Atlanta Injury Law Blog - Ken Shigley | Georgia Personal Injury Lawyer, Attorney, Law Firm

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.

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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.

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.

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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.

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.

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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.

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.

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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.

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:

1. 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;
2. 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;
3. Abolish the use of Social Security numbers for Section 111 Reporting;
4. Establish a right of appeal for insurance companies and self-insureds;
5. Soften Section 111 penalties giving the Department of Health and Human Services discretion when it issues such penalties;
6. 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.