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.