Atlanta Injury Law Blog

Today Governor Perdue vetoed raises for Superior Court judges and District Attorneys. In a statement released with the veto, the Governor said, “I have consistently expressed concern with raising judicial officers' salaries without tackling the well above-market retirement benefits.” He also said that a study he commissioned showed that Georgia's judges' pay was competitive compared to judges in other states and compared to “various counsel.” That study also showed that the Georgia “judiciary's retirement benefits are far above market average.”

What he did not say is that the study he commissioned compared judicial salaries with base salaries of a narrow slice of in-house corporate counsel, excluding bonuses, stock options, etc.  Perhaps the Governor is too busy to recognize the methodological flaw in the study, and therefore is just seriously misinformed.

Judges with whom I have talked in recent months had expressed concern that there was little or no hope for raises as long as Governor Perdue is in office. Some have speculated that one example of a judge in the Governor's home circuit who retired due to apparently fatal cancer, but then went into remission and became very active as a Senior Judge, may have colored the Governor's thinking about the entire judiciary.

I have been concerned for some time about the crisis in judicial compensation.  Of course it is always possible to get a government lawyer to accept a Superior Court appointment, and it isn't too hard to get a small town general practice lawyer to do so, because the judicial pay is relatively attractive in that setting.  However in the large metro counties, it is rare  for lawyers in a successful private practice to even consider becoming judges.  Many -- though not all -- of those who do appear to have substantial assets, a spouse in a highly compensated field, or both.  That is the economic reality in light of the crisis in judicial compensation, whereby both state and federal judges are paid on par with a first or second year associate in a large law firm. The fact remains that new graduates straight out of law school are getting starting salaries at large law firms on par with Supeior Court judges with decades of experience making critically important decisions about the lives, property and families of Georgia citizens.

While there are excellent examples of Assistant District Attorneys and Assistant Attorneys General becoming excellent judges, the judicial system loses is the perspective of lawyers who have spent decades practicing law and litigating cases in the private sector. It is important to pay judges enough that private practice lawyers in their prime years can afford to go on the bench and still send their kids to college. While judicial salaries are attractive to government lawyers and less successful private practitioners with political connections, and do not deter those who are independently wealthy, reasonably successful middle class lawyers in private practice, and with families to support, simply cannot afford the pay cut. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.

Even  when a seasoned private practice lawyer with an excellent professional reputation does go through the nomination process, the tendency of Governors of both parties has been to pick government lawyers and political figures over seasoned private practice litigators, so the reaction of many who could afford the pay cut is, "why bother?"  I have seen friends who would have been stellar judges passed over in favor of young government lawyers who are fine, but have negligible private practice experience.

Today Governor Perdue vetoed raises for Superior Court judges and District Attorneys. In a statement released with the veto, the Governor said, “I have consistently expressed concern with raising judicial officers' salaries without tackling the well above-market retirement benefits.” He also said that a study he commissioned showed that Georgia's judges' pay was competitive compared to judges in other states and compared to “various counsel.” That study also showed that the Georgia “judiciary's retirement benefits are far above market average.”

What he did not say is that the study he commissioned compared judicial salaries with base salaries of a narrow slice of in-house corporate counsel, excluding bonuses, stock options, etc.  Perhaps the Governor is too busy to recognize the methodological flaw in the study, and therefore is just seriously misinformed.

Judges with whom I have talked in recent months had expressed concern that there was little or no hope for raises as long as Governor Perdue is in office. Some have speculated that one example of a judge in the Governor's home circuit who retired due to apparently fatal cancer, but then went into remission and became very active as a Senior Judge, may have colored the Governor's thinking about the entire judiciary.

I have been concerned for some time about the crisis in judicial compensation.  Of course it is always possible to get a government lawyer to accept a Superior Court appointment, and it isn't too hard to get a small town general practice lawyer to do so, because the judicial pay is relatively attractive in that setting.  However in the large metro counties, it is rare  for lawyers in a successful private practice to even consider becoming judges.  Many -- though not all -- of those who do appear to have substantial assets, a spouse in a highly compensated field, or both.  That is the economic reality in light of the crisis in judicial compensation, whereby both state and federal judges are paid on par with a first or second year associate in a large law firm. The fact remains that new graduates straight out of law school are getting starting salaries at large law firms on par with Supeior Court judges with decades of experience making critically important decisions about the lives, property and families of Georgia citizens.

While there are examples of Assistant District Attorneys and Assistant Attorneys General becoming excellent judges, the judicial system loses the perspective of lawyers who have spent decades practicing law and litigating cases in the private sector. It is important to pay judges enough that private practice lawyers in their prime years can afford to go on the bench and still send their kids to college. While judicial salaries are attractive to government lawyers and less successful private practitioners with political connections, and do not deter those who are independently wealthy, reasonably successful middle class lawyers in private practice, and with families to support, simply cannot afford the pay cut. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.

Even  when a seasoned private practice lawyer with an excellent professional reputation does go through the nomination process, the tendency of Governors of both parties has been to pick government lawyers and political figures over seasoned private practice litigators, so the reaction of many who could afford the pay cut is, "why bother?"  I have seen friends who would have been stellar judges passed over in favor of young government lawyers who are fine, but have negligible private practice experience.

In my law practice in Georgia, I occasionally get calls about tractor trailers that hit someone and do not stop. Identifying and apprehending the hit and run trucker is always a big challenge.

State laws in most states  require drivers to change lanes or slow down for emergency vehicles stopped on the side of the road. Early Tuesday morning, northbound  on I-81 in Virginia, a tractor trailer driver broke that rule, struck a Virginia State Police car on the shoulder of the road, and injured a trooper who had appeared in a TV spot publicizing that law.

According to a rep rot by Marvin Anderson on Roanoke.com, the trooper had stopped another tractor trailer for speeding. According to state police, the trooper's front and rear emergency lights were activated.  The trooper, who was seated in his patrol car, was transported to a hospital in Roanoke, treated and released. The driver of the truck that he  had stopped also was sitting in the patrol car at the time of the crash but was not hurt.

Virginia State Police were  analyzing footage from the trooper's dashboard camera  searching for the driver of the truck, a dark-colored Freightliner Classic tractor with an extended front.  It has either a white or light gray box trailer and likely has significant damage to the right rear of the trailer. The trailer also may have maroon paint on the side where it hit the cruiser, and it may have broken lights and a cut or gash along the trailer.

Given the early morning hours and inattentiveness of the truck driver, one could speculate about the possibility that the trucker was fatigued and operating well beyond his legal hours of service. However, that's just my "SWAG."

The Virginia police have an unusual advantage in that they at least have dashboard video of the tractor trailer. Perhaps detailed analysis in their state crime lab can tease out of a grainy video a portion of a company name, tag number, or a DOT or motor carrier number.  If not, perhaps a bulletin to law enforcement agencies and truck stops across the country can generate leads. I hope they don't limit the search to truck stops along I-81.  By now it could be halfway across the country.

Last Friday,  an Atlanta jury returned a verdict of $54.4 million in a truck wreck case involving the death of a a Jamaican immigrant. It was a great verdict resulting from great trial advocacy.

Of the $54.4 million in the verdict, $44.4 million was punitive damages. In my post about the verdict, I wondered how the plaintiff could avoid reduction of the punitive award to $250,000 under the tort reform law that has been on the books since 1987.

Well, on Monday, the judge did judge that, cutting the punitive award from $44.4 million to $250,000, and the total verdict from $54.4 million to $10,250,000.

Meanwhile, we are waiting on a Court of Appeals ruling in a case case year where we got a $2.3 million judgment in a trucking case involving a broken leg. No issue of punitive damages went to the jury, but we did include a claim for attorney fees and expenses of litigation based on "bad faith" conduct in violation of mandatory safety rules, specificially the Federal Motor Carrier Safety Regulations.  The jury was able to use that to add one-third of compensatory damages for attorney fees, plus all of our expenses of litigation. The Court of Appeals has until the end of July to rule in the case. 

Meanwhile, in another case a trial judge in Macon reviewing the same legal authorities, said he thought it would be reversible error not to include the "bad faith" attorneys fee claim in jury instructions.

If the plaintiff in the trial last week had emphasized the claim for bad faith attorney fees based on violation of Federal Motor Carrier Safety Regulations, a claim  which is not subject to a statutory cap, in addition to the claim for  punitive damages which is capped, the net result would be a judgment for about $13,583,333 plus expenses, rather than $10,250,000.  In effect, $3,333,333 may have been left on the table.  In such a case, the claim for attorney fees and expenses under Georgia law is potentially worth a great deal more than the "sexier" claim for punitive damages.

This is one of the points I am prepared to cover in a seminar presentation in St. Louis later this month for the Association of Interstate Trucking Lawyers of America, an organization for which I am on the National Advisory Board.

This morning I got a call from a man in ICU at one of our local hospitals. He said he has hit by a tractor trailer yesterday, and that he had two fractured femurs, a ruptured spleen, ruptured discs, crushed vertebra, etc., and asked if I could meet him at the hospital.  I agreed to see him this afternoon at the hospital, which is near my home.

When I arrived a little early at ICU, I found another lawyer at the nurses' station. Apparently he ran a little late and I ran a little early, so me bumped into each other. He had noticed that when the guy shifted his hospital gown, there were no bruises to correlate with the types of injuries he was describing. The nurse told us that this man had no traumatic injuries, but does have colon cancer.

The lawyer who was at the nurse's station said he had heard of someone with a similar story trying to get a $5,000 advance from another lawyer, who refused the request.  Apparently the guy was trying to shake down lawyers for "advances" on his great case.

Later I posted a warning on a couple of lawyer listservs and received responses from several other attorneys who had been hit with the same scam.  One admitted he had signed up the case before he figured out it was a scam.  None acknowledged having made any advances, which would be highly improper.

One of my more paranoid friends has suggested that this could be a trap set by the various “anti-lawyer” groups attempting to film the meetings clandestinely and then use the video for a TV documentary or commercials to argue for tort reform. I am more inclined to believe he was just a scam artist playing his own little independent game.

However, when a lawyer finds himself or herself in an interview with a potential client and "smells a rat," one should:

1. Politely but firmly decline any request for an advance of funds against a future recovery. See Rule of Professional Conduct 1.8 (e), which provides: "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or
   (2) a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client."
2. Be prepared to give a polite, respectful but firm lecture on your ethical duties as an attorney. See, e.g., Rules of Professional Conduct 1.16 (Declining or Terminating Representation) , Rule 3.1 (Meritorious Claims and Contentions), and Rule 4.1 (Truthfulness in Statements to Others).   In the unlikely event that you're on "Sixty Minutes," make it a speech that would make both your mother and your legal ethics professor proud.
   

At 12:45 AM this morning, the driver of the Somerset Food Service tractor-trailer was killed on I-75 in Kentucky when a Chevrolet van crossed the median into the northbound lanes and stopped. The tractor-trailer and a Ford pick-up truck were in northbound lanes and unable to avoid collision according to media reports.

When representing truck drivers injured by the negligence of operators of "four wheelers," we always check to find out if the trucking company's insurance policy includes uninsured / underinsured motorist (UM) coverage for the truck driver. Some carry UM coverage equal to their liability coverage.
 

As a Georgia attorney focused on representing folks hurt in trucking accidents, I hear a lot of stories about driver fatigue issues, and how the practices of dispatchers and shippers affect fatigue, from truckers from across the U.S. and Canada. That's why I try to keep up with trucking industry news from all over North America.

The North American Fatigue Management Program, which was launched in Alberta, Canada, is designed to determine when truckers should be driving or whether they need to pull over, based on personal differences.  Recognizing some people have sleep disorders that are treatable, the program seeks to put an emphasis on individuals by analyzing the trucker's own circadian rhythm, his scheduling, and lifestyle differences.  For example, some drivers are morning people, while others are not.  Some have sleep disorders; others do not.

The program was conceived in Alberta as a partnership between Alberta Infrastructure and Transportation and the province's trucking association. It was inspired by a joint study on driver fatigue by Transport Canada and the Federal Motor Carrier Safety Administration (FMCSA) in 1999.

The study could provide new insights about nighttime driving, napping and sleep debt, and serve as a framework for modifying hours of service rules in the U.S. and Canada.

"We had a concept and there are all kinds of research out there regarding napping, circadian rhythm and sleep apnea. We put all the known aspects of fatigue together and built a comprehensive fatigue management program.  It includes dispatch guidelines, screening for sleep disorders, medical intervention [so a driver won't lose their job due to treatment], and training," according to Roger Clarke, executive director of Vehicle Safety and Carrier Services with Alberta Infrastructure and Transportation.

Ron Ellington, a professor at the University of Georgia Law School, recently spoke to the inductees of Phi Beta Kappa at UGA. His remarks deserve wider distribution.  He points out how the smartest and wisest leaders of a previous generation were dead wrong on one big issue, and suggests how to recognize when we are wrong.

1. Be humble.
2. Be intellectually honest and strive for objectivity. Be open minded to evidence / facts that may challenge or run counter to your initial views.
3. Look for anomalies.

As a trial lawyer in Atlanta focusing primarily on trucking cases, I rejoice with my friends when they do well and commiserate with them when they fall short.

My father-in-law's most affectionate comment about his children and grandchildren is that we are "reasonably adequate" -- stated with a twinkle in his eye. Those who know him realize that this understated compliment is actually the highest praise.

Some of my friends have won "reasonably adequate" jury verdicts this week.

Business fraud case in Dothan, Alabama - $13.8 million jury verdict.
In federal court in Dothan, Alabama, Bill Stone of Baxley, GA, and Harry Hall of Dothan, won a $13.8 million verdict against Nissan North America.  They were representing the Bankruptcy Trustee for Collins Signs, Inc. The Court is expected to make an award of attorney's fees and litigation expenses on top of the verdict. Collins Signs started out as a small, portable sign business and grew to become an international company.  It was one of Dothan’s largest private employers.  Collins Signs was forced into involuntary bankruptcy in 2003, after Nissan falsely claimed Collins Signs had failed to perform a contract for the design, manufacture and installation of new, standardized Nissan brand signs at 1,100 Nissan dealerships all across the United States.  Nissan declared the sign contract in default.

The sign contract arose out of Nissan’s global re-imaging plan to makeover the Nissan brand image at all its dealerships, starting with those in the United States.  Discord arose within the Nissan organization when its Purchasing Department decided to award the sign contract by competitive internet reverse bidding over the objection of the Nissan Brand and Market Research Department.  Although the Nissan Purchasing Department was in charge of awarding the sign contract, the Nissan Brand Department was in charge of performing Nissan’s obligations under the contract.  Nissan Brand manager Peter Bossis did not want the sign contract awarded by competitive bidding, but wanted it to go to Nissan’s exclusive sign supplier, Plasti-Line, Inc. of Knoxville, Tennessee, where one of Bossis’ former subordinates, Ken Williams, had taken a position after he retired from Nissan.  

The scheme to defraud Collins Signs was orchestrated by the Nissan Brand Department.  After Collins Signs won the competitive bid and was awarded the sign contract, Bossis immediately began taking steps to obstruct Collins Signs’ ability to perform it.  Bossis and other Nissan Brand managers deliberately disregarded contract provisions that benefited Collins Signs and refused to allow Collins Signs to have contact with Nissan Dealers to explain the re-imaging program or to make sales presentations and take dealer orders, as the contract required.  They refused to follow Collins Signs’ recommendations concerning sign applications to be in compliance with local laws and ordinances, causing delays and increased dealer costs.  They created unreasonable dealer expectations by providing inaccurate information to dealers, which caused dealers to make unfounded complaints about Collins Signs’ installations of signs at those dealerships.  They imposed obligations on Collins Signs that exceeded the contract terms Nissan Purchasing had negotiated.  They required Collins Signs to build in excess of $4 million in finished goods inventory before dealer sign orders were submitted to trigger the company’s manufacturing obligation.  They did all of this in deliberate disregard of Collins Signs’ manufacturing and inventory plan that was approved by Nissan Purchasing as part of the contract.  They refused to pay Collins Signs’ invoices for sign installations completed as required by the contract.  They created a cash-flow problem for Collins Signs, making it difficult for the company to pay its suppliers, installers and other creditors.  They then used this problem they created deceitfully, to persuade Collins Signs to request a development cost deposit from Nissan.  Once Collins Signs did that, Nissan used the deposit request its Brand Department solicited to declare Collins Signs in default under the sign contract.  Bossis intended all along to prevent Collins Signs’ from performing the sign contract, to persuade Nissan Purchasing to terminate the contract with Collins Signs, and to re-direct the contract to his preferred sign supplier, Plasti-Line.  Ultimately, Nissan Purchasing did exactly that, even though Plasti-Line was not the next-lowest bidder.  After Plasti-Line replaced Collins Signs, Nissan converted and misappropriated tools, dies, molds, and design and manufacturing drawings belonging to Collins Signs, and valued at approximately $300,000.

As a result of Nissan’s fraud, Collins Signs suffered financial losses, was forced out of business, and placed in involuntary bankruptcy.  Substantially all its remaining assets were sold by the bankruptcy court to pay creditors. 

Stone summed up the case as follows:  “An American dream became an un-American nightmare for Collins Signs and the entire Dothan community.

Thee Trustee’s lawsuit asked the court to rescind the sign contract due to Nissan’s promissory fraud, and assess damages against Nissan.  After a 3-week trial, the federal jury found against Nissan on all the Trustee’s claims, and awarded $3.8 million in compensatory damages and $10 million as punitive damages.

Trucking wrongful death case in Atlanta - $54.4 million jury verdict.
Friday evening, a Fulton County State Court jury returned a $54.4 million verdict in a trucking case for the wrongful death of a 50 year old woman against PFG-Milton Food Service.

The decedent was a Certified Nursing Assistant,  an immigrant from Jamaica who had been a US citizen for only 10 years. The plaintiff was her husband who was not a US citizen and was not present at trial. She was also survived by four adult kids, who will share in the recovery under Georgia law. As I understand it, the truck driver had a poor driving records and hours of service violations. 

The breakdown was $10,420,000 compensatory and $44,000,000 in punitive damages against PFG.  AIG had $150,000,000 in insurance.  During jury deliberations the plaintiff  turned down a $4,000,000 offer. Anything that holds up on post-trial motions and appeal is fully insured, as the defendant had $150 million insurance coverage with AIG. The plaintiff's attorneys were Pete Law and Mike Moran.

I have not yet heard how the plaintiffs may get around the $250,000 cap on punitive damages under Georgia law.  In a wrongful death suit in Georgia, because the statute itself is punitive, punitive damages are not permitted in addition to the statutory damages. However, punitive damages may be awarded in the executor or administrator's suit for medical expense, funeral expense and conscious pain and suffering before death. However, under OCGA Section 51-12-5.1, punitive damages are capped at $250,000, unless the defendant acted with specific intent to cause harm, or was under the influence of alcohol or drugs.

It is interesting that in the wake of the tort reform campaign and legislation, significant jury verdicts seem to have gotten larger and more frequent, even though it has become harder to get a plaintiff's verdict in small personal injury cases.  I have not yet seen an in depth analysis of the reasons for the increase in large verdicts.

While I congratulate my friends, I am concerned that headline verdicts could add fuel to another round of tort reform proposals.

A tractor trailer making an illegal u-turn on a bridge in pre-dawn darkness caused a Laurens County, Georgia, crash yesterday, as a car became wedged under the trailer, according to a report by Bernie O'Donnell of WMAZ-TV in Macon.  Problems with side conspicuity andtrailer underride are common. When we see motor carrier accidents in the very early morning, we naturally look into questions of hours of service violations and driver fatigue affecting attentiveness and judgment.