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Monumental changes in Mississippi legal system haven

Judicial reform is not a sport for the ‘short winded’

When you talk about how the legal profession in Mississippi has changed in the past 30 to 50 years, one of the most obvious things is demographics.

A half century ago, the profession was almost entirely dominated by white men. Today, about half of law school graduates are women, and there are African-American attorneys at all levels of the profession.

“When I began practicing in 1968, I was the 11th black lawyer in the state,” said former Mississippi Supreme Court Justice Fred L. Banks Jr., a partner with Phelps Dunbar, LLP, one of the oldest law firms in continuous practice in the South. “Of those 11, seven had been admitted to the Bar since 1964. Obviously, there were no black judges. We didn’t have black judges in a court of record until 1977. Before that there were no black judges above the level of justice court justice or municipal court magistrate.”

While more needs to be done, Banks said there are an increasing number of black lawyers in all different kinds of legal venues. Black attorneys have particularly done well as plaintiff attorneys.

“Black lawyers are on the top of the plaintiff side,” Banks said. “A lot of progress has been made in general for black attorneys in terms of earnings capacity and sheer numbers.”

Banks believes that improvements are needed overall in Mississippi to address the continuing problems regarding poverty levels and educational achievements for African-Americans.

“Anybody who has been around as an adult in the past 40 years knows that there has been a tremendous amount of change in the State of Mississippi, but there is still a lot of work that needs to be done,” Banks said. “There have been changes that have benefited African-Americans, and changes that have not been good.”

Women, reform also critical factors

Strides for women in the legal profession have been equally monumental.

Mary Libby Payne was one of the charter members of the Mississippi Court of Appeals and the founding dean of the Mississippi College School of Law. But when Payne graduated from law school in 1955, the only thing law firms she interviewed with for jobs wanted to know was how many words per minute she could type. This was despite the fact that she graduated number one in her law school class.

The advancement of women and minorities in the legal profession came at the same time that efforts were made in judicial reform that have had a huge impact on the fairness of the legal system.

While it is hard to condense those changes in one short article, Payne points to the following accomplishments she considers particularly significant:

• Rule making by the Mississippi Supreme Court. Previous to the mid-1970s, the Legislature made rules and procedures for the court system. That meant that non- attorneys, largely, were responsible for making the rules that governed the legal profession. Putting rule making under the Mississippi Supreme Court greatly improved the system.

• Justice court reform. Payne said that there has been a revolutionary turnaround in the justice court system by eliminating the fee system and placing justice court judges on a salary, upgrading qualifications and limiting the number per county proportionate to the county’s population.

• Reform in jury selection. The way juries are chosen has changed markedly. That was a result of federal case law, followed by reaction from the Legislature. Previously the boards of supervisors decided who was in the jury pool, and political cronies were paid off by being put on a jury.

• Better retirement benefits for judges were another important reform. Payne says in 1969, the average judge was in excess of 65 years of age. Many couldn’t afford to retire. There were problems with senility and having judges asleep at the bench.

• Pay for judges is an area where Payne said there has been improvement, but not enough. Salaries paid to private attorneys are so far in excess of salaries for judges that many judges have been recruited to work for private law firms.

“Look at the salary for a partner in a big firm with 25 years experience and compare that with the salary of a Mississippi Supreme Court Justice or even a trial judge, and you’re going to see there is great disparity,” said Payne, who was a member of the Judiciary Commission appointed by the Legislature that recommended many of the changes now in effect. “We have never accomplished the purpose of making compensation for the judiciary really competitive. But we have tried, and we have improved considerably.”

• Creation of the Judicial Performance Commission in 1979 provided a way to discipline judges who weren’t acting ethically. Before, even in the face of abuses, all that could be done to a wayward judge was impeach or vote the judge out of office.

• District attorneys have gone from part time to full time, and defendants who can’t afford to pay for legal representation are represented by professional trained public defenders.

• Implied consent laws have helped get drunks off the road, and greatly improve prosecution of people accused of driving while intoxicated. Implied consent means that by driving on a highway, the individual consents to take a breathalyzer test if stopped and under suspicion for driving under the influence.

Change does come slowly

Payne said the changes didn’t come easily or quickly.
“We ended up doing many things in the 1990s that were recommended in the 1970s,” she said. “Change comes slowly. At the Judiciary Commission, we had a slogan: ‘Judicial reform is not a sport for the short winded.’”

Another major change in the legal profession in recent decades is the size of law firms. Robert Cannada is one of the founders of the largest law firm in state, Butler, Snow, O’Mara, Stevens & Cannada, PLLC, Jackson.

“When we started the firm, there were seven of us,” Cannada said. “There were three of us and four in Charley Snow’s firm. We were the largest firm in the state. That was in 1954. Now our law firm has 150 attorneys.”

Cannada said one reason why law firms have gotten so large is because of the trends for specialization. “The law has gotten so complicated, a person needs to become an expert in one area,” he said.

Les Sumners of New Albany, a past president of The Mississippi Bar, is still practicing part time after 54 years. Sumners said one of the biggest changes he has seen over those years is the increasing polarization of the Bar.

“When I started practicing, I don’t think I knew of anyone who was exclusive a damage lawsuit lawyer or exclusively a defense lawyer,” Sumners said. “We took whatever came in the door and did the best we could with it. Now, it is sort of ‘us against them, them against us.’ We didn’t used to feel that way. We were a much smaller Bar then. All the lawyers got along, and there were no philosophical disputes among us that I can remember: pro-plaintiff, pro-insurance, pro-criminal defense, whatever. We didn’t play hardball as much in those days.”

Sumner believes that the worst thing that has happened to the Bar is advertising.

On the positive side, he believes the Bar does a much better job of disciplining itself these days.

“That was something we passed at a Bar association convention when I was president, and then a couple of years later Frank Montague was able to get it passed in the Legislature,” Sumners said. “Those are essentially the same procedures we have now. There is a big difference from what it used to be like.”

Working long hours

Montague, who still practices in Hattiesburg after 52 years in the profession, recalls that when he began to practice, to the extent there was an hourly rate for attorneys, it was $25 per hour. And the hours worked were very long.

“We worked until 1 p.m. every Saturday,” Montague said. “For Christmas Eve, we usually closed at noon, and returned the day after Christmas. Those were the days of carbon paper, and no copy machines, no computers, no fax, no e-mail and no retirement funds. I came to work at 7 a.m. and worked many times coming back at midnight to finish briefs by daylight. A lot of other lawyers did the same.

“In that respect, the work habits of lawyers have not particularly changed. Most still burn the midnight oil. I still work part of Saturday and part of Sunday afternoons, if ‘the ox is in the ditch’.”

Montague, who is widely regarded by his peers as a “gentleman lawyer,” agrees there is less respect between attorneys than used to be common.

“The collegiality and professionalism between lawyers used to be of a higher order, and was based on first a recognition of each lawyer’s duty to contribute to his community and his state,” he said. “There was a mutual commitment of lawyers to aid each other’s professional development, and to search for the truth.”

There is also less respect by the public for the legal profession. Montague attributes that to lawyer advertising. He said when lawyer advertising was approved, the types of excesses that have created an unprofessional image for attorneys were not foreseen.

One area where he sees need for improvement is, in litigation, the need to address abuses in discovery, which includes depositions, interrogatories, request for production of documents and physical evidence. Sometimes there are major disputes about sufficiency of a discovery response and what are considered overly burdensome discovery requests.

“The courts are often required to referee these matters, and that is consuming of time and resources,” Montague said. “Discovery reform is constantly under review by the courts and the Bar, and progress is being made in that respect.”

Another trend he sees that isn’t positive is that in recent years judicial selection has become more politicized and expensive.

“Reform of the judicial selection process and campaign financing is urgently needed in the interests of true justice,” Montague said.

On the plus side, he believes the trend towards legal specialization has served the public interest, and that there is healthy competition that has been good for the profession. He also points to the fact that Bar associations are more dynamically involved in the legal aid to the indigent program, continuing legal education and professional development, public issue studies and public service projects, including citizenship education as well as matters of legal ethics and discipline pertaining to the allegations of professional misconduct.

“These are very positive and healthy factors in modern day law practice and in the public interest,” Montague said.

Contact MBJ contributing writer Becky Gillette at bgillette@bellsouth.net.

About Becky Gillette

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