Virtuous Lawyer Is Not an Oxymoron

Virtues

Versions of this article were published by Ken Shigley as a president’s column in the Georgia Bar Journal (August 2011) and as the chairman’s column in the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section Newsletter (Spring 2016).


 

James[1] had great unrealized potential. Son of a minister in another Southern state, he won admission to an Ivy League university but washed out during his first year and went home to complete college and law school. A marvelous story teller, his closing arguments could hold juries spellbound. But his cleverness was so unrestrained by mere facts that judges and other lawyers learned to distrust anything he said.

With appetites as unrestrained as his legal arguments, he loved food almost as much as liquor. Over time he became a tragi-comic figure, bulging out of polyester leisure suits with his hair permed into a frizzy halo around his bald pate. A persistent, scandalous rumor about his “fee couch” was confirmed by a college girl whose brother he defended in a murder case. Observing his habits, I thought that if faced with a list of the traditional seven deadly sins — pride, wrath, greed, sloth, lust, envy and gluttony – he might burst into an impression of Julie Andrews in The Sound of Music, singing “these are a few of my favorite things!” Despite his jolly veneer, James swirled into a vortex of alcohol and depression, lost his law practice and his family, and died alone far from home.

When I think of James and his fate, I am reminded of a conversation I overheard at the Haralson County courthouse on an autumn morning in 1978. Two grizzled men, tobacco juice staining their gray stubble and faded bib overalls, sat on a bench outside the back door of the courtroom. As they awaited probation revocation hearings, they looked like they could have been failed moonshiners of a slightly earlier era. I overheard a fragment of conversation between these two “old men,” who at the time were probably younger than I am now.

“What you in for,” asked the first.

“My wife’s been running down my character,” moaned the second.

Mournfully, the first man replied, “I ain’t got no character to run down.”

In my arrogant hubris, I chuckled about these two pathetic old losers.  Eventually, as the scar tissue of life accumulated, I came to recall their exchange in a different light, as a plaintive cry from the bottom of a deep well of existential despair by human beings who, at the end of a long road of bad habits and poor choices, had given up on life.

With our fine educations, suits, briefcases and high-tech toys, we may see ourselves as far removed from those two codgers awaiting their probation revocations. But remembering the fate of the brilliant James, we can appreciate the importance of at least aspiring to develop virtuous habits and a character worthy of being run down by people who delight in repeating those tired lawyer jokes.

Not that I am any paragon, mind you.  I’m as much a work in progress, and miss the mark as much as anyone. If my vices are less blatant than those demonstrated by James, they are no less real. The leaning towers of paper on my office floor and the change in my waistline since my last marathon four years ago demonstrate that my habits do not match my aspirations.

The Rules of Professional Conduct are necessary for drawing clear lines and setting enforceable standards.[2] Several excellent aspirational statements on professionalism and civility[3] help to gently mold our conduct to a higher standard. But none of these are sufficient to build good character.  Through the cumulative effect of what one learns from parents, grandparents, teachers, clergy, scoutmasters, mentors and professional colleagues over a lifetime, accompanied by philosophy, theology, culture and common sense, we may be habituated to virtue.[4] Even if one lacked such early mentors, as long as we are on the green side of the grass it is not too late to begin a transformation.

Georgia’s state motto, “Wisdom, Justice and Moderation,” points toward timeless “hinge virtues” upon which scores of other depend — prudence (practical wisdom), fortitude (courage), temperance (moderation), justice, faith, hope and love.

Prudence, or practical wisdom, is the quintessential lawyerly virtue, essential to competent lawyering. It involves the pragmatic ability to see reality without delusions, to face good and bad in human nature, choose means and courses of action, soberly balance risks and possibilities, and manage life, practice and finances.[5] The prudent lawyer can recognize that the perfect is often the enemy of the good, and that the hardest choices are not between good and bad but between good and good and between bad and bad.

One is reminded of the airline instruction to place the oxygen mask over your own face before your child’s face, so you can be able to help.  Similarly, practical wisdom is necessary if a lawyer is to serve clients effectively over the long haul. This prudence is “a virtue of decision making that brings together thoughtfulness, experience, and analytical reasoning with empathy and humanity,” necessary to maintain a balance between sympathy and commitment to the client or matter at hand and loyalty to larger social and ethical imperatives.[6]   By increasing the likelihood that choices are made with thoughtfulness, analysis and empathy, prudence reduces the likelihood of regret.[7]

Prudence includes the analysis of all the ways that things could go horribly wrong for the client’s case or transaction, and how to deal with those negative potentialities. It may dictate careful case selection, telling people they don’t have a case that should be pursued or that a defense is without merit. It includes a duty to refer or associate when a case is outside the scope of one’s expertise. Also included are good office management practices and employing the equipment, staff, training and effective management needed for efficiency in a practice area, which are things law schools don’t teach and many of us don’t do as well as we should.

The flip side is that while prudence may make us better lawyers, if we cannot tone it down when we leave the office, it may ironically bear seeds of our destruction. An acute recognition of all the bad things that may flow from a decision may contribute to a general pessimism or “paralysis by analysis.” This may be a “chicken and egg” issue, insofar as there is a correlation between a pessimistic personality type and the prudence required to excel in law. If pessimism and anxiety leads to chronic depression, the potential adverse effects on health and relationships are predictable.[8]

Fortitude includes courage and the firmness of mind and will required to stand resolute for a cause or client and work against all odds to see that justice is done, even at great personal, financial and occasionally even physical risk. Though years may pass in mundane routine, risking nothing more than a paper cut or normal fluctuations of income, any of us may at some point find it necessary to muster the courage to risk anger, contempt, retaliation and severe hardship for the sake of the law’s own good. There is no substitute for such fortitude.[9]

The future doesn’t belong to the fainthearted but to the brave.[10] We ought to love something larger than ourselves – truth, justice and the common good of the community and the nation. Fortitude moderates our fear so that we may endure in doing well, even in the face of apparently insurmountable obstacles. We cannot be whole without bravely stretching toward some cause larger than ourselves.  By combining prudence and fortitude in the service of worthy purposes, we can avoid the trap of smallness of the soul.

We necessarily deal with conflict, but when our clients come to us seeking vengeance, we have an obligation to counsel peace. We may face adversaries who we dare not tempt with weakness and with whom it is necessary to deal from a position of strength. But the fortitude required of us is not the same as foolhardiness or intransigence. We must remember, in the words of President Kennedy, “that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate.”[11] While there are times when a lawyer must courageously lay it all on the line, we should allow for the possibility that we may be wrong in our judgment. We must be wise in picking our battles.

Lless dramatic, but no less important, we need fortitude in the daily grind of tedious, hard and unpleasant tasks, to do what needs to be done year after year without falling into destructive patterns of avoidance, procrastination, distraction and intemperance that ruins careers and lives.

Temperance, or moderation, does not refer to my great-grandmother’s support for the Prohibitionist Party candidates in every election from ratification of the 19th Amendment until her death. Rather, it is a reasonable, common sense, healthy moderation of habits, and maintenance of a healthy balance in professional, personal and family life.

In the movie A Time to Kill, the young lawyer reminds his burned-out mentor – who is swaying across the lawn with a bottle of liquor in his hand – of his old aspiration to “save the world, one case at a time.” The subtext was that the old warrior had lost his will to fight for justice, at least in part because he fell victim to intemperate habits. Personal moderation and temperance for us as lawyers requires reasonableness, detached impartiality, common sense and resisting temptations that would lead to dead ends – including but not limited to the temptations of substance abuse and infidelity.

Justice is a concept debated by philosophers for millennia, but a precise definition is still somewhat elusive and subjective. At root, justice embodies not just legal positivism but a sense of fairness and morality, both within the individual and in relation to others – balance, harmony and what one writer referred to as “social music.”[12] Of course, in our daily work with conflict, that music is often discordant.  For the individual practicing lawyer, our role requires a commitment both to advocate for justice for clients and to sustain the operation and the fairness in the legal system.

Remember the prophet Amos who wrote, “Let justice roll on like a river, righteousness like a never-failing stream.”[13]  Though we cannot ignore economic reality, we should not be so totally focused on money that we fail to serve the cause of objective fairness.  Few of us have opportunities to imitate the fictional Atticus Finch or to become a “drum major for justice” like the real life Martin Luther King. But in smaller and less dramatic ways we have opportunities to promote our visions of justice.  In doing so, we might keep in mind that service to others, whether organized pro bono legal work, ad hoc “low bono” labor, or work with the many forms of community service, can be “billable hours for your soul.”

Faith requires a comprehensive worldview sufficient to make sense of the harsh realities we often face in the practice of law. Running ahead of pure reason, faith sees higher and farther than our own experience can. It is not mere belief rooted in intellect, or mere trust rooted in emotion. Rather, it is rooted in the heart and, dare I say it in a secular bar journal article, in the soul of the person in relationship with a higher power.[14] Faith motivates us to persevere and to serve even when reason tells us all is lost.

Hope is directed to the future and is more than mere wishful thinking. It includes a view that out of the messy conflicts with which we must labor in the law, something good and worthwhile may yet somehow emerge.  Without hope of something better beyond our low ceiling and limited horizon, courage turns to despair. With hope, our deepest values and ideals are not meaningless subjective blips but foretastes of an objective reality, even if we are not here long enough to see it.[15]

Love in this context involves a commitment to treat others as you would have them treat you, and an unselfish concern on some level for the welfare of clients, witnesses, staff, colleagues, judges, court staff and even adversaries. It should become radically unselfish and gracious, beyond mere feeling, attraction, affection or compassion.  Without love, justice turns to cruelty.[16] But to manifest love for the unlovable, we need to develop both a kind of dangerous unselfishness and a capacity to exercise “tough love.”

Prudence, fortitude, temperance, justice, faith, hope and love.  Cynics may claim they are but hollow words signifying nothing to us, that the idea of a virtuous lawyer is an oxymoron.  Those who have done battle in courtrooms long enough to recall when bailiffs addressed all lawyers as “Colonel” can readily identify a rogue’s gallery of such lawyers who exemplify the worst public perception of the profession as callous, self-serving, devious and indifferent to justice, truth and the public good. They would try to downgrade the very concept with mockery and ridicule.  But aspiring to mold our personal and professional characters in accordance with these virtues will help equip us to fulfill a high calling as the stewards of the justice system, and remind us that despite the effects of legal education and culture, we lawyers are still humans with hearts and consciences.

Habits built upon an aspiration to adhere to these virtues may strengthen us, in the words of General Douglas McArthur when he spoke of “duty honor and country”:

They make you strong enough to know when you are weak, and brave enough to face yourself when you are afraid. They teach you to be proud and unbending in honest failure, but humble and gentle in success; not to substitute words for actions, not to seek the path of comfort, but to face the stress and spur of difficulty and challenge; to learn to stand up in the storm but to have compassion on those who fall; to master yourself before you seek to master others; to have a heart that is clean, a goal that is high; to learn to laugh, yet never forget how to weep; to reach into the future yet never neglect the past; to be serious yet never to take yourself too seriously; to be modest so that you will remember the simplicity of true greatness, the open mind of true wisdom, the meekness of true strength. They give you a temper of the will, a quality of the imagination, a vigor of the emotions, a freshness of the deep springs of life, a temperamental predominance of courage over timidity, of an appetite for adventure over love of ease. They create in your heart the sense of wonder, the unfailing hope of what next, and the joy and inspiration of life.[17]

The lawyer with a heart and soul trained through striving to develop such virtuous habits may try in some small way to emulate the fictional Atticus Finch, promoting justice, fairness and morality in one’s own daily practice.  We are not shown the fictional Finch’s daily grind of law practice in mundane situations devoid of potential for heroic drama. But perhaps at some point we too might become worthy of the scene where, beaten but unbowed, Atticus leaves the courtroom as the folk in the balcony stand and the Reverend admonishes Jem, “Stand up – your father’s passing.”[18]

 

[1] This article was first published as a “From the President” column at 17:2 Georgia Bar Journal 4 (Oct. 2011). The author served as president of the State Bar of Georgia (2011-12) and chair of the board of trustees of the Institute for Continuing Legal Education in Georgia (2012-13).

[1]             “James” is a composite of many lawyers encountered over the course of my career. Any recognizable similarity to an actual person, living or dead, is coincidental.

[2]             William T. Ellis and Billie J. Ellis, Beyond the Model Rules: Aristotle, Lincoln, and the Lawyer’s Aspirational Drive to an Ethical Practice, 26 T.M. Cooley L. Rev. 591 (2009).

[3]         Lawyer’s Creed and Aspirational Statement on Professionalism, State Bar of Georgia Directory & Handbook, http://www.gabar.org/related_organizations/chief_justices_commission_on_professionalism/lawyers_creed/ (viewed Sept. 5, 2011); Macon Bar Association, Assurances of Professionalism, http://www.redi.net/maconbar/prof.pdf (viewed Sept. 5, 2011);  Local Rules, Standards of Conduct, U. S. District Court, Middle District of Georgia, http://www.gamd.uscourts.gov/local%20rules/local%20rules%20amended%2012-1-09.pdf (viewed Sept. 5, 2011).

[4]             Charles P. Nemeth, Aquinas in the Courtroom: Lawyers, Judges, and Judicial Conduct 62 (2001).

[5]             Id. at 65;  Robert F. Blomquist, The Pragmatically Virtuous Lawyer, 15 Widener L. Rev. 93 (2009).

[6]             Jay Michaelson, In Praise of the Pound Of Flesh: Legalism, Multiculturalism, and the Problem of the Soul, 6 J. L. Society 98, 132 (Spring 2005).

[7]             Id.

[8]             Martin E.P. Seligman, et al, Why Lawyers Are Unhappy, 23 Cardozo L. Rev. 33 (2001).

[9]             Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 145 (1993).

[10]            Ronald Reagan, Space Shuttle “Challenger” Tragedy Address, January 28, 1986.

[11]            John F. Kennedy, Inaugural Address, January 20, 1961.

[12]            Peter Kreeft, Back to Virtue: Traditional Moral Wisdom for Modern Moral Confusion (1986) (Kindle Edition, retrieved from Amazon.com).

[13]            Amos 5:24 (NIV).

[14]            Kreeft, supra.

[15]            Id.

[16]            Id.

[17]           Gen. Douglas MacArthur, Sylvanus Thayer Award Acceptance Address, “Duty, Honor, Country, ” U. S. Military Academy, May 12, 1962.

[18]            Harper Lee, To Kill A Mockingbird (1960).

A Lawyer’s Calling

A lawyer's calling

A lawyer’s calling

Learn to do right; seek justice.
Defend the oppressed.
Take up the cause of the fatherless;
plead the case of the widow.

– Isaiah 1:17

It was a Sunday in December 1971, at my grandparents’ home in Mentone, Alabama, halfway down the hundred-mile-long plateau from Chattanooga to Gadsden that is Lookout Mountain. Within a mile radius were the simple homes, church, school and country graveyard intimately entwined with several generations of our family.

At the “children’s table” off the kitchen with my cousins, I could faintly hear the conversation of our elders at the “grownup table” in the dining room.   In my dad’s voice I heard the words “Ken” and “law school” as he told of the path I hoped to pursue after college.  The response to his announcement seemed strangely muted. I heard him explain that, similar to ministry or teaching, law could be a calling too. My grandfather, who served a lifetime as a minister all over Alabama, made some quiet expression of resigned acceptance.

We were a family of preachers and teachers, builders and farmers, solid and devout country people.  Not only had there never been a lawyer in the family in living memory[2], but so far as I knew then, no one in the extended family had even remotely considered a legal career. Until I was twelve, we had lived at Mentone, across a pasture from my grandparents. I spent many happy days roaming the woods with my dog and building my immune system in the cow pond.  My father, a principal, and my mother, a schoolteacher, took me across the state and time zone line every day for school ten miles away in Menlo, Georgia. But by the time I entered high school, my family had moved to the “big city” of Douglasville, Georgia, where at night on a then-rural hilltop restless teenagers could see the lights of Atlanta twinkling in the distance. Visits home to the mountain grew less and less frequent.

When the dishes were cleared away, and the women were clattering dishes and talking in the kitchen, Uncle Leonard took me aside. He was the only one of his generation who seldom left the mountain for more than a few days except to pick up a piece of German shrapnel that he would carry in his body all his life. He lived within sight of his birthplace, building and remodeling second homes for city folks, while his siblings pursued degrees and careers far from their roots. In some ways he was the best of the bunch.

With a look of profound concern on his weathered face, Uncle Leonard jabbed a work-scarred finger in my chest and demanded, “Kenneth, don’t you know that it’s impossible for a lawyer to go to heaven?”  In retrospect, I realize his challenge was based upon a strictly literal reading of certain passages in the King James Version of the Bible. In his dealings down at the county seat, including service as a part-time constable and a Republican bid for Sheriff when the Democratic nomination was still tantamount to election, he apparently had seen no reason to doubt this interpretation.

In the cockiness of youth, I laughed off my uncle’s warning. What could this good man who left school at sixteen and made a living with a hammer and saw possibly know about the moral and spiritual health of the profession to which I aspired? Nonetheless, I silently vowed to prove him wrong.

Laboring in the trenches of the law in the decades since, I have often recalled Uncle Leonard’s warning, especially on those occasions when I strayed across some line, either hazy or clear, that I should not have crossed. Moral compromises are by no means unique to the legal profession, but none of us are immune from temptation.

Uncle Leonard’s warning, delivered in the most literal, fundamentalist terms, may reveal spiritual and secular concerns about the soul of our profession, but it also contains a hidden kernel of hope when we reflect upon our lives and motivations. We all know lawyers, most in other practice areas but including some in the plaintiffs’ bar, who are disenchanted with their work, unhappy with their workaholic lifestyle, and questioning the wisdom of their career choices.

As Justice Sandra Day O’Connor observed in a speech a few years ago:

[L]awyers, as a group, [are] a profoundly unhappy lot. . . . Attorneys are more than three times as likely as non-lawyers to suffer from depression, and they are significantly more apt to develop a drug dependence, to get divorced, or to contemplate suicide. Lawyers suffer from stress-related diseases, such as ulcers, coronary artery disease, and hypertension, at rates well above average.[3]

A novelist wrote that “[a] profession is like a great snake that wraps itself around you.  Once you are wrapped up, you are in a slow fight for the rest of your life, and the lightness of youth leaves you.”  Of a lawyer he wrote, “I saw how greatly he suffered the requirement of being clever.  It separated him from his soul, and it didn’t get him anything other than a living.”[4]    Lawyers seeking to retain their souls and some remnant of the “lightness of youth” after decades of practice must seek not only to avoid punishment by following the disciplinary rules of conduct, but also to escape indifference by reuniting our sense of humanity with our profession and, ultimately, recognizing the law as a passionate vocation.[5]

Like many of us in the plaintiffs’ bar, I labored for years on the other side, defending the interests of insurance companies and large corporations against injured individuals and families.  Stressed and unhappy in that firm, I was well on my way to the lot Justice O’Connor described.

But then an older lawyer against whom I had secured a defense verdict referred me the case of Rachel, a 19-month-old who was catastrophically brain damaged in a near-drowning in a condominium swimming pool with a defective gate and lock. After the usual conflict check and with grudging approval from the senior partner, I took the case.

When Rachel slipped away from her mom, distracted by care for a newborn sibling, she was able to enter the pool enclosure through the defective gate. She was found floating face down in the March-cold water of the pool. Due to anoxia, Rachel’s body was alive but cognition apparently was gone. Her beautiful blue eyes would track visitors around the room as caregivers tended to her g-tube, suctioned airways and exercised limbs in an effort to avoid contracture. Through a year of fighting for as much compensation as was recoverable for Rachel’s care and frequently visiting with the family, I found my heart and soul as a lawyer.

Many of us in the plaintiffs’ bar have had similar experiences in which we found a calling to “do right, seek justice, defend the oppressed, take up the cause of the fatherless and plead the case of the widow.” Insofar as our work of passionate advocacy is inspired by such a calling we can reduce our risk of falling into an “ethical winter,” or a “hibernation of the soul,” which can result in cynicism and even self-contempt among so many of our professional colleagues.[6]  But even we, when we treat law as simply a money making machine, when are subject to forgetting that “law is rooted in something bigger than the people who hand it down, that law is rooted in history and in the moral order of the universe.”[7]

Viewed with the right perspective, the law can offer among the best opportunities to help people who are hurting and to temper and resolve human conflict.[8]  Those of us who bear the scars of long legal careers, however, know all too well how easy it is to lose sight of the intrinsic values of our work when we are laboring in the muddy trenches of the law day by day, besieged with phone calls and emails, stressed out about deadlines and seemingly insoluble conflicts, struggling to cover overhead, make payroll, feed all the mouths we are expected to feed, and reserve some personal space in our lives.

But when we view our daily work as a calling to do what we were meant to do in this life, in a place where our deep gladness and the world’s hunger meet, then we may find in the work of helping people solve their problems a value and meaning that transcends our fluctuating material rewards. [9]  Blooming where we are planted, we may find our callings to serve as instruments of both justice and love in our labor on behalf of the injured and grieving families.  Personal injury lawyers who are true to their calling help clients retain dignity and independence that has been diminished by injury.

AAJ, this section and our litigation groups provide rich opportunities for us to hone our skills and preserve the rights of our current and future clients.

Compared to the infinite scale and complexity of the universe, our lives are infinitesimally small and finite.  But in this snippet of time and space we occupy, we are called to interpret the moral order of Creation into pragmatic legal solutions for the messy problems presented to us, and to use our skills to temper the chaos to which human nature gives rise.[10]  Being able to recognize this calling and our peace-making and problem-solving abilities may allow us to regain, and live with, a sense of passion and purpose in the face of difficult circumstances and never-ending temptations to ethical compromise.

Through it all, we should remain thankful for the opportunity to work and serve in the law, rekindling a more mature and probably more humble version of whatever first inspired us to pursue legal careers.  Laying aside the pretenses of professional arrogance, we can rekindle our passion for justice and pursue more conscientious and effective relationships with clients and colleagues.[11]

In the words of the prophet Micah, we should seek to “do justice, love kindness and walk humbly with our God.”[12]  In so doing, we should prudently seek ways in which we can no longer conform to the flawed patterns of this world, but instead to be transformed by the renewal of our minds.[13]

When I return to Mentone and walk among the graves of kin who followed their own callings – my great-grandfather the builder who started a church and a school, my grandfather the minister, my grandmother who read to me stories that unknowingly first launched me toward the law, my parents the educators, and Uncle Leonard who issued that stark warning – I silently pray that I might be worthy of the calling I followed in the law.

 

 

 

[1] Originally published by the author as a president’s column in the Georgia Bar Journal, August 2011, and later adapted for the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section Newsletter in Fall 2015.

[2] I later learned than a forgotten collateral ancestor has been a lawyer, judge and congressman in antebellum Georgia, and died of “a fit of apoplexy” in the courtroom while defending a black man against a murder charge in Americus, GA, in 1860.

[3] Sandra Day O’Connor, Professionalism, Speech at the Dedication of the William W. Knight Law Center, in 78 Or. L. Rev. 385, 386 (1999).

[4] Mark Helprin, A Soldier of the Great War 110 (1991).

[5] John L. Cromartie, Reflections on Vocation, Calling, Spirituality and Justice, in Can a Good Christian be a Good Lawyer? 139, 143 (Thomas E. Baker & Timothy W. Floyd eds. 1998); see also Schutt, supra note 2, at 93.

[6] Robert F. Blomquist, The Pragmatically Virtuous Lawyer, 15 Widener L. Rev. 93, 107 (2009).

[7] Harold J. Berman, The Crisis of Legal Education in American, in Faith & Order: The Reconciliation of law & Religion 333-34 (1993).

[8] Cromartie, supra note 7, at 143-44.

[9]  Id., at 144-145.

[10] Thomas A. Wiseman, What Doth the Lord Require of Thee? in Can a Good Christian be a Good Lawyer? 35, 39 (Thomas E. Baker & Timothy W. Floyd eds. 1998).

[11] Jacqueline Nolan-Haley, Finding Interior Peace in the Ordinary Practice of Law: Wisdom from the Spiritual Tradition of St. Teresa of Avila, 46 J. Cath. Legal Stud. 29, 39 (2007).

[12] Micah 6:8.

[13] Romans 12:2.

A foolproof way to avoid leaving a child in a hot car

child carseatOnly a monstrous parent would intentionally leave a child in a hot car for hours to suffer and die. While that is the allegation in a pending murder case in Georgia, even if proven true it would be aberrational.

But every summer we hear of a rash of incidents in which a distracted, multitasking parents, usually functioning outside their normal routine, forgets a child sleeping in the back seat. The results are tragic — death or brain damage due to heat stroke. On average, 37 children die in this way in the US every year.

It can happen even to loving, caring, normally competent parents who thought this could never happen to them, but then become distracted.

Why has this become a common phenomenon in recent times? It is largely due to a string on unintended consequences. During the ‘90s that laws began requiring children ride in car seats, facing toward the rear, in the back seat, where they were safer but also more easily forgotten. About the same time, cell phones proliferated, providing another source of distraction for overstressed, multitasking parents.

There have been many suggestions in the media for parents to prevent such tragedies:

  • Put something in the back seat –  handbag or briefcase, cellphone or employee badge.
  • Keep a brightly colored stuffed animal in the car seat, and switch it to the front passenger seat when you put the child in the car seat.
  • Ask someone to call you 10 minutes after your expected arrival time to make sure you didn’t forget the child.
  • Always look in the back seat when you get out of the car, just in case.
  • Rig up mirrors to always have the child in view.
  • Development of auto or cell phone app technologies to back up parental memories.

None of these suggestions are foolproof. When I think of the times I left my cell phone or briefcase in the car, the times I intended to call my wife at a certain time, my own fallibility in remembering to look somewhere at a certain time, I realize how vulnerable busy parents are. While it has been a long time since I had small children, and they were out of child seats by about 1993 — before child seats had to be in rear-facing in the rear and before we all carried a smart phones in our pockets — I can easily imagine having a momentary but tragic lapse of mind.

So what do I suggest? Something simple, low tech, foolproof and easily made into a habit.


When you put a child in the car, take off one of your shoes, put your cell phone in that shoe, and place it next to the child seat. You will not leave the car without the shoe, and thus not without the child, and you will not be on the cell phone while driving.

leftshoeMake it a habit, each and every time you put your child in the car, and while you are totally focused on the adorable child you love so much, lovingly take off one shoe. Lovingly put it on the floor or seat by the child. Lovingly put your cell phone in the shoe.

Then no matter how long the drive, how quietly the child sleeps or how distracted you may become in thoughts about the 4,736 things on your “to do” list, when you step out of the car with one shoe off and one shoe on, you will remember to get the child out of the car. Nobody is so distracted as to walk away with one shoe. On hot summer weekends, I often drive barefoot (perfectly legal in all states and safer than driving in flipflops), but I never forget my shoes when I reach my destination; if nothing else, hot asphalt reminds me.

While we still are looking forward to the possibility of grandchildren someday, we are prepared with the shoe in the back seat trick when the time comes.

———————

Ken Shigley, a double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is lead author ofGeorgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken@shigleylaw.com. His services as a mediator may be scheduled through Henning Mediation & Arbitration Service, Inc., in Atlanta, Email info@henningmediation.com
Telephone (770) 955-2252 or (800) 843-6050.

What is mediation and why do judges insist upon it?

mediation_explainedHaving served as the neutral mediator in hundreds of cases as well as the advocate for clients in hundreds of other mediations, I have come to see both the strengths and weaknesses of this method of settling personal injury and wrongful death cases.

Judges love to refer cases for mediation because every case that settles is one less case the judge has to deal with on the court docket. It simply saves the judge a lot of time and work. Perhaps the chances of court ordered mediation succeeding could be improved with a little more court involvement in setting up the process for success rather than failure.

For people new to this process, the vocabulary alone can be confusing. “Mediation” is a kind of brokered negotiation and settlement conference used to settle a lawsuit or other dispute, and sometimes seek reconciliation between the parties. Throw a “t” into the middle of the word and you get “meditation,” a time spent in quiet thought for religious purposes or relaxation. These are distinctly not the same thing.

In personal injury case mediations, typically the lawyers, the plaintiff and an insurance claims adjuster meet with a mediator both sides have agreed at a neutral location for several hours of brokered negotiation. Except in medical malpractice cases, it is unusual for the defendant to attend in person as it is the insurance company’s decision whether to settle. However, sometimes a defendant attends to deliver an apology in person.

Most mediators are either senior attorneys with decades of experience or retired judges. Both lawyers who have been advocates and judges who have had the authority to rule on issues have to make an attitude adjustment to become effective mediators.

Good mediators often ask for confidential summaries from both sides in advance, and may call the lawyers to chat in advance of the mediation date in order to focus on the issues involved. Often a mediator must prod counsel to think about ancillary issues affecting settlement such as the status of medical and health insurance liens, probate court authority to settle for a minor, desirability of trusts or annuities to manage settlement funds, etc.

Prior to mediation, counsel must consider how much information to share with the other side in advance. As a practical matter, any information that the plaintiff does not get to the claims adjuster at least two weeks before mediation will not be considered in the claims evaluation process. I have seen cases in which material was provided to the defense lawyer weeks before mediation but the adjuster did not see it until the day of mediation, so it was useless. Sometimes it is appropriate for the plaintiff’s lawyer to ask permission of the defense lawyer to send a copy of materials directly to the claims adjuster.

At the beginning of the session, the mediator gives a brief introduction to the process, primarily for the benefit of the plaintiff who has not been through this hundreds of times.

Then, still in a joint session, the lawyers for all parties make brief statements of their view of the case. Often the plaintiff’s lawyers makes a presentation on liability and damages with Power Point, photos, etc.

The defense lawyer often tells the plaintiff that they are very sorry this happened, wish they could turn back the clock so that it never happened, think the plaintiff is a good person, but have different views of the facts on liability and damages.

The plaintiff usually has an opportunity to briefly tell how the injury has affected her. This serves two purposes. It allows the plaintiff to tell her story while enabling the claims adjuster to see that she is a decent person and credible witness.

After the joint session that may last an hour, more or less, the parties are split up into separate rooms. Sometimes when multiple defendants and insurance companies are involved, they might be put in 3 or 4 different rooms. When I was a mediator in complex medical liability cases, it was not unusual to have separate rooms for the hospital team and each of several doctors’ teams.

The mediator then goes back and forth between the parties in a free from process of encouraging, cajoling and pressuring them to change their positions with a view toward reaching a compromise by the end of the process. I have seen lists of up to 50 techniques used to break impasse and broker agreement. That sounds about right but I won’t list them here.

One key point is to lead all parties to realistically view their options. For years negotiation teachers talked about the “BATNA” (“best alternative to negotiated agreement”).  A more realistic model may be “MLATNA” (“most likely alternative to negotiated agreement”).

A good mediator helps parties and lawyers overcome their “advocacy bias,” whereby everyone on the plaintiff’s side tends to overvalue their case and underestimate the obstacles while everyone on the defense side tends to undervalue the plaintiff’s claim and underestimate the risks to the defense.

In private mediations in Georgia, it is customary for the mediation firm to provide lunch, either a buffet or ordering lunch delivery from a menu. It is rare for a mediation to conclude before everyone has eaten lunch.

The objective is to attempt to reach an agreement by the end of the day that everyone can live with — less than the plaintiff wants but more than the defense wants to pay.

Sometimes at the end of the day the parties have not reached agreement but the mediator proposes a number for both sides to think about over the next several days. With a “mediator’s proposal,” attorneys for both sides then report to the mediator confidentially whether or not their client accepts that number. Unless both parties agree on the number, neither knows how the other responded to the mediator.

Generally, mediation in injury cases works pretty well if: (a) both parties are looking at the same information; (b) both parties are represented by experienced counsel and listen to their counsel; and (c) both sides are ready to do a deal. This can happen at any time — from before suit is filed until the day before trial. If any of those pieces are missing, the chance of success is less.

Within the next year, I may set up a separate blog to discuss the many nuances of the dispute resolution process, all with a view to shifting into mediation whenever I hang up my cleats as a trial lawyer. That will be the time and place to examine the process in much more detail.

——

Ken Shigley, a double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is lead author ofGeorgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken@shigleylaw.com. His services as a mediator may be scheduled through Henning Mediation & Arbitration Service, Inc., in Atlanta, Email info@henningmediation.com
Telephone (770) 955-2252 or (800) 843-6050.

 

 

10 Social Media Instructions for Injured People

facebook-iphoneMost of us today carry cell phones in our pockets with more processing power than the computers aboard the Apollo moon missions. Frequent news reports illustrate the dangers of thoughtless use of smartphones and social media. It has ensnared politicians and celebrities, sometimes crashing promising careers. This technology has created similar hazards for both plaintiffs and defendants in litigation who are careless about online social media privacy. While we are quick to look for the other side’s vulnerabilities, we must also play defense in protecting our clients from their own electronic blunders.

Many people today, especially younger ones, think nothing of sharing details of personal lives with the world through social networking sites. For this very reason, insurance companies, investigators, and defense attorneys may seek to compel access to social media accounts, computers, cell phones, and hard drives. Careless use of social media can be a kind of self-surveillance, a gift to the other side.

Information from such sources may be used to embarrass or discredit you when you are hurt. It may be used to falsely suggest that the your are exaggerating or that something else caused the injury. Even innocent joking between friends on social media might convince judges and juries that a plaintiff has been dishonest.

Here are ten precautions to avoid self-inflicted wounds through use of social media – Facebook, Twitter, Instagram, etc.

  1. Archive the content of current accounts. Destruction of potential evidence may create bigger problems than the information itself. Therefore, it is important to preserve the current content of any social media accounts. Most social media sites include directions for archiving. We designate a staff person to help clients archive correctly.
  2. Deactivate or discontinue using social media accounts. If you are going to be the plaintiff in a personal injury case, consider deactivating your Facebook profile and other social media accounts.  If you are not willing to completely deactivate an account you should—after archiving content —remove any information related to your injury or activities and avoid future posts.
  3. Turn on the highest privacy setting. If you won’t discontinue use of social media, adjust privacy settings to the highest levels. This means making sure that only actual friends can see the information, rather than friends of friends or the general public. A useful tool is Facebook’s “View As” feature, which allows users to view their profile as it appears to someone else, whether a stranger or a Facebook friend. This might help you see exactly what is visible to the general public, something that isn’t always apparent from privacy settings. Be aware that Facebook publicly publishes “Interests,” even if accounts are otherwise private.
  4. Beware of “friends.”  If social media use continues, it is important to edit “friend lists” so that only certain friends can see photo albums and status updates. Remove any “friends” you do not know well or at all, and accept only friend requests from people you know and trust.
  5. Become invisible. You can remove yourself from Facebook search results by selecting “only friends” under the “search visibility” option in their profile settings. You can also remove your Facebook page from Google by unchecking the box for “Public Search Listing” in your Internet privacy settings. Make comparable changes to privacy settings in all other social media accounts.
  6. Take down photos. After archiving current content,  remove and un-tag all photos of yourself that are not simple head shots.
  7. Be cautious. Assume that anything you write on your social media accounts—including status updates, messages, and wall postings—will at some point be seen by defense lawyers, judges, and juries. Think about how such things might be perceived when viewed out of context.
  8. Preserve all computers, tablets, or cell phones. If you lose or destroy an electronic communications device, opposing counsel could try to make it look like deliberate destruction of evidence. It is better to fight a battle over access to your devices than have a judge instruct a jury that it may assume the contents of the discarded or destroyed device would have been unfavorable to you.
  9. Don’t send messages or information about the case. Do not send emails, text messages, or “private” social media messages about your claim, health, or activities to anyone except your lawyers. Careless emails and electronic messages can destroy a case.
  10. Don’t post on websites or web chat groups. While you may find useful information in online support groups, you don’t own the information you post online. Such information you post is highly searchable. You should not enter any information on dating or insurance websites, post on message boards, participate in or comment on social media “private” groups or blogs, or use chat rooms.

 

This post is adapted from an article published in the January 2016 issue of Trial magazine by Ken Shigley, a double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken@shigleylaw.com.

Books for trial lawyers: Chancellorsville 1863

chancellorsville 1863Some of the best books for trial lawyers are not about lawyering at all. Over the next few months I will explore some of them in this blog.

Jim Butler is arguably the most successful plaintiffs’ trial lawyer in my generation. He has won numerous eight and nine figure jury verdicts even in the most conservative Georgia counties. Success breeds success, so he is able to pick among the cases with greatest potential, and then has the skill and resources to maximize them.

At a recent Georgia Trial Lawyers luncheon, Jim said that the best book for trial lawyers is one about a Civil War battle, Chancellorsville 1863: The Souls of the Brave, by Ernest Ferguson. At his recommendation, I finally got around to reading it on a recent camping trip.

The Southern cause in the Civil War, viewed from a 21st century perspective, is blighted by its support of the morally indefensible institution of slavery. From the perspective of Southerners who grew to adulthood in a plantation economy based on slavery, steeped in the moral rationalizations for slavery espoused by preachers in their pulpits, it was different. I had ancestors on both sides. Shigley collateral ancestors from Indiana were Wesleyan Methodist abolitionists who fought and died in Union blue. Other ancestors in Georgia and Alabama fought and died in Confederate gray. Then there were Alabama unionists in the First Alabama regiment of the Union army, and at least one ancestor who joined a band of mountain renegades who stole horses from both sides.

The military history of the war, can be studied apart from the political, economic and moral forces that brought about that fratricidal slaughter that cleaves the history of our nation.

By 1863, the Union Army of the Potomac had suffered one discouraging defeat and setback after another, with repeated reshuffling of command structure and poor morale. In January, President Lincoln gave command to General “Fighting Joe” Hooker, who despite his alcoholism was an able administrator. Gen. Hooker did a good job of improving supplies, training, military intelligence and morale of the troops.

With vastly superior numbers and supplies, Gen. Hooker planned a double envelopment of Gen. Lee’s Confederate Army of Northern Virginia while sending cavalry deep in the Confederate rear to cut off communication and supply lines. That failed due to superior leadership of the Confederate forces, and Gen. Hooker’s army was pushed back in failure. But for the death of Confederate General Thomas “Stonewall” Jackson in this battle, the author suggests it could have led to a different outcome at Gettysburg that July, and thus success for the South in the war.

I won’t attempt to tell the whole story of the battle but here are a few points that trial lawyers can glean from it despite the severe limits to the analogy between warfare the courtroom.

  • Boldness. General Lee surprised Gen. Hooker by boldly violating one of the generally accepted principles of war by dividing his force in the face of a superior force, hoping that aggressive action would allow him to attack and defeat a portion of Hooker’s army before it could be fully concentrated against him. At trial, a lawyer who is able to employ tactics that the other side does not foresee can score big wins.
  • Concentration of force. While the Union army in the field was roughly double the size of the Confederate army, the Southerners were able to maneuver so as to concentrate superior force at specific points of contact, sending the Union forces reeling. This is just one of many times in history when small and poorly supplied rebel forces have been able to beat empires by bringing lethal force to bear with strategic effectiveness. In the Bible, David was able beat Goliath with a slingshot and a well-placed pebble. At trial, it may not matter if one side may have vastly greater resources, with a global corporation represented by a top law firm with platoons of support staff. An impecunious plaintiff represented by a tiny firm that is able to forcefully strike a strategic blow at the right place and time may win. 
  • Tactical agility. Instead of retreating in the face of vastly superior force, Gen. Stonewall Jackson’s troops rapidly swept across the Union front under cover of darkness and fog to stage a crushingly effective surprise attack on the Union army’s right flank. Even when their movements were seen and reported to Union headquarters, the reports were discounted because nothing that audacious seemed credible. Until Jackson was felled by “friendly fire,” his tactical agility threatened a knockout blow to the Union army. In the courtroom, victory often goes to lawyers who think fast on their feet and are agile enough to turn on a dime, effectively switch tactics, surprise and devastate the opposition.
  • Focus. Both contemporaries and historians have agreed that a big part of the explanation for the Union defeat at Chancellorsville was due to General Hooker’s turning to whiskey under pressure. He was drunk in his tent when he should have been performing at the height of his ability. No matter how gifted a general or a trial lawyer may be, loss of focus – whether due to alcohol or mere distraction – can be fatal.
  • Graciousness in victory and defeat. While the fighting was brutal and bloody carnage, when opponents were taken prisoner, or when there were brief truces to remove the wounded or bury the dead, the opposing soldiers in this war between brothers often treated each with courtesy and kindness. Many of the opposing generals had known each other at West Point and served together in the Mexican War and in Union army before they were divided by secession. Except for some recent immigrant troops in the Union army, the troops generally shared the same language, religion and general culture. So when they weren’t trying to kill each other, they could be trading tobacco between the lines or working together on burial details. Trial lawyers may seek to bloody each other in the courtroom, but then go out to dinner afterward with a spirit of camaraderie. Professionalism requires that we maintain professional collegiality when the battle is over.

While the Confederates won the battle, they lost General Stonewall Jackson. Without his bold and skillful tactical leadership later at Gettysburg and elsewhere, they ultimately lost the war. Early in the battle he was mortally injured, with an arm blow off and the other hand wounded. He was taken to the rear and his wife and infant daughter were brought to be with him before he died. A witness described his death as follows:

“Presently a smile of ineffable sweetness spread itself over his pale face and he cried quietly and with an expression as of relief: ‘Let us cross over the river and rest under the shade of the trees.’”

We trial lawyers will all come to the end of battles. May be do so in such a spirit of sweet anticipation of what lies beyond.

Some of my loyal Georgia and Alabama friends and relatives still think it would have been better if the South had won the war. But it is better that slavery was abolished even though it took another century to begin a halting progress toward social and economic equality of the races. That process is far from complete. Moreover, it is impossible to know how a Confederate victory in that war might have affected the rest of world history. If the South had won, would there have been a nation on this continent strong enough to push back the Nazis and World War II or the Soviets in the Cold War? The speculative guesses are endless. However, despite being an eighth generation Georgian on one side of the family, I tend to think my Shigley kin from Indiana, the Wesleyan Methodist abolitionists who wore uniforms of blue, were on the right side of history.

Ken Shigley is a former president of the State Bar of Georgia (2011-12), chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section (2015-16) and a board certified civil trial attorney of the National Board of Trial Advocacy. The Georgia Judicial Nominating Commission included him in the “short list” for a vacancy on the Court of Appeals in 2012 and for Fulton County Superior Court in 2002.

Governor Deal’s legacy to the Georgia judicial system

Proposed new Georgia Judicial Building, future home of Supreme Court and Court of Appeals

Proposed new Georgia Judicial Building, future home of Supreme Court and Court of Appeals

It appears that by time he leaves office at the beginning of 2019, Governor Nathan Deal will have:

  • Vastly reformed our criminal justice system;
  • Expanded the Supreme Court and Court of Appeals;
  • Appointed a majority of the Supreme Court and Court of Appeals;
  • Appointed a substantial portion of the state’s Superior Court and State Court trial judges;
  • Launched construction of a new landmark Judicial Building near the Capitol building; and
  • Facilitated creation of a statewide electronic court filing system.

Fortunately, he will have done all that without harming the civil justice system. Some conservative politicians condemn trial lawyers and are drawn to “tort reform” like moths to a flame, always looking for new ways to rub salt in the wounds of people who have been hurt.

Gov. Deal doesn’t go there. I have been at events where it would have been a cheap applause line to condemn trial lawyers and call for draconian tort reform. He talked about education, economic development, criminal justice reform, transportation infrastructure, etc., never the cheap political drug of “tort reform.” In the spring of 2012, I made a trip to Washington as State Bar president to attend two events honoring Georgia lawyers. Gov. Deal spoke at a Republican National Lawyers Association program at which my friend Randy Evans was presented an award as the “National Republican Lawyer of the Year.” Before a group that included a number of Fox News commentators, Gov. Deal talked with conviction reflecting his own life experience about “the wisdom of a small town trial lawyer.”

The first time I met Nathan Deal about 30 years ago when he was that “small town trial lawyer.”  We were at a doctor’s deposition in Habersham County. I was a young insurance defense lawyer and he was representing a plaintiff in a personal injury case.  He was cordial, professional and competent in representing his client. Much of his Gainesville law practice involved defense work for insurance companies, as did mine in those days. But like many small town lawyers, he also did other things, including service as Juvenile Court judge. He served as State Senator from the Gainesville area and as Majority Leader before his election to the U.S. House of Representatives.

Nathan and Sandra  Deal did a good job raising their children. Their son, Jason Deal, graduated from Furman, my alma mater, and then from UGA Law School. Jason in due course was elected District Attorney and later Superior Court judge in their hometown. As judge, Jason became a leader in the development of Drug Court programs to salvage lives of folks caught up in addiction.

  1. Criminal Justice Reform.

When Nathan Deal was elected Governor, one of his first priorities was criminal justice reform. At that point I was president-elect of the State Bar of Georgia. Shortly after he was sworn in, my predecessor and I went to meet with him about support for the new Evidence Code that a State Bar task force had developed. Gov. Deal responded positively, then quickly turned the conversation to his plans for a Criminal Justice Reform Council. I told him I had planned to appoint a bar committee on this, but maybe now it wouldn’t be necessary. He responded that I should appoint a strong bar committee on criminal justice reform to complement the work of his Criminal Justice Reform Council.

A couple of months later, his executive counsel called to ask me to serve on that Criminal Justice Reform Council. I told him that I hadn’t handled criminal cases myself since the indictments were written on parchment with a quill pen, but that didn’t matter.  I was proud to serve two years on the council as we helped develop legislation that supported drug, DUI and veterans’ court programs, sentencing and probation improvements, chipped away at some of the problems with excessive rates of incarceration and sought to improve the juvenile justice system.

From several close encounters, I can attest that the Governor’s heart and soul have been deeply invested in salvaging lives of nonviolent offenders who are caught up in addiction and mental health problems. He has pursued a methodical, step by step project each year of his tenure, winning consensus for each incremental proposal. I expect the best is yet to come.

  1. Expansion of Court of Appeals from 12 to 15 judges.

Four years ago, during my year as State Bar president, I had conversations with Gov. Deal’s executive counsel about a lot of things, including his idea of expanding the notoriously overworked Court of Appeals once budget problems growing out of the recession were eased. The state constitution already allowed for up to 15 seats on the Court of Appeals, but only 12 seats had been funded and filled.

In a number of those meetings, the executive counsel repeatedly encouraged me to think about applying for a Court of Appeals seat. In July 2012, the month after I complete my term as bar president, the Judicial Nominating Commission put me on the “short list” for two vacant seats on that court. It was clear that one of those seats had to go to a woman and one to a Superior Court judge, and the only female Superior Court judge on the list withdrew from consideration. In my interview with Gov. Deal, he was most warm and gracious, pointed out that there would be another opening in December due to an upcoming retirement, that I was his kind of guy and I should keep my “powder dry” for the next appointment. Based on that, I deferred my search for new office space and staff. I still believe he was totally sincere in that conversation.

In that brief interval from July to November 2012, I actually believed I would be donning the black robes of an appellate judge. I was working with the Governor’s team in day-long Criminal Justice Reform Council meetings every couple of weeks. When my mom died that fall, they treated me like family.

But in November 2012, Romney lost to Obama and Republican political strategists gained a new interest in diversity. In some campaigns for governors’ offices in other states, they had seen Democratic ads compiling photos of a Republican governor’s appointees who were overwhelming white males.

Within a week after that election, I noticed a subtle change in my interaction with a young lawyer on the Governor’s staff who been quite encouraging to me for months. When the next Court of Appeals appointment came in December 2012, it went to Carla Wong McMillian, a very bright Asian-American woman who was born the month I graduated from college. No political challenger would be able to run that composite photo ad, including me as one of the old white male appointees, against Gov. Deal in 2014.

I like Judge McMillian and think she does a fine job, but I admit that I did have a few adult beverages the night after I got that news. Then I pulled up my socks and started looking for new office space for my law practice. In retrospect, I recognize that when you complete a term as State Bar president at 61, you don’t have much runway left for pursuing judicial aspirations.

While I briefly looked at the possibility of running for the court in 2014 if there had been an open seat, that did not happen. When I determined that there would not be an open seat, I texted my wife, “Good news, bad news. No opportunity on the court but we’re going to France in May.” Her immediate response was, “So what’s the bad news?”

Late in the 2015 legislative session, Gov. Deal added to the budget three new judgeships on the Court of Appeals, posts which were authorized but had never been funded. The legislature easily went along with expanding the court from 12 to 15. The new posts were to be effective January 1, 2016.

Again, I briefly considered seeking one of those appointments. But I recognized that the Governor would likely appoint people young enough to serve several decades — and young enough to be my children if I had started a family in my early twenties — while I would only be able to serve one decade before the quasi-mandatory retirement age. Moreover, I knew that if I got on the “short list” again as a courtesy, I would have to interrupt a planned vacation in Italy to fly home for a perfunctory interview.

Sure enough, when we were in Rome when I read online that Gov. Deal had appointed Judge Amanda Mercier (40), Judge Nels Peterson (38) and Judge Brian Rickman (36). All are brilliant young conservatives who will serve with distinction. All were born after I started law school, and one was born when I was prosecuting felonies. Like several other young appellate judges, all are members of the conservative Federalist Society. All are bright, well qualified and young enough to serve until approximately 2050 (Mercier), 2052 (Peterson) or 2054 (Rickman) before reaching mandatory retirement age. The torch has been passed to a new generation.

  1. Expansion of Supreme Court from 7 to 9 justices.

In the 2016 legislative session, Governor Deal is close to gaining legislative approval for expanding the Supreme Court. The state constitution authorizes up to 9 seats on the Supreme Court but only 7 have been funded and filled. On February 18th, the Georgia House of Representatives approved the court expansion. It appears likely that the Senate will also approve it.

The enlarged size of the Supreme Court would enable it to hear some cases in panels of three which would recommend decisions to the full court. The same legislation would make jurisdictional changes, shifting cases involving land titles, equity, wills, extraordinary remedies and divorce and alimony from the Supreme Court to the recently expanded Georgia Court of Appeals. According to Chief Justice Hugh Thompson, the intent is to free up the state’s highest court to devote more time and energy to the most complex and the most difficult cases that have the greatest implications for the law and society at large.

  1. Appointment of majority of both Supreme Court and Court of Appeals.

By the time he leaves office in January 2019, Governor Deal will have appointed at least 5 of 9 justices on the state Supreme Court and at least 8  of the 15 judges on the Court of Appeals.

On the Supreme Court, he appointed Justice Keith Blackwell in 2012, promoting him from the Court of Appeals in his mid-thirties. By the end of 2016, it appears that he will be able to appoint two new members of the Supreme Court to fill the newly created posts. By 2018, he will appoint two additional Supreme Court justices due to retirements.

The two retirements from the Supreme Court will be due to the forced retirement age of 75. In Georgia, an appellate judge must retire on or before the day he or she reaches the age of 75, or on the last day of the term in which she or he reaches 70, whichever is later. Any appellate judge who fails to resign then receives no retirement benefits. Due to this effectively mandatory retirement rule, Chief Justice Hugh Thompson (whose wry wit is unfortunately kept under wraps in public because too few people who don’t know him well would be sharp enough to get his jokes) will need to retire by July 2018 and Presiding Justice P. Harris Hines will retire by September 2018. My hunch is that Chief Justice Thompson step aside as Chief Justice by 2017, to allow Justice Hines to take a turn as Chief Justice before his retirement.

If a Republican is elected President in 2016, it would not be surprising to see Justice David Nahmias appointed to the U.S. Eleventh Circuit Court of Appeals or perhaps even a vacancy on the U.S. Supreme Court. He was on Harvard Law Review with President Obama, clerked for the late Justice Scalia on the U. S. Supreme Court, served in the U.S. Justice Department in the second Bush administration and was U.S. Attorney in Atlanta toward the end of the Bush years. His move to a federal court would give Gov. Deal yet another opportunity to appoint a Supreme Court justice.

The Governor may fill at least one – and maybe more — of those Supreme Court openings with a promotion of young conservatives from the Court of Appeals. The Court of Appeals judges who are in that category include Judges Steve Dillard (appointed by Gov. Perdue), Mike Boggs (who chaired Criminal Justice Reform Council and was blocked in federal court nomination by liberal opposition in Washington), Elizabeth Branch (who served in the U.S. Department of Homeland Security in the second Bush administration), Carla Wong McMillian, Brian Rickman, Amanda Mercier and Nels Peterson (who was executive counsel to Governor Sonny Perdue and state Solicitor General under Attorney General Sam Olens).

I will be surprised if the Governor does not give the last of his Supreme Court appointments to his loyal executive counsel, Ryan Teague, now in his mid-thirties, allowing him to join on the bench the young Federalist Society peers in whose judicial appointments he has been instrumental. I like Ryan and enjoyed working with him when I was State Bar president.

Each promotion from the Court of Appeals to the Supreme Court will give the Governor a “twofer,” the opportunity to make another appointment to the Court of Appeals, probably other young members of the conservative Federalist Society. Looking at the “short list” from last fall’s Court of Appeals selection process, and excluding candidates over 50 years old who may have been included mostly as a courtesy, that leaves Georgia Solicitor General Britt Grant, 37. She was an aide in Nathan Deal’s congressional staff in Washington and at the Bush White House before graduating from Stanford Law School in 2007. There is also a long list of young Superior Court and State Court judges who might be considered. Each pomotion of a trial court judge to the Court of Appeals to replace a judge promoted to the Supreme Court would give the Governor a “three-fer,” an opportunity to appoint three judges in a chain reaction.

In addition, the highly respected Presiding Judge Herb Phipps will have to retire from the Court of Appeals by his 75th birthday before Gov. Deal’s term ends. Because Judge Phipps is African American, there will be sentiment in favor of replacing him with by another African American. The pool of young, conservative African American Federalist Society members  in Georgia is small. I will refrain from speculation about who might be chosen.

  1. New Judicial Building.

Another topic discussed during my term as State Bar president was the potential to build a new Judicial Building. Currently both appellate courts and the Attorney General’s staff are shoehorned into the old judiciary building across from the capitol, with offices scattered through adjoining buildings. While it is not publicized, I have heard privately for years that some of these leaky buildings have some sort of “sick building syndrome.” Whether due to mold, chemicals, poor ventilation or something else, I understand it is a chronic problem.

Last year, the State Financing and Investment Commission shifted $7.5 million in bond funds to begin the process of designing a new judicial complex to be built on the site of Archives Building that has been vacant (except for movie productions) several years due to structural problems.

Preliminary design images have leaked into the media. Designed to house Georgia’s highest courts for at least the next century, it will stand above the intersection of I-20 and I-75/85 near the capitol building. While this is still a work in progress, I expect construction will begin before Gov. Deal leaves office.

  1. Electronic court filing.

One of my pet projects as State Bar president was to promote creation of a statewide e-filing system in superior and state court. The biggest obstacle was the Council of Superior Court Clerks whose concept of e-filing was contrary to what most lawyers and judges seemed to want. We wanted a system in which we could use a single statewide log-in to access filing in all participating counties, and in which we could view and download documents in our case as well as submitting documents electronically.

When I mentioned this to Gov. Deal, he immediately understood and supported what we were trying to do. Last year, he included in the budget funds for development of the system. I am now serving on the Judicial Council Standing Committee on Technology, which has contracted with the National Council of State Courts for development of the statewide e-filing portal. Already a variety of e-filing systems are proliferating through the state. I am hopeful that a statewide e-filing portal will be operational by the time Gov. Deal leaves office.

In summary, by the time he leaves office in January 2019, the small town lawyer I met at a doctor’s deposition long ago will have stamped his legacy on the Georgia judicial system with expanded appellate courts, a new generation of young conservative judges who can serve to the middle of the 21st century, a reformed criminal justice system, new judicial building, new evidence code and statewide electronic court filing system.

———-

Ken Shigley is a former president of the State Bar of Georgia (2011-12), chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section (2015-16) and a board certified civil trial attorney of the National Board of Trial Advocacy.

 

 

 

 

“Can an Uninsured Motorist insurance claim affect my insurance rates?”

Depositphotos_15861431_s-300x199Uninsured / Underinsured Motorist (UM/UIM) insurance coverage exists to cover your damages when you are injured due to the negligence of another motorist who has little or no insurance. Whenever we meet with a new client who was injured in a car wreck, we review all the auto insurance policies in the household to determine what UM/UIM coverages may be available.

Sometimes that is a big deal. For example, we had a case recently in which the at-fault driver only had the minimum $25,000 liability coverage but out client had $50,000 excess UM/UIM coverage on five vehicles covered under separate stackable policies. That added $250,000 UM/UIM coverage to the $25,000 available from the at fault driver’s insurer.

But when I explain UM/UIM coverage to clients, they often express reluctance to make a claim against their own insurance company for damages caused by another driver. When I explain that is the purpose of UM/UIM coverage for which they have paid premiums, most folks can understand that.

For some people, fear of cancellation or premiums increases underlies reluctance to make a claim on their own policy. We are often asked, “How will making a claim for this accident affect my insurance rates?” The insurance industry has done a great job of scaring customers from using their insurance benefits, even though the insurance company cannot legally punish them for doing so by taking actions such as increasing premium rates.

In Georgia, O.C.G.A. §  33-9-40 provides that an insurer may not surcharge premiums or rates charged or cancel policies as result of insured’s involvement in multivehicle accident when the insured is not at fault. That statute clearly states: “No insurer shall surcharge the premium or rate charged on a policy of motor vehicle insurance or cancel such policy as a result of the insured person’s involvement in a multivehicle accident when such person was not at fault in such accident.”

But what about a risk that the insurance company would refuse to renew the insurance policy at the end of the policy period? O.C.G.A. § 33-23-45 deals with cancellation and nonrenewal of auto and motorcycle insurance policies. It is a long, detailed and convoluted statute. Among other things, it provides:

(C) With respect to any driver or with respect to any automobile or its replacement, except when the replacement is such that together with other relevant underwriting or eligibility rules it would not have been insured as an original policy risk of the insurer, for two or fewer of the following within the preceding 36 month period:

(i) Accidents involving two or more motor vehicles in which the driver of the insured automobile under this subparagraph was not at fault;

(ii) Uninsured or underinsured motorist coverage claims;

(iii) Comprehensive coverage claims; and

(iv) Towing or road service coverage claims.

 

The key number is two. If you have an accident that is not your fault and then make a UM/UIM claim for that accident, you are within the two events allowed under this code section. The insurance company cannot raise premiums, cancel coverage or refuse to renew your policy. Could an insurer refuse to renew if an insured make a UM/UIM claim for such an accident and also used his comprehensive or road service coverage? Apparently so. But if you use AAA for towing and the other driver’s liability property damage coverage instead of your own for car repairs, then there is risk of lawful nonrenewal based making a UM/UIM claim based on the accident for which you were not at fault.

If there is a notice of nonrenewal, the insured may within 15 days from receipt of the notice ask for a review by the Commissioner of Insurance.

If you have an accident for which you are not at fault, have used your comprehensive or road service coverages to get your own car towed and repaired, and then need to make a UM/UIM claim, you have options. One is to talk with your agent and determine whether the insurance company intends to raise premiums or non-renew your policy. If you can’t get a straight answer, then shop around for other coverage.

Perhaps someone in the legislature will see the wisdom of modifying this statute so that a single accident leading to UM/UIM, comprehensive and towing claims, could not trigger nonrenewal.

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Ken Shigley is Certified Civil Trial Advocate of the National Board of Trial Advocacy, past president of the State Bar of Georgia (2011-12) and chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section.

 

The passing of Justice Scalia and the premature debate about his successor

chapman.0830 - 08/29/05 - A Supreme Court headed by Supreme Court Justice Antonin Scalia has questions for Chapman University Law School professor John Eastman as he and California Attorney General Bill Lockyer argue the 1905 ''Lochner v. State of New York'' case during a re-enactment Monday afternoon at Chapman University. (Credit: Mark Avery/Orange County Register/ZUMA Press)

Justice Antonin Scalia

The one time I met the late Associate Justice Antonin Scalia, he talked about how much he loved hunting quail. It is good that he was able to spend his last day in this mortal realm on a quail hunt.

Back in 2012, when I was president of the State Bar of Georgia, Justice Scalia spoke at a dinner I attended at the World War II museum in New Orleans, along with Buck Ruffin who was then unopposed to become president-elect of the Georgia Bar, and our wives. David Gambrell, a former Georgia Bar president and U.S. Senator, was receiving a lifetime achievement award at that dinner. Justice Scalia gave an inspirational speech about the Constitution, which he sought to interpret according to the original meaning of the words of the text rather than as some sort of free floating Rorschach ink blot test.  I later borrowed liberally from Justice Scalia’s remarks in a president’s column in the Georgia Bar Journal.

After the dinner, Buck Ruffin and I buttonholed Justice Scalia. I told him how much I had enjoyed his point-counterpoint appearance with Justice Stephen Breyer at a South Carolina Bar meeting in Columbia a few months earlier, and that we would love to schedule a reprise of that in Georgia. He smiled and said, “I’ve always enjoyed hunting quail in Georgia.” Buck began then planning a 2014 Symposium on the Constitution in Atlanta featuring Justice Scalia, followed by a bird hunting trip on a plantation in south Georgia. Georgia Supreme Court Justice David Nahmias, who clerked for Justice Scalia, was helpful in scheduling that. Several of the State Bar officers who were in office at that time participated in bird hunt with Justice Scalia, but by then I was out of office and not included.

In a more decent time, folks might have refrained from media comments about a Supreme Court justice’s successor until after the funeral. I’m not so naive as to think there would not have been jockeying behind the scenes, but public decorum might have delayed the public debate while the family had its time of grieving. Unfortunately, we do not live in that era. Within hours after the news of Justice Scalia’s passing, the media were buzzing with speculation and it was a topic in a televised presidential debate. Senator Cruz immediately vowed to filibuster against any nominee, no matter who it might be.

The Constitution of the United States, which Justice Scalia interpreted according to the original meaning of the text, provides at Article II, Section II:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls,  Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

President Obama should fulfill his constitutional duty to nominate someone to fill this vacancy on the Supreme Court. He should choose someone who would have been confirmed on arrival in less stridently partisan times.  Then the Senate should fulfill its constitutional duty to “advise and consent.” It should at least holding hearings and consider the nomination on its merits rather than on a purely partisan basis. Senator Cruz’s vow to filibuster against any nominee before he even knows who it will be was, to put it mildly, intemperate and unworthy of anyone who aspires to become President of the United States.

Since there is no one currently on the court who has experience in elective office, there is something to be said for appointing someone with experience in the political rough and tumble. Since there is no one on the court who has ever spent any substantial time representing individuals who bleed when they are cut, that might be a consideration as well. There is no religious test for office, but since there are currently no Protestants on the Supreme Court in a country with a Protestant plurality, there is something to be said for appointing a Protestant.

Short lists of federal circuit judges are floating in the media, including

  • Sri Srinivasan (48, DC Circuit, former deputy solicitor general, Stanford JD/MBA, Indian immigrant, Hindu, confirmed by the Senate three years ago, 97-0, when Senator Cruz called him a “longtime friend”).
  • Merrick Garland (63, chief judge of DC Circuit, Harvard Law, Jewish, confirmed 76-23 in 1997, viewed as a compromise pick).
  • Patricia Ann Millett (52, DC Circuit, Harvard Law, wife of Navy reserve officer, former assistant solicitor general, Methodist, confirmed 55-38 in 2013).
  • Paul Watford (49, 9th Circuit, African American, UCLA Law, confirmed by 61-34 vote in 2012).
  • Jane Louise Kelly (51, 8th Circuit, Duke, Harvard Law, former public defender in Iowa, confirmed 96-0 in 2013).

Hometown favorites for me  in Atlanta would be:

  • Jill_A._Pryor

    11th Circuit Judge Jill Pryor

    Jill Pryor (52, 11th Circuit, Yale Law, 26 years in private practice representing both plaintiffs and defendants, confirmed 97-0 in 2014 as part of a package deal to fill six federal judgeships in Georgia).

  • Julie Carnes (65, 11th Circuit, former Assistant U. S. Attorney and district judge, UGA Law, Fulton County State Court building is named after her father, confirmed 94-0 in 2014 as part of the same package deal).

Georgia Supreme Court Justice David Nahmias, who was on Harvard Law Review with President Obama, clerked for Justice Scalia and served in U.S. Department of Justice and as U.S. Attorney under President George W. Bush, might be a prospect under a Republican president.

Justice Scalia rightly criticized the composition of the Supreme Court as a “select, patrician, highly unrepresentative panel of nine,” all educated at Harvard or Yale law schools, with four of nine hailing from New York City. It would be healthy to look to the midwest or south and for candidates who are outside the mold of “tall building lawyers.”

Thinking outside the box of usual SCOTUS picks, the President might consider senators of his party who get along fairly well with Senate Republicans colleagues. That list might include:

  • Chris Coons (52, Delaware, Judiciary Committee member, grad of Amherst, Yale Law, Yale Divinity, Presbyterian, former county executive).
  • Cory Booker (38, New Jersey, Rhodes Scholar, Stanford and Yale grad, former mayor of Newark, African American Baptist, worked with Republican co-sponsors on criminal justice reform bill).
  • Amy Klobuchar (55, Minnesota, Yale & Chicago Law, former prosecutor,  Congregationalist).
  • Sheldon Whitehouse (60, Rhode Island, Yale and Virginia Law School, former US Attorney and state attorney general, Judiciary Committee member, Episcopalian).

Governors of the president’s party  who might be considered could include:

  • Jay Nixon (60, Missouri, former state attorney general, University of Missouri Law School, Methodist, real world experience practicing in his hometown and in state senate before election as attorney general).
  • Steve Bullock (49, Montana, former state attorney general, Columbia University Law School, some time in hometown private practice, United Church of Christ).
  • Maggie Hassan (57, NH, background in private practice and as hospital counsel, Brown & Northeastern Law School, United Church of Christ, now running against an incumbent Republican Senator, which could make her a wild card pick because Republicans might want her out of that race).

Presidents usually prefer to appoint Supreme Court justices who are roughly 50 or younger. (I have some personal experience at the state level with “aging out of consideration” for a judicial appointment.) Politically, it might be prudent to select someone who has not been the subject of a bitter partisan confirmation battle in the past.  By that standard, the list might be narrowed to Judges Srinivasan, Kelly and Pryor, Senators Coons, Klobuchar and Booker,  Governor Bullock, and perhaps others.

 

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Ken Shigley is a past president of the State Bar of Georgia and board-certified trial attorney in Atlanta

 

Puzzling stall of federal judgeship nomination in Georgia

GSA RBR Renovations

U.S. Courthouse, Atlanta

Dax Lopez is a judge of the State Court of DeKalb County, nominated by lame-duck President Obama to fill a vacant seat  on the U.S. District court in Atlanta, as an apparent bipartisan compromise to fill the seat with Republican approval.  Surprisingly for an Obama nominee, Judge Lopez is a conservative Republican, a longtime member of the conservative Federalist Society, and a graduate of the Coverdell Leadership Institute which is  the forerunner of the current Republican Leadership for Georgia program. He was initially appointed as a judge by conservative Republican Governor Sonny Perdue, cousin of US Senator David Perdue.  He is also Hispanic, having been born in the US territory of Puerto Rico and moved to Georgia with his family when he was six years old.

Unlike an earlier Hispanic judge whose prospect for promotion to federal court was sunk a few years ago due to lack of proper documentation when he came to the US as a small child, Judge Lopez is a US citizen born to parents who were US citizens. He is not an immigrant, much less an illegal immigrant or “anchor baby.” He clerked for a federal judge and worked in a large corporate law firm before Republican Governor Perdue appointed him to DeKalb State Court at age 34. He has been a good, fair, well-respected trial judge.

When I was weighing whether or not to take another shot at appointment to the Georgia Court of Appeals last year, after making the “short list” in 2012, I figured Judge Lopez was a likely appointee. That seemed logical, as Governor Deal prefers appointing judges who are young, conservative and if possible provide some degree of diversity. Having seen a young Asian American woman selected for the seat for which I thought I might have a chance at the end of 2012, I suspected Judge Lopez, as a young, conservative Hispanic judge, could be a slam dunk for a Republican appointment to the Georgia Court of Appeals or Supreme Court.

Then, several months ago, when the Obama administration nominated Judge Lopez for an opening on the United States District Court for the Northern District of Georgia, it appeared to be a bipartisan compromise to fill the court post in an election year with someone who would be readily accepted by Georgia’s two Republican senators. After all, Judge Lopez was a conservative Republican appointed by Senator David Perdue’s cousin, Governor Sonny Perdue. Some of the top Republicans in Georgia openly endorsed his nomination.

But then anti-immigration activists and two sheriffs began raising sand about the fact that Judge Lopez was a member of the Georgia Association of Latino Elected Officials (GALEO), though he resigned that membership after he was nominated for the federal court.  Not surprisingly, GALEO had opposed anti-immigrant legislation and discrimination which heavily impacts Hispanics. Also not surprisingly, Judge Lopez as the second Hispanic judge in Georgia, was a board member of the organization, even though he was a conservative Republican not active on that issue.

Until recently, my fellow Republicans were intent on reaching out to Hispanics as the fastest growing group of voters in the U.S. As a member of the Republican National Lawyers Association, I thought that was a good idea even though it might have further reduced my chances of getting a judicial appointment. (My chances were virtually nonexistent anyway due to age, as in recent years most appellate court appointees have been 15 to 25 years younger, and I ultimately decided not to bother again with the nomination process.)

Knowing the need to fill the open seat on the U.S. District Court in Atlanta, it seemed like a fair compromise for the administration to nominate Judge Lopez, who it would have seemed would easily gain approval by Georgia’s Republican U.S. Senators.

Judge Lopez is a good judge worthy of a promotion. As a conservative Republican and member of the Federalist Society, he was a surprising choice for the current administration. He would have seemed a more likely choice for a Cruz or Rubio administration if either of them were to win next November.

Whatever the opponents say, the political opposition to Judge Lopez looks like it is based upon the fact that he is Latino rather than anything he personally has done or said. Such politics is way above my pay grade, but to me the opposition to his nomination is unfortunate in both substance and appearance.

In light of the stalling of his federal nomination, Judge Lopez is running hard for reelection as Judge of the State Court of DeKalb County.

One of my college classmates at Furman was a shot putter named Bill Dimitrouleas from Florida. In 1992, President George H. W. Bush nominated him to be a judge of the U.S. District Court for the Southern District of Florida. That nomination died when Bush lost to Clinton in the 1992 election, and my classmate stayed on as a Circuit Court Judge in Fort Lauderdale. Later, in 1998, President Clinton renominated him, and since 1998 he has been the highly respected U.S. District Judge William P. Dimitrouleas.

While such bipartisan selection is rare, if Judge Lopez is not confirmed by the Senate this year, he would seem to be a great choice to be renominated if a Republican is elected President later this year.

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Ken Shigley is past president of the State Bar of Georgia, past chair of the Institute for Continuing Legal Education in Georgia Board of Trustees, and a board certified civil trial attorney of the National Board of Trial advocacy. After his term as State Bar president, the Georgia Judicial Nominating Commission included him in the “short list” for appointment to the Court of Appeals of Georgia.