Scorched Earth

It still amazes me the number of attorneys who litigate cases in the "scorched earth" mentality (i.e be as absolutely disagreeable as possible for no reason).  The business of law is hard enough as it is.  As attorneys, especially in family law, the truth of almost all cases lies somewhere in the middle.  Once this is realized, practicing family law becomes much easier.  This has even lead to some of the opposing counsel on the nastiest cases I have ever had, to become some of my close friends. 

Unfortunately, I see many cases where the attorneys get so wrapped up in proving they are "right", that the outer limits of the ethics rules are pushed in my opinion.  Civil cases are meant to be handled in a civil manner.  Once more people start doing this, only then will the public opinion of attorneys change.  In court as the saying goes, strive mightily, but eat and drink as friends.

Medical Malpractice Expert

Mississippi Code Annotated Section 11-1-58 provides that an attorney has to file a certificate regarding consultation with an expert prior to filing suit.  However, there is an exception to this that many people do not know about is under section 6 of the same statute.  There is no requirement of an expert consultation if the party is pro se.  This got me to thinking if a party files a pro se complaint and then an attorney enters an appearance.  You would still need an expert at some point but not with the complaint.  The case of Manning v. King's Daughters Medical Center decided yesterday located here has some language that hints at this which is worth filing away. 

Employment Litigation

I am starting to do more employment litigation.  I did a reasonable amount when I first started practicing and have had some things happen which renewed my interest.  With the economy like it is, there are a ton of employers violating the Fair Labor Standards Act in regards to wages, overtime, and various other issues such as the standard discrimination suits.  I would be happy to review these cases for any attorneys or other readers who have these issues.  We are doing some fee sharing arrangements with other attorneys who may have these cases after talking with the bar association in accordance with Rule 1.5 of the Mississippi Rules of Professional Conduct. 

Custody Modification

The Mississippi Court of Appeals decided Hall v. Hall yesterday located here.  The Court of Appeals affirmed a modification of custody from the Mother to the Father.  The trial court had found that modification of custody was justified based on dental neglect and the failure to treat a dog bite.  This case is a prime example of the higher standard to modify custody.  Something approaching neglect is necessary to justify changing custody for the most part.  The record showed plenty of evidence of this and affirmed the trial court judgment. 

Attorney's Fees

In Rigsby v. State Farm, the U.S. Federal Judge approved 2.9 million in attorney's fees under the False Claims Act dealing with certain actions of State Farm after the jury verdict returned a Plaintiff's verdict.  The opinion is located here.  The language in the opinion is good in arguing for attorney's fees in a case and provides a good form argument and itemization for presenting them. 

Appellate Record

Many times a party who wins at the trial level tries to drive up the costs of the opposing party by designating the entire record as necessary to an appeal.  The Rules provide that only the amount necessary to the issues on appeal are to be designated.  If the opposing party insists on using the entire record, that a look at Rule 10 of the Mississippi Rules of Appellate Procedure.  Appellate Rule 10(b)(4) states that the appellant has to pay for any additional portions of the record designated by the defense unless the appellant obtains from the trial court an order requiring the appellant to pay the expense.   The opposing party having to explain why certain parts of a record are necessary when they are not often stops this. 

Medical Records Cost

The cost of medical records in a case can be enormous.  It is nothing for a medical malpractice case or other large personal injury case to cost $3,000.00 to $4,000.00 in just the initial records.  Here is a link to an excellent article discussing how to reduce these costs.  It goes through the federal statute and tells how to ask for electronic copies of the records which is considerably cheaper.  I will definitely be experimenting with this.