As this writer has noted before, Americans over 65 years of age will more than double in number over the next fifty years. As the population ages, so will the workforce. With that, prospects for age discrimination grow. In 2015, some 20,144 age discrimination charges were filed with Federal Equal Employment Opportunity Commission (EEOC). That is twenty percent (20%) more than were filed a decade previously.
Age discrimination in the workplace occurs when an employer discharges or refuses to hire a person on the basis of age, or determines one’s compensation or other terms and conditions of employment on the basis of age. Among indications of such discrimination are job opening notices seeking “recent college graduates,” “those ages 25-39,” “younger associate,” or using other similar phrases that would deter an older person from applying.
An employment decision based on age can be lawful in limited situations where age is a bona fide occupational qualification reasonably necessary for the normal operation of the particular business. Commercial pilots and those in the fashion and entertainment industries are examples frequently cited. Also, decisions based on good cause or any other reasonable factor other than age are not prohibited by federal law. “Other reasonable factor” refers to an element that may accompany age, such as declining health, strength, or diminishing competence.
These and related rules are found in the Age Discrimination and Employment Act (ADEA), the only federal legislation that addresses age in the workplace. The law protects public and private sector employees aged 40 and up. Private sector employers with at least 20 employees and engaged in industries affecting commerce must comply with the ADEA.
One believing himself to be a victim of age discrimination should first file a Charge of Discrimination with the EEOC within 180 days of being notified of the adverse employment decision. The EEOC will investigate an ADEA charge.
If the EEOC is backlogged or does not release the matter within 180 days of filing, a complainant can ask for a “right to sue letter.” He or she has 90 days from receipt of a right to sue letter to file a lawsuit. However, you do not need a right to sue letter before filing an age discrimination case, provided at least 60 days have passed from the date of filing of the Charge of Discrimination.
Potential damages or awards in an age discrimination case are: injunction to prevent future discriminatory employment practices; reinstatement; an award of back pay and front pay; and liquidated damages (potentially double the amount of the total monetary damages).
Employers should avoid discrimination on the basis of age unless age is a bona fide occupational qualification, as described above. Otherwise, the better legal advice for employers is to take advantage of the insight, experience, and maturity that older applicants and workers frequently bring to the table.
Last month, this office commented on financial abuse of the elderly and recommended a few common sense steps to combat that threat, including financial powers of attorney [POA’s] so long as “well-drafted and responsibly used.” Last week, the Mississippi Court of Appeals rendered an opinion underscoring both the inherent risks and potential usefulness of POA’s, which it commented are “nothing more than [instruments] that allow a principal to convey to an agent the authority to act on [his or her] behalf in identified matters.” Styled In the Matter of Estate of Elva Mae Hemphill (Miss. Ct. App. February 9, 2016), the case involved an agent (or “attorney in fact”) who used Elva Mae Hemphill’s POA to convert her certificates of deposit into new CD’s naming the attorneys in fact as joint owners. Such misuse of POA’s is not uncommon and is not illegal in all instances. Indeed, courts have long recognized that broadly worded POA’s “carry an inherent potential for fraud and abuse.” Estate of Elva Mae Hemphill, at ¶ 57. “This is not only because of the broad authority such powers confer but also because in many cases the power is granted precisely because the principal is vulnerable or dependent on others.”
Even in those cases, POA’s can serve a useful purpose. Well-drafted and left in the hands of an ethical person, they allow attorneys-in-fact to carry on the business and financial affairs of an incapacitated principal, to execute certain legal documents when a principal (incapacitated or not) is unavailable, and to take other proper actions.
Mindful of its benefits but also aware of the potential for its abuse, Ms. Hemphill and her attorney wisely included in her POA certain protections. Her power of attorney disallowed attorneys in fact from personally gaining from any transaction completed on behalf of Ms. Hemphill, prohibited mixing any funds owned by the attorney in fact with Ms. Hemphill’s funds, and prohibited the attorney in fact from receiving any compensation except for reimbursement of out of pocket expenses. Because of these crucial provisions, the liquidation of the CD’s in the Hemphill case was voided by the Court of Appeals and the money was returned to her Estate.
The lessons from Hemphill and other cases are clear. First, be careful who you trust with a power of attorney. Second, when you do vest someone with such power, include careful limitations, such as those in Hemphill.
According to the Administration on Aging, the number of Americans over 65 years of age will more than double over the next fifty years. The number of Americans 65 or older, which numbered around 45 million in 2013, will exceed 98 million by 2060.
It behooves lawyers and clients alike to be aware of the legal and personal implications of aging. Issues ranging from financial abuse of the elderly to the need for proper estate planning are likely to garner greater and deserved attention as the population matures. Further statistics are illuminating and troubling.
A recent MetLife Insurance study suggests that older Americans lost at least $2.9 billion to financial exploitation by a broad spectrum of perpetrators in 2010. For the many of us with loved ones who have been victimized, the issue strikes close to home.
Planning ahead for financial well-being and the possibility of diminished financial capacity is critical. Brandon Borgmann, an estate planning attorney in Columbus, Ohio, comments, “Most clients fail to think about potential incapacity when it comes to estate planning. Failing [to do so] can have a devastating effect on a client’s estate. An unsettling number of people prey upon incapacitated people for financial gain.”
Planning and vigilance are both a personal and family responsibility. Common sense steps as a family include talking with loved ones and educating them on risks, solicitations, and scams, learning the signs of elder abuse and financial fraud, getting to know your loved one’s team (financial, medical, and dental), setting checks and balances to minimize chances of fraud, and becoming familiar with loved ones’ planning documents.
Personal legal preparedness is equally important and in many instances will include well-drafted and responsibly used financial powers of attorney and certain asset protection trusts. If you have questions about these devices, or about related matters of living wills and medical powers of attorney, please feel free to contact this office.
Anyone who has bought or sold a house, applied for a credit card, opened a checking account, borrowed money, or purchased a new car is all too familiar with the accompanying flurry of paperwork. Within the assortment of forms and with increasing frequency, one will find a dispute resolution provision called an arbitration clause. Last month, in a three part series of articles largely critical of forced mandatory arbitration of consumer and employment disputes, the New York Times noted that “[o]ver the last few years, it has become increasingly difficult to apply for a credit card, use a cell phone, get cable or internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car, or placing a relative in a nursing home.”
Such clauses typically provide that any dispute or claim between parties will be resolved not through the judicial system but through binding arbitration, which is a private dispute resolution process that takes place before one or, in some cases, three arbitrators. Each side is solely responsible up front for their respective fees and costs of arbitration. The proceedings are conducted at the place specified in the arbitration clause. The arbitration award is typically in writing and is final, binding, and non-appealable. The arbitrator(s) may award the substantially prevailing party reasonable attorney’s fees and the costs of arbitration.
Although many point to desirable facets of arbitration (including speed and certainty of resolution), others criticize its drawbacks, including loss of the right to a jury trial, no right of appeal, no or limited discovery, limited assurance that otherwise binding legal precedent will be followed, and the requirement that both sides pay sometimes steep costs and fees up front.
Many courts therefore view these clauses with reservation, and enforce them with reluctance. For instance, three federal circuits this year have refused to compel arbitration in various contexts and, just last week, the Mississippi Supreme Court rejected an arbitration attempt where arbitration language in a contract with a community hospital was not sufficiently spread upon the minutes of that public body. See Wellness, Inc. v. Pearl River County Hospital, No. 2014-CA-01696-SCT (Miss. Sup. Ct. November 19, 2015). Two months ago, the Kentucky Supreme Court went even further, comparing arbitration agreements with surrendering parental rights or entering into personal servitude. See Extendicare Homes, Inc. v. Whisman, 2015 WL 5634309 (Ky. Sept. 24, 2015). More recently, the United States Supreme Court agreed to hear a California arbitration decision, MHN Government Services, Inc. v. Zaborowski, where the Ninth Circuit affirmed a district court’s refusal to compel arbitration in a 2-1 decision.
Whether seeking or opposing arbitration, it is wise to know the undercurrents and to appreciate that it is not a black and white area of the law. If you are dealing with an arbitration issue or are simply in a civil dispute and request legal assistance, please feel free to contact this office at 601-450-1111 or at [email protected].
When Ben Rogers found his friend Tom Sawyer whitewashing Aunt Polly’s “thirty yards of board fence nine feet high,” he declared that he was going swimming and added, “Don’t you wish you could? But of course you’d druther work, wouldn’t you?” “What do you call work?” Tom asked, not to be outdone and eager to lure Ben into helping. “Why, ain’t that work?” Ben responded. Tom said whitewashing a fence suits him. “You don’t mean to let on that you like it?” Ben demanded. “Like it?” Tom asked. “Well, I don’t see why I oughtn’t to like it. Does a boy get a chance to whitewash a fence every day?” From Mark Twain, The Adventures of Tom Sawyer, Chapter Two, 1876.
Handling appeals is for many lawyers what fence painting was to Tom: something you have to do occasionally but that you wouldn’t mind handing over to someone else. For others of us who derive satisfaction from researching the law and having the chance to shape its development, the discipline and contributions of appellate advocacy can be gratifying.
In that spirit and while good outcomes are never assured, this practice is pleased with a recent success before the Fifth Circuit in Bosarge v. Mississippi Bureau of Narcotics. The case involved allegations of a false misidentification of a participant in a drug buy. The man claimed that he was not there at the time and that his misidentification in a photo lineup was either intentional or reckless. Following time in jail, he sued under state and federal law. Law enforcement agents filed affidavits insisting that they correctly identified the person, supported by compelling details of their investigation and the incident. The agents also justifiably claimed qualified and absolute immunity.
The trial court found against the law enforcement agents by denying them immunity and ruling that the case against them could proceed, a ruling from which we appealed. The Fifth Circuit recently found unanimously in our favor, a complement to previous Fifth Circuit successes we have enjoyed. In this one, we were joined by a talented colleague from the Attorney General’s Office, Mr. Wilson Minor.
As Florida board certified appellate lawyer Jennifer S. Carroll recently commented in the Florida Bar Journal, “Appellate practice has evolved into a specialized area of the law, and justifiably so. The fundamentals of appellate advocacy— writing a simple, persuasive brief, making an effective oral argument, and having a command of the appellate procedural rules — necessarily reflect effort, skill and, at the highest level, art.”
We would never claim “art,” even as we aspire to it. What we can claim is a solid professional ethic, a commitment to getting it right, and timeliness in submissions and communications with appellate and other clients. If this office can help you in the appellate arena or otherwise, please let us know. To borrow again from our friend Mark Twain, “Maybe it is [work], and maybe it ain’t. All I know, is, it suits Tom Sawyer.”
Next to personal injury disputes and divorces, few civil case types are more common than those arising out of defective residential construction. The aggrieved homeowner spots a problem, be it with the foundation, the roof, or something in between. From his or her perspective, where there is a defect caused by a builder there ought to be remedy. From the builder’s perspective, there ought to be time limits on such exposure. There are. The limit is six years, measured from “the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof ….” Section 15-1-41 if the Mississippi Code of 1972 (Mississippi’s so-called statute of repose).
This past week, the Mississippi Court of Appeals was called upon to interpret this statute in a case involving sinkholes. In Aydin v. Marty Daniels Construction LLC, the house in question was custom built in 1995 for Chris and Kathy Ross and later was sold several times. In 2010, owners Nurdan and Adnan Aydin began noticing sinkholes in their backyard. The cause, the Aydins discovered, was this: when a gully developed on the property during construction in 1995, the Rosses asked the builder to fill it with construction debris and tree stumps and trunks. Fifteen years later, sinkholes developed at that location. Associated problems were numerous. After the gully was dug up and the decaying material was removed, approximately forty truckloads of dirt were needed to fill the gully. Their driveway was destroyed, and the sinkholes caused extensive damage to the interior and exterior plumbing of their house.
To avoid the six year statute, the Aydins argued that the gully and the defective fill material were fraudulently concealed and that one who fraudulently conceals is not protected by the six year statute of repose. The Court of Appeals agreed in principle, but said the Aydins had not established fraudulent concealment. Specifically, “there must be some affirmative act by the [builder] … designed to prevent and which did prevent discovery of the claim.” The problem for the Aydins was that they had no evidence to show that Daniels committed an “affirmative act” to prevent discovery of a claim. Rather, the builder filled the gully with the materials that had been taken out, he completed his work on the property to the satisfaction of and at the direction of the home owners, and he left. “There is nothing in the record or the briefs on appeal that indicates Daniels committed the requisite subsequent act of concealment.”
How might the result have been different? If the home owners had never requested that the gully be filled, but instead the builder filled and buried the debris on his own and without the knowledge of the home owners to avoid cost of hauling off the material. That might have met the fraudulent concealment test.
The six year statute of repose can yield harsh results, though its purpose (avoidance of open-ended builder exposure) is sound. Prospective and current home owners should be aware of the statute.
One having a claim for personal injury, property damage, or wrongful death against a Mississippi governmental entity or its employees must bring the claim under a series of statutes called the Mississippi Tort Claims Act (“Act”). This Act is the exclusive civil remedy against any governmental entity or its employees, and was the subject of a recent Mississippi Supreme Court decision on the Act’s breadth. That issue was important in Woodall v AAA Ambulance Service, Inc., 2013-CA-02124-SCT (Miss. April 23, 2015), because of the Act’s one year statute of limitations. The suit in Woodall was not filed for almost two years.
On July 3, 2010, Cynthia Woodall’s husband suffered a cardiac arrest while working as a HVAC contractor at a home in McComb, Mississippi. The homeowner called 911 and the call was immediately transferred to AAA Ambulance Service. Woodall alleged that AAA failed to respond soon enough and made insufficient attempts to provide Mr. Woodall with proper care.
She filed a wrongful death action on February 24, 2012, and the question was whether the Act’s one year statute of limitations applied. To answer that, the Mississippi Supreme Court considered whether AAA Ambulance Service was an “instrumentality of the state.” While one would not normally consider an ambulance service to be a state instrumentality, here the Mississippi Supreme Court found just the opposite since “governmental entities entirely own AAA and exercise substantial control over its operations.” AAA is owned by the City of Hattiesburg, Forrest County, and Forrest County General Hospital, a community hospital. Further, the City, the County, and the hospital select the entire AAA board of directors, and Forrest County General Hospital controls AAA’s day to day managers.
Since the Supreme Court found AAA to be an instrumentality of the state, the Supreme Court held that the Mississippi Tort Claims Act applies and affirmed the trial court’s dismissal of the case based on the Act’s one year statute of limitations.
The reminders from the Woodall decision are that the Mississippi Tort Claims Act is the exclusive remedy when pursuing claims against the state and political subdivisions, including state “instrumentalities,” that a one year statute of limitations applies, and that the reach of the Mississippi Tort Claims Act is broader than one might expect.
Chances are, you will never be sued. According to U.S. News and World Report, “[t]here were 278,442 civil case filings in the U.S. in 2012, according to the latest government data.” Though civil litigation is not exactly a rite of passage for most, still the time may come when you need to know how to handle a court summons.
Two things to remember. The first is not to panic. Instead, in most instances, you should consider calling an attorney, seeking legal advice, and deciding with him or her how best to respond to the allegations. The second is, do not ignore the lawsuit.
Under Mississippi court rules, a lawsuit begins with the service of written allegations (called a “complaint”) and a notice or “summons” telling you that you have been made a party to a lawsuit, how much time (typically 30 days) you have to respond, and what can happen if you do not respond. Regardless of the nature or validity of the allegations, lawsuits are serious business and deserve immediate attention.
If ignored, Complaints do not go away. They fester and get worse. Take, for instance, what happened to the two Delaware companies in a case just handed down by the Mississippi Supreme Court. In the case, styled BB Buggies, Inc. et al. v. Leon et al., the Court considered what to do in the face of a Complaint served on these businesses but not answered within the required 30 days. After about five weeks, the Plaintiffs did what the rules allow by taking against the companies a “default judgment” (a judgment for the Plaintiffs based simply on the Defendants’ failure to plead or defend). Once these judgments are entered, they become enforceable.
Thus, in the BB Buggies case, the Defendants scrambled once they learned about the default judgment. They asked the court to set the default judgment aside and let them answer. The trial Court denied the request and the Defendants had to perfect an appeal to the Mississippi Supreme Court. Two years later, the Mississippi Supreme Court ruled on the appeal. It said that, in deciding whether to set aside a default judgment, courts should consider (1) the nature and legitimacy of the defendant’s reasons for his default, i.e. whether the defendant has good cause for default, (2) whether the defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.
In BB Buggies the Supreme Court found that, although the Defendants did not have good cause for their default, the other factors weighed in their favor. On that basis, the Mississippi Supreme Court reversed and set aside the default. Meanwhile, the cost to the defendants in terms of attorney fees, expenses, and delay was huge. That much could have been avoided simply by answering the Complaint on time!
For a glimpse into a fascinating sector of the economy known to few outside the Silicon Valley, take a look at angelList.co. The site, which links technology start-ups with investors, was first discovered here after review of an ABA Journal article by Susanna Ray on legal service start-ups.
This is an interesting story and highlights what the ABA Journal calls “a paradigm shift in how law is being practiced.” Ray reports that the rise in legal service competing with traditional law firms for parts of the legal dollar “is redefining what lawyers do … by whittling away at the inefficiencies in the industry.” Examples offered include Modria (“the world’s leading online dispute resolution experts”), LawPivot (crowd-sourced legal advice for businesses), Fixed (“easily dispute parking tickets”), Ravel (showing relationships and trends among cases in a way that improves upon WESTLAW treatment in many respects), and others.
Awareness of this is growing among investors, if not among lawyers generally. In 2012, $66 million was invested in legal start-ups. In 2013, investments totaled roughly $458 million, according to Tech Cocktail, a media company covering start-ups. Ray believes that this “suggests a trend that’s here to stay and likely to lead to good results.” Investments statistics back that up. In addition, angelList.co presently lists 509 legal start-ups having a $4.3 million average valuation.
These are compelling statistics, though consumers and providers of legal services alike would do well to remember that it’s not just the content but the delivery. In the case of law and legal services, effective delivery depends on qualities that a good local lawyer is best suited to offer: integrity, intuition, experience, and knowledge of the local terrain. In short, serving clients involves more than “efficiency.”
If you are considering becoming an investor, check out angelList’s Investing Guidelines on start-ups. Guideline Number One: “Startups are very risky investments. Expect to lose your money. And don’t invest more than you’re comfortable losing.”
Those concerned by the continually rising cost of civil discovery in federal court may soon see some improvements. According to a report of the Civil Rules Advisory Committee following a 2010 conference at Duke Law School, litigation costs (mostly from discovery expense) more than doubled for twenty major companies between 2000 and 2008. The Committee’s bottom line, which has now resulted in proposed amendments to the Federal Rules of Civil and Bankruptcy Procedure, is this: “Rule 1 of the Federal Rules of Civil Procedure frames the purpose of the Rules: ‘the just, speedy and inexpensive determination of every action and proceeding.’ Every day, corporate and defense counsel must confront the fact that although well‐intentioned, the Rules are falling far short of this goal. The reality is that the high transaction costs of litigation, and in particular the costs of discovery, threaten to exceed the amount at issue in all but the largest cases.”
The proposed amendments would make several changes, all centered around these themes: effective judicial case management, proportionality, and cooperation. Case management changes would include requiring conferences with the Court before filing discovery motions, shortening the time to serve complaints (from 120 to 60 days), and reducing the deadline for entry of scheduling orders. “Proportionality” would be served by placing at the front of Rule 26(b)(1) a requirement that discovery be “proportionate to the needs of the case considering the amount in controversy, the importance of the discovery in resolving the issues, and whether the burden and expense of the proposed discovery outweighs its likely benefit.” In addition, presumptive numbers of depositions would be reduced to five and their presumptive maximum length reduced to six hours; presumptive caps on interrogatories would be reduced to 15. “Cooperation” would be encouraged by amending Rule 1 to require all parties to share responsibility for achieving the aspirations of the Rule.
If approved by the Standing Committee on Rules of Practice and Procedure, the proposed amendments will be submitted to the Judicial Conference with a recommendation for approval, which in turn submits the proposals to the Supreme Court. If approved by the Supreme Court, Congress has seven months to approve or reject the new rules. The revised rules would be officially promulgated on or before May 1, 2014, and take effect on or after December 1, 2014.
My father Frank D. Montague, Jr. passed away December 22, 2013, peacefully and surrounded by family. The son of Ida Lois Polk Montague and Frank D. Montague, Sr., he was born in Hattiesburg on August 26, 1925, and graduated with honors from Hattiesburg High School. He obtained his law degree in 1950 and then a B.S. degree in civil engineering in 1951, both from the University of Mississippi. While at Ole Miss, he served as president of the student body. He was a recipient of the American Society of Civil Engineers Award of Merit as Outstanding Senior Engineering Student and was placed in the University of Mississippi Student Hall of Fame.
He ran cross country, was a stellar athlete, and was working as a field engineer for Phillips Petroleum in Texas when, months before the Salk vaccine became commercially available, he contracted polio. He walked with crutches for the next 60 years, never letting that impede him.
He was a partner at Montague, Pittman & Varnado in Hattiesburg, where he was president until 2001. He is a 2012 Inductee into the University of Mississippi Law School Hall of Fame. He served as President of Mississippi Bar Association, the Mississippi Bar Foundation, the Lamar Order, Mississippi Defense Lawyers Association, the University of Mississippi Law Alumni Association and South Central Mississippi Bar Association, and as Chairman of the Mississippi Institute for Continuing Legal Education. He represented four southern states for two terms on the ABA Standing Committee on Professional Discipline and Chairman of the United States Supreme Court Disciplinary Rules Revision Committee, served as First Chairman of the Mississippi Tort Claims Board (for two terms by Gubernatorial appointment) and represented five Justices of the Mississippi Supreme Court, including the Chief Justice, in a matter before the Mississippi Judicial Performance Commission. He served as a specially appointed Mississippi Supreme Court Justice. He was a member of the Executive Council of the National Conference of Bar Presidents, a Director of the American Judicature Society and is a Life Fellow of the American Bar Foundation. He received the Mississippi Bar Foundation Professionalism Award and was the First Recipient of the Mississippi Defense Lawyers Association Lifetime Achievement Award. He was also the city judge of Hattiesburg from 1956-60 and the city attorney from 1965-74. He authored numerous legal publications and taught Journalism Law for a period at the University of Southern Mississippi. For 25 consecutive years, he was included in “The Best Lawyers in America.”
My father was also a dedicated member of the community, serving as president of the Hattiesburg Kiwanis Club, executive board member of the Area Development Partnership, trustee of Belhaven College and trustee of the Presbytery of South Mississippi. He was extremely involved at all levels with Boy Scouts of America, March of Dimes, Westminster Presbyterian Church, and the American Red Cross.
A U.S. Navy veteran of WW II, he was married for over 64 years to Mary Dixon Montague until her death on February 10, 2013. In addition to his wife, he was predeceased by a brother, Richard A. Montague. He is survived by three sons, F. Douglas Montague III (Becky Smart), H. Dixon Montague (Suzanne Rainey), and Brian A. Montague (Leigh Ann Sackler), all of whom are practicing attorneys, five grandchildren, Douglas Montague, Brett Montague, Reid Montague, Austin Montague, and Catherine Montague, a step-granddaughter, Kelli Cefalu, and sister Mary Montague Yerger (Wirt), as well as numerous nieces, nephews, and cousins.
The Montague family extends its profound gratitude to Doctors Bob Brahan, Joe Phillips, Scott Guidry, Richard Clark, Lisa Bushardt, and Eric Hale and, most particularly, to the nurses of Forrest General Hospital’s Seventh Floor North Wing for their compassion, skill, patience, and comfort. The family invites honoraria to the “Frank D. Montague, Jr. Professorship of Legal Studies and Professionalism Endowment” at the University of Mississippi School of Law, University of Mississippi Foundation, P.O. Box 249, University, MS 38677-0249 or to the Westminster Presbyterian Church Re-Building Fund, 115 N. 25th Ave., Hattiesburg, MS 39401.
A visitation and memorial service will be held on January 3, 2014, at Parkway Heights United Methodist Church, 2420 Hardy Street, Hattiesburg, MS 39401. Visitation will begin at 12:30 p.m. with the memorial service following at 3:00 p.m.
The number of civil cases being filed in federal courts and, of those, the number being tried are declining. According to Administrative Office of the U.S. Courts, the number of annual civil cases filed per judge in the Southern District of Mississippi declined from 525 in 2009 to 333 in 2013. For the same years, the number of reported trials per judge (civil and criminal) in the Southern District of MS averaged 26 and 25, respectively.
These trends are not unique to South Mississippi. Judge Patrick Walsh, a U.S. Magistrate Judge in the Central District of California, comments in the Fall 2013 edition of Litigation Journal, “[I]n the past 25 or 30 years, … we have seen the almost total disappearance of civil trials in federal court.” He reports that, of the 14,000 or so civil cases filed in that district each year. “fewer than 70 civil cases are tried.” Judge Walsh makes two instructive observations:
First, “the work of the district courts is, more and more, becoming the management of pretrial practice, including discovery, followed by settlement or dispositive motion.” Commenting that he resolves on average about one discovery motion per week, he adds, “I wonder out loud whether the lawyers have taken into account that they are spending large amounts of time and money to pursue a discovery motion—and, they hope, obtain discovery—in a case that will in all likelihood be disposed of short of trial. It’s not that discovery doesn’t have relevance for settlement or motions practice. It does. But the scorched-earth practice many lawyers employ, attempting to discover ‘everything’ without regard to cost and aggressively litigating when production is not forthcoming, seems inconsistent with the goals of the civil rules—the just, speedy, and inexpensive resolution of the case—and what one assumes is the client’s goal: obtaining the best possible result for the least amount of money.”
Second, he points jurists and practitioners to Federal Rule of Civil Procedure 37(c) as a way to reduce costs of litigation. The section provides that if you don’t identify critical documents or witnesses in your Rule 26 initial disclosures, you can’t use them in a motion or at trial (with certain exceptions). Judge Walsh comments, “I don’t think most lawyers know that this provision is in the rules. … To fix this problem, courts could include this provision in bold in the initial order. The order could also provide that, if the parties do not voluntarily disclose the information, they will not be allowed to use it. There is no doubt that this would encourage greater compliance with the voluntary disclosure requirements. After all, what’s the use in having great evidence if, because you failed to disclose it, you can’t use it?”
Judges and practitioners should remain committed to making efficient use of pretrial discovery as an effective means of resolving civil disputes. Federal Rules 26 and 37(c) can be key parts of that effort.
This month’s edition of Best’s Review, the monthly insurance news magazine, discusses the emergence of autonomous (“driverless”) vehicles and the implications for the travelling public and the insurance industry. The reality of driverless cars is drawing nearer. “Several auto manufacturers said autonomous technology could be ready for consumers in the next few years,” reports A.M. Best.
Drivers and insurers alike should take notice. A 2010 National Highway Traffic Safety Administration study found that adding autonomous crash-avoidance systems to vehicles could mitigate up to 81% of vehicle crashes. “Rather than paying out about $14 billion to attorneys, hospitals and others, [insurance carriers] are only going to pay about $7 billion because the car is going to be much safer,” comments Alain Kornhauser, head of Princeton University’s Transportation Program.
Premium savings could be a result. Best’s Review suggests a potential 9% drop in total property/casualty insurance premiums between now and 2017 and a 26% decline from 2018 to 2022.
But until this technology becomes truly road-tested and is allowed to interact with human beings (inside both the driverless vehicle and others), the impact is one big unknown for the experience-driven insurance industry.
The biggest unknown from their perspective and that of the legal community involves liability. In an accident, “who’s at fault … the driver? The car manufacturer? The programmer of the car’s software?” Insurers, legislators, attorneys, and regulators will be sorting that one out for several years. Meanwhile, Best recommends that insurers with a large auto insurance book start contingency planning. By 2040, the Institute of Electrical and Electronics Engineers predicts, autonomous cars will account for up to three-quarters of vehicles on the road.
Please feel free to contact this office with automobile liability or insurance questions.
Few things are more offensive to the rights of homeowners than an overreaching homeowners’ association (HOA) board of directors. The type usually run by those who – for whatever reason – seem more inclined to use power they don’t possess than refrain from using authority they have in the interest of neighborliness.
Last week, the Mississippi Court of Appeals rejected just such an effort in Kephart v Northbay Property Owners’ Association. Invoking the principle that “courts do not look with favor on restrictive covenants, [construe them strictly] and in the case of ambiguity, usually most strongly against the person seeking the restriction,” the Court of Appeals in Kephart unanimously rejected the attempt of a Madison County HOA board to forbid a couple from leasing a home. The lease fully complied with Northbay Subdivision covenants but not with a resolution enacted years later by the HOA board prohibiting all leases. The HOA board sued the tenants and won at the trial court. The Court of Appeals, in what many would call a victory for private property rights, unanimously reversed the decision and held for the sued tenants, ruling that a lease prohibition was something that only the majority of HOA members could approve. HOA boards should take notice. Please feel free to contact this office for more information or for assistance in this area.
In what he suggested was a victory for common sense, last week a federal judge in Maryland dismissed a race discrimination lawsuit filed by the EEOC in Equal Employment Opportunity Commission v. Freeman (D. Md. 8/9/13) . The EEOC argued that since “African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population,” employers wishing to avoid violating Title VII should have job-related reasons for screening out convicted criminals.
The EEOC has filed a number of lawsuits against companies who conduct criminal background checks on new hires, including against Dollar General in Illinois and against BMW in South Carolina. The EEOC contends that rather than applying a blanket rule of exclusion for convicted criminals, employers should consider the circumstances and make individual determinations. The EEOC encourages employers to take three factors into account: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct and/or completion of the sentence; and (3) the nature of the job sought. If the employer is inclined to exclude the applicant on account of the criminal history, then the EEOC contends that the employer should provide an opportunity for the individual to “demonstrate that the exclusion does not properly apply to him.”
The opinion in Freeman included this criticism of the EEOC’s position:
“By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.”
The Freeman case will not be the final word. District courts nationwide will face this issue and, depending on the judge hearing the case, will agree or disagree with the EEOC’s hard-line position. It will then be up to the appellate courts to have the final say.
In the meantime, employers need to understand that criminal background checks are being targeted by the EEOC. Employers should be prepared by treating each case individually and by documenting the rationale in each hiring decision involving someone with a criminal history.
According to a 2009 study by the Insurance Research Council, 28 percent of Mississippi drivers are uninsured. That is the most in the country and is twice the estimated nationwide uninsured rate of 14 percent. So, if you drive in Mississippi, it probably makes sense to obtain “uninsured motorist” (UM) coverage. It compensates you, or other persons insured under your automobile insurance policy, for amounts that you may be legally entitled to collect as damages from an owner or operator of an uninsured motor vehicle. Still, some people reject the coverage for cost reasons, not always mindful of the consequences. If they are in an accident caused by an uninsured motorist, the consequences become clear quickly.
By law, auto liability policies in Mississippi must include UM coverage unless it is rejected in writing. The Mississippi Supreme Court, in a recent decision, said that a written rejection of UM coverage was not effective where the insurance agent “failed to explain the waiver.” Honeycutt v. Coleman, 2013 WL 2350358 (May 13, 2013). Although the insured in Honeycutt admitting signing a statement clearly and voluntarily rejecting UM coverage, the Court noted that the waiver “itself neither explains the benefits of UM coverage nor the consequences of rejecting coverage.”
Three comments: (1) If you are insurer and don’t want to incur UM exposure for which you collected no premium, you should take a close look at your Mississippi UM rejection form and make sure it explains in plain English the benefits of UM coverage and the consequences of rejecting the coverage. (2) If you drive in Mississippi, think twice before rejecting UM coverage and insist on an explanation of its benefits and the consequences of not having it. (3) If you are in an accident with an uninsured motorist and find out that you rejected UM coverage, the coverage may still be available to you under Honeycutt decision.
Gettysburg, July 3, 1863
“Culp’s Hill hung in the balance for hours on July 3, with heavy casualties on both sides, but the North managed to keep the Confederates at bay. At the western side of the battlefield, Southern generals under Longstreet’s command were preparing for an artillery barrage that began at 1:00PM, the prelude to the Confederate’s final assault, now remembered as Pickett’s Charge.
“After two hours of deafening cannon fire, Pickett’s Charge began quietly, as nearly 18,000 Confederates stepped out from the trees on Seminary Ridge and marched across the open fields. For a full 10 minutes, awed Union soldiers watched them come. They soon realized that the waves of Rebels were converging on a copse of trees near ‘the Angle,’ a jog in the fence line along which thousands of Northern troops awaited the onslaught.
“The Confederate’s charge briefly broke the Union line but failed to overwhelm the Yankees. Decimated by Federal artillery, their forces and courage spent, Confederate soldiers retreated back across the fields of wheat and rye. Meanwhile, a few miles to the east, J.E.B. Stuart’s cavalry had launched a simultaneous attack meant to draw Union forces away from Pickett’s Charge. Stuart found stiffer resistance from Union horsemen than he expected, including a brigade led by young George A. Custer that sustained some of the heaviest casualties of the battle. The next day, July 4, the heavens let loose a flood of rain at Gettysburg as the Confederates retreated toward Virginia. Time would show that Gettysburg had been the high tide of the Confederacy, its most audacious battle and its greatest loss.”
This account comes from a fascinating look at the three days of Gettysburg, as seen by those on the ground. To see this work of a Smithsonian team led by Professor Anne Kelly Knowles, go to this site.
Part of the work of this office involves assisting estate representatives with the probate and administration of wills and estates. Such tasks are usually easier when the decedent has planned appropriately. Recently, I came across a wonderful tool to help with that. The American Red Cross publishes an Estate Planning Workbook, which is available and can be completed online. Go to www.redcrosslegacy.org/workbook, download the workbook and take the time to complete it. Afterwards, please be sure to let Rebecca Hughes or me know if we can be of further assistance.
PIC Group v. Landcoast Insulation was a local federal case arising out of the death of a worker and injuries to six others following the collapse of scaffolding. Claims for insurance coverage and indemnity followed, during the course of which requests were made for electronic data or what the Federal Rules call electronically stored information (ESI). Judge Keith Starrett found that, while those responding to the ESI requests may not have intentionally destroyed digital evidence, they were grossly negligent in gathering and producing it. The consequences were awful for everybody. “After all is said and done,” wrote Judge Starrett, “the parties will have easily rung up over a half million dollars in combined attorney’s fees, expenses, and costs associated with this discovery dispute, and the Court will have expended far more of its resources than it should have over the production of a few documents of questionable worth.” In addition, because of one party’s laxity and neglience in gathering the ESI, they were ordered to pay out of pocket (not through insurance) an additional $40,790.17 to the other side.
ESI can take many forms; more typical examples include email, hard- or thumb-drive stored documents and the data they contain, voicemails, text messages, data on smartphones, websites, blogs, tablets, laptops, and other. Writing recently in Forbes, Seagate’s Rocky Pimental commented that “only 3 percent of the world’s information was stored on digital devices like hard drives or optical disks in 1993. In 2000, … digital storage still only accounted for 25 percent of the world’s total information storage capacity. 2002 marked the first year that the amount of data stored digitally surpassed the amount stored on paper, …. But by 2007, … digital devices accounted for 94 percent of the information storage capacity around the globe. Hard drives alone accounted for 52 percent of the total, up from just five percent seven years earlier. In 2012, the total amount of digital information in the world reached 2.7 zettabytes – that’s 2.7 followed by 21 zeros – a 48 percent increase from 2011.”
The problem, as some have noted, is no longer computation; it’s management and storage. For litgants and those representing them, the challenges are clear (how to identify, preserve and produce discoverable digital information in this exploding digital environment) even if solutions are less so. Both the Federal and Mississippi Rules of Civil Procedure were amended (Mississippi’s in 2003 and more recently in 2012, the Federal Rules in 2006) to account for the reality that digital data and duties to gather and produce it during litigation are of paramount importance. My recommendations include:
1. Regardless of the size or sophistication of your business, don’t wait until you are in a lawsuit to implement and follow an electronic data management and retention plan.
2. If you are sued, preserve all ESI. Do not destroy or delete.
3. If you have questions, seek and obtain advice of legal counsel. It may be the best money you’ve ever spent.
This office is proud to have been recently included in Best’s Directory of Recommended Insurance Attorneys. The Best Directory began more than 80 years ago and, according to A.M. Best Company, “remains the most utilized resource for locating qualified professionals skilled in handling unique concerns of the insurance industry.” A.M. Best closely reviews professionals it chooses to list and “only experienced professionals with exemplary performance are included.” Having defended and prosecuted civil lawsuits at the trial and appellate levels for thirty years, working day in and day out with insurance carriers, their insureds, and others, this office knows insurance law and is very pleased to be recognized by A.M. Best Company.
Those hoping for a final determination of the constitutionality of Mississippi’s statutory cap on noneconomic damages may be disappointed by the recent Learmonth and Learmonth II decisions out of the Fifth Circuit and Mississippi Supreme Court, respectively. Despite some who characterize the Fifth Circuit’s Learmonth decision as a “defeat for opponents of Mississippi’s noneconomic damages caps,” the question of whether such caps violate the Mississippi Constitution’s Due Process Clause or Remedy Clause remains unresolved by the Mississippi Supreme Court and even by the Fifth Circuit.
In Learmonth, a federal jury found Sears, Roebuck and Company liable for serious injuries resulting from an accident between Lisa Learmonth and a Sears truck. The jury awarded Learmonth four million dollars in compensatory damages, which the Fifth Circuit found included approximately 2.2 million dollars in noneconomic damages. In accordance with Miss. Code Ann. §11-01-60 (2), the district court later reduced the noneconomic damages to one million dollars as required by the statute.
The parties appealed, and the Fifth Circuit certified to the Mississippi Supreme Court the issue of the constitutionality of the statute. The Mississippi Supreme Court declined to address the question, stating that neither party requested that the special interrogatory verdict form submitted to the jury include a jury finding on the amount of noneconomic damages to be awarded. Learmonth II, 95 So. 3d 633, 637 (Miss. 2012).
Though without guidance of Mississippi Supreme Court interpretation, the Fifth Circuit still took on the issues raised by opponents of the cap regarding deprivation of right to trial by jury and violation of separation of powers. Noting that “under Mississippi Law, noneconomic damages are awarded to compensate a tort victim for various forms of psychic, emotional, and reputational injury [including pain and suffering, loss of consortium, and injury to reputation],” the Fifth Circuit found that “the legislature’s authority to alter personal injury remedies is consistent with its power to ‘set public policy’ in matters of Mississippi Tort law.” Learmonth, 710 F. 3d 249, 261 (citing Pinnell v. Bates, 838 So. 2d 198, 202 (Miss. 2002)).
While the Fifth Circuit went on to find that the Mississippi statutory cap on noneconomic damages violated neither the right to jury nor separation of powers provisions of the Mississippi Constitution, the Fifth Circuit left an interesting crumb on the table when it said at the end of its opinion that “we believe that Learmonth has overlooked the possibility that, at least under some circumstances, the Mississippi Constitution’s Due Process Clause or Remedy Clause might impose substantive constraints on the legislature’s authority to cap compensatory damages.” Learmonth, 710 F. 3d at 266. The Fifth Circuit said that Learmonth had waived any due process or remedy clause challenge since she did not raise such arguments below and did not properly renew them on appeal.
This aspect of the Fifth Circuit’s ruling and Mississippi’s refusal to address the question of the statute’s constitutionality leave important issues unresolved and yet to be litigated.
Finally for an interesting discussion on how other state courts are dealing with this issue please see the recent article by David Hudson Jr. in the April 2013 addition of ABA Journal, entitled Flipping Caps (caps invalidated in Georgia, Missouri, but upheld in Kansas, elsewhere).
Want some sound, free legal advice? Here it is. Get it in writing. Someone promises you that they will do or pay something. Get in in writing. You are in a lawsuit and the other side says that they will settle under certain terms. Get in writing, without delay.
That is good advice, but sometimes it is not enough. In December 2012, Federal District Judge Carl Barbier in New Orleans approved a detailed written agreement between BP and attorneys representing business economic loss claimants throughout the Gulf South. Judge Barbier’s ruling was 125 pages long and left no detail unaddressed. BP agreed to and, in fact, co-authored the settlement. According to the Times Picayune, “The settlement was intended to compensate claimants for economic damages resulting from the blowout of BP’s Macondo well in April 2010, which caused a fire and explosions aboard the Deepwater Horizon drilling rig, killing 11 workers, and resulted in the uncontrolled flow of oil into the Gulf of Mexico for three months.”
On March 15, 2013, BP asked Judge Barbier to issue a temporary injunction as part of the class action suit, but also filed a separate complaint in federal court against Claims Administrator Patrick Juneau and the settlement program demanding that the rules be changed. BP sought essentially the same thing earlier and Judge Barbier rejected its position on March 5, holding that Juneau’s interpretation of the rules is correct and that the claims process should continue. As the Times Picayune reported on March 15:
“In his ruling, Barbier agreed that the rules might result in ‘absurd results’ at times, but he said BP was aware of that fact when it signed the settlement. That was part of the cost of settling a class action lawsuit, he said. ‘Indeed, the settlement agreement provides that if a claimant fails to select the period that generates the greatest recovery, the program will choose that period for him,’ Barbier wrote. ‘BP’s interpretation injects a subjective notion of alternative causation and a degree of complexity that are contrary to the settlement’s terms,’ the judge wrote.
“The Plaintiffs Steering Committee, which negotiated the settlement with BP on behalf of private claimants, also disagreed with the company’s reading of the rules, in a statement issued Friday. ‘This court has already affirmed Mr. Juneau’s independent interpretation of the settlement agreement, which is to say that claims are to be paid under the terms spelled out in the agreement — terms which were negotiated, co-authored and expressly agreed to by BP,’ said co-lead counselors Steven Herman and Jim Roy. ‘Simply put, BP undervalued the settlement and underestimated the number of people and businesses that qualify under the objective formulas that BP agreed to’.”
The settlement between BP and the Plaintiffs’ Steering Committee reflects the reality that the effect of the 2010 oil spill was catatrophic, region-wide, and pervasive. The courts will hopefully continue to say that BP, which experienced cash flow from its operations in the fourth quarter of 2012 of $6.3 billion (or about $68.5MM per day), should honor its written agreements. Getting it in writing should be enough.
Mary Atkins Dixon Montague passed away after a long illness on February 10, 2013. She was born November 17, 1928, in Monroe, Louisiana, the daughter of Harold Hart Dixon and Margaret Theus Atkins Dixon. She attended Ward Belmont College in Nashville, Sophie Newcomb College (majoring in Art History), the University of Mississippi, and the University of Southern Mississippi (majoring in Political Science and American and European History). In 1948 she married Frank D. Montague, Jr., of Hattiesburg. After brief residencies in Oxford, Mississippi, and Midland, Texas, the couple returned to Hattiesburg, where they raised their family and Mary earned English and History degrees from the University of Southern Mississippi and a degree from the New York School of Interior Design. She was an art dealer and Associate with International Fine Arts Association in New Orleans. She delighted in her acquaintances with artists, as well as interesting characters of all sorts, and enjoyed guiding friends and clients across the country and abroad in the curating of their personal and corporate art collections. She founded and operated Brass Key Gift Shop for many years with Mrs. Mildred Puckett and Mrs. Rachael Sigler. She was an exuberant traveler, an avid reader, and a gracious and accomplished amateur chef and hostess whose beauty and refined manner indulged a sharp wit, mischievous spirit, and contagious joie de vivre.
A unique creation, astonishingly talented, with an inquiring mind, she was gregarious and lovingly supportive of all ages. As part of her Teaching Certificate she taught at Thames school. She was a quintessential “Auntie Mame” to her grandchildren. Widely appreciated for her knowledge of art and history, her generous and inquiring spirit, selflessness and thoughtfulness of others, she served on the Advisory Board of the New Orleans Museum of Art, was a founding member of the Hattiesburg Arts Council and a member of the Junior Auxiliary.
She was a member of Westminster Presbyterian Church and active in the youth programs and Sunday evening fellowship. Prior to her marriage she was a communicant of Trinity Episcopal Church and always maintained a deep appreciation for its ministry and friends in Trinity.
She faced life’s challenges with strength and quiet courage.
She was predeceased by her father, Harold H. Dixon, her mother, Margaret Atkins Dixon, and her brother, Harold Dixon, Jr.
She is survived by her husband of 64 ½ years, Frank Montague, three lawyer sons, F. Douglas Montague, III of Hattiesburg (Becky Smart), Harold Dixon Montague of Houston, Texas (Suzanne Rainey), and Brian Atkins Montague of Hattiesburg (Leigh Ann Sackler), five grandchildren, Douglas McKenzie Montague, Brett Atkins Montague, Catherine Atkins Montague, Reid Atkins Montague and Austin Richard Montague, a step-granddaughter, Kelli Cefalu, a sister-in-law, Mrs. Wirt A.Yerger, Jr. (Mary) and several cousins, nieces, and nephews.
Services will be held at 2:00 p.m. on Friday, February 15, at Trinity Episcopal Church, with visitation in the parish hall on Thursday from 4:00 – 7:00 p.m and one hour prior to the service on Friday. The family wishes to express its appreciation to Trinity Episcopal Church for use of its facilities because of tornado damage to Westminster Presbyterian Church.
In lieu of flowers, memorials may be made to the Mary and Frank Montague Fund at the Greater Pine Belt Community Foundation, Newcomb College Art Gallery, New Orleans Museum of Art, or a charity, church, or institution of higher learning.
Businesses, churches, and non-profits in Mississippi and elsewhere sustained major economic loss as a result of the catastrophic Deepwater Horizon oil spill. Together with other attorneys dealing with these claims, this office is pleased to be hosting a forum and discussion at the Lake Terrace Convention Center in Hattiesburg, MS, on January 24, 2013, beginning at 6:00 pm. If you are interested in discovering how businesses, churches, and non-profits can easily file a claim and apply for funds already set aside for those that qualify, make plans to attend to this event. As space is limited, you should register to attend by either calling 601-602-4731 or emailing us [email protected] . We hope to see you there.
In a recent issue of GPSolo magazine, Chicago solo practitioner Peter La Sorsa comments on how technology has given solo lawyers the ability to practice “anywhere they take their laptop and have access to a high-speed Internet connection.” LaSorsa offers comments on how solo lawyers and small practices can use technology to stay on an equal footing with large firms in terms of delivery of service, a goal to which this office strives.
Cut out the middleman. LaSorsa says a solo lawyer has an advantage by remaining hands on in every aspect of case management: from answering the phone to file organization and oversight. “Nothing escapes you, and therefore you will know [cases] inside and out. You are able to give incredible service to your client — service your big firm competitors can’t match.” Like LaSorsa, I work and know my files.
Answer and return your calls immediately. A solo practitioner is the heart of the enterprise, which – as LaSorsa points out – depends in no small measure on being accessibile. Clients calling this practice can always reach me or leave a voicemail message that is delivered immediately to my inbox. Communications are never lost in translation and, as clients will attest, I return calls without delay.
Go paperless. La Sorsa comments that “[a]s a solo firm, you can scan and store all of your documents electronically and access them easily from your computer (backed up, of course, in the cloud). This practice stores documents electronically and backs up into the cloud, using a secure platform. For more on this, see my blog of April 17, 2012 (“Becoming a Paperless Office“).
I was very grateful to have been asked recently by friend and client Becky Ryder to be sponsor of the month in the monthly newsletter of Pine Belt Pacers (PBP) running club, “an organization open to anyone who has an interest in recreational and competitive running and walking in the Pine Belt area of Mississippi.” Objectives of the club, as posted on its website, are “to provide physical, social, and emotional support for anyone interested in participating and competing in distance running or walking.” Thanks to Becky and friends in PBP, which is a wonderful organization full of runners eager to teach and (for the students among us) to learn. As they say in PBP, “Run! For your life.”
In a sign of the times for all professions, Newsweek announced today that its last print edition in the United States will be the December 31, 2012, issue. While editor in chief Tina Brown expressed regret over attendant staff reductions and “streamlining,” she said that “we must … embrace the all-digital future.”
In the world of lawyers and courts, we are doing that too – although change in state courts is coming slowly. In Mississippi’s federal court system, since 2003 pleadings have been filed electronically only and are available for viewing by all who register (pacer.gov). State courts here in Mississippi are slowly joining the ranks. Presently, trial courts in DeSoto, Warren, Harrison, Holmes, and Madison County are allowing electronic filing and viewing of pleadings. Again, registration is required (https://www.pamecapps.mec.ms.gov/onlinereg/).
Just this week, this office filed its first state court pleading online in Madison County Circuit Court. Hopefully, other state court judges and clerks will embrace this “new” reality soon and will see that the cost of implementing electronic filing and viewing is necessary and is less than the cost to court participants of not implementing this change. As the Mississippi Electronic Courts System website accurately proclaims, “[E]lectronic case filing systems … enhance the accuracy, management and security of records, reduce delays in the flow of information and achieve cost savings for the judiciary, the bar and litigants.”
A local business client recently came to me with a contract dispute with a business in another state. It was one of those that courts are poorly situated to handle. The amount in controversy was relatively small, especially compared with likely costs of conventional litigation. The parties were in different states and their positions were close but unbridgeable. The attorneys, charged with a professional duty of zealous advocacy, each argued their client’s position in informal settlement communications ably but to no avail. Then, in searching for alternatives to the “final offer or we’re heading to court” letter, inquiry was made into the subject of this blog: online dispute resolution or “ODR.”
I do not profess to be an expert on the subject; for that matter, I’m not much of a student, having only begun my research. But what I am seeing prompts the comment that lawyers in this situation do clients a disservice by not investigating and presenting the ODR option.
The Duke Law & Technology Review recently assessed a number of these services. OneAccord, it reports, “uses an innovative negotiation process and a powerful computer software program that enables multiple parties to participate in interest-based negotiation. The process has several phases and uses optimization . . . to transform conflicting objectives into fair and efficient solutions. Initially, a third party facilitator works with the parties either in person or over the Internet to help them express their interests and identify issues. The facilitator is an attorney who has completed a special 30-hour online training course. He or she helps the parties model a negotiation problem and complete a ‘Single Negotiation Form,’ which outlines the underlying agreement and leaves blanks for unresolved issues. The facilitator then works with each party individually to elicit their own initial confidential preferences among each of the issues and possible outcomes.”
Another of the many ODR services is Internet Neutral, which allows parties to choose from several online mediation alternatives, including e-mail, instant messaging, chat conference rooms, and/or video conferencing. The costs vary depending on the online technology used and the length of the mediation sessions. According to the Review, “For mediations relying on technologies other than e-mail (e.g. chat conference rooms or videoconferencing), the parties are charged a half-day fee of $250 (and then $125 per hour after the half-day), which is split equally between the parties. Disputes with simple facts that rely entirely on e-mail are charged for the time that the mediator spends preparing, sending and reviewing emails. The fee varies from $1 to $6 per minute, depending on the disputed amount. Internet Neutral uses conferencing software that enables the mediator to communicate with the parties in designated channels or “rooms” accessed by passwords. During the mediation, the software enables the parties to communicate through two channels: one channel is for a private dialogue between one party and the mediator, while the other channel is an open dialogue with all participants, including the mediator.”
ODR has its limitations, of course, and may in fact be well suited to only a narrow range of dispute types. But, for business lawyers and businesses alike, it is worth a look. For more information, see also http://internetbar.org/resources/online-dispute-resolution/.
Writing in admiration of a father’s indomitable and striving spirit, I was honored to be published last year in Vanderbilt Magazine. I proudly re-post the piece here on this Father’s Day. To my sons, I say with love what you know well: I have done my best as your father when approaching Frank’s example.
You are driving along, minding your own business (or, as your lawsuit might one day state, “operating [your] vehicle lawfully and prudently at all relevant times”) when “BAM!” someone texting and driving broadsides you. Though the accident is upsetting and the incident is serious, you are fortunate in the sense that your damages are to the vehicle only and for loss of use. In fact, after speaking with a lawyer, you are hopeful that the case can be handled through a simple one day trial.
You appear on your court date, have your repair invoice or estimate in hand, and are ready to go. You testify, begin telling the judge what happened, get to the part about cost of repair, and, just as the repair costs are about to come into evidence, you hear “objection, improper opinion, hearsay.” “Sustained,” says that judge quickly. You ask yourself what just happened.
The answer is that, to prove costs of repair in Mississippi, you need an expert witness! To prove cost of repair, one must prove that the costs of repairs were reasonable and that the repairs were necessary due to the alleged wrongful act. “Repair bills alone are insufficient to prove either reasonableness or necessity. Only an expert may express an opinion as to the cost of repairs.” Sims v. Collins, 762 So.2d 785, 791 (Miss. Ct. App. 2000) (owner was not a mechanic and failed to qualify as an expert; thus, owner was unqualified to express his opinion on the repairs).
Here is the good news: “If … the owner has lost the vehicle’s use for a period of time, … he is entitled to the value of the use of the property during this period. [A] precise and easily defined measure for loss of use of a commercial vehicle is the rental or usable value of the property during the period the owner has been deprived of it. …. Damages for loss of use should be measured by the cost of hiring another vehicle while the repairs are being made. The rental value of a replacement vehicle may be recovered, even though no other was actually procured during the interval.” Nat’l Dairy Products Corp. v. Jumper, 241 Miss. 339, 343-44, 130 So. 2d 922, 922 (1961).
Those among us who are the least bit hesitant about transitioning away from paper files and into the world of purely electronic storage, filing, and retrieval of documents would do well to watch a well done video presentation on The Paperless Office. More on that below. First, consider this the next time you have to manage or produce large volumes of documents, whether as a litigator, administrative assistant, or executive:
A banker’s box can house around 2500 sheets of paper, and weighs about 25 pounds. A typical USB thumb drive can hold over 200,000 pages of documents, which, printed, would weigh one ton. Add to the avoidance of expense and administrative burdens the following: over eighty percent of what we file traditionally never gets looked at again and we typically spend over an hour a day looking for missing information.
In a thoroughly prepared and easy to understand video, New Orleans attorneys Dane Ciolino and Ernie Svenson discuss what a “paperless office” is, why switch, basic strategies and technologies, how to keep your digital files organized and searchable, and some information on how to optimize your system to enable “anywhere-access” to digital files. Take a look by going to http://www.digitalworkflowcle.com/ and clicking on the video link. The video lasts an hour. It’s worth the time!
Congratulations to NBC News, sponsors of various bills in Congress, the U.S. Chamber of Commerce, and the Obama Administration for encouraging employers to hire veterans at this crucial time. The Pentagon estimates that 300,000 members of the U.S. military will retire from the military this year alone. An NBC News report that aired March 27, 2012, emphasizes the strengths we veterans bring to the table: we are trainable, we are used to working in team environments and in high-stress situations, and we understand the concept of the greater good. Vice President Joe Biden, whose son, Beau, deployed to Iraq as a JAG Officer with the Delaware Army National Guard, spoke with conviction about the matter while in Iraq last year. “We have an obligation,” he said. “They fought over here. They’ve gone through these God-awful sands and deserts and into harm’s way. They shouldn’t have to come home and fight for a job!” Speaking as one military and Iraq veteran, I hope all who read this will do their part by hiring a veteran. It would be an act of patriotism, and you will reap the dividends.
Almost two years have passed since the explosion and oil spill in the Gulf of Mexico, the results of which are still being measured and felt. The mobile drilling unit Deepwater Horizon, which was being used to drill an exploratory well for BP Exploration and Production, Inc. (BP), violently exploded, caught fire, and eventually sank, tragically killing 11 workers in April 2010. There followed the largest marine oil spill in history. Oil and other substances from the rig and the well head immediately began flowing unabated approximately one mile below the surface. For almost three months, oil spewed unabated into the Gulf, covering huge areas, polluting beaches, bays, estuaries and marshes from the Florida panhandle to west of the mouth of the Mississippi River. At the height of the spill, approximately 37% of the open water in the Gulf was closed to fishing. Before the well was finally capped, an estimated 5 million barrels (210 million gallons) escaped from the well. In addition, 771,000 gallons of dispersants were applied to the waters of the spill area, both on the surface and at the well head one mile below. It was an environmental disaster of unprecedented proportions, and was a devastating environmental and economic blow to this part of the country.
Current major sources of activity include filed civil actions (US v. BP et al., other civil actions in the states (Louisiana, primarily), and Multi-District Litigation), NOAA’s Natural Resource Damage Assessment and other federal activities, and the Gulf Coast Claims Facility being administered by Ken Feinberg. Legal remedies include penalties and other remedies under the Clean Water Act, certain state pollution control acts, and the Oil Pollution Act of 1990, and, for those directly harmed, economic damages, loss of profits and earning capacity, personal injury and wrongful death damages, natural resource damages, and other. If you have been affected by the spill and have questions, please feel free to contact this law office.
Critics of the billable hour are not hard to find. Many complain that it promotes inefficiency and makes pricing of legal services unpredictable over the life of a particular case or project. Also, some consumers of legal services will tell you that, even within a community, there is significant disparity between hourly rates among comparably experienced and capable attorneys. Alternative billing arrangement are available for the asking from many law offices, including this one. This is a recognition of the economic needs of clients and corporate philosophies like that of Pfizer, which now conducts 70 percent of its legal work through non-hourly arrangements with 17 preferred firms. “We determine a fixed fee at the beginning of the calendar year to be paid out in equal monthly installments,” according to the chief counsel of the Pfizer Legal Alliance, Ellen Rosenthal. According to the ABA JOURNAL, others who have complained about “sky high” fees have praised “small U.S. firms for their inherent cost containment.” The services of this small law office are predicated on providing reasonably priced, personalized legal support informed by 28 years of legal experience, practice before Courts at most every level, great breadth of subject matter familiarity, and a commitment to non-hourly billing alternatives in appropriate cases. Please feel free to contact us to discuss.
Today (Dec. 27) along comes news that Hackers affiliated with the Anonymous group said they are about to publish emails stolen from Strategic Forecasting, Inc. or Stratfor, a private intelligence analysis firm whose clients include the U.S. military, Wall Street banks and other corporations. Stratfor disclosed over the weekend that its website had been hacked and that some information about its corporate subscribers had been made public. Those responsible are promising to release the names of thousands of corporate and government customers, as well as email addresses, passwords and credit card numbers of individual subscribers to its services.
Lawyers who use the “cloud” (or online data storage systems) to store client information would do well to take heed. While state bar associations and the ABA Commission on Ethics generally deem “cloud” storage of such information acceptable, they all emphasize that lawyers must take reasonable steps to ensure that the process does not compromise client confidentiality. Lawyers who store in the cloud should take steps to ensure that the system is secure and that client confidentiality will be maintained. Richard Stockton, cochair of an ABA Technology for the Litigator Committee, advises lawyers to investigate whether firewalls are used and to determine whether it is necessary to encrypt information when sending data to the cloud. They should also understand what would happen to stored data if the vendor goes out of business.
Have a hack-free and bountiful 2012!
An article in a recent issue of ABA Journal (“Battle on the Homefront“) discusses the growing numbers of veterans treatments courts across the country. Over eighty such courts have been established in the past three and a half years, including one just established in Forrest County by Circuit Court Judge Bob Helfrich. “The growth – largely independent of the federal government – has been sparked by the recognition of judges, prosecutors, public defenders and legislators that a significant number of veterans are returning from the wars in Iraq and
Afghanistan with … issues that can manifest themselves in criminal acts great and small, and that steering them toward treatment they may have initially rejected will benefit society in the long run.” ABA Journal, November 2011. Although the programs typically exclude violent offenders and some others, many are eligible. The program typically takes eighteen months (including counseling, attendance at AA meetings or the like, and random drug and alcohol screens) and can be “a very hard program.” But the rewards, for participants, their families, and society, can be significant. Nationally, 70% of defendants finish the program and 75% are not re-arrested for at least two years.
I am proud to be a military and Iraq veteran and a former assistant district attorney. If you are a veteran or have a loved one who is and you have questions about these courts, please feel free contact me. I would be pleased to speak with you.
The Mississippi Secretary of State and the Mississippi Bar have published reminders that Mississippi LLC’s need to file their annual reports by the extended deadline of December 5, 2011. The Bar’s Notice, worthy of review if you are among the 43% of LLC’s who have not filed a Report, states the following:
“The Legislature implemented a new law requiring Limited Liability Companies (LLCs) to file an annual report with the Secretary of State’s Office or face administrative dissolution. This is the first year LLCs are required to file an annual report with the Agency.
“The filing deadline was April 15, 2011 and has been extended until December 5, 2011. While approximately 50,000 LLCs have filed, over 40,000 LLCs have not filed as of today. LLCs may file their annual report by visiting the Business Services page of Secretary of State’s website at www.sos.ms.gov. There is no fee for in-State LLCs to file their annual report. Should you need assistance or have any questions, contact the Business Services Division of the Secretary of State’s Office at (601) 359-1633.”
In addition, please let this Office know if we can help with LLC issues of any kind. We are ready to assist!
Mississippi Secretary of State Delbert Hosemann is reminding Mississippi voters of the three Constitutional Initiatives that will be on the November 8 ballot. He states in a November 1 email, “Voters will decide three constitutional initiatives: Personhood, Voter ID, and Eminent Domain. … Only two [prior initiatives] have ever made it to a statewide vote prior to this year—both addressed term limits and both failed.”
Mississippians will be asked to vote yes or no to the following questions:
- Should the term “person” be defined to include every human being from the moment of fertilization, cloning, or equivalent thereof?
- Should the Mississippi Constitution be amended to require a person to submit government issued photo identification in order to vote?
- Should government be prohibited from taking private property by eminent domain and then transferring it to other persons?
This writer fully agrees with the Secretary of State that “Mississippians [must] educate themselves on not only their candidates, but also these initiatives prior to the election.” He adds, “For an initiative to pass, it not only must receive a majority of votes cast (fifty percent, plus one), it must also receive 40% of total votes cast.”
The Secretary of State adds a point with which this blogger disagrees. He encourages every voter “to vote all the way to the end of the ballot,” adding that “these initiatives need to be determined on their merit, and not a technicality.” For voters who decline to vote on these initiatives because they feel they lack sufficient information, declining to vote yes or no is not a “technicality.” I say, gather information, but, if you do not and feel insufficiently informed, take a pass. The ramifications of an ill-informed vote could be – to borrow one of my older son’s favorites – “severe.”
The better option is to learn about the initiatives, and then cast an informed vote. A great source of information and comment appears at www.sos.ms.gov/elections/initiatives. Take time to read these discussions prior to the election.
I am happy to report that my new law office building is complete! Hats off to Walker Thrash and Kevin Thompson of Bellegrass Builders for delivering a first class product and for coming in six weeks early and under budget! Look for a grand opening announcement soon. Meanwhile, here is a photograph taken October 18, 2011.
Want to obtain limited legal advice and consultation without paying thousands of dollars or more for drawn out legal representation? A possible option, available in some but not all situations, is “unbundled” legal service. Much is being written on the subject these days. See, for instance, a wonderful piece written by North Carolina attorney Stephanie Kimbro on The Ethics of Unbundling in the October 2011 issue of the ABA online publication, GPSolo ereport. Ms. Kimbro, who has received awards for providing effective online legal support to clients, advises that “unbundled legal services should not be confused with automated legal-document assembly or blank legal forms for sale. Unbundling,” she comments, “requires the lawyer to guide the client through the limited legal process and instruct the client on handling certain tasks without the lawyer being involved in all aspects of the legal matter. For example, the client might execute and file a document at the courthouse or attend a hearing alone after the attorney has prepared the document and provided prehearing counseling.”
The Mississippi Rules of Professional Conduct (“MRPC”) allow “unbundling.” MRPC 1.2 (c) states that “a lawyer may limit the objectives or scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” The MRPC require that legal services, unbundled or not, be provided with competence, thoroughness, and preparation (as to unbundled services, preparation within agreed limits).
Of course, there are certainly risks. Ask anyone who has tried to represent himself or herself in a lawsuit. Nevertheless, obtaining “unbundled” legal assistance may be better than obtaining none at all. For both attorney and client, fees may be reduced because the attorney is eliminating expenses related to portions of the legal work. The key is to understand the benefits and risks by asking the attorney to explain each of those throughly and to capture the explanation in writing.
Stephanie Kimbro comments, “The practice of unbundling is not appropriate for every client or every legal problem. However, when handled correctly, the practice provides greater access to justice for individuals who otherwise might not seek full-service legal representation.” See her article at The Ethics of Unbundling .
In July 2011, I was pleased to present remarks at a local CLE Seminar sponsored by the Southeast Mississippi Legal Services Corporation on Intestate Estate Administration in Mississippi. If you’d like to see the slides used during the presentation, please click here. Copyright 2011 Brian A. Montague, All Rights Reserved.