The terrorist attack at the finish line of the Boston Marathon this week was similar to a lot of IED (improvised explosive device) explosions in the Iraq War in that it produced catastrophic leg injuries requiring emergency amputations. To most of us, that is one of the most horrifying injuries we can imagine.
But in my personal injury trial law practice in Atlanta, I am continually inspired and encouraged by people with amputation injuries who not merely survive but overcome and thrive.
- The Chief Justice of the Georgia Supreme Court, Carol Hunstein, lost a leg to cancer by the time she was 23. Already a parent, she went on to college and law school in Florida, moved to Georgia to practice law, was elected a Superior Court judge in a highly competitive environment, and rose to Chief Justice of the Supreme Court. She might prefer the elevator instead of the stairs, but otherwise yields little to the fact that she has a prosthetic leg.
- Brad Johnson is a bright young lawyer in Florida who lost both legs in an auto accident on the way back from his Law School Admissions Test. When I met him a few months ago in a Trial Lawyers College program in Key Largo, he had just competed in London on the US Paralympic Sailing Team. He is one of the most cheerful and outgoing people I know. Except when he is wearing shorts with his two high-tech, high-performance prosthetic legs, you could completely miss the fact that he is an amputee.
- We have all seen the young war veterans who lost legs in Iraq or Afghanistan, and who strive to compete in marathons and other sports despite — or perhaps in part because of — their injuries.
- Scott Rigsby is a double amputee marathoner and IronMan triathlete in Atlanta. Sometimes when driving to work I see him running with a bevy of “boot camp” class members trailing behind.
- I was in an airport bar in Miami recently, waiting on a delayed flight home to Atlanta, when a woman seated herself two stools down from me. Both arms were amputated just below the elbows. She proceeded to use her stubs about as skillfully as most people use their hands in manipulating the menu, food, utensils, glass, etc. No complaints, no excuses, just a can-do attitude.
- A while back I represented a little boy who had lost a hand due to a medical error in the neonatal ICU. Of course he had never known life without a missing hand. When we made the “day in the life” video for his case he was six and in the first grade. For the video he demonstrated how he buttoned his jeans, did his chores, ate and rode his bike with one hand. The biggest surprise was the his right hand preference was so deeply ingrained that he ate with a spoon grasped in his right elbow rather than holding it in his good left hand.
In my Atlanta-based personal injury trial practice, I always try to focus as much on what people can do to overcome their injuries as on what they can no longer do. The glass that appears half empty is also half full. I believe that approach is best for the person who has to live with the effect of an injury, but by projecting hope for the future it is also best for motivating a jury to help.
Ken Shigley is immediate past president of the State Bar of Georgia, and double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification.
Legislature quickly overturns Supreme Court decision, barring assignment of legal malpractice claims
A few days ago, I wrote about a Georgia Supreme Court decision that left a lot of uncertainty about which legal malpractice claims could be assigned to people or companies other than clients.
Most states do not allow assignment of legal malpractice claims to others for substantial public policy reasons related to protection of the attorney-client relationship.
That may be the shortest-lived Supreme Court decision in Georgia history. This week the legislature passed HB 359 on unclaimed property, into which a succinct amendment had been inserted, to bar assignment of legal malpractice claims. It awaits signature by the Governor.
It took only eight days from the Supreme Court decision until passage by the legislature.
Many prospective clients in serious personal injury and wrongful death claims ask questions about legal fees and litigation expenses in handling their cases. As an Atlanta personal injury trial attorney handling serious injury and death cases across Georgia, and as an individual who remembers very well what it is like to be flat broke and in debt, I am very sensitive to those questions.
The short answer is that in handling personal injury and wrongful death cases for individuals and families, I do not require any money up front from clients whose cases I accept. I evaluate the merits of a case much like I would try to evaluate a stock before investing in it. If I take the case, I charge a percentage of what I recover for the client and advance the expenses. Both fees and expenses come out of the recovery from the other side. If we lose, I eat the time and expense invested in the case.
Fees in most personal injury cases are generally one-third of the amount of the recovery, with the percentage escalating if the case is tried, if there is an appeal, etc. While we prepare every case on the assumption that it will go to trial, about 95% of cases that are well screened and well prepared do settle before trial. We can’t work for free, and this is how I provide my family and save for retirement, but when necessary to make the numbers work out for a client, I do sometimes make courtesy discounts.
Occasionally, particularly in trucking cases, there is an opportunity to force the other side to pay the attorney fees and expenses. If we can do it, that goes directly to the client’s bottom line because I don’t charge the same fee twice.
Expenses in personal injury and wrongful death lawsuits include filing fees, process servers, expert witnesses, court reporters, medical records, depositions with both stenographic and video recording, fees to treating physicians for their depositions, exhibit preparation, travel expense, etc. Knowing that if we lose, I will eat the expense, I am somewhat conservative about spending money. Case expenses on the types of cases injury and death cases I accept generally run from $2,000 to $5,000 for a routine car wreck case with limited insurance coverage up to ten times that amount, or more, for a complex commercial trucking or premises liability case.
Products liability and medical malpractice cases can easily run up expenses well into six figures. Once I was co-counsel in an automotive products liability case in which an associated firm spent $500,000 on expenses. That’s pretty bold. Frankly, I figured that if frugal Ken had been running that show my expenses might have been closer to $100,000.
If a law firm advances case expenses out of pocket, that is treated as a loan and cannot be deducted from income for tax purposes until such time as the case is lost and the “loan” is written off. That can severely constrain the capacity of a firm to aggressively prosecute cases as they come along.
The U.S. Tax Court recently reasserted that case expenses advanced by a contingent-fee law firm on behalf of its clients are “in the nature of loans” rather than tax-deductible expenses for the law firm. (Humphrey, Farrington & McClain, P.C., v. Commissioner of Internal Revenue). Like many rulings before it, this case upholds Private Letter Ruling 8246013 (6/30/1982, IRC Sec(s). 162) which states that a law firm “…may not deduct as ordinary and necessary business expenses the various litigation costs advanced for a client on a contingent-fee case…”.
Therefore, in order to free up capital and increase capacity to do what needs to be done to develop serious personal injury and wrongful death cases, I maintain a litigation line of credit with Advocate Capital, which funds most of our case expenses. When cases are settled, the expenses are reimbursed to us out of the recovery. I then pay off the portion of the line of credit allocated to that case, and pass along as a case expense the nominal amount of interest incurred on those expenses. The transaction is a straight pass-through with full transparency and no markups. Because we and Advocate track every expense by case number, that is a very simple bookkeeping exercise.
The impact on my capacity to aggressively develop major cases is huge. If I need to hire a top national expert witness for a wrongful death or catastrophic injury case, I can do it without worrying about the effect on operating capital in office operation or the need to pay for my daughter’s upcoming wedding. If I need to fly around the country to take depositions in a major case, I can just do it without hesitation. Of course, being inherently frugal, I still buy the cheapest web-saver plane tickets rather than flying first class, and stay at an economy motel when traveling for clients rather than a 5 star hotel.
For example, recently I was hired on an interstate tractor trailer wrongful death case at a time when cash flow was slow. Because I had ready access to adequate capital for case expenses without dipping into savings, there was no delay in hiring the best investigators and experts. The trucking company and its insurer had a “rapid response team” at the accident scene almost before the ambulance arrived. But I was able to have my own “rapid response team” on the way almost immediately after the first call from the client’s family attorney.
This makes a world of difference between weakness and strength, between failure and success.
Of course, I am frugal and don’t spend money on cases needlessly. Expenses are scaled to the potential recovery in the case. Having come up the hard way having to do things cheaply, I still resist spending a dime I don’t have to spend. I still know how to hold case expenses under $1,000 when that is what the case needs, using stock drawings out of medical books rather than custom made medical illustrations, snapshots blown up at the drug store and glued to cardboard rather than professional photos professionally mounted, etc. It’s all a matter of what fits the case.
Ken Shigley is immediate past president of the State Bar of Georgia, chair of the board of the Institute for Continuing Legal Education in Georgia, lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-13), and double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board for Legal Specialty Certification. His Atlanta-based trial practice is focused on catastrophic injury and wrongful death cases arising from commercial truck and bus accidents and unsafe conditions on commercial premises.
This week the Georgia Supreme Court ruled that a voluntary Review Panel reprimand is insufficient discipline for a lawyer who violated client confidentiality in responding to an ex-client’s derogatory comments in a consumer forum website. See In the Matter of Margaret Skinner, Georgia Supreme Court Docket No. S13Y0105.
In the decade since I began blogging here, in either the first or second lawyer blog in Georgia, lawyers participating in blogs, social media, online forums, etc., have sailed somewhat uncharted seas in relation to the Rules of Professional Conduct.
The bottom line, however, has always been that the rules that govern professional conduct offline are equally applicable online.
The privacy and informality of typing on a keyboard at night, perhaps under the influence of heated emotions, and sometimes even adult beverages, might seduce one into unguarded remarks about a an ungrateful, obnoxious idiot with unrealistic demands and expectations who was a former client.
If so, stop. Do not pass “go.” Avoid going directly to lawyer jail.
Delete. Do not press “send.”
Do not breach any client confidence even in response to the most obnoxious online misrepresentations by a former client.
Since I am currently a member of the State Bar of Georgia Disciplinary Board Review Panel, I will refrain from expressing my own opinion about how a lawyer might respond, in compliance with the Rules of Professional Conduct, to false and misleading statements published online by a disgruntled former client.
But I believe it can be done in a way that is ethical, dignified and professional, without violating any of the Rules of Professional Conduct.
Ken Shigley is immediate past president of the State Bar of Georgia. His Atlanta-based law practice is focused on representation of plaintiffs in cases of personal injury and wrongful death, especially those arising from commercial truck and bus accidents.
In a unanimous opinion, the Georgia Supreme Court held Monday that legal malpractice claims may be assigned to other parties in some circumstances, the scope of which remains unclear.
Villanueva vs. First American Title Insurance arose out of a highly unusual real estate closing. A senior attorney hired an associate to work on closings but had a non-attorney employee with signature power on the attorney trust account. The younger attorney was designated as a partner, though that was apparently a bit of a fiction, and handled an $800,000 closing. The mortgage company wired funds to the law firm’s trust account. The non-attorney absconded with the money, the older lawyer died, and the younger lawyer was left holding the bag. The mortgage company assigned its malpractice claim to a title insurance company, which sued the younger lawyer, along with the estate of the deceased lawyer and the non-lawyer who disappeared with the money.
The younger lawyer, who may have been duped into the situation, was apparently the only reasonably viable defendant. However, I understand he is now on active military duty in Africa so the case against him may be stayed under the Servicemembers’ Civil Relief Act.
The question arose whether a legal malpractice action could be assigned under Georgia law. I participated in an amicus briefs on behalf of the State Bar, contending that textual analysis of a statute in question and public policy arguments adopted in a majority of states favored holding legal malpractice claims non-assignable.
Our Supreme Court disagreed, holding that “that legal malpractice claims are not per se unassignable.”
With no “bright line” ruling as to what is or is not assignable, this decision leaves much uncertainty. Clearly claims against real estate closing attorneys for mishandling of those transactions may be assigned to title insurance companies. To what extent, if any, this ruling extends beyond the purely transactional practice context is uncertain. It may take years for that to shake out.
There are a few “take home points” in this case:
- Every lawyer must take full responsibility for funds in the trust account, and should avoid allowing any non-lawyer signature power over the trust account. More lawyers may have to severely tighten supervision of non-attorney staff members who routinely handle bookkeeping and accounting duties.
- Legal malpractice insurance rates will rise significantly, especially for real estate closing attorneys who are already under severe economic pressure due to changes in the mortgage marketplace. Insurers seldom miss an opportunity to raise premiums and this will present such an opportunity.
- A junior lawyer is not relieved of responsibility just because the senior partner set up a system that is ethically deficient. In some employment situations, that may create a Catch-22 situation for young lawyers just out of school who have crushing tuition loan indebtedness.
- If you are a young lawyer caught in such a web, you might consider a military career.
I am already hearing speculation about possible legislation in 2014 to bar or limit assignment of claims for professional malpractice, which may encompass legal, medical and other professions. Such legislation could address the public policy concerns which have been persuasive in a majority of states that have addressed the issue.
But that is a subject for another day.
Ken Shigley is immediate past president of the State Bar of Georgia. His Atlanta-based law practice is focused on serious personal injury and wrongful death cases, mostly arising in the commercial transportation context, e.g., tractor trailers, tour buses, etc.
“You snooze, you lose.” The time limit to file a lawsuit in court for personal injury or wrongful death in Georgia is two years. But the time to present a notice of claim to a city government when one is hurt or killed by a municipal government’s negligence or public nuisance — whether due to negligent operation of a city vehicle, dangerous conditions on city property, failure to replace a missing traffic sign or whatever – is only six months.
O.C.G.A. § 36-33-5 requires that notice be provided to a municipality within 6 months of the claim. We lawyers still cling to old Latin phrases, even if only to make ourselves sound cool and justify having taken a dead language in high school, so we call this an “ante litem notice,” meaning it is a notice given before filing suit. The statute requires that
Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.
In a death claim, the time for the statute of limitation starts running on the date of death rather than the date of the injury that leads to death. That would apply to an ante litem notice as well because the death itself is the event upon which a claim for wrongful death is based so the time period does not begin until the time of death.
While some accurate specificity is required regarding the time, place and extent of injury, substantial compliance is generally good enough. This is in contrast to the technical strictness in ante litem notices to state government under the Georgia Tort Claims Act.
The time limit for giving a notice of claim to a city government may be “tolled” — stopping the clock — by mental incapacity and a few other limited circumstances, but it is very dangerous to assume such an extension of a time limit will work in a particular case.
Contact us if you have a serious personal injury or wrongful death claim against a city government in Georgia.
Ken Shigley is a past president of the State Bar of Georgia (2011-12), with a statewide personal injury trial practice based in Atlanta. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West 2010-13) and is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification. He defended state and local governmental officials and employees in civil damage cases from 1982 to 1993, and since then has often represented individuals and families in personal injury and wrongful death cases against state and local governments.
If you wait for the two year statute of limitations to make a claim for serious personal injury or wrongful death against a state agency in Georgia, you will be out of luck.
The Georgia Tort Claims Act waives sovereign immunity up to $1 million per person and $3 million per occurrence, subject to a long list of limitations that are beyond the scope of this post. Suit must be against the state agency rather than the individual state employee or official.
Where the Georgia Tort Claims Act applies, written notice of a claim must be provided within 12 months of the date of loss under O.C.G.A § 50-21-26. While there are a few narrow exceptions, failure to strictly comply will almost certainly result in dismissal of your case.
Notice of a claim must given in writing, delivered by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services.In addition, a copy must delivered personally to or mailed by first-class mail to the state government entity.
The notice must state the name of the state government entity, the specific basis of the claim, the time and place of the incident, and the nature and amount of damages claimed.
A copy of the notice must be attached to the lawsuit when it is later filed.
Failure to strictly comply with the notice requirement will likely result in a lawsuit, no matter how meritorious, being dismissed.
There are separate immunity considerations and notice requirements for claims against county and municipal governments in Georgia.
Ken Shigley is a past president of the State Bar of Georgia (2011-12), with a statewide personal injury trial practice is based in Atlanta. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West 2010-13) and is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification. He defended state agencies’ officials and employees in civil damage cases from 1982 to 1993, and since then has often represented individuals and families in personal injury and wrongful death cases against state agencies.
Chances are you or a member of your family will be involved in a car wreck someday. When it happens, you need to know what to do in the event of an auto accident. Print this out and keep it in your glove compartment to refer to if you are involved in a motor vehicle collision.
Long before the event that we all hope to avoid, be prepared. Keep in your car a camera (cell phone or disposable), flash light, pad, pen, and reflective triangles or emergency flares. Print a copy of this accident information form.
While stocking your car with these items, check your auto insurance policy to be sure you have uninsured / underinsured motorist (UM) coverage equal to your liability coverage, rental car coverage, collision and comprehensive coverage to handle damage to your own vehicle in the event you are hit by someone whose insurer refuses to deal promptly with your property damage.
In the event of a car wreck, have this checklist at hand.
- Turn car engine off immediately after a collision to cut the risk of fire.
- Turn on hazard flasher lights, and if appropriate use flares and other warning signs to alert other drivers to the accident.
- Call 911, even if someone asks you not to report the accident. Don’t accept offers to settle for immediate payment at the scene. That will not work out well for you.
- Make photos. One of the advantages of nearly universal camera phones is that it is possible to make photos of an accident immediately, before vehicles are moved. Include photos of damage to your vehicle and other vehicles, the accident location from multiple angles, and of people involved with the accident.
- If there are no major injuries and cars are operable, pull over to shoulder.That’s the law in Georgia.
- Keep calm. Do not argue, make accusations or admit fault.
- Nobody needs your Social Security number, so don’t give it.
- Accept the offer of an ambulance ride if you are hurt at all. If you are injured, go to the hospital emergency department and follow up with your primary care physician or a recommended specialist.
- If another person is hurt, you may provide basic first aid, but do not move an injured person unless necessary to prevent further injury and unless you have substantial medical or lifesaving training and expertise.
- When a police officer arrives, be calm and cooperative. Provide complete and accurate information. Write down the officer’s name, badge number, police station address and phone number. Inquire when the accident report will be filed and how you can get a copy.
- Do not leave the scene before the police and other drivers do, unless you are in an ambulance.
- Do not call an attorney from the scene as it will make you appear too eager, but if there is a significant injury call us after you have medical attention.
Ken Shigley is an Atlanta personal injury trial lawyer. Immediate past president of the 43,000 member State Bar of Georgia, he was placed on the “short list” for two Court of Appeals seats by the Georgia Judicial Nominating Commission in 2012, though candidates a generation younger were ultimately chosen. He is currently secretary of the American Association for Justice Motor Vehicle, Highway & Premises Liability Section, a board member of the Trucking Litigation Group, chair of the board of the Institute for Continuing Legal Education in Georgia and a Georgia delegate to the American Bar Association House of Delegates. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, and double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle).
In the past few years, half the work and hassle in representing individuals in personal injury claims is the endless hassle with medical lien claims.
Medicare, which asserts claims under the Medicare Secondary Payer Act, is often the hardest to deal with because the Center for Medicare and Medicaid Services (CMS) bureaucracy is infamously slow and difficult to deal with, and will never tell us the amount they demand before we settle a case with the other side.
I had one case in my office in which it took 18 months after the case settled, writing to them about every 30 to 60 days, to get any response at all from Medicare about the amount they claimed for reimbursement.
For the past couple of years, an amazing coalition that includes the US Chamber of Commerce, major employers, the insurance industry and trial lawyers — groups that seldom agree on the time of day — has lobbied for the “SMART Act” (Strengthening Medicare and RepayingTaxpayers Act, S.1718/H.R. 1063), to rein in the unresponsive Medicare bureaucracy.
On December 19th, the U.S. House of Representatives — which can’t agree on much these days — suspended its rules to pass the SMART Act by a bipartisan vote of 401 to 3.
If ultimately passed into law, this legislation will:
- Require the Center for Medicare and Medicaid Services to issue a demand BEFORE a settlement, judgment or award in certain liability claims, rather forcing parties to fly blind into settlements and then drag out final closure for months or years after settlement;
- Establish a 3-year statute of limitations for Medicare Secondary Payer claims, rather than leaving parties exposed to late hits years after a settlement is concluded;
- Abolish the use of Social Security numbers for Section 111 Reporting;
- Establish a right of appeal for insurance companies and self-insureds;
- Soften Section 111 penalties giving the Department of Health and Human Services discretion when it issues such penalties;
- Establish an annual minimum thresholds for Section 111 reporting, where the cost to HHS is greater than the recovery.
Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, and double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle). In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.
Outdoor decks are a common amenity for outdoor living at homes, apartments, condominiums, restaurants and commercial properties throughout Atlanta and Georgia. It seldom occurs to most people that these pleasant decks may hold hidden dangers that suddenly lead to serious injury or even death.
Every year there are many incidents of deck collapses in which people are seriously injured or killed. Some of the common preventable causes of deck collapses, based on building code violations that could be detected with inspection, include:
- Failure to protect against decay. Building codes require that all structural elements exposed to weathering must be protected against decay. That generally means using preservative-treated lumber. If standard lumber is used in a deck the contractor or owner must apply an approved on-site treatment to the open and exposed ends and paint the rest to bring the deck into compliance.
- Inadequate fasteners. Too often, building designs do not specify fasteners used to attach decks to the adjacent structure. Building codes, however, require that in order to resist corrosion, fasteners, joint hangers and anchor straps used in deck construction must be zinc-coated galvanized steel, stainless steel, silicon bronze, or copper. Building codes also specify the correct type, size, and number of fasteners that must be used. Decks must be affixed to the primary structure with specified types of lag screws, bolts and washers, not merely nailed. However, contractors may cut corners by using untreated or undersized nails to attach decks to the primary structure. The results can be fatal.
- Insufficient support and anchoring. Current building codes require that all decks must be anchored against wind uplift and laterally braced to prevent the deck from racking and from becoming a projectile in high winds or an earthquake. Footings must both support the deck from downward load and secure it against uplift in high winds.
- Missing or noncompliant guardrails and handrails. Building codes require guardrails for decks and porches whenever the floor surface is more than 30 inches above the surrounding grade. Guardrails must be no less than 36 inches high, and balusters must be not less than 4 inches apart. A bench may be built against a guardrail but the bench cannot itself be the guard. Screened porches and decks, if 30 inches or more above grade, must also have guardrails. If stairs include more or more risers, handrails are. If a staircase is more than 30 inches above the grade or floor below, a guardrail is also required.
Potential liability of a builder for defective construction of a deck is limited by an eight year statute of repose. O.C.G.A. § 9-3-51.
In seeking to prove liability of a property owner for injury or death resulting from a deck collapse, it is essential to prove the cause for the collapse – defective construction, inadequate maintenance, overloading, etc. – preferably supported by expert testimony about the specific inadequacies and code violations. In addition, it is necessary to establish that the defendant property owner had actual or constructive knowledge of the hazard.