On Tuesday I wrote about the Mississippi Supreme Court’s decision in Merchant v. Forest Family Practice Clinic. The Court reversed a defense verdict in a medical malpractice case and remanded the case for a new trial.

This is not really the subject of this post, but it’s worth noting that historically the Court does not reverse many defense verdicts, as mentioned in this 2009 post.

I think this case is a big deal not because of the ruling, but because it provides a rare look into the jury’s deliberations. Most of the time, you don’t learn what was said during deliberations. To me, this case confirms something that I have been suspecting: some juries are not limiting deliberations to the evidence and the trial court’s instructions.

I’m making this case Exhibit “1” in support of my argument that Mississippi should adopt juror reforms similar to those adopted in Michigan. Granted the Michigan reforms would not fix a lying juror. But this is an example of a case where we know a jury did not reach its decision based on the evidence and the instructions of law. This is indicative of a problem in this system.

Incidentally, I have no idea whether a defense verdict was the right verdict in the case. But if it was, it was the right verdict for the wrong reasons.

We need jury verdicts that are the right verdict for the right reason. I believe that our current method of reading over 30 minutes of jury instructions at the end of the trial is inviting jurors to reach verdicts for the wrong reasons—reasons not guided by the evidence and instructions of law. I do not believe, however, that the Michigan reform will address a worrisome trend among ultra-conservative jurors.

I have conducted a lot of focus groups in the last few years. I am seeing two things that alarm me. First, some people aren’t getting what it means to decide a case based only on the evidence and the court’s instructions.

You see this in focus group deliberations where people start interjecting their personal experiences into deliberations. Old people who are know-it-alls are particularly prone to do this. These folks have a story they want to tell and by god, they are going to tell it.

An example is the man in the focus group who urged people to render a verdict a certain way because things “really slowed down” when he was in a rollover on I-55. It was not a roll-over case. Or a car wreck case. The guy’s story had nothing to do with what happened in the case. But he thought it was relevant to the decision.

Second, I am seeing a lot of ultra-conservative jurors who will not render a plaintiff verdict for negligent conduct. There is no area of practice where this trend is more pronounced than in medical malpractice cases against doctors.

The ultra-conservative jurors require admitted fault, intentional conduct or gross negligence to find for a plaintiff against a doctor. Simple negligence will not suffice, even though that is what the law is. They are like the juror in this case who think that personal injury lawyers keep taking money from their good doctors. In fact, a personal injury lawyer has better odds in a casino than with an ultra-conservative jury.

The ultra–conservative jurors are hard to identify in voir dire because like the juror in this case, they don’t say anything. They are the type of jurors who say they can be fair and don’t answer specific voir dire questions. This does not apply to all conservative jurors. But it applies to enough to make it an existing and growing issue.

What is the solution? I’m not sure. I have some ideas, but not the answer. I am interested in President Obama’s concept of health courts where medical malpractice cases are decided by persons—I’m not sure exactly who—who have specialized training. I might would support a program like this depending on who will be the decision makers in such a system. I believe that plaintiffs would have a better shot at winning under such a system in most Mississippi venues.

Best I can tell, the American Association of Justice stridently opposes health courts and any concept other than jury trials. I have to disagree with anyone who flatly rejects proposals to improve the justice system without hearing the specifics.

The justice system is like anything else. It can always be improved. We should be considering all proposals for how to improve the system until the day that we all agree that we are getting the right decision for the right reasons.

Two weeks ago the Mississippi Supreme Court reversed a 2009 Scott County defense verdict in a medical malpractice case and remanded the case for a new trial. Here is a link to the Court’s opinion in Merchant v. Forest Family Practice Clinic and Dr. John Lee. Dr. Lee is the son of the Sheriff of Scott County.

The Court’s opinion considered several issues raised by plaintiff on appeal. The Court rejected most of the issues, but reversed and remanded the case for a new trial due to juror misconduct.

Facts:

During the trial defense counsel asked the following question to plaintiff’s expert witness:

as far as your medical legal business picking up, can you tell me if you’ve been retained as an expert in the case where [counsel for the Estate] is suing Dr. Howard Clark just up the road?

That’s right, in a conservative venue with a huge home field advantage, defense counsel played the “these guys are suing another popular doctor” card. [Guys, you really don’t need to push the envelope in places like Scott County, since you get jurors like the one you had in this case.]

After the trial, a juror signed an affidavit that stated that another juror said during deliberations:

that he had been a patient of both Dr. Lee and Dr. Clark. That both were good doctors and that we the jury could not ‘let those attorneys keep taking money from our doctors.‘ and that he continued to refer to [the other lawsuit] in an attempt to persuade his fellow jurors to vote in favor of Dr. Lee. (emphasis added).

Shane and Rebecca Langston of Jackson represented the plaintiff. Defense attorneys were Anastasia Jones, Mildred Morris, James Becker and Tim Sensing all of Watkins Eager in Jackson. Judge Marcus Gordon was the trial judge.

The Court’s Opinion:

The Court quoted several voir dire questions where the juror at issue did not admit that he was a patient of the defendant or had knowledge of facts that were relevant to the issues in the case. The Court ruled that the juror’s references in deliberations to Dr. Lee as a good doctor and the separate lawsuit against Dr. Clark, ‘another good doctor’ “reveals a decision guided by neither the evidence admitted nor the circuit court’s instructions of law.”

The Court determined that this was juror misconduct that compromised the estate’s right to a fair, impartial and competent jury. The Court reversed and remanded the case for a new trial.

Justice Randolph wrote the Court’s opinion, which unanimously reversed on the issue of juror misconduct.

My Take:

I have a lot of respect for the defense lawyers in this case. I’m going to assume that they got a little carried away in cross-examination, which can happen. Luckily, the question helped expose an apparently dishonest juror.

I will have a long post on Wednesday about my take-away from this decision.

On Thursday the Mississippi Supreme Court reversed and rendered a bench verdict for the plaintiffs in Gray v. City of Jackson. The case was a Tort Claims Act case where Judge William Coleman ruled for the plaintiffs. The total verdict was $400,000 to three separate plaintiffs.

Raymond police started the pursuit in Raymond. Jackson police joined the pursuit when it entered the City. Jackson police offers broke off the pursuit when the driver (Alice Wilson) began driving the wrong way down one-way streets in downtown Jackson. Wilson ran a red light at the intersection of Capital and Congress streets and collided with the plaintiffs’ vehicle. One person died and two were injured.

The plaintiffs sued the the cities of Raymond and Jackson and Wilson. The City of Raymond settled.

The Mississippi Supreme Court reversed and remanded the verdict, ruling that Jackson police officers did not act in reckless disregard for the safety of others. Key factors that the Court identified to support its position included:

• the streets were not curvy, hilly or poorly maintained;
• there was little to no traffic in downtown Jackson at the time;
• JPD officers used their blue lights and sirens;
• JPD officers did not travel at unusually high rates of speed;
• JPD officers were ordered to monitor and assist in the pursuit; and
• JPD officers were motivated to aid the Raymond officer out of a concern for his safety.

The Court concluded that based on the totality of the circumstances, JPD officers did not act with reckless disregard. Justice Carlson wrote the Court’s unanimous opinion.

Pieter Teeuwissen and Kimberly Banks represented the City of Jackson. Joe Tatum and Edward Markle represented the plaintiffs.

My Take:

Seems like the Court got this one right. This was Raymond’s pursuit.

I previously mentioned this verdict and Jackson pursuit cases in this post.

My name is Phil and I am a white Mississippi Democrat. At least I was for the last 20 years. But what’s the point now? Who wants to be the last unicorn?

As for the primaries as a whole, the Clarion-Ledger’s David Hampton nailed it:

The candidates in the top races were not very dynamic and there have been no real popular issues to catch voters’ attention. The issues facing Mississippi are complex and don’t lend themselves to sound-bite solutions, but that is mostly what campaigns are about these days. Candidates avoid the tough stuff, which is good politics. Overall, the campaigns across the board have been weak, lacking bold ideas and solutions.

To put it in simpler terms, the races were lame.

I get it that all the Republican candidates want to take long showers with Haley Barbour and ride in his motorcycle’s side-car. And months of “I love Haley” commercials worked. I’m ready to vote for 4 more years of Haley. The people who were actually running those commercials? Not so much. If I’m one of these guys I’m not sure that I want to be stepping into the Haley void. There is no evidence that any of them can fill Barbour’s shoes.

No Republican candidate distinguished himself or herself enough to make people care. Good or bad. Dave Dennis? Who? Kingfish has been calling this one right for a while:

Still haven’t figured out the Dennis campaign or if one even existed. Phil campaigned for this job for four years but I’m not sure if and when Dennis ever did.

And Phil Bryant was beatable.

Tate Reeves vs. Billy Hewes? The only difference I could identify in these two is Reeves has a better jump shot.

As for the Democratic side, it’s pitiful. The Mississippi Democratic party transformation to being all African-American is almost complete. In a state with only a 37% black population, that’s a losing formula.

Take for example the Hinds County Sheriff’s race, where white incumbent Malcolm McMillin unwisely ran in the Democratic primary. Anderson described the result:

Due to his failure to switch parties, the inevitable has befallen Malcolm McMillin: he’s lost the Hinds County Democratic primary to a black candidate for sheriff.

Does anyone think that Jim Hood could get elected Attorney General as a Democratic candidate if he was not the incumbent?

I actually feel sorry for Johnny Dupree and Bill Luckett. A run-off? That’s like being in the play-in game to see who will be the 64th seed who gets to play Duke in the NCAA Basketball Tournament.

On a state wide level, Mississippi is now a one party state. It’s easy for me to say that’s bad, since I often vote for the Democratic candidates. But after the lame 2011 primaries, it should be easy for a lot of people to agree.

Mississippians will go to the polls in November to decide State House of Representative races. The results of those races will determine whether the House will be majority Democrat, with a Democratic speaker, or majority Republican with a Republican speaker. The election will likely have a profound affect on the future of the legal profession in Mississippi.

Today’s Wall Street Journal reports:

The Republican Party has launched a major push to capture the Mississippi House of Representatives this fall, a goal that has eluded it since Reconstruction and that would remove nearly every vestige of Democratic control from the state’s government.

Election 2011

Mississippi enacted tort reform in 2004 that placed a $1 million cap on non-economic damages. The State previously capped ($500,000) non-economic damages in medical malpractice cases—and the statute defines medical malpractice broadly.

It’s my understanding that since 2004, Republican legislators have continued to propose bills to further restrict individuals’ access to justice in the court system. Specific examples that I’ve heard were proposals to:

• reduce the non-economic damages cap to $250,000 in all cases;
• eliminate a private right of action for bad faith denial of an insurance claim; [can you imagine what would happen after the next hurricane if this passed?];
• eliminate the right to sue pharmaceutical companies for defective drugs if the FDA approved the drug; and
• basically eliminating the right to sue for injuries caused by defective products [you couldn’t with a $250,000 cap anyway].

There are political observers in Mississippi who believe that if Republicans gain control of the House, then the legislature will enact some or all of these measures.

What More Tort Reform Would Mean for Lawyers

What would that mean for the legal profession in Mississippi? Think about it.

With a $250,000 non-economic damages cap, there would be few cases that justified spending $50,000–100,000 in expenses getting a case to trial. Those cases are cases with huge economic damages due to something like paralysis or a plaintiff who earned a lot of money who can make a big lost wages claim. But only a very small percentage of the population earns enough to make a large lost wages claim.

Therefore, a $250,000 cap would eliminate personal injury cases that require expert witnesses. If you don’t believe me, look at what has happened in nursing home litigation. The nursing home corporate shell game combined with $250,000 claims eroding insurance policies has virtually killed nursing home litigation in Mississippi. Wilkes and McHugh left the state. So did defense firms that specialized in nursing home defense. Nursing home litigation used to be the majority of my practice. I have not filed a case in several years.

Because of the costs of expert witnesses, personal injury cases other than fender-bender cases would largely go away.

Plaintiff lawyers who made money during the litigation boom would likely retire. Other plaintiff lawyers would attempt to convert their practices to general practices that primarily handled criminal and domestic work. That would not be a panacea, however, because the competition for those cases would be fierce.

Many defense lawyers would lose their jobs and many defense firms would go away. I’m not naming any names, but many of the medium-sized litigation firms would cease to exist. Firms with 40–50 litigators would see that number reduced in half at least, unless most of their cases are outside the State of Mississippi.

A lot of lawyers would retire. A lot of lawyers would leave the state or take in-house jobs paying a fraction of what they now earn. Many legal assistants, secretaries, court reporters and other legal industry support staff would lose their jobs.

There would be negative repercussions in the local economy of Jackson, where the legal industry ranks behind only the government and medical industries as far as jobs. Owners of office space such as Parkway Properties would suffer due to the declining demand for office space. Private schools in the Jackson area would lose students. Country clubs, bars and restaurants frequented by lawyers would take a big hit.

Lawyers Are Ignoring The Risk

It’s interesting that hardly anyone is talking about this in the legal profession. You would think that lawyers would be scared to death. Instead, most are blissfully ignorant that they could be out of a job in two years.

In particular, big firm lawyers not at the top of the firm’s compensation pyramid ignore the danger to the future of their careers. These are the lawyers who either ignored tort reform or outright supported it. They were actually surprised when the combination of tort reform and the end of mass joinder led to some of their friends getting laid off.

You would think these folks would look at how many fewer defense lawyers there are in 2011 compared to 2001 and the current purge at Watkins Ludlam/ Jones Walker and see that things could go bad for them. Instead, they wrongly view their jobs as tenured or civil servant type positions.

Why do people ignore danger like this? I think it’s human nature. Only Noah built an ark.

But not everyone is ignoring the signs of danger. Some lawyers are building their ark. There are plaintiff lawyers who are making contingency plans for advertising campaigns for domestic work. There are defense lawyers who are taking bar examinations in other states and trying to get a foothold in those states.

I have not finalized my contingency plan for what I will do if we get more tort reform. But I am thinking about it. My current practice probably will not be viable if we get more stringent tort reform. Much as it would pain me to have to go back to work for someone else, I might have to. But in another state.

In my opinion, the Mississippi Supreme Court is on the brink of upholding Mississippi’s cap on non-economic damages. I am on the record as stating that the caps have not had the impact that big business propaganda outlets give them. But once the Court upholds the current caps, how could it reject lower caps? Or any other legislative measures to limit access to justice? It probably can’t.

Which means that the future of the legal profession hangs in the balance of the November legislative races. And hardly any lawyers know it.

Democrats now enjoy a 13-seat advantage in the 122-member Mississippi House, while the Senate and six of seven other statewide offices are under Republican control. Attorney General Jim Hood is the only Democrat to hold statewide office.

The state GOP has brought in a new party boss: 25-year-old campaign strategist Tim Saler, who most recently headed up Republicans’ successful campaign to capture the legislature in North Carolina.

Republicans need a net gain of eight seats to take control of the House and are targeting 21 Democrats they believe are vulnerable. Mr. Saler, who is the state GOP’s executive director, said his party plans to spend more than $1 million supporting its candidates, deploying sophisticated polling and consumer data to get out the vote, as well as advertising and other help. “In some respects, we are bringing a gun to a knife fight,” he said.

Democrats now enjoy a 13-seat advantage in the 122-member Mississippi House, while the Senate and six of seven other statewide offices are under Republican control. Attorney General Jim Hood is the only Democrat to hold statewide office.

Republicans need a net gain of eight seats to take control of the House and are targeting 21 Democrats they believe are vulnerable. Mr. Saler, who is the state GOP’s executive director, said his party plans to spend more than $1 million supporting its candidates, deploying sophisticated polling and consumer data to get out the vote, as well as advertising and other help. “In some respects, we are bringing a gun to a knife fight,” he said.

Alan Lange announced on Monday that he will no longer be the primary face of Yall Politics:

All good things must come to an end. My tenure as the primary face of YallPolitics is one of those things. I am happy to announce that Frank Corder of the FireMcCoy blog will now be the face of YallPolitics.

There are a lot of reasons why I am making this change, but ultimately the biggest one is I just think it’s time.

The accomplishments of the site are staggering:

Over 40,000,000 page views
Almost 30,000 posts that now serve as a living breathing Mississippi political archive
Regularly named as one of the best state political blogs in the state/country
Mentions by the WSJ, LA Times, Forbes, WAPO, Overlawyered, Michelle Malkin, Glenn Reynolds, Pajamas, Politico, RedState, the Hill (I’m sure I’m forgetting a few) and just about every Mississippi political columnist and pundit around
And, of course, the book Kings of Tort that I co-authored as a result of our coverage of the Dickie Scruggs scandal.

Lange was an active blogger for 7 years.

My Take:

He ran a blog for 7 years? Many blogs go dormant before they have 7 posts. Blogging for 7 years is about like playing running back in the NFL for 20 years. I don’t know how long I’ll be able to hang in there on this blog. But I bet it’s not 7 years.

Blogging is like shrimping. Hard. And sometimes you wonder why the hell you do it. Particularly when you piss people off. And if you have a decent political or legal blog, you are going to piss some people off.

Alan Lange is one of the founding fathers of Mississippi blogging. He built Yall Politics into a one-stop site for political information in Mississippi, including legal issues with mass public or political interest. In addition to reporting and commenting, Lange led a legal challenge a to secrecy orders in a court proceeding. In writing about that case I stated:

It’s an interesting indicator of the direction of the media that the challenge was made by a blog instead of a print newspaper. In the past, newspapers would have made this type of challenge. But with circulations down and news papers both struggling financially and controlled by large corporations, the days of newspapers being the conscience of the community appear over. That role appears to be shifting to bloggers. But in Mississippi at least, there are probably not enough bloggers yet to completely fill the void.

Lange and Yall Politics are a big reason why there are any bloggers to fill the void. We have some very good reporters in Mississippi. But we do not have enough of them. Blogs like Ya’ll Politics, Jackson Jambalaya and NMissCommentor play a huge role in keeping people informed. And they do it for free.

I doubt that this blog would exist if Yall Politics never existed. That probably applies to other current and future blogs that Mississippians rely on for information. It’s hard to overstate the impact that the site has had under Lange’s leadership. Lange will be in the inaugural class of the Mississippi Blogging Hall of Fame.

There was an interesting interview of famed litigator David Boies in today’s Wall Street Journal. Here is the article. Boies is known for being very talented and somewhat eccentric when it comes to his courtroom style.

I thought the most interesting part of the article was Boies’ response to a question about making mistakes:

WSJ: What’s the most recent mistake you made in court?

Mr. Boies: I don’t know. But one of the worst mistakes I made was in Microsoft. We were doing a deposition of Bill Gates for two days. And it was useful. It had been set up so that if I wanted a third day, I could get a third day a week later. I should have said I am through. But instead, I said I want him for a third day, which gave him an opportunity to go back and correct. He didn’t do that— sometimes you get lucky and your mistakes don’t hurt you. But that was a very serious mistake. Sometimes when things are going well, you think they’ll go on forever. Not everything bad you do hurts you and not everything good you do helps you.

A common mistake that young litigators make is asking one too many questions in depositions. They get an answer that helps them, but they can’t leave well enough alone and continue pressing the issue. Often times the witness realizes that an answer was bad for his side and gives another answer that explains the original answer away or muddles up the answer.

Lawyers who consistently do this always say that they want to hear the excuse before trial. I couldn’t disagree more. I think it looks much worse for the witness when the excuse is going on the record at trial for the first time.

Finally, how about these financial numbers for Boies’ law firm and Boies:

Boies, Schiller & Flexner LLP

• Gross Revenue: $305 Million
• Profit Per Partner: $2.56 Million

David Boies, chairman

• Hourly Rate: $1,220
• Estimated Time Devoted to Matters Billed Hourly: 33%
• Estimated Yearly Compensation: $12.5 Million-$15 Million

There have been rumors swirling for months that Jackson based Watkins Ludlam Winter & Stennis will merge with the New Orleans based Jones Walker firm. This would add to Jones Walker’s presence as a regional firm.

Virtually every Mississippi lawyer who I have talked to this week wants to talk about this rumor. Word is that the merger is taking place and most Watkins Ludlam lawyers will be a part of Jones Walker going forward. It sounds like Watkins Ludlam—one of Mississippi’s venerable law firms—will no longer exist.

I am hearing that more than a few Watkins Ludlam lawyers will not be joining Jones Walker.

There have also been a lot of rumors about Brunini merging with Baker Donelson. I am hearing that there is no truth to that rumor.

Ya’ll Politics reported this week about former Mississippi Hose candidate Jordan Bankhead’s threatened lawsuit against the FireMcCoy blog. Their transgression? Cutting and pasting from Bankhead’s website. No, really. I’m serious.

My Take:

Wow. If a blog cutting and pasting from another website is actionable, then I’m in big trouble.

Congratulations to FireMcCoy. A blogger being threatened with a lawsuit is a rite of passage. And, in my experience, not very unusual.

All the Justice Money Can Buy is Snigdha Prakash’s book about a Mark Lanier trial in the Vioxx litigation against Merck. I stumbled across the book on Amazon and decided to give it a read.

Lanier is a high-profile trial lawyer from Texas who has a very successful record. The book contains a quote that Lanier is one of the top 2–3 trial lawyers in the country—at worse. It is hard to argue with that statement. I will not try.

One of the things that Lanier is well known for is developing his own unique courtroom style that heavily incorporates PowerPoint presentations. Prakash details how Lanier backs up his groundbreaking use of PowerPoint in trial with a stellar support team, meticulous planning, detailed organization and tireless work. It’s not unusual for Lanier to wake up at 1:30 a.m. to prepare for the day’s trial testimony.

But Lanier has a lot of help. I can’t imagine how nice it would be to have my own in-house jury consultant, an aid de camp who is an outstanding attorney and a team of support attorneys and staff. It sounds a bit like a military general going to trial.

Here is the book’s Amazon description:

Mark Lanier knew he was facing an opponent willing to break every rule in the book, and each part of his case had to go just right for him to win. He had done it twice before. Could he do it again?

All the Justice Money Can Buy is the true-life story of a courtroom showdown between the man many consider the best trial lawyer of his generation and one of the nation’s richest and most-respected corporations.

Journalist Snigdha Prakash is embedded with the plaintiffs’ team for the seven-week trial, and takes us into the trenches of the tough—and dirty—battle between corporate interests and the individual that plays out in the courts. From early mornings when Lanier works in his hotel suite, to the daily post-mortems after court, and late nights in the plaintiffs’ “war room,” Prakash shadows Lanier and his team.

With its bird’s-eye view of the strategic thinking and meticulous planning that undergird Lanier’s seemingly unrehearsed performances in court, and of the well-oiled machine of lawyers and assistants that backs his every move, All the Justice Money Can Buy is a fast-paced, often funny journey behind the front-lines of a high-stakes, 21st century legal trial. Along the way, Prakash renders a piercing portrait of the challenges that await those who would take on corporate interests.

Part corporate expose´ and part legal thriller, All the Justice Money Can Buy is a gripping—and topical—read for our scandal-plagued times.

The trial was a New Jersey state court Vioxx trial on behalf of two plaintiffs. Lanier represented one of the plaintiffs and took the lead in proving liability in the trial, which bifurcated Merck’s liability for failure to warn and causation. That portion of the trial lasted two months.

Despite Lanier’s masterful work at trial, the jury found against Lanier’s client on liability. Lanier did not participate in the second phase of the trial, which resulted in a $47.5 million verdict for the remaining plaintiff.

The book is not a play-by-play of the entire trial. Instead, it focuses on opening and closing statements and the testimony of several key witnesses. This aspect of the book should make it more readable for non-litigators. As a litigation attorney, I would have loved it if the book was twice as long and covered in detail the entire trial and the pre-trial procedure.

It takes an enormous amount of time and work to get a pharmaceutical case to trial. Millions of pages of documents must be reviewed and appropriate expert witnesses must be hired and educated on the facts of the case so they can give testimony on the issues in the case. I can pretty much guarantee that the vast majority of that work on the plaintiff side was done by lawyers other than Lanier.

Those nameless lawyers are the unsung heroes of the Vioxx litigation. Lanier and other trial lawyers could not try a good case without that leg work having been performed by others. Of course, that work would not be very interesting to read about. Prakash understandably focused on the entertaining part: the trial.

I enjoyed this book. The story was an interesting read with some big characters on both sides of the case. This book should have widespread appeal for plaintiffs and defense lawyers, judges and members of the public who are interested in trials or the alleges corruption of the pharmaceutical industry.

Trial lawyers can identify with Lanier’s plight in the case: trying a great case, but losing anyway.