Atlanta Injury Law Blog

Today's Wall Street Journal includes a good piece by Peggy Noonan, who was a speechwriter for President Reagan.  In  "Look Ahead With Stoicism - and Optimism,"  she makes the point that while many institutions of society have failed in the first decade of this century, we can rebuild them by taking personal responsibility and focusing on the core mission of the institutions in which we labor.

Next Saturday, my name will be placed in nomination for president-elect of the State Bar of Georgia, to serve as president in June 2011 to June 2012. The Georgia Bar clearly is not one of those "failed institutions" about which Noonan writes. It has had a long string of sound leadership and outstanding continuity of sound professional management by top staff. 

But no institution is safe if its leaders forget their purpose. We can ill afford for anyone serving as president to drop the baton.

The stated purposes of the State Bar of Georgia are: 

(a) to foster among the members of the bar of this State the principles of duty and service to the public;

(b) to improve the administration of justice; and

(c) to advance the science of law.

That is a broad statement of the mission of the organization, but one we should not forget.  We must do the things implicit in those purposes, and we must do them well.

"Mission creep" can be the kudzu of any institution. As we review our programs and budget, we should keep the purposes of the Bar in focus. When we consider attractive, idealistic proposals that do not clearly relate to the core purposes of the Bar, we must ask whether they are appropriate uses of Bar members' mandatory dues.

Too often I hear of injury victims who were directly solicited by phone or in a hospital by "runners" working for lawyers in Atlanta or elsewhere in Georgia. If you or a loved on is solicited after suffering an injury, you should know that any lawyer who participates in that sort of solicitation is subject to disbarment if caught.

Georgia Rule of Professional Conduct 7.3 provides, in part, as follows: 

(d) A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.

Solicitations of accident victims by mail are improper within the first 30 days after the injury. Rule 7.3 also provides:

(a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer's firm, lawyer's partner, associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, a written communication to a prospective client for the purpose of obtaining professional employment if: . . .

(3) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication;

I have seen instances of even out of state firms that are not licensed to practice law in Georgia directly soliciting a widow before the spouse's body is buried. They are subject to reciprocal discipline in their home state for violation of these rules in Georgia.

The maximum penalty for a violation of  Rule 7.3 is disbarment.

Would you really want your important case to be handled by a bottom feeding scumbag of a lawyer so unethical and desperate that he is willing to risk losing his license to practice law if he is caught in that solicitation?

If you receive such a solicitation, get the name and number of the caller and then immediately call the State Bar of Georgia Office of General Counsel  at (404) 527-8720, and offer to assist in investigation and file a grievance for violation of Rule 7.3.

The State Bar needs to enforce the ethical rules and uphold virtue in the legal profession, but it cannot make strong disciplinary cases against such unethical lawyers without evidence required to support a prosecution.

This morning at 8:58 AM, I completed writing my book, Georgia Personal Injury Practice. It's been like a mouse giving birth to an elephant.

This morning I will email the chapters to my editor at West Publishing, a division of Thomson Reuters. Undoubtedly there will be much work in the editing process.  But if all goes according to plan, sometime before summer, it should be published.

It is finished.

Merry Christmas!

Sunday afternoon on I-20 near Six Flags Over Georgia, two people were killed when tire failure led to a rollover of a Ford Explorer. I learned of it not as an Atlanta personal injury, wrongful death an products liability attorney, but because my mom was stuck in the traffic on her way to accompany wife wife to a concert at our church.

The problem with Ford Explorers rolling over after tire failure is well known. I have seen video of test track exercises demonstrating how easily the Explorer rolls over in certain reaction maneuvers, and that if the Explorer wheelbase were widened by four inches it would not roll over.

Of course, I don't know the details of why this particular incident occurred. We have turned down Explorer rollover cases after investigating the details of specific incidents. While the answers regarding this tragedy are not yet known, the questions about Explorer handling characteristics are all too well known.

In March 2007, a bus carrying the Bluffton University baseball team from Ohio crashed in Atlanta. I had a minor role in the team of Georgia and Ohio lawyers representing team members and the families of those who died.

The families of those young men were determined that some good might come of their tragedy. This week, we have seen progress on two fronts toward making it less likely this would happen again.

1. Highway sign standards change. U.S. Transportation Secretary Ray LaHood announced a new edition of the Manual on Uniform Traffic Control Devices, incorporating changes recommended by the National Transportation Safety Board.  One of the changes, in response to the inadequate marking of an HOV lane exit at  Northside Drive in Atlanta, is the addition of different lane markings for lanes not continuing beyond an intersection or interchange to give drivers more warning that they need to switch lanes if they don't intend to turn. CNN ran an investigative piece about the signage problems in the Bluffton case.  I was one of several Atlanta lawyers who spent days poring through DOT exit signage design and construction records.
2. Bus safety standards in the works. This week the U. S. Senate Commerce, Science, and Transportation Committee unanimously passed a bill that would require the National Highway Traffic Safety Administration (NHTSA) to study to  what motorcoach safety requirements should be improved within the next three years. Last month DOT Secretary Ray LaHood directed  NHTSA  to prescribe standards for motor coach occupant protection that accounts for frontal, side and rear collisions, as well as rollovers, and provide standards for the same items pending legislation. In the Bluffton case, there were passengers ejected and killed due to lack of seat belts and safety glass in side windows. We soon realized that if the same bus, manufactured in Belgium, had been purchased in Turkey (or almost anywhere else in the world) rather than the U.S., it would have had these safety features not required here.
   

Sometimes we lawyers and the clients we represent, while focusing on bad things that have happened, help bring about safer conditions for others in the future. It reminds me of  a bumper sticker someone put up in the kitchen at our office alluding to the Ford Pinto problems of the 1970s: "If this car does not explode on impact, thank a trial lawyer."

Having practiced law in Georgia for 32 years, and having been somewhat involved in the Bar, I now find that a lot of my old friends and classmates have become judges. A lot of them were friends long before they put on a black robe and will be friends after they retire from the bench.

Now the Florida Judicial Ethics Advisory Committee has ruled, under the authority of the Florida Supreme Court, that judges and lawyers cannot be "friends" on Facebook and other social media, even if they are friends offline.

So a couple of days ago, over a lunch with a judge who is a true friend, we decided to "defriend" each other on Facebook. Then we had coffee and dessert, and parted as friends.

"Run-of-the-Mill Justice" by Stanford Law professor Nora Freeman Engstrom, published in a recent issue of Georgetown Journal of Legal Ethics, analyzes the practices of "settlement mill" law firms -- those that "advertise aggressively, sign a higher percentage of callers to contract, delegate more duties to non-lawyers, file fewer lawsuits, and take far fewer cases to trial" than legitimate law firms and attorneys. 

Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process  tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.

These settlement mills differ from conventional law practices because they settle everything, and do so without the negotiator having the benefit of "(1) first-hand information about verdicts obtained in comparable cases, (2) detailed information about the intricacies of the particular claim, and (3) the proven willingness and ability to take the claim to court."

Settling all cases  -- including the catastrophic cases --  cheaply in relation to the value the cases would have at trial, the settlement mills lack the ability to credibly move cases to jury trial, but offer insurance companies quick, cheap settlements.

Attorneys at settlement mills handle an extraordinarily high number of cases, necessarily treating them in "cookie cutter" fashion. Consequently, they spend "little time engaged in legal research, investigating claims, and preparing pleadings." The article reports that "one Georgia settlement mill attorney reports that she personally settled approximately 600 to 700 claims in a thirteen-month span." 

Client screening and even settlement negotiations are delegated to non-lawyers. Cases may go from intake to settlement without any attorney contact.

Many of these settlement mills seldom file suit ior investigate cases, and almost never take a case to trial or refer to a firm that is capable of doing so.

Negotiations with insurance adjusters may take no more than ten minutes, and then clients are pressured to take whatever it offered. (Thus the slogan "one call that's all" may be literally true -- one call to the insurance company is all you get.)

Such settlement mills prey upon uneducated and unsophisticated people.

Such firms rely upon heavy TV advertising. Since TV advertising lawyers are stigmatized among lawyers and judges, the attorneys in those firms no longer feel bound by a need to maintain good reputations in the profession. Thus, there is no need to do good work for clients in order to maintain a strong reputation among other attorneys. If a lawyer relies solely upon heavy advertising to produce clients, reputation and relationships do not matter. All he needs is a heavy advertising budget and a steady flow of unsophisticated, unsuspecting clients to sell down the river.

They negotiate claims on the basis of formulas that have little to do with the value of cases if they were taken to trial.

The article concludes that insurance companies like settlement mills because they settle quickly and cheaply, even in catastrophic cases, without litigation.

 Such law firms are able to operate in this manner only because federal courts bar tough regulation of legal advertising, and their operations operate "under the radar" because they almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

As a Georgia attorney representing people with spinal cord and brain injuries, I am always alert to new treatments that offer hope for a better life for them.

New animal studies at Children's Hospital of Boston showed the suppression of the SOCS3 gene, an inhibitor of a growth pathway called mTOR -- resulted in vigorous growth of axons and reactivation of nerve pathways.

Limited studies with mice are a long way from clinical treatment of humans, but it sounds promising.

As an Atlanta trial attorney representing folks who are badly hurt in interstate commercial trucking accidents, and the survivors of those who are killed, I spend a lot of my time flying around the country to take depositions of trucking company executives and truck drivers, and briefing issues under federal motor carrier safety law. It's a specialized practice area that a lot of folks don't even realize exists.

But in the midst of the "pick and ax" work of litigation, sometimes it's good to step back and look at the tort law system in historical perspective. Some folks who push hardest  to cut off the rights of folks who are hurt badly due to someone else's carelessness seem to think that this whole area of law sprung up in the past generation.

But the roots go back 4,000 years.

The story of  tort law begins around 2100 B.C. in ancient Sumeria, the birthplace of Abraham, in the area of the Tigris-Euphrates delta in present day southern Iraq and Kuwait.   Much as later American tort law would emphasize business, insurance, motor vehicles and manufactured products, Sumerian laws focused on their context, including pragmatic rules for orderly compensation supplanting the instinct for uncontrolled revenge.  The Laws of Ur-Nammu (c. 2112–2085 B.C.)  mandated compensation in silver for putting out a man’s eye, and the Code of Lipit-Ishtar (c. 1934-1924 BC) set a negligence standard for property damage to a house.  The Sumerian city-state of Eshnunna developed a legal code (c. 1900 B.C.), that expanded upon these principles of compensation for damages done to another, addressing conflicts over sunken boats, gored oxen, biting dogs and  collapsing walls.

A couple of centuries later, upstream in the Tigris-Euphrates river valley,  Sumerian laws become the foundation of the Code of Hammurabi (c. 1700 BC).  Included were early versions of the principal features of tort liability – intentional tort, negligence, strict liability, indirect causation, fixed versus variable compensation, notice, knowledge, objective standards for conduct, monetary compensation for private harms, and perhaps even contributory negligence. 

When Moses led the Hebrews out of Egyptian slavery (circa 1440 B.C. -  1290 B.C.), the Mosaic laws included echoes of Sumeria (father Abraham's hometown) and Hammurabi.  The Torah is filled with what we think of as 'tort' rules, indicating the depth of the roots of tort law in the Judeo-Christian tradition.  Precursors of tort law in the Pentateuch include the spreading fire, the straying livestock, the uncovered pit, the bull goring another bull (property damage), the bull goring humans (personal injury), the injunction to maintain a railing around one’s roof, compensation for  accidental injury of one man by another swinging an ax, and that one man quarreling with and injuring another man must pay the wages of the injured man until he recovers.

A thousand years after Hammurabi, the legal system of ancient Greece began to emerge. The emphasis was on  fairness and integrity of judges more than the specifics of rules and doctrine, as judges were chosen by the parties much as private mediators and arbitrator are chosen today.  However, running through is a growing preference for resolving disputes through just compensation rather than the bloody retribution and feuds of old. Principles of corrective justice emerged. 

Plato in The Laws wrote of "little repeated torts between neighbors" for which there was strict liability to others for either personal harm or invasion of property, and awards of a multiple of pecuniary damages for “churlish” conduct.  Aristotle in Nichomachean Ethics taught the rectification of marginal inequality created by involuntary transactions in which either an intentional act or an unintentional “mistake” – equivalent to concept of negligence in modern tort law – causes foreseeable injury.  The amount of inequality to be rectified was the the community's valuation the physical injury due to the defendant's wrongful act.  Customary Greek law was first codified by Dracon, circa 622 B.C., with penalties so harsh as to give us the word draconian and as to require reform within a generation. By 594 B.C., Salon was given a year to reform the Athenian constitution, legal code and law courts. Under the Code of Salon, juries of as many as 500 members determined both fault and penalties, a spectacle against which those who distrust modern juries would surely recoil.

Early Roman law was simple and pragmatic, arising from an agrarian culture thrust into a role of economic and military dominance.  The disparate sources of customary laws were codified initially on ten wooden panels around 889 B.C. by a panel of ten patrician jurists (Decemvirs), into the “Ten Tables,” later expanded by 450 B.C. to the “Twelve Tables.” Private wrongs were called "delicts." The penalty for intentional homicide was blood vengeance at the election of the victim’s family, while for an unintentional homicide payment of a prescribed number of cattle or a ram (scapegoat) for ritual sacrifice by the victim’s family.  For accidental personal injury there was often an election between retaliation in kind or a specified payment. Delicts addressing various categories of property damage required two or three times the amount of actual pecuniary loss.

The Twelve Tables were replaced by the Lex Aquila, enacted by popular plebiscite circa 286 B.C.  While preserving the general rule of strict liability for one’s actions, the Lex Aquila introduced elements of fault and negligence. To encourage truthfulness, willful denial of a meritorious claim could result in doubling of the damages awarded.  The Lex Cornelia ( c. 67 B.C.) adjusted monetary remedies upward to account for four centuries of inflation since adoption of the Twelve Tables.

Throughout Rome’s thousand year dominance, its laws were continually reformed, refined, and influenced by legal scholars, culminating in the Justinian Code. Except for the limitations inherent in a class-conscious, patriarchal society heavily dependent on a slave economy, Roman law provided the foundation for civil remedies for personal injury, including (1) money damages as the dominant remedy in resolving civil disputes; (2) the identification of instances in which strict liability for the consequences of one's actions might not apply, such as in the instance of action not voluntarily taken; (3)  transparency in judicial decision making as Praetors were required pronounce the law they would apply; and (4) judicial discretion to determine when strict application of legal rules, or the absence of rules and remedies, would produce a manifestly unjust outcome.

Over thousands of years, these early foundations of tort law led to the development of English common law and our American tort law system.  This body of law has been in the process of reforming to meet the changing needs and conditions of western civilization for 5,000 years.

Sometimes the pendulum swings too far in one direction or another, and when that happens, lawmakers and judges tug it back toward the middle of the path. Fortunately, we have some legislators in both parties who understand the issues in enough depth to make wise choices rather than being consumed in the urgency of political sausage making while struggling with the immediacy of budget problems and the cacophony of interest group demands. Some of  the folks who beat the drums loudest for "tort reform" go too far, sometimes out of a desire to generate political campaign contributions from particular interests. But some ideas in the "tort reform" area can have merit if applied fairly and in moderation.

Over time, despite the excesses on the margins, the path of development of personal injury law tends to be consistent with Georgia's state motto: "Wisdom, Justice, Moderation."

In case you or a loved one are ever in a serious accident, or have a serious burn injury, anywhere in northern Georgia, memorize these four words: 

"Take me to Grady!"

While Grady has a public reputation as an overburdened, financially troubled inner city hospital dealing with a huge population of indigent patients, it is also the teaching hospital for Emory and Morehouse medical schools and the premier center for trauma and burn treatment in north Georgia.

Last night I attended the open house for the newly expanded and renovated clinic facilities at Grady Burn Center. Previously, they had the expert staff and state of the art equipment, but physical facilities were dated and somewhat less than you normally see at newer, better funded hospitals.  Now, with help from the Georgia Firefighters Burn Foundation, the Grady Burn Center has a facility worthy of the excellent staff and program for treatment of burn patients. 

For me as a former patient, the tour was a poignant experience. I have no clear memory of my brief time in ICU, so that did not even look familiar. But a fire chief who was with me commented that when we entered the all too familiar hydro room, and I walked over to touch the hydro table, he could tell detect some emotion. (No words are adequate to express, and no amount of morphine is adequate to mask, the pain of debridement and hydrotherapy after a burn injury.) While I have recovered well with the help of the medical heroes at Grady Burn Center, my experience with a burn injury adds depth and empathy to my representation of burn injury survivors and the families of those who did not survive.