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.

Ponzigeddon

Posted in Madison Timber Ponzi Scheme, U.S. District Courts in Mississippi

People all over Mississippi woke up this morning glad they had never heard of Arthur Lamar Adams before this week. Except for the victims of the biggest Ponzi scheme to hit Mississippi in around 15 years.

Here is the Felony Charges Filing.

Here is the SEC Complaint.

A.P. stories on the scandal are in the Washington Post and N.Y. Times. Kingfish is on it.

In retrospect, we were due for a Ponzi scheme to break in Mississippi. It’s been at least 15 years since the Namric-Nance Panama Blue Crab Ponzi scheme rocked the Delta. Here is my 2009 blog post mentioning that scheme and linking an article that Madison Timber investors probably wish they had seen.

Non-victims should not be too smug. The only people guaranteed to never fall for a Ponzi scheme are people who never have any money to invest. Ponzi schemes work because the stories are convincing and often backed up with fake documents that look real.

Word is that a lot of local doctors are victims. If you are a doctor-victim, the problem is not that you are dumb (although you may be). The problem is that you live in a state where your profession is at the top of the wage earning ladder.

You’re a target. Get used to it. This will not be the last time. Educate yourself. Don’t be a financial dummy. Don’t trust anyone with your money. Not an accountant, investment advisor, stockbroker, attorney or anyone else. Trust must be earned–not given.

If someone tells you that you can make 10% on an investment and it’s not risky–run. It’s either very risky, or it’s a scam. That may not have been the case in the 80’s when interest rates were 15%. It’s definitely the case now with 10-year treasuries paying 3%.

But there is a foolproof way to make 10 or even 20%. It’s guaranteed. There are no risks. You don’t have to trust anyone with your money. And I’m willing to share this big secret with you for free. Here it comes. Wait for it…..

SPEND LESS MONEY

Live below your means. Banks and brokerage firms let you open as many accounts as you want. Get money out of your checking account into other accounts where you are less likely to spend it. Tell yourself that if you are ever going to accumulate wealth, you have to slow your burn rate.

I’m really sorry if that’s not as appealing as a Ponzi scheme promising 20% returns. But I guarantee you that if you save 20% of your salary this year, you just made a 20% return.

A Look at That 5th Circuit Decision Everyone is Talking About

Posted in 5th Circuit Court of Appeals

A lot of articles are being written about the recent 5th Circuit decision ‘blasting’ prominent plaintiff attorney Mark Lanier. Here is the ABA’s story.

Here is the opinion: Aoki v. Depuy. The Court reversed a $502 million hip implant verdict (already reduced to $151 million due to Texas caps) and remanded the case for a new trial.

Lanier made too many references to defendants bribing Saddam Hussein’s regime and got way too cute with how he paid his experts.

My Take:

My view is more nuanced than Lanier got blasted. Lanier won.

Lanier made inflammatory arguments reminiscent of the Mississippi jackpot justice days, defendants objected, the court overruled the objections and the 5th Circuit reversed the huge verdict because of the improper arguments. It’s hard to argue with the Court’s decision.

If you aren’t familiar with Lanier, check out my post reviewing a book about Lanier trying a Vioxx case. One of the things the book talks about is Lanier having an in-house jury consultant. Let that simmer.

When Lanier tries a case he is swinging for the fences. He is trying to inflame the jury into rendering the $500 million verdict.

When that’s how you roll, you are always going to get close to the line on permissible arguments. Sometimes, you are going to cross the line.

That’s not how I roll. But who’s to say I’m right? I can’t argue with Lanier’s results. And he’s a lot more entertaining at a CLE than me.

Those arguments that Lanier shouldn’t have made may have been the key to the $500 million verdict. Without them, he might have been an underdog to win or win anywhere close to that amount. And he would have known based on the work of his in-house jury consultant.

Say what you want about Mark Lanier. This wasn’t his first rodeo. He knows what he is doing.

I don’t view the opinion as being that bad for Lanier. He got cute. It worked, until it didn’t. But it’s not over. The 5th Circuit remanded for a new trial.

Everyone focuses on Judge Jerry Smith taking Lanier to task. But he doesn’t even get there until page 43 of 57. Most of the decision rejects defendants’ various arguments that would have resulted in a reverse and render. It’s a beautifully written opinion on products liability law.

Products cases are a murderers row for plaintiffs. There are trap doors everywhere. Research Daubert and preemption long enough and it looks like plaintiffs can’t get a case to the jury.

But this case was a decision for the jury. Plaintiffs navigated all the trap doors and it held up on appeal.

Did Lanier and his co-counsel think a $500 million verdict would be held up on appeal?

Whatever they thought, what happened wasn’t anywhere near the worst case scenario. I’m betting Lanier means it when he says he’s not upset about the ruling.

The pressure on Lanier and the other plaintiffs’ counsel at the retrial will be much lower than the first trial. I bet they aren’t sick today and the defendants and their lawyers aren’t celebrating.

April 2018 Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the April 2018 issue of the Miss. Jury Verdict Reporter:

  • $80,336 verdict- Harrison County County Court car wreck case (3/23/18);
  • $2,000 verdict/ 75% fault to plaintiff- Pearl River County car wreck case (3/19/18);
  • defense verdict- Hinds County premises liability case (3/21/18);
  • defense verdict- Harrison County medical malpractice case (3/23/18);
  • defense verdict- Lincoln County truck stop negligence case (3/29/18);
  • defense verdict- Oxford federal court gender discrimination case (4/5/18); and
  • defense verdict- Jackson federal court race discrimination case (3/28/18).

My Take:

Plaintiffs went 1-6.

The $80k Harrison County verdict was a plaintiff win based on the information in the reporter. Not a huge win, but a good verdict based on the medicals.

The Pearl River County verdict was a defense win. My calculation is the judgment is for $500.

The jury in the Harrison County med-mal case deliberated for 12 minutes. Med-mal juries are so tough for plaintiffs that you could remove the caps and it would have virtually no impact on med-mal litigation.

Counter-intuitively, to me that’s a reason to not remove the caps. Why stir up the doctors again when it’s not going to matter?

There is no reason for the med-mal non-economic cap ($500K) to be lower than the cap for other cases ($1 million), but the chances of the legislature addressing that are 0%.

When Will PERS Armageddon Arrive?

Posted in PERS Crisis

Everyone knows PERS is going to implode one day. PERS executives, legislators, State executives, they all know.

Here are just a few articles on the topic just last week:

Pension Tsunami posts links to many stories every day.

From the Collapse article:

The next phase of public pension reform will likely be touched off by a stock market decline  that creates the real possibility of at least one state fund running out of cash within a couple of years. The math says that tax increases and spending cuts cannot do much. For one thing, as we learned from Detroit, at a certain point high taxes and poor services force people and businesses out. The numbers are just too big in some states to come out of the budgets. For another, voters won’t stand for it. The voters in these states have refused for decades to pay the full costs of the services they were already enjoying; they’re not going to have sudden conversions to paying full costs, plus the accumulated costs from the past. State constitutions will be amended if necessary and big legal battles will be fought. I cannot see any plausible scenario in which full promised benefits are paid.

Ignoring the PERS crisis is bipartisan for politicians. It’s becoming obvious that it’s monkey see, monkey do. Why should Mississippi address the problem? No one else is.

That’s a winning strategy for politicians. Unless it blows up when you are in office. Which it will at some point for somebody.

Do Yourself a Favor and Install a Scanner App on Your Phone

Posted in Legal Technology

Don’t be the person who takes pictures of documents with your phone. Install a scanner app on your phone and scan documents.

It will make it look like a document–not a picture of a document. It also allows you to easily ‘crop’ (adjust) the image size. It combines multiple pages into one document and automatically uploads it to a cloud folder of your choice.

When I go MC or the State law library I don’t have to make copies or take a bunch of notes. I use my phone app scanner to quickly capture the pages I need. It’s a big help.

My wife loves it because I can scan a document at home and text or email it to her. (I don’t have a home scanner yet).

A phone scanner is a simple tech tool that you will occasionally use that will make your life easier. Don’t be lazy. Install one and figure out how to use it.

And no, this is not a substitute for a real scanner. This is like a doughnut spare tire. You only want to use it when you have to.

I use the Scanner Pro app. It works fine. I’m sure there are others.

$475,000 Verdict in Gulfport Federal Court Slip and Fall Trial

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

Last week a Federal Court jury in Gulfport rendered a 40% defendant at fault and $475,000 verdict in Hlywiak v. Grand Casino Biloxi.

The combined judgment for the two plaintiffs was just under $190,000.

Plaintiffs alleged Grand Casino (Harrah’s) created a dangerous condition by maintaining a pool deck with a coefficient of friction (slipperiness) below the acceptable standard. Plaintiff slipped on a slick surface while stepping over a surface joint after exiting a hot tub . Plaintiff’s expert performed tests showing that the surface was too slick on both sides of the joint but especially slick on the side plaintiff slipped on.

Harrah’s never tested the surface and neglected to tell their paint supplier what coefficient of friction they needed for the surface to be safe.

David Baria and Brandon Jones of Baria-Jones in Bay St. Louis represented the plaintiffs. Taylor McNeel and Rodgrick Hickman with Brunini in Biloxi represented the defendant.

District Judge Sul Ozerden presided.

My Take:

Sounds like some good plaintiff lawyering with the expert, testing for slipperiness, etc. Usually, a case like that is: “I fell; pay me.”

And usually, it doesn’t fly.

Governor Bryant Appoints Joseph Sclafani to Hinds County Circuit Court Judge

Posted in Hinds County Circuit Court, Politics in Mississippi

The Clarion-Ledger’s Jimmie Gates reports on Governor Bryant’s appointment of Joseph Sclafani from a field of 11 applicants to fill the retired Judge Bill Gowan’s seat on the Hinds County Circuit Court.

Sclafani has practiced at Brunini in Jackson since 2003. He will run for a 4-year term in the November election.

The article notes that Gerald Kucia, Trent Walker and Faye Peterson have signed up to run for the seat in November and Hinds County Youth Court Judge Bill Skinner might run. There is also talk in legal circles that Judge Skinner may have his sights set on a Hinds County Chancery Court seat.

I expect Sclafani to do a good job. He is smart, hard working and friendly. Those are three good traits for judges. I’ve had several cases with him over the years and enjoyed working with him.

Teeth gnashing by plaintiff lawyers when a defense lawyer becomes a judge almost always turns out to be unfounded. Especially early on, civil attorneys (plaintiff and defense) usually have more problems with criminal lawyers moving to the bench. That seems to die down after a few years.

Twenty years ago, attorneys complained about judges more than they do today. Maybe it’s because there are fewer cases. Maybe the judges are better. Maybe the judges are just friendlier, or more accurately, less unfriendly.

There were some gruff judges in the 90’s who aren’t on the bench today. Lately, everyone who moves to the bench seems to get decent reviews.

Judge Willett Leads With Hand Grenades and Footnotes

Posted in 5th Circuit Court of Appeals, Legal Technology

Rookie 5th Circuit Judge Don Willett’s first opinion is out. It’s a sad criminal tale involving 143 of 144 hand-grenades being duds. Don’t worry, he went there:

Maturino’s plan for live grenades fell short, but close counts in horseshoes and hand-grenade cases.

My Take:

I’d hate to be the dude who sold 143 defective grenades to the drug cartel.

More interesting than the decision is the format of the opinion. Here’s how I break it down:

  • Font: century schoolbook
  • font size: 13
  • margins: justified
  • use of footnotes: prolific
  • footnote font size: 11.

There are both very happy and very sad appellate lawyers today. Appellate lawyers love to argue about font, margins and footnotes.

Obviously, font causes the most heated arguments. There are 3 camps:

  1. Times New Roman;
  2. Century Schoolbook, Arial, other decent fonts; and
  3. goofballs.

Times New Roman is the Buick of fonts.

Goofballs spend all day locating the goofiest font in Word and then use it on some case cracker motion. Everyone’s first reaction to the motion is: “Good God! What’s that font?”

Century schoolbook is a nice font. I used it until switching to Equity Text a few years ago.

I paid for Equity Text. That’s right. I spent money on a font. Complete nerd.

After font, the biggest cause of bar fights among appellate lawyers is whether to put citations in footnotes. I’ve used footnotes for 20 years since attending a Bryan Garner workshop. Garner loves footnotes and hates legalese (hereby, wherefore, whereby, etc.).

Some people don’t like briefs with footnotes. I’m going to start citing this opinion in my first footnote in every brief as “see U.S. v. Maturino….” with no parenthetical explaining why.

Judge Willett indented his footnotes the same length as new paragraphs. I don’t indent footnotes at all. To me they look better with no indention.

Whether to justify margins is hotly debated. I do. Some judge don’t like it. One federal district judge in Jackson famously doesn’t like justified margins. I worry more about whether a judge likes my margins than the font or footnotes.

The important thing for young lawyers is knowing that you have to write all briefs in the presiding judge’s preference for font, font size, footnotes and margins. They aren’t going to tell you what they are. You have to figure it out. Guess wrong, and you’re sure to lose.

Using Tech. To Save Time and Money on Office Administration

Posted in Legal Technology

A lot of tech resources save both time and money. Going paperless is an example. Eliminate most paper from your office and you eliminate most office supply costs.

And office supplies are expensive. I had sticker shock on office supplies when I opened my office. Everything cost at least five times more than I would have guessed.

Here are a few things I am doing to save administrative time that solo and small firm lawyers may want to consider:

  • use mobile banking app on phone to make bank deposits;
  • pay as many bills as possible on business dedicated credit card;
  • link credit card to Quickbooks to categorize expenses; and
  • use Stamps.com to print stamped envelopes.

When you pay bills with a credit card you save time and money on checks and postage.

I advise against paying any bills other than your credit card bill through a debit to your checking account. If you aren’t going to pay with a credit card, use a check.

Once you turn over your bank account information to a vendor you run the risk of them charging your account for an unauthorized charge. If they do that on a credit care it’s easy to reverse. It’s hard and expensive with a bank account. For instance, never give someone like Lexis your bank account information. You’ll regret it if you do.

A month ago I converted from Quickbooks desktop to Quickbooks online for bookkeeping. Converting my data from the desktop to online version went smoothly. As with all cloud based software, it works better on the cloud than on my desktop. Now I don’t have to worry about Quickbooks desktop crashing my computer, which happens.

On the surface, Quickbooks online is more expensive than the desktop version. I think I paid $300 for a year and it will go up to $500 per next year. You can buy QB desktop pro for $300.

But desktop software is more expensive to run. Desktop Quickbooks is a bit janky. It requires regular updates. I had to get IT involved with it at least a couple of times a year. Those costs offset any savings from using the desktop version.

Online QB navigates differently. I am still getting used to that. But it’s a better solution than desktop.

Credit Fuels Law School Tuition Bubble

Posted in Law School

Too much credit in the markets fuels bubbles. The most notorious example in recent memory is the subprime mortgage crisis that caused the Great Recession in 2008. Some people say we are currently in a sovereign debt bubble that is causing a bubble in all asset classes. The jury is still out on that one.

Since the early 1990’s, there has been a credit fueled bubble in law school tuition. Here is a site that analyzes the law school tuition bubble.

Law school tuition has continued to rise since 2008 despite the value of a law degree falling substantially. Why do law schools keep raising tuition? Because they can.

Many students use loans to fund law school. Rare is the young adult who can appreciate the life choking impact of years of huge student loan payments when it is explained four years before payments begin. Almost without exception, they assume it will all work out.

And in a way, it will all work out. Just probably not how they are thinking.

Here is my recent conversation with a law school applicant:

Him:  Do you think I should go to law school?

Me:    Only if you will not have to take out loans to pay for it.

Him:  But if I don’t take out loans, how can I go to law school?

Me:    I’m sorry, I have to get back to my letter bitching about someone’s discovery responses.

Maybe you can win a circular argument. I can’t.

As long as the loans can’t be discharged in bankruptcy, law schools will continue to raise tuition while admitting more students than the job market can absorb.

And prospective students who can’t identify a better option than three years of law school and ‘it will all work out’ will continue to take the loans and go to over-priced law school.

BTW, you know what I NEVER hear? I never hear anyone say I wish I had gone to law school. Just like I never hear a lawyer who leaves private practice for in-house, government or another profession say they wish they had stayed in private practice. My point related to this post is: are you sure you want to go to law school?