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.

Was It Worth It?

Posted in U.S. Supreme Court

Was it worth it? That’s the question I’m left with following Judge Brett Kavanaugh’s confirmation to the Supreme Court.

On the plus side, at a normal life expectancy, he will serve on the Court for 30-plus years.

On the negative side, I’m not sure lawyers and judges who saw his loss of self-control at his Senate hearing can ever look at him the same.

Professional decorum is a fundamental tenant of our profession. To be blunt, lawyers and judges can’t lose their shit in formal proceedings. Ever. No matter what someone else says. It’s maybe, the first rule.

How long will law schools show Kavanaugh’s performance as an example of how students can’t act when they become attorneys? 100 years? When will there ever be a better example?

I don’t think Kavanaugh lost his shit. I think it was a performance. He planned to act unprofessionally because–apparently–someone told him he had to to save his nomination. Which makes it even worse.

Lawyers who are willing to break rules and cut corners sometimes benefit more fame and fortune than they otherwise would. Yet most lawyers think it’s a mistake to sacrifice their professional reputation. I’m guessing just about all judges agree, since judges choose to be public servants.

Which leaves me deeply perplexed by Kavanaugh’s performance. It’s the last thing I would have expected from a federal court of appeals judge.

Maybe it was worth it. But even so, most of us wouldn’t have done it.

October Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $3,500,000 verdict- Jackson federal court truck negligence case (9/14/18);
  • $754,366 verdict- Madison County breach of contract case (7/18/18);
  • $350,000 verdict- Gulfport federal court truck negligence case (9/28/18);
  • $5,100 verdict- Lee County car wreck case (8/28/18);
  • defense verdict- Hinds County dental malpractice case (9/7/18);
  • defense verdict- Oxford federal court car wreck case (9/18/18); and
  • defense verdict- Lamar County medical malpractice case (9/19/18).

My Take:

These verdicts help explain why: (1) lawyers bomb the airwaves with commercials for car wreck cases; and (2) many plaintiff attorneys refuse to even screen a medical malpractice case.

Receiver Files First Madison Timber Third-Party Action

Posted in Madison Timber Ponzi Scheme

The receiver in the Madison Timber ponzi scheme filed the first third-party action yesterday. It’s a doozy. Here’s the Complaint filed against Michael Billings, Terry Kelly, Jr., William McHenry, Jr. and related entities. It’s a good read.

The Complaint alleges Defendants received $16 million in Madison Timber commissions. I repeat, $16 million!

The Receiver also filed a Motion for Entry of Scheduling Order for Summary Proceedings.

The Receiver is posting the case pleadings on the Madison Timber Receiver website.

My Take:

$16 million? In commissions? For timber? Timber? For real?

The only way that would sound legit would be if the timber was stuffed with cocaine or heroin. Illegal, yes. But the amount of the commissions would make sense.

It will be interesting to see how the stupid defense plays.

Do Your Neck a Favor, Invest in the Varidesk Dual-Monitor Arm

Posted in Legal Technology

Legal professionals stare at computer monitors all day. Chiropractor officers are filled with legal professionals with sore necks. Coincidence? I don’t think so.

I stumbled on a product that does wonders for my neck when working on a computer: the Varidesk Dual-Monitor Arm. It is a monitor arm that easily mounts on a desk and holds 2 monitors. It is super easy to adjust the position of the monitors.

In particular for many people with neck pain, it helps to raise the monitors to a higher height than available with monitor stands. As I write this post, the bottom of my monitors are 14 inches above my desktop. They are also closer to my eyes than I could get with standard stands.

I’ve been using the dual-monitor arm on my Varidesk at the office for two years. When I recently added a full office in my house, I though I could live without one there. That lasted about a week. 

They are easy to install and mount on any desk–not just a Varidesk. The downside is the price: $195.

Yes, that’s a lot for something to hold your monitors. But chiropractors aren’t cheap and sore necks aren’t fun.

 

Predictably, Lawmakers Now Say They Didn’t Know PERS in Bad Shape

Posted in PERS Crisis

Jeff Amy with the Associated Press wrote this article about PERS published in Monday’s Clarion-Ledger. There are three key takeaways:

  1. in a sea change, PERS new leadership will no longer pretend there is not a big problem with PERS’ funding;
  2. there is a big problem with PERS funding; and
  3. legislators fully intend to throw former PERS Executive Director Pat Robertson under the bus by citing her history of rosy statements about PERS.

From the article:

Lawmakers also said they felt like former Executive Director Pat Robertson had promised them as late as last year that all was well with the retirement plan, and that they had been promised that no additional contribution increases would be needed after the employer rate went to 15.75 percent in 2013.

Robertson’s refusal to acknowledge the PERS crisis was a disservice to Mississippi taxpayers and set herself up to be the bad guy for a problem she didn’t create. I talked about how Robertson was making a mistake in posts dating back two years.

08/2017

12/2016

10/2016

Don’t get me wrong, lawmakers knew or should have known about the problem before now. But Robertson’s unwise statements allow them to feign ignorance.

House Speaker Philip Gunn nails why PERS is an important issue for everyone:

“When we talk about employer contributions, I don’t think it needs to be forgotten that at the end of the day, the employer is the taxpayer,” said House Speaker Philip Gunn, a Clinton Republican. “So when you’re asking for an increase, you’re asking for the taxpayers to step up and pay more.”

New PERS Executive Director Ray Higgins is taking the right approach in acknowledging and asking lawmakers to address the problem. This is good news. People should not get mad at him. They should thank him for ending the practice of ignoring the elephant in the room.

Now it’s time for the Legislature to start planning the big fix everyone knows has to happen. The PERS pension has to be grandfathered out and state employees put on 401(k) type retirement plans that reduce and cap the State’s obligations to retirees.

Oh yea, and about that 13th check….

September MJVR Preview

Posted in Verdicts in Mississippi

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

  • $2,208,311 verdict- Lowndes County medical malpractice trial covered here (8/31/18);
  • $235,000 verdict- Madison County negligent misrepresentation case (8/31/18);
  • $175,453 verdict- Jackson County breach of contract case (8/1/18);
  • $32,500 verdict- Marion County car wreck case (8/16/18);
  • $26,400 verdict- Hinds County County Court assault case (6/21/18); and
  • defense verdict- Madison County malicious prosecution case (8/28/18).

My Take:

Big month for the plaintiffs. I don’t recall a month where the plaintiffs had this high a winning percentage.

It will be a long time before someone tops that verdict in a med-mal trial. All the more impressive because of how conservative Lowndes County is. But the verdict is not as shocking as it might seem, as I discussed in the post linked above.

Finally, occasionally lawyers asked me why I didn’t write about their verdict. Usually, the answer is because they didn’t tell me about it.

I don’t scour the court files looking for verdicts. I don’t write about verdicts that I learn about for the first time when it is reported in MJVR. I don’t write about verdicts in cases I was involved in. That applies to the $3.5 million verdict in federal court in Jackson a couple of weeks ago. I didn’t try the case, but I represented a party who settled his claim earlier in the case.

Trial experience is important. More so when people know about it. A trial loss has almost as much reputational value as a trial win, unless the lawyer did a bunch of stupid stuff at trial. No one blames the lawyers for the facts. Food for thought after your next trial.

Bar Passage Rates Are In

Posted in Law School

The new phone book is here! The new phone book is here!

Maybe not. But that’s still one of my favorite movie scene 40 years later.

But the passage rates from the July 2018 Mississippi Bar exam are in: 58.8% passed.

A bit over 4 out of every 10 failed. Some would call them the lucky ones.

175 people took the exam.

The passage rate for Ole Miss’ first time takers was 73.7%. Here is the school’s press release. It says 38 students were first time takers.  I don’t have MC’s stats.

My Take:

Congratulations if you passed. Now you know how Navin Johnson felt.

The passage rates shouldn’t be what they were before 2008 because a legal career is not as attractive a profession as it used to be. Many smart people who don’t burn to be a lawyer wisely pursue other careers.

That’s how it should be. This is a tough profession. It should be reserved for idiots like me who burned for it and, despite all my bitching, couldn’t imagine doing anything else.

I feel bad for the people who failed. If it’s anything like when I took the exam, it’s the most stressful experience of your life. Until then, that is. Life gets a lot more stressful with jobs, marriages, kids, divorces, loved ones dying and someone eating your lunch you stashed in the break room fridge.

Sidebar: I suspect the movie ‘The Usual Suspects’ was actually inspired by efforts to identify the break room food thief at a law firm.

It’s been 25 years, but I remember bar exam week better than I remember last week. The memories:

  • the jackhammer going off out on the street outside the Robert E. Lee building where we took the test;
  • some people were too nervous to sleep at night;
  • one guy was so nervous he chain smoked a carton of cigarettes;
  • one dude punched a classmate in the nose at the after party;
  • a bit later, the punchee was woken by a cop taping on his car window while passed out at a red light on State Street (he let him go because he was covered with blood and the cop didn’t want to take him to the hospital); and
  • my then wife and me driving to D.C. for a wedding and her asking me my answer on what seemed like all 200 multi-state questions, usually with her crying and saying she failed (she passed).

The bar exam was one of those horrible life experiences that you remember fondly. When you pass.

Try not to get too discouraged if you are one of the unlucky ones who failed. I know some great lawyers who failed on their first attempt.

My advice is to focus on your process for studying for the test. Figure out how you can prepare better next time.

There is too much material to just sit down and study for hours. You need a study plan. Build a couple of extra weeks into your plan so that you are ready early or have extra time on the back end to focus on trouble subjects. You should not need to study the weekend before or at night during the exam.

I studied 8 hours a day, seven days a week for a month. Then I went to 14 hours a day, seven days a week for another month. Maybe I cut it back at night on the weekend–I don’t remember. It was not sit down and study. I made outlines for the state sections and took practice tests for the multi-state. I attended the bar review, but I wouldn’t today if I had to take another state’s exam (always possible for Mississippi lawyers). The time would be better spent on my own.

Yes, I do know people who never passed. And you know what? They are glad. They see the rest of us today and realize that odds are, they are happier today than if they had practiced law the last 25 years.

Ditch the Fax Machine

Posted in Legal Technology

Bad news for lawyers who still have a fax machine. It’s a security risk that hackers can use to access your whole computer system. This includes all-in-one printer/copier/fax machines.

Here is a recent Washington Post article discussing the problem. It says the legal industry still relies on fax machines:

The re­port es­ti­mates that there are more that 17 million fax ma­chines in use in the United States alone. The legal and med­i­cal fields both con­tin­ue to rely heav­i­ly on fax ma­chines to con­duct busi­ness be­cause they are wide­ly con­sid­ered to be a more se­cure form of trans­mit­ting sensi­tive in­for­ma­tion and sig­na­tures com­pared with email.

It should have said the legal and medical fields continue to use fax machines because they are stupid.

You don’t have to get rid of your fax capability to ditch the fax machine. Open an account with efax or a similar service ($16-ish per month) and you can send and receive ‘faxes’ without actually having a fax machine. It uses the newfangled internet machine.

I’ve had an efax account for over a year. I’ve sent, at most, one fax. I’ve received, at most, 5 faxes. I’m thinking about ditching efax, but at $16 a month, it’s practically free.

You also don’t need faxes for signatures. Figure out how to use electronic signature software like SignNow. It’s easy.

Your documents will come back signed faster than you ever imagined possible. It’s particularly useful when you need something signed by someone who is not tech savvy enough to scan and return a document.

The funny thing is, I bet a high percentage of lawyers still using fax machines are afraid of the cloud because of the security risks.

Industry Survey: Technology Threatens Legal Industry — Mr. Sunshine Reflects

Posted in General, Legal Technology

Altman Weil recently released: 2018 Law Firms in Transition, an Altman Weil Flash Survey.

From the introduction, comparing today to 2009 during the Great Recession:

The threat in 2018 is broader and more nuanced, arising primarily from the sweeping force of technology evolution over the last two decades that has resulted in the commoditization and commercialization of more and more legal services….

Most law firms continue to plan for short-term incremental improvements in performance, while deferring or slow-walking more forward-looking actions to address long-term, systemic threats.

That last line reminded me of many defense lawyers during the tort reform era of the early 2000’s. They were swamped with work and could not imagine ever not being busy.

At the time, I was a defense lawyer transitioning into a plaintiff practice (talk about rotten timing). Many fellow defense lawyers told me they would always be busy because plaintiff lawyers would always file cases. I know how crazy that sounds today, but it was a common belief in 2005.

Plaintiff lawyers certainly knew better. On the defense side, there were many lawyers drawing great paychecks sitting in mass tort depositions all day who never thought about workload next month, much less in a few years. Many of those legal eagles no longer practice law or have long since left the state for easier work.

Of the defense lawyers who did think about the future, maybe 20% had an inkling what was coming. The ones who did have done a better job adjusting to the new reality.

Divorce and criminal lawyers said less personal injury and consumer fraud litigation would not impact them because it wasn’t their practice area. Now they compete with former plaintiff and defense lawyers for that work.

The Altman survey is an interesting read. Among its conclusions:

  • there is an oversupply of lawyers,
  • billable hour demand is down,
  • there are still too many lawyers in many law firms,
  • more work is going in-house [to lawyers making less money but with a better quality of life],
  • work is being redefined or eliminated through the application of technology, and
  • the legal market will not be immune to the staggering changes wrought by modern tech.

The suggestions are bad news for big firm lawyers. They include weeding out more lawyers.

Final thoughts from Mr. Sunshine:

It’s sucked for people like me who graduated from law school in 1993. Ten years earlier, and we would have made a killing in the 90’s. Ten years later, and we wouldn’t had to so drastically adjust our professional expectations. On top of that, our retirement accounts have been halved. Twice.

We had to go through the period where no one knew how to use email yet and asshole emails were flying back and forth all day. We saw total idiots make millions. We saw great lawyers have breakdowns because their practices dried up. Many of those we started our careers with have left the state for greener pastures.

Of course, it hasn’t been all bad. I haven’t heard of a coke head lawyer in years. They can’t afford it anymore and have to stick to booze.

The worst part is that it used to be fun. Now, it’s just….not. Ask any lawyer–plaintiff or defense–if they are having fun. The answer will be ‘no.’ If you weren’t having fun practicing law in 2000, then you didn’t need to be a lawyer. Because it was a blast.

Why is the Legal Industry Shrinking?

Posted in Law School, Legal Technology

The ABA reports that the legal industry lost jobs for two months in a row. The combined jobs lost for July and August was 4,200 jobs. 200 fewer people work in the industry than this time last year.

Among the fields categorized as ‘professional and business services’, the legal industry is the only one losing jobs. For instance, accounting/ bookkeeping and architectural/ engineering are both up.

My Take:

Stats like these are a big deal. In a growing economy where more and more jobs are service-based, you would hope to see jobs growth in an industry. Why is the legal industry shedding jobs?

Technology? Fewer lawsuits? Continued centralization of litigation in MDL’s?

All of the above.

This is another reason to avoid law school. Career prospects are better in growth industries.