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.

October Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the October 2017 issue of the Miss. Jury Verdict Reporter:

  • $1,128,744 verdict- Coahoma County medical malpractice trial mentioned here (3/30/17);
  • defense verdict- Lamar County car wreck case (8/30/17);
  • defense verdict- Grenada County medical malpractice trial covered here (8/18/17);
  • defense verdict- Jackson federal court employment retaliation case (8/31/17);
  • defense verdict- Lee County slip-and-fall case (9/13/17);
  • defense verdict- Oxford federal court disability discrimination case (9/12/17); and
  • defense bench verdict- Jackson federal court medical malpractice case (3/13/17 [June 2016 trial]).

My Take:

I sense a pattern here. But I can’t put my finger on it.

Announcing an Exciting New Topic: Legal Technology

Posted in Legal Technology

I’ve decided to regularly discuss here the aspect of practicing that has interested me the most over the last year: legal technology.

Legal technology is exciting. Here are some of the many benefits of legal tech:

  • lawyers and staff can work more efficiently;
  • improves organization and work flow;
  • saves on much of the costly practice overhead;
  • improves work product;
  • allows remote work (this is also a negative);
  • makes lawyers less dependent on support staff; and
  • allows lawyers to take home more income while working the same or less.

In summary, getting as much as you can out of your legal tech makes your job and life easier.

The disclaimer is that I don’t know how to measure my expertise level. I’m always trying to learn more. I have much to learn about the software and hardware I use in my practice–plus the software I should be using but am not.

But I’m sure that I know more than many of my readers. For instance, recently I saw an email from one attorney I know asking how to save a revised excel spreadsheet. I know how to do that. I also use a lot of software in my practice.

The plan is to make ‘legal technology’ a Topic on the blog’s left bar. I will add a new post on the topic every 1-2 weeks.

Topics will include hardware, software, and any other content I think is helpful or interesting to attorneys who want to be technologically proficient. I will talk about what has worked and not worked for me. I’m sure I’ll also talk about what I want to try.

I’m sure commenters will read some of my posts and tell me I’m an idiot. But what’s new there, right?

As with any other post, don’t read it if doesn’t interest you.

The next post in the series will discuss my adoption of Case Management Software. After at least three failed attempts, I am now all-in with case management software and highly recommend it. In my next post, I will discuss my failed attempts at adoption and why I love my case management software.

My Take on Ishee to Supreme Court, Tindell to Miss. Court of Appeals

Posted in Mississippi Court of Appeals, Mississippi Supreme Court

It’s not new news, but I’ve yet to write about Governor Bryant appointing Court of Appeals Judge David Ishee to the Supreme Court and State Senator Sean Tindell of Gulfport to replace Ishee on the Mississippi Court of Appeals. Both seem like good picks.

I kind of feel like I know Ishee even though I really don’t. I grew up around the corner from him in Gulfport, but he was a good bit older than me. The only thing I remember about him is that he was a big kid (everyone was a big kid to me) and a constant presence jogging and walking around the neighborhood in those god-awful sweat suits everyone wore working out back then.

I don’t know Tindell and have never had a case with or against him. But I expect he will be fine on the Court of Appeals. Here is my reasoning:

  • Bryant has a history of solid judicial appointments;
  • Tindell spent five years as an Assistant D.A. in an office with a record for producing outstanding attorneys and judges; and
  • people from Gulfport are flat out awesome.

Clearly, I have no home town bias in talking about these picks.

Mississippi Appears Favorite to Retain Open 5th Circuit Seat

Posted in 5th Circuit Court of Appeals, National Politics, Politics in Mississippi

Geoff Pender’s article on the Clarion-Ledger’s website Thursday confirmed that the recent nominations to the 5th Circuit Court of Appeals did not include a nomination for the seat held by the retired Judge Grady Jolly. From the article:

On Thursday, the White House sent the Engelhardt nomination to the Senate listed as a replacement for Clement, not Jolly, an indication Mississippi’s seat remains open.

Sens. Thad Cochran and Roger Wicker this week in a joint statement said they are continuing to work with the Trump Administration on a nominee — a choice over which a state’s senators usually have a large say as nominees require Senate confirmation….

The Senators’ offices have not explained why Mississippi does not have a nominee yet when picks from other states have already been named.

Based on the current publicly available information, it appears that Mississippi is favored to retain Judge Jolly’s seat.

But it’s also my understanding that there’s no guarantee. I will remain worried until President Trump nominates a Mississippian for the seat. The reasons for my concern are:

  • Trump is a wing-nut;
  • the Republican Party is divided;
  • Senators Cochran and Wicker may or may not be aligned with the President;
  • Trump is a wing-nut;
  • Texas is an obvious threat to Mississippi on federal judicial appointments;
  • it’s politics; and
  • see points 1 and 4 above.

There was speculation in comments that Governor Bryant and the Senators might not be on the same page as far as who is appointed. A 5th Circuit seat is a plumb. I’m sure there is some interesting maneuvering going on behind the scenes.

10 yr. Median State Pension Investment Return: 5.9%

Posted in PERS Crisis

Courtesy of Zero Hedge is this post about a report that the median state pension plan had a 10 year annual investment return of 5.9% as of June 2016. From the post:

Of course, as we’ve noted on numerous occasions, the problem with those returns is that most public pensions in the U.S. have randomly decided to assume a long-term return of 7.5%, or 1.6% higher than what they’ve actually been able to achieve in practice. All of which only serves to mask the true scale of the pension crisis in the U.S. by discounting future liabilities at an artificially high rate.

All of this generally applies to Mississippi’s PERS, which is in crisis denial mode.

I can’t really find a difference of opinion on whether something like a 60-40 blend of stocks and bonds will return 7.5% over the next 10 years. Everything I read says they won’t because future gains in corporate profits are already baked into today’s stock prices.

By some measures, stocks are way over-valued now. That doesn’t necessarily mean stocks will crash. But it strongly suggests that returns going forward will be anemic.

And some people think stocks are destined to crash again. From the Zero Hedge post:

All of which raises two very important questions: (1) how is it possible that pension underfundings continue to surge when 50% of assets have participated in one of the biggest equity bubbles in history and (2) when the current equity bubble bursts, which in inevitably will, will it result in a cascading failure of retirement systems across the country and finally expose the public pension ponzi for great lie that it has always been?

These are scary thoughts for PERS stakeholders.

Update on Mississippi’s Lost 5th Circuit Seat

Posted in 5th Circuit Court of Appeals, National Politics, Politics in Mississippi

The A.P. has a short story today titled ‘Mississippi jurist should fill appellate seat, senators say.’ Here are the key passages:

Mississippi’s two Republican U.S. senators say they are working with President Donald Trump’s administration to fill a seat on a federal appeals court with someone from the state.

Sens. Thad Cochran and Roger Wicker said in a joint statement Monday it’s their priority to have “a well-qualified, constitutional conservative jurist” from Mississippi to succeed Judge Grady Jolly on the 5th U.S. Circuit Court of Appeals…

“The administration understands that it is a priority to us that a Mississippian be nominated to fill this seat on the U.S. Court of Appeals for the 5th Circuit,” the joint statement from Cochran and Wicker said. “We look forward to President Trump, with the advice and consent of the Senate, announcing such a nomination as soon as possible.”

Trump last week nominated two people from Texas and two from Louisiana to the 17-member court.

Three seats already were vacant. A federal court website shows that Judge Edith Brown Clement, of Louisiana, plans to retire from active court service, though no date has been set.

My Take:

Same as last week. Cochran and Wicker blew it by letting it come to this.

Let’s be clear. Mississippi lost Judge Jolly’s seat last week.

Maybe we get it back when Judge Clement’s replacement is named. Then again, maybe not.

Several people contacted me after my original post to alert me that maybe we haven’t lost the seat because of the Clement vacancy. Insiders are hopeful. But not one person told me that Mississippi definitely will get the Clement seat–all said we might not. And Cochran and Wicker don’t say it either.

I was also contacted last week by lawyers from outside Mississippi. Their perception is that Mississippi lost the seat.

Bottom line is that it shouldn’t have come to this. The Louisianan who was named to Judge Jolly’s seat should be waiting on the Clement vacancy. Cochran and Wicker’s ‘Mississippi jurist’ should have been named last week.

This has not been handled well by Mississippi’s two senators. That will be true regardless of whether a Mississippian fills the next opening.

Mississippi Loses Seat on Fifth Circuit Court of Appeals

Posted in 5th Circuit Court of Appeals, National Politics, Politics in Mississippi

President Trump announced his nominations for the vacant seats on the Fifth Circuit Court of Appeals yesterday. The slots are going to two Texans and two Louisianans. This apparently includes the seat held by the retiring Judge Grady Jolly, whose chambers are in Jackson. Louisiana gained a seat.

Here is a link to a How Appealing Blog post that links articles covering the nominations. This A.P. report confirms that one nomination is for the seat held by Judge Jolly. Here is the A.P.’s blurb on the picks:

The White House on Thursday announced the nominations of U.S. District Judge Kurt Engelhardt of New Orleans and Kyle Duncan, a Washington lawyer and former solicitor general in the Louisiana Attorney General’s Office, to the 5th U.S. Circuit Court of Appeals. Also nominated were James C. Ho, a Texas lawyer who has served in the U.S. Attorney General’s Office; and Don Willett, a justice on the Texas Supreme Court.

My Take:

Could someone please wake up Thad Cochran and Roger Wicker? They just had their pockets picked.

Justice Willett is probably the most expected of the four, since he was a finalist for the U.S. Supreme Court nomination that went to Justice Gorsuch. Willett probably has a decent shot of getting a Supreme Court nomination later.

The major story in Mississippi is that a Mississippian was not nominated to fill Judge Jolly’s seat. It’s hard to interpret this as anything other than an abject failure by Mississippi Senators Thad Cochran and Roger Wicker to protect their turf.

With a Republican in the White House, Cochran and Wicker should have viewed the Jolly seat as their seat to fill. They apparently just let it go to Louisiana. That’s weak.

It will be interesting to see if Chris McDaniel pounces on this as a campaign issue in the looming Republican civil war primary with Senator Wicker. While most people don’t know or care about Fifth Circuit seats, McDaniel will have a war chest to educate voters on why it’s important for Mississippi to be represented on the Fifth Circuit.

It’s easy to envision a scenario where McDaniel could have hand-picked Judge Jolly’s replacement if he had beaten Cochran in the last senate race. He could have staked out a position to the right of establishment republicans and threatened to vote ‘no’ on the A.C.A. repeal unless he got to pick a Fifth Circuit nominee to fill Jolly’s seat.

If the President refused, he could have joined Rand Paul in voting ‘no’ from the right camp. So what if he alienated the  President. That didn’t hurt Roy Moore.

Jim Eastland is rolling over in his grave. As long time chair of the Senate Judiciary Committee, there is no way this happens on his watch.

Mississippi is a one party state. But that doesn’t mean that political leaders can’t be challenged from within the party. Maybe it’s time for some new blood in the Senate.

Update:  Within minutes of this post going up I received word that Judge Clement is taking senior status, meaning that there will be a Louisiana slot open on the Fifth Circuit. Cochran and Wicker need to get back in the ball game and get a Mississippian appointed to fill that seat.

September Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the September 2017 issue of the Miss. Jury Verdict Reporter:

  • $2.2 million verdict- Hinds County car wreck case covered here (8/18/17);
  • $1.22 million verdict- Gulfport federal court under-insured motorist case covered here (8/10/17);
  • $83,447 verdict- Aberdeen federal court retaliation case covered here (8/23/17);
  • $59,448 verdict- Franklin County uninsured motorist case (9/20/16);
  • defense verdict- Harrison County medical malpractice case (8/16/17); and
  • defense verdict- Harrison County uninsured motorist case (8/23/17).

My Take:

Good month for plaintiffs, winning 4 of 6 with two 7-figure verdicts.

It’s hard to say what will happen to the Hinds County verdict on appeal. But the 5th Circuit usually affirms jury verdicts.

Hoopla Over 53% Bar Passage Rate

Posted in Law School

There was a front page article yesterday in the Clarion-Ledger about the 53% passage rate in Mississippi for the July Bar Exam. It opens:

Entering the legal profession in Mississippi is once again proving difficult for those seeking to become a licensed attorney.

The July Mississippi bar exam results released last week showed about 53 percent of the 172 who took the exam passed.

Passage rates are dropping as smart students decide against law school.

Above the Law covered the State’s passage rate in a snarky post here, saying Mississippi’s Bar Exam results “suck.” From ATL:

The results from Mississippi’s July 2017 administration of the bar exam were released yesterday, revealing that only 53 percent of all test-takers passed. That’s an 18 percentage point drop from the July 2016 exam, and a staggering 27 percentage point drop from the July 2013 exam. Something is wrong here.

ATL blames the low passage rates on declining admission standards and dismisses the suggestion that students from out of state law schools are failing the exam:

Some have speculated students from out of state attending law schools in Mississippi may be leading to lower passage rates.

Apparently Mississippi law school graduates who aren’t Mississippi locals are causing lower passage rates on the Mississippi bar exam. That’s a new one we’ve never heard before, and the logic it took to get there may explain why the passage rates on the Mississippi bar exam have sunk to historic lows.

For context, Ole Law School Dean Susan Duncan wrote about the issue here.

31 of 41 (75.6%) first time takers from Ole Miss Law passed the exam. Duncan’s explanation points out that repeat takers of the Bar Exam fail by a 2-1 margin. Duncan’s stats also peg Mississippi’s passage rate at 55.9%.

Ole Miss has reduced its class sizes and denies declining admission standards.

Also, according to this 2013 Witnesseth Blog Post, Mississippi’s Bar exam does not rank among the nations easiest to pass. It ranked 20th hardest.

The Clarion-Ledger article notes that the national average was 58% in 2016.

My Take:

I have trouble getting worked up over this issue.

There aren’t enough jobs waiting for the 53% who passed. No one will need a bar card to yell “Welcome to Moe’s” every time someone walks in the restaurant.

The sad fact is that we still have an over-supply of lawyers in Mississippi. That’s the reality that the people who do pass face on day 1.

As for the exam results, the main problem is that repeat exam takers keep failing. Some people try for years and never pass.

As fewer people take the exam, the people who keep taking it and failing have a disproportionate statistical impact on the passage rate.

Should the Mississippi Board of Bar Admissions pass more people to make the numbers better? No.

Should Mississippi go back to the days where state law school graduates don’t even have to take the exam? God no.

It’s easy to write about Bar Exam passage rates. But the bigger and more important stories are the job market for attorneys, fact that many talented attorneys are leaving the state for better opportunities and the mental health of attorneys.

PERS in a Death Spiral?

Posted in PERS Crisis

This John Mauldin article posted on Zero Hedge is scary for PERS participants and taxpayers. Although I recommend the entire piece, here are some key observations:

Today we will zero in on one of those forces, which last week I called “the bubble in government promises,” which I think is arguably the biggest bubble in human history. Elected officials at all levels have promised workers they will receive pension benefits without taking the hard steps necessary to deliver on those promises. This situation will end badly and hurt many people…

public pension liabilities don’t come out of nowhere the way hurricanes seem to – we know exactly where they will strike. In many cases, we know approximately when they’ll strike, too. Yet we still let our elected officials make impossible-to-fulfill promises on our behalf…

Cities and states don’t have the ability to shed their pension liabilities. They are stuck with them, even as population and property values change…

Total unfunded liabilities in state and local pensions have roughly quintupled in the last decade….

Now, here is the truth about pension liabilities. Let’s assume you have $1 billion in funding today. If you assume a 7% compound return – about the average for most pension funds – then that means in 30 years that $1 million will have grown to $8 billion (approximately). Now, what if it’s a 4% return? Using the Rule of 72, the $1 billion grows to around $3.5 billion, or less than half the future assets in 30 years if you assume 7%….

Remember that every dollar that is not funded today means that somewhere between four dollars and eight dollars will not be there in 30 years when somebody who is on a pension is expecting to get it. Worse, without proper funding, as the fund starts going negative, the funding ratio actually gets worse, sending it into a death spiral….

I have had meetings with trustees of various government pensions. Many of them want to assume a more realistic discount rate, but the politicians in their state literally refuse to allow them to assume a reasonable discount rate, because owning up to reality would require them to increase their current pension funding dramatically. So they kick the can down the road.

Intentionally or not, state and local officials all over the US made pension promises that future officials can’t possibly keep. Many will be out of office when the bill comes due, protected from liability by sovereign immunity…

The pension problem is going to get worse as more and more retirees get stuck with broken promises, and as taxpayers get handed higher and higher bills.

My Take:

Mississippi needs real leadership on the PERS crisis. No more kicking the can down the road.