Philip Thomas’s Long Good-Bye

March 11, 2020 § 3 Comments

As I forewarned in a previous post, Philip Thomas’s blog, Mississippi Litigation Review & Commentary, shut down last week. Philip’s eponymous Last Post, lengthy and replete with personal references, is at this link.

On one level, Philip’s post is a meditation on how the practice of law has changed over the past 25 years, and decidedly not in favor of civil litigation practitioners. He discusses the insane stress that lawyers experience from the practice, the procedures, the office, family, and financial. He muses over other ways to make a living that allow one to be more human, and he relates his experience of the curative powers of wilderness hiking.

On another level, it’s one more disappearance from the Mississippi legal blogosphere that was once more satisfyingly populated, as I pointed out here before.

Between the lines Philip seems to say that we are in the twilight of the law as we have known and practiced it. Changes are curdling the edges of the practice: more ADR; settlement lawyers; mediation; arbitration. Lawyers tell me that clients are more insistent that their cases get settled, and soon, to avoid litigation costs and just get on with their lives. Lawyers who savored the joust and prolonged litigation for their enjoyment are not favored so much any more. Even in chancery, where 15 years ago there were two or more contested hearings a week, the number of actual trials is down, and the number of settlements and agreed judgments is way up.

So here’s a toast to Philip for your thoughtful and thought-provoking posts that spanned 11 years. May your adversities and the jarring demands of the law subside like the turn off of a busy highway onto a peaceful trail sloping gradually through a conifer forest on a cool, breezy day, until you reach a peaceful summit where, reclined against a sun-warmed rock, you view the beauty of the world below, far removed from its clamor.



July 29, 2010 § 3 Comments

Philip Thomas, the Jackson lawyer who blogs at MS Litigation Review & Commentary has posted some trenchant thoughts about the cause of action for alienation of affection in Circuit Court that is sometimes used either for vengeance or to coerce a settlement in Chancery. 

I found his comments so thought-provoking for family law practitioners that I have copied and pasted it below rather than simply providing a link. 

I recommend Mr. Thomas’s blog to you as a regular read.  

Sick of Alienation of Affection Lawsuits?

Posted on July 27, 2010 by Philip Thomas

I’m sick of alienation of affection lawsuits. Who’s with me?

I’m sick of this one, which ironically was filed by a former Miss. Supreme Court Justice (McRae) who advocated abolishing the cause of action while he was on the Court. I’m sick of this one, which is just getting started. I’m sick of the one involving my old law firm that recently was the subject of a Supreme Court decision. I’m sick of the entire cause of action.

Here are just a few of the problems that I have with the cause of action:

  • fault—in an alienation of affections lawsuit, fault is placed on the third-person involved in the affair instead of the cheating spouse. But it was the cheating spouse who broke a vow.
  • causation—who can really say that the “alienation of affection” is what caused the marriage’s demise? Anyone who has ever been married knows that marriages are extremely complicated.
  • damages—as pointed out by Justice Dickinson in a concurring opinion in Fitch v. Valentine, there are no standards for compensating the plaintiff.
  • quasi-extortion—there is a quasi-extortion element to the cause of action. I’ve heard that many alienation of affection claims settle before suit is filed in order to keep the allegations out of the public record. Once suit is actually filed, the case is likely to go to trial because the plaintiff has shot his/ her biggest bullet. Compare that to the rest of the civil justice system where cases are rarely settled before suit is filed, but most do settle after suit is filed.
  • resolution—I do not believe that an alienation of affection case promotes the orderly resolution of the acrimony between the individuals involved. In fact, I think that it does the opposite.
  • 42 states do not recognize the cause of action. That fact standing alone does not make the action bad, but it does suggest problems.
  • the danger of entrapment—an enterprising couple who are grifters could set up an alienation of affection lawsuit and then share in the proceeds. A new couple moves to town. The wife is seen around town flirting with doctors and other wealthy men. This leads to a notorious affair followed by an alienation of affection lawsuit by the woman’s husband. In the lawsuit, the woman testifies that the affair did alienate her affection from her husband and destroyed their marriage. After a big settlement the couple then moves to North Carolina or another state that recognizes the action and starts the whole scam over. This is not that far-fetched to me. In fact, I would be surprised if there has never been collusion in an alienation of affection lawsuit.

In summary, it’s a bad cause of action that should be abolished

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