see the caps thrown out or raised to at least $1 million and a law passed requiring nursing homes to carry a decent sized amount of insurance. It would also help if Medicare and Medicaid would reduce their liens more.

At one time nursing home cases were my biggest practice area. At the moment the only case I have is one where I am local counsel for an out of state firm. While I am happy to see this change in the law, it’s not enough to make me start marketing for nursing home cases again.

Hopefully, I’m wrong. But another lawyer who I worked with a lot on nursing home cases forwarded me news of the law’s passage in an email that said: “Too late but good.” So I don’t think my reaction is off base.

The question of why filings are so low in Mississippi gets thrown out there quiet a bit.

Defense lawyers have been asking the question for years after their pre-tort reform predictions that plaintiff lawyers would not stop filing cases proved to be wrong. I recently heard that law school professors are asking the question because there are a lot of people with real legal disputes that can’t find representation.

The answer is in how plaintiff-side litigation works. Plaintiff lawyers can be paid hourly or on a contingency fee. Mississippi is a poor state. Most people can’t afford to pay a plaintiff lawyer by the hour. Further, many plaintiff lawyers, including me, are hesitant to take a plaintiff case by the hour unless the merits are good enough to where they would also take it on a contingency.

So the plaintiff lawyer needs to conclude that the case is winnable in order to take and file the case. Look back at the verdicts listed on Monday in the preview of the Mississippi Jury Verdict Reporter. On the whole, these verdicts represent a disastrous month for the plaintiffs.

Why aren’t plaintiff lawyers filing more cases? This is why. The plaintiff lawyers likely lost a lot of money in the medical malpractice, nursing home and products cases and maybe the tree case.

While the plaintiff lawyers probably didn’t lose money out of pocket on the two car wreck ‘wins’, they also made very little money considering they had to try the cases.

Other plaintiff lawyers view these results and take heed.

Bottom line: plaintiff lawyers have to be very careful about the cases they file. Unlike defense lawyers who are billing by the hour, plaintiff lawyers don’t have to stay busy. A plaintiff lawyer who feels compelled to stay busy may end up filing a case that is a loser that will cause them to lose a bunch of money in fronted expenses.

Repeatedly losing money in cases is not a viable business model. Plaintiff lawyers who don’t know how to screen cases or can’t tell people no will not stay in business long.

Plaintiff lawyers hear some bleak stories from prospective clients who unquestionably have been wronged. But we have to tell the client no if we conclude that the case is not economically viable for whatever reason–and there are many factors that can kill an otherwise viable claim. Hearing these stories and having to tell people no is the single worst part of my job. But I have to do it if I want to stay in business.

A plaintiff lawyer is better off going hunting or fishing than filing a case that is likely a loser. Whether to take a contingency plaintiff case is a math problem. Experienced plaintiff lawyers aren’t going to file cases where they have better odds at the craps tables in a casino.

Combined with the fact that so many big cases get exported out-of-state in MDLs as I discussed here, the trends for litigation in Mississippi are exceptionally bleak. Filings just aren’t going to rise significantly barring something weird like a Katrina-like disaster that leads to litigation or Congressional legislation rolling back consumer arbitration clauses.

Courtesy of Jackson lawyer Cliff Johnson is this tort case filings graph used in a presentation Monday night by Cliff, Judge Kent McDaniel and Vicky Lowery to the Inns of Court. The graph shows tort filings in Mississippi from 1994 – 2012.

Tort filings peaked in 2002 with 10,617 tort cases filed in state court in Mississippi. By 2012, that number was down to 3,551 and still trending down. You can’t tell from the graph when tort filings were last at 2012 levels. The number of filings in 1994 was 5,056. It was some time before 1994.

Total civil filings are also down substantially–37% since 2002. The reason that total civil filings are not down as much as tort filings is that civil filings includes things like debt collection actions that have almost nothing to do with the litigation climate in the state and provide few jobs for lawyers.

The graph explains a lot about the pain felt in the legal profession over the last eight years or so. It was comparably easy for law firms to grow and lawyers to flourish in their own practices from pre-1994 through 2002 because there were twice as many tort cases filed per year compared to today.

But it wasn’t sustainable. It was a bubble. The bubble burst around 2002 and we’ve been in a decline ever since.

We needed a lot more lawyers in Mississippi in 2002 to work all the cases than we do today. That has resulted in a shaking out on both the plaintiff and defense side with contractions in both sides of the litigation bar.

It will be interesting to see how the filings look over the next five years covering 2013 – 2017. My guess is that tort filings will continue to decline in 2013 – 2014 and stabilize around 3,000 per year.

Also, keep in mind that those 3,000 cases are generally worth less than cases in the 1990’s when there were twice as many cases being filed. So the dollar impact of only 3,000 filings on the legal economy is greater than the 50% that the raw filing numbers would first suggest.

It wouldn’t be so bad if we didn’t still have an over-supply of lawyers. The number of lawyers in the state has risen over this time period. The excess lawyer issue is an issue nationwide that will take a decade or more to resolve.

Of course, these numbers only confirm what we’ve known for years. It’s harder to make a living practicing law in Mississippi than it used to be. You still can. It’s just not easy anymore.

There are plenty of good lawyers who have been forced out of private practice in the last eight years or so. It’s not necessarily a reflection on those lawyers’ skills other than rainmaking. Luck and chance have a lot to say about who the survivors are in private practice. We can feel more secure by pretending otherwise, but that’s the way it has shaken out.