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.

Is Staying Off Mobile Phone a Fix for Attorneys’ Mental Health?

Posted in Attorney Mental Health

Clio’s blog published this article advising attorneys to stay off their mobile phones for the sake of mental health. It includes:

Sometimes working outside of business hours is necessary—there may be a transaction heating up or a trial to prepare for. Intermittent days of long hours are often required, but when this becomes business as usual, something needs to change.

Tony Swartz founder of the The Energy Project writes:

“The more hours people work beyond 40 — and the more continuously they work — the worse they feel, and the less engaged they become.”

As you can see, this has a negative effect on performance. It doesn’t just feel bad to work all the time, quality of work and mental output suffers, too.

If you’re constantly checking and responding to emails on your phone while at home, or out with friends and family, then maybe it’s time to take action to secure time for yourself that isn’t about your clients and legal practice.

The article goes on to offer advice for how to stay off your phone.

My Take:

For lawyers, the phone isn’t the problem. It’s the job.

You know who can’t stay off their phones? Grandmothers. Go to a kid’s sporting event and you’ll see numerous grandmas who are there to watch their grandchild glued to their phone to catch every Facebook notification.

Some of the kids’ moms aren’t doing that. They are shopping on their cell phones instead. Dads aren’t any better. Grandads are. They prefer bothering the people around them who would rather focus on their phone.

I don’t believe attorneys are more glued to their phones than society at large.

I agree the constant connectivity phones provide increase anxiety because bad news can arrive at anytime with ECF filing. But without mobile phones, we’d sit at our desks until 5:00 p.m. every day instead of going and doing something else. If someone is going to throw a hand grenade in my foxhole at 4:00 p.m., I might as well be at the gym or walking my dog. On the whole, mobile phones make practicing law better–not worse.

The problem is the job. I’ve been thinking and writing about attorney mental health for a while. For litigators in particular, it’s not a healthy way to make a living. Back in the day it could be fun. But I don’t know anyone having fun practicing law anymore.

One of the main reasons is that to do your best work, you need to think about it all the time. That’s unhealthy. And there is no solution short of moving out of litigation. Which is not an option for many of us.

Casetext Covers Lexis’ New Pricing for Small Firms

Posted in Legal Technology

Legal research company Casetext discusses Lexis’ new pricing model for small firms in this blog post. With the rising popularity of Casetext, Fastcase and other cheaper online legal research options, Lexis is loosening up on its unpopular selling practices.

From the article:

Traditionally, the legacy legal research providers negotiate each legal research contract in secret, requiring you to sign an NDA about the pricing and other terms of your contract. They do this to extract that maximum price from you possible. If you don’t know what the market rate is, they’ll keep on upping the price until you cry “uncle.” You might end up paying twice as much as a peer for exactly the same service and coverage, and you’ll be none the wiser.

According to publicly available data regarding LexisNexis and Westlaw contracts, the same service can range wildly—we’ve seen contracts from $1,200 to $14,000 per year per attorney for very similar plans.

Most attorneys absolutely hate this business practice. It’s unfair and done solely to take as much from you as possible….

That last part is an understatement. I use Casetext and Fastcase because of Lexis’ and Westlaw’s business practices. I’m not a fan of their contract term requirements or their practice of trying to jam a renewal on the back end. I doubt I’m alone.

Here is Lexis’ new pricing plan. State and federal case law is $115 per month plus a $25 per month administrative fee with a 3-year contract. The last time Lexis quoted me a price on this plan a couple of years ago it was around $200. The administrative fee reminds me of hotel resort fees, which aren’t exactly popular.

Casetext is $95 per month with no contract. Fastlaw is free through the Mississippi Bar. They work fine.

$1.8 Million Award in Mississippi FINRA Arbitration

Posted in Verdicts in Mississippi

The Investment News reports retirement investors won a $1.8 million FINRA arbitration award in Jackson against Raymond James for putting investors into penny stocks. It reports:

A three-person, all-public Financial Industry Regulatory Authority Inc. arbitration panel found in favor of 20 claimants who alleged they had been hoodwinked by a broker in the then-Morgan Keegan branch office in Jackson, Miss.

The penny stocks sales were for shares in CanWest Petroleum Co. and Ridgeway Petroleum Inc., two Canadian companies. The investments were put into individual retirement accounts. The companies were pitched by the Morgan Keegan broker as the next energy industry breakthroughs.

In reality, the broker was pushing firms that had no hope of turning a profit in transactions that were prohibited by the firm, according to the claimants’ attorney.

“These were sure losers,” said [Madison attorney] Judson Lee, “Any financial adviser who peeled back the layers to look at this would know they were unsuitable for clients. This was a wholesale failure to supervise a broker.”

The Plaintiffs filed their statement of claim in June 2017. The hearing took 32 session over a 7 month period in 2018-2019.

Here is the panel’s decision and Award.   The award included:

  • $1.1 million- compensatory damages;
  • $200,000- punitive damages;
  • $422,000- attorney fees;
  • $14,000- costs; and
  • $31,003- expert witness fees.

Jud Lee of Madison and Robert Greenlee of Flowood represented the Plaintiffs.

Terry Weiss and Stephanie Wayco with DLA Piper in Atlanta represented defendants.

My Take:

At least Defendants didn’t invest Plaintiffs’ money in cryptocurrency. No wait, that would have worked out better.

Overrated: Jury trials. The panel’s award was a big win for the Plaintiffs and is bulletproof from appeal. Who knows what a jury would do. But one thing is certain, there would be a lot of appeal issues and, who knows what an appellate court would have done.

Underrated: Jury trials. There were 32 hearing session between August 2018 and March 2019 at a cost of $1,300 per session for the panel arbitrators. Jury trials are faster and cheaper than arbitration and bench trials. Unlike in those forums, juries don’t get to go home before deciding the case or take 3 month breaks during the trial.

I am not opposed to arbitration in all instances. What most frustrates me about it is that the public justifications for it (cheaper & faster) are false. In my experience, it’s neither.

$70,000 Verdict in Gulfport Federal Court Sexual Harassment Case

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

On May 1, 2019 a federal court jury in Gulfport rendered a $70,000 plaintiff verdict in Gardner v. CLC of Pascagoula, LLC.

This was a sexual harassment case with a twist. The plaintiff was a certified nurse assistant at CLC’s assisted living facility. She was harassed by a resident of the facility–not the employer.

The District Court previously dismissed the case on summary judgment. But the 5th Circuit reversed in February. Here is the 5th Circuit’s Opinion.

The case went to trial soon after remand with the jury finding for the plaintiff. Here is the jury’s verdict form.

The jury awarded the following damages:

  • $30,000- past pain and suffering, mental anguish;
  • $30,000- future pain and suffering, mental anguish; and
  • $10,000- back pay.

Daniel Waide of Johnson, Ratliff & Waide in Hattiesburg represented the plaintiff.

John Wheeler and Brad Dillard with Mitchell McNutt in Tupelo represented the defendant.

District Judge Louis Guirola, Jr. presided.

My Take:

The 5th Circuit remanded the case on February 6. The Court set the case for trial on March 19. The trial started on April 29. That’s amazing.

Someone should give Judge Guirola an award for getting the case tried so soon after remand.

Judge Primeaux on an Unforseen Time-Bomb in Divorce Litigation

Posted in Attorney Mental Health

I don’t even practice divorce law, and this post on Judge Larry Primeaux’s blog Tuesday gave me anxiety. The post discusses a recent Miss. Court of Appeals decision involving an attempt to modify a divorce decree after underlying assumptions underpinning a property division changed.

Judge Primeaux explains:

This case highlights the difficult position that litigants find themselves in when the assumptions upon which the equitable division change or prove to be untrue. If you’re negotiating how to divide your client’s retirement, it would be better to cast it as alimony, which is modifiable. If that doesn’t fly, try to negotiate a percentage rather than a fixed sum. If the case is being adjudicated, be sure to develop your client’s position that any such award should be alimony, and why, and that any award should be as a percentage.

Whatever strategy you employ to minimize risk to your client (and you), it’s important to keep in mind that these retirement provisions are ticking away in your client’s life, far beyond the time limit to appeal, and remember: property division is not modifiable. [Emphasis added].

It’s the “and you” that made me break out in sweats. I had no anxiety litigating for the first 10 or so years of practice. Confident as hell, but sometimes what I later referred to as “young and dumb.” Now, the mundane can make me feel anxious. What changed? Experience.

Experience with seeing the unexpected happen. Experience losing. Experience with seeing a witness flip, a judge make a head-scratching ruling or a focus group jumping to conclusions based on improper reasons.

A lot can go wrong in litigation. And for attorneys, there’s not anything wrong with that–at least in general theory. It’s one of the biggest reasons clients need attorneys and attorneys can charge a lot for their work.

But that’s also one of the reasons being an attorney is a tough profession physically, mentally and emotionally. If you practice long enough, the unexpected will happen in a way that doesn’t go your way. And it’s going to suck.

Identillect Delivery Trust is Excellent, Inexpensive Option for Email Security

Posted in Legal Technology

The Mississippi Bar recently announced an affiliate promotion with Identillect Technologies for its Delivery Trust Email Encryption. The Bar offers a 20% discount on annual licenses and Identillect is currently offering a one year subscription to Bar members for the stupid-cheap price of $25.

I subscribed last week and give the software high marks. I bought the option that ties into Outlook, which I recommend.

Delivery Trust makes it easy to send encrypted emails with extra layers of security. Options include requiring passwords. There are options for retracting emails, preventing recipients from forwarding or printing emails and making an email inaccessible to the recipient after a set amount of time. It also tells you exactly when the recipient read an email.

From the Bar’s website:

As cyber-security concerns have become more ethically relevant for attorneys when communicating digitally, it is essential MS Bar Members have access to secure communication products at an affordable price.  The Mississippi Bar is proud to be the 7th state Bar to partner with Identillect Technologies, a well-respected company which provides simple, secure communication methods which plug directly into your existing email platform, including Gmail, Outlook, Office 365, Hotmail, and more.

Identillect’s services ensure total security and control over sensitive email communications, for both outbound and inbound email. Features of the service include unlimited secure email communication; the ability to restrict forwarding/printing of emails; full read receipt and retraction capabilities; easily customizable security settings; and much more. Click here for more information about getting started with Identillect today, and check the Bar’s CLE calendar for upcoming cyber-security lectures.

There are YouTube videos explaining the software on the Bar’s website.

I had a few issues with installation. Support was immediate and solved my problems.

Encrypted email is probably unnecessary for most garden variety communications. But sometimes, it’s nice to have. And sometimes you really need it. Particularly when your client prefers it.

Delivery Trust merits a close look for attorneys wiling to practice with 21st century tech.

How Big is the Attorney Scam Industry?

Posted in General

Every day. That’s how often I am targeted in some sort of scam attempt.

The majority of the scam attempts are emails that go into my junk folder that I never see. But plenty make it into my inbox. Like this email received this morning:

We are electronics components manufacturer and distributor located at Saitama-shi, Japan and We would like to retain your firm for litigation matter in your jurisdiction.

Please what is your hourly fee and standard retainer fee? Kindly advise to enable us forward you the adverse party information for your conflict check.

Please if you are not accepting new case at the moment we will appreciate it if you can refer us or forward our message to a business attorney that can handle this transaction for us.

We look forward to your prompt response.

Yours Sincerely,

Kunio Hijikata (President & CEO)

Nissoku Engineering Co., Ltd.

620-1, Asahigaoka, 

Hidaka, Saitama-shi, 350-1203 Japan 

Tel: 042-985-2411

Fax: 042-984-4151

Including what goes to my junk folder, I receive some form of this scam attempt several times a week.

I also receive plenty of garden-variety non-lawyer scam emails like:

Dear Friend,

Can you please stand as an Investor to receive funds for investment in your country? 

If Interested, Please Reply To My Personal Email:


Dear Card Member,

A Recent Charge on your Could not be Completed.

Kindly Verify this Immediately. [with a link].


New voicemail from WIRELESS CALLER 14703165505 to Reception Computer.

Received at 24/04/2019 02:01:52 PM (39 seconds). [with an attachment].

It’s no mystery why I (and you) receive so many scam emails. They work. People fall for them. Even attorneys. All the time.

Another big business is what John Morgan refers to as the lawyer trophy industry. Several times a week, I receive an email congratulating me that I’ve been selected to pay a high 3 to low 4 figure fee to join a prestigious list of lawyers.

I’m not talking the American College of Trial Lawyers or Mississippi Bar Fellows. No, the names are a bit flashier, like Top 100 Whoop-ass Trial Lawyers. You make think that is a big exaggeration, but it’s actually quite small.

Going through my junk filter, I’ve received emails selling awards from 7 different organizations this week.

I also receive multiple emails per week offering me the chance to pay internet marketers to send me case leads in my area, re-design my website or perform SEO witchcraft that will result in a huge influx of new cases. The way this one works is that you pay them, you don’t get any cases, eventually you stop paying them and they move on to the next target.

Being a solo is harder than being in a firm. And one of the biggest sucks about it is that solos are viewed as ‘marks’ by so many scam artists and sales people.

Perhaps the greatest thing about Baker Donelson that I didn’t know at the time was I never had to deal with any of this crap. No one ever tried to sell me anything office or business related. I wasn’t a mark because the sharps knew it was a waste of time to target a big firm associate. It was great. And I didn’t even know it.

There has got to be a lot of money in the business of scamming and selling trophies to lawyers. Because a lot of people are doing it.

April Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the April 2019 issue of the Miss. Jury Verdict Reporter:

  • $495,000 verdict- Bolivar County car wreck case lightly covered here (3/29/19);
  • $250,000 verdict- Aberdeen federal court civil rights case covered here (3/19/19);
  • $131,000 verdict- Pike County insurance contract case covered here (2/15/19);
  • $40,000 verdict- Panola County low minor impact car wreck case covered here (3/18/19);
  • defense verdict- Simpson County retail negligence case (3/28/19);
  • defense verdict- Harrison County church pumpkin patch accident case (3/21/19); and
  • defense verdict- Jackson County medical malpractice case (2/6/19).

Mixed Verdict in Jackson Federal Court FLSA, Breach of Contract Case

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

On Thursday a federal court jury in Jackson rendered a mixed verdict in Bingham v. Asemotas Real Estate, LLC.

Here is the Complaint.

Plaintiff alleged violations of the Fair Labor Standards Act and beach of contract.

Here is the jury’s Verdict.

The jury found for the Defendant on the breach of contract claim and hung on the FLSA claim.

The trial lasted 3 days.

Nick Norris with Watson & Norris in Jackson represented the Plaintiff. Brandon Dorsey of Jackson represented the Defendant.

District Judge Sul Ozerden presided.

$131,789 Verdict in Pike County Bad Faith Case

Posted in Verdicts in Mississippi

On February 15, 2019, a Pike County jury returned a plaintiff verdict of $131,789 in I-55 Development, LLC v. Nationwide Ins. Co.

Here is the I-55 Complaint w. Exs.

The case involved the theft of inventory at I-55’s convenience stores. The thief was I-55’s tenant, who leased the store and sold inventory on consignment. Nationwide denied coverage under a fraud exclusion.

Here is  I-55’s Response to SJ Motion w. Exs.

The jury found for the Plaintiff and awarded damages of $131,789.

Macy Hanson of Madison represented I-55.

Patrick Tatum of Upshaw Williams represented Nationwide.

Circuit Judge Mike Taylor presided.