Puzzling stall of federal judgeship nomination in Georgia

GSA RBR Renovations

U.S. Courthouse, Atlanta

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

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

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

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

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

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

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

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

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

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

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

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

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

Trucking safety measurement system falls to industry lobbying

truck2“TMI” for “too much information” is a common, joking expression for overdisclosure of personal details in conversation or social media.

Now it appears that trucking companies with bad safety records yelled “TMI!” loudly enough, and spent enough money on “K” Street lobbyists and campaign contributions to impede public access to their safety records.

Five years ago, the Federal Motor Carrier Safety Administration (FMCSA) launched a new trucking safety initiative called the Compliance, Safety, Accountability (CSA) program.  At the heart of this program was a Safety Measurement System (SMS) designed to analyze violations from inspections and crash data. The idea was to be able to quantitatively identify carriers with a pattern of unsafe practices in order to intervene to correct safety violations before they result in catastrophic injuries or deaths.

The SMS assessment included seven safety improvement categories, called BASICs: unsafe driving, fatigued driving, driver fitness, substance/alcohol abuse, vehicle maintenance, cargo and crash indicators. Examining data category-by-category could shed light on repeat patterns of unsafe trucking practices.

A key element of the program was that companies exhibiting high-risk behavior would be notified and given an opportunity to correct safety violations before they matured into tragedies on the road. The FMCSA and state law enforcement were enabled to utilize a variety of tools including warning letters, roadside inspections and compliance reviews. If early warnings are not heeded by the carrier companies, the administration can apply costly fines & penalties.

For the past five years, CSA provided the public with improved access to safety data. Shippers and brokers could easily check online for a trucking company’s safety record when choosing who would haul their loads. If they selected a trucking company with a terrible and easily accessible safety record, that could create questions about negligent selection and retention in the event of a terrible crash. In addition, insurers could use the CSA data in liability insurance underwriting analysis.

Some of the benefits of public disclosure of  the SMS / CSA, as pointed out by my friend Steve Gursten in Michigan, have been the raising of awareness of the importance of commercial trucking safety, causing motor carriers to devote more attention and resources to safety initiatives due to accountability that comes with having the carrier data publicly displayed, and holding motor carriers accountable when conducting business. About 70 million users logged onto the Safersys website each year, creating a community of transparency that encouraged a culture of commercial motor vehicle safety, created incentives for motor carriers to improve their safety performance, and allowed other companies and members of the public to make informed decisions based on all available sources of FMCSA data.

My routine in reviewing potential truck crash cases in the past five years has included checking the SMS/CSA records at http://safersys.org, often during the initial phone call with a potential client.  While companies with good records had bad wrecks, and companies with bad records were not always at fault, a bad safety record was often telling.

Trucking companies and truck drivers did complain bitterly about the program. Much of the truck driver commentary is wrapped in general rage about being told how many hours they could drive (despite all the science about the limits of human fatigue and circadian rhythms), electronic data recorders and safety regulation in general.  Some of that reminds me of a truck driver whose deposition I took a while back who referred to his company’s safety director as “the safety moron.”

More articulate criticism of SMS and CSA has raised questions about the accuracy of the data and the scoring algorithms in the FMCSA methodology. A few months ago in Illinois, I took the deposition of the former CEO of what was once a large trucking company that had the worst CSA safety scores I have ever seen. He complained that the CSA formulas did not adequately take into account that his company’s size was declining due to business reversals of their largest hometown customer. Others complained about having wrecks that were not their fault counted against them in the formulas,

All the public and commercial use of the system (such as by shippers, brokers and insurance companies), was the focus of arguments against the CSA methodology, according to a media analysis by Todd Dills.  FMCSA compared the crash rates of carriers with sufficient and insufficient data in the system to produce a score. FMCSA said that carriers with scores above intervention thresholds had the highest average crash rates overall. Further, FMCSA looked at the crash rates of groups of carriers with scores above the intervention thresholds in BASICs other than the Crash Indicator, separating those populations by the number of inspections recorded by the system. The highest crash rates were shown for carriers with 11-20 inspections in the system.

The FMCSA report said that increasing the data sufficiency standards to as high as 20 inspections would make it more difficult for the agency to make appropriate safety interventions with the group showing that highest average crash rate. The SMS “ensures that there is oversight on the largest population possible—including both small and large carriers,” the FMCSA report summarizes. “Since introducing the use of the system, violation rates have dropped by 14 percent. Motor carriers are paying attention to their safety data more than ever before, which improves safety.”

Last August, ten trade associations representing companies that own and operate commercial trucks and buses have jointly asked the US DOT to remove the SMS data from public view, citing several reports highly critical of the SMS’ methodology in identifying high-risk carriers. They claimed that, “Removing carriers’ SMS scores from public view “will not only spare motor carriers harm from erroneous scores, but will also reduce the possibility that the marketplace will drive business to potentially risky carriers that are erroneously being painted as more safe.”

When Congress deliberated the massive five-year highway funding bill a little over a month ago, the trucking industry pulled out all the stops in lobbying key members of Congress to insert language to suppress public access to CSA / SMS data. I was not at the committee hearings where the 1,300 page bills was discussed, but I would bet there was not lengthy dialogue on the pros and cons of this public safety measure.

The bill removes from public view the bulk of the Compliance, Safety, Accountability system’s Safety Measurement System. The legislation removes from public view all carriers’ percentile rankings in the seven SMS BASICs It requires FMCSA and the Government Accountability Office to identify the program’s faults, develop a plan to fix them and then implement those fixes before the system can go live again. Congress in the bill directs FMCSA to study issues like carriers’ crash risk and its correlation to CSA scores, CSA’s rankings methodology, accuracy of the CSA data, incorporating crash fault accountability and how the public uses CSA scores in making business decisions or overall safety determinations of carriers. The bill requires the report to be produced within 18 months. Congress also prohibited FMCSA from continuing to use the system and its data to make safety determinations about carriers. Until FMCSA can implement a so-called “corrective action plan,” the CSA program will remain dormant.

Therefore, as of December 4, 2015, much of the information previously available on the Federal Motor Carrier Safety Administration’s (FMCSA) website related to a trucking company’s safety performance will no longer be displayed publicly. This will prevent easy access to the public and to others who want to know about a company’s safety rating. This also applies to information provided to the public through the QCMobile app.

As my friend, Morgan Adams in Chattanooga, has pointed out, “Now, instead of simply looking for what has been free, public safety information, you will have to pay for the records to find out how safe a trucking company is and wade through the labyrinth of regulations to do a formal request for information to the government. The government protected the trucking companies, not the people on this one. Looks like yet another reason to hire a lawyer for your truck accident case but in this instance you shouldn’t have to.”

In light of this congressional action, the handling of motor carrier crash cases will be slightly altered. We can no longer get safety performance data about trucking companies online. However, we can still submit Freedom of Information Act requests to the Federal Motor Carrier Safety Administration. While the FMCSA FOIA office is often overwhelmed with work, and that overloading of staff may increase, they do try to be cooperative.

To be effective in such requests, we will promptly upon being asked to evaluate a potential case, send a concise FOIA request by email to https://www.fmcsa.dot.gov/foia/foia-requests. We will get the same information, at least for now, but it will take weeks or months longer to get it.

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Ken Shigley, past president of the State Bar of Georgia, is chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section. He is also a national board member of the Academy of Truck Accident Attorneys, a certified civil trial attorney of the National Board of Trial Advocacy and past chair of the Institute for Continuing Legal Education in Georgia Board of Trustees.

 

Georgia State Patrol fires trooper who killed 2 teens in crash

Georgia_State_Patrol_patchThe leadership of the Georgia State Patrol deserves credit for openness in promptly taking disciplinary action and publicly disclosing that a State Trooper’s reckless conduct caused the deaths of two west Georgia  teenagers and injuries to two others last week.

State Trooper Anthony J. Scott, 26, was fired Friday after investigators determined he was driving 91 mph five seconds before a crash that killed Kylie Hope Lindsey, 17, and Isabella Alise Chinchilla, 16, both of whom were back seat passengers and students at South Paulding High School. Front seat occupants Dillon Lewis Wall, 18, and Benjamin Alan Finken, 17, both of Douglasville, were also injured.

Trooper Scott was northbound on U.S. 27 in Carroll County last Saturday night. He had slowed from 91 to 68 mph when he struck a 2005 Nissan Sentra attempting a left turn onto Holly Springs Road, investigators said. The posted speed limit in the area is 55 mph.

In the old days, it would have been much easier for government officials to cover up what really happened and place the blame on a teen driver. Now, with so much electronic data preserved in the patrol car, it would have been much harder to maintain a coverup.

Nothing can be worse for parents that the untimely death of a beloved child. For an innocent daughter to die due to senseless recklessness of a law enforcement officer who is sworn to protect rather than endanger the public is doubly tragic.

Criminal charges for homicide by vehicle are likely. As the crash happened in Carroll County in the Coweta Circuit, the Georgia State Patrol announced that it will turn over its findings to Coweta Judicial Circuit District Attorney Pete Skandalakis.

Civil cases for wrongful death and personal injury against state employees are controlled by the Georgia Torts Claims Act (GTCA), which became law in 1992.  Under this law, the State of Georgia waives its sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances.”

There is a long list of exceptions to potential state liability under this statute, but none of them would appear to apply to speeding through an intersection when there is no law enforcement emergency and without lights or siren operating.

Sovereign immunity is waived only up to the amount of $1 million per person and $3 million per occurrence.  A wrongful death claim (for full value of the life of the person who was killed) and a survival action (for pain and suffering, medical expenses and funeral expenses), however, whether brought by the same or separate persons, are subject to separate $1 million caps.

To make a claim under the Georgia Tort Claims Act, one must present a claim before suit in a technically precise manner. It is common for cases against the state to be thrown out of court for failure to strictly comply with the technicalities of the notice requirement. Compliance with the ante litem notice requirements is a condition precedent to a plaintiff’s right to file suit against the state, and the courts lack jurisdiction to adjudicate any such claims against the state unless and until the written notice of claim has been timely presented to the state as provided in O.C.G.A. §50-21-26(a).

Within 12 months of the incident causing injury or death, a written notice of claim must be sent by certified mail or statutory overnight delivery such as Fedex or UPS to the Risk Management Division of the Department of Administrative Services, the designated officer of the governmental agency involved, and the Attorney General.  The notice of claim must include,

“to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.”

Failure to state an amount being claimed defeats the claim, so one must state a dollar amount up to the maximum allowed under the GTCA.

This is all familiar territory to me. Last year, the Supreme Court of Georgia quoted my book,  Georgia Law of Torts: Trial Preparation and Practice, in a case discussing the scope of the GTCA. My first job out of law school was as an Assistant District Attorney in my hometown of Douglasville, working in Douglas, Paulding, Haralson and Polk Counties, then all part of the old Tallapoosa Judicial Circuit. That of course involved working with State Troopers, though we also prosecuted a State Trooper in Paulding County for sexual exploitation of several young girls. Later, for most of a decade, I was in an Atlanta law firm that defended suits against state officials and employees including State Troopers all over Georgia.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

 

 

 

Explosion of video evidence in injury and death cases

video iphoneWhen I started practicing law in 1977, hardly anyone but TV stations had video cameras, which at the time were heavy, tripod-mounted and extremely expensive. The idea of being able to play a video recording of an event in court would have seemed like science fiction if anyone had been so fanciful as to suggest  it.

But today investigation of any serious injury or wrongful death case involves a hunt for video recordings from a variety of sources. We hardly could not have imagined this in my early days as a prosecutor.

In 1983, the first consumer camcorders began to appear. They were big, shoulder-held devices that recorded on large VHS cassettes. We had one of those to make video of our children when they were small. By the 1990s, compact digital tape technology became the dominant format. Formats continued to evolve until now cheap, compact, solid state video recording devices are incorporated into ubiquitous smart phones. While I seldom use the video recording feature on my iPhone, I discovered in a pinch that I could video record an hour-long doctor’s deposition on my phone.

Now the checklist for investigation of every significant case includes the search for video recordings as well as still photos from a wide variety of sources. Some include:

  • video 4 dashcamPolice dashcam video. We routinely send an open records request for dashcam video from police vehicles. We recently concluded a case in which the Georgia State Patrol dashcam camera recorded a trooper’s questioning of a truck driver through an interpreter. On that video, he admitted that he had been on the phone and did not see the line of stopped vehicles before he ran over them, killing three people. Through phone records we determined that he was on the phone for 25 minutes with someone in South America. In another case, we have video of the defendant driver’s field sobriety test, resistance of arrest and refusal to submit to a blood alcohol test. That’s all golden.
  • Police bodycam video. Good police officers love body cameras that video 2corroborate what they report and save them from false accusations about their conduct. In one case, we obtained bodycam recordings of a truck driver who killed five people admitting before he “lawyered up” that, “I must have fell asleep.”
  • Truck and bus cameras. A growing number of trucks and buses have Drivecam or similar video units recording what happens inside a truck cab or bus. Like a store security video camera, it can protect the company from allegations when the driver did nothing wrong. But the evidence can be impressive when it works for the victims of negligence. We have a case in the office now in which video inside a bus in another state clearly demonstrates a driver’s negligence.
  • Inside security surveillance video. Video can make or break an injury claim. When a golf cart in an airport terminal mowed down a woman in the concourse, we immediately sent an open records request for surveillance video in the area where it happened.  Two cameras caught from different angles the golf cart speeding through the concourse and crashing into our client without warning. That eliminated all potential defenses on liability, which surely would have been hard fought. On the other hand, when a potential client came to me with a story of how his leg was broken at a “big box” home improvement store, I contacted the chain’s general counsel and suggested that we look at the video together. I went to their office, sat down in the law department office and watched the video of the incident. It was obvious that my potential client’s story was, to put it mildly, inaccurate. It saved me a lot of time and trouble.
  • video 1Outside security cameras. Urban areas are increasingly blanketed with surveillance cameras. This was highlighted after the Boston Marathon bombing when the bombers were caught on numerous cameras. When we are hired early enough, we check out the surrounding area for cameras that might have inadvertently recorded anything of interest. Security cameras on stores, shopping centers, service stations, banks, ATM machines, etc. are of potential interest. In one of our cases, a security camera on a nearby store recorded not the crash itself but the last moments leading up to it.
  • Public safety surveillance cameras. A higher level of video surveillance is operated by city governments and even the Department of Homeland Security. When a serious accident happens in a critical area of a city or in the national transportation infrastructure, we send an Open Records Act (state) or Freedom of Information Act (federal) for production of video recorded in the minutes surrounding the incident.People often ask if we can retrieve video from DOT traffic monitoring cameras, but they consistently deny that any recordings are retained. Usually we don’t get anything useful from any of the public surveillance systems, but when we do it can be really good stuff.
  • Camera phones. Years ago, we would check with firemen who might have carried disposable cameras in their pockets when responding to major crashes. That led to discovery of some extremely dramatic scene photography. Now, in an era when virtually anyone at the scene is likely to have a cell phone that includes both still and video camera capabilities, investigation can include a broad search for individuals who may have recorded clips for themselves. That is a difficult search.

The downside of all this is that jurors may expect to see video in every case, much as TV shows like CSI lead some to expect DNA evidence in every case. Sometimes it is there, sometimes not. But jurors should understand the absence of particular forms of evidence does not preclude finding proof by a preponderance of evidence.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

 

 

 

 

GPS Fatal Distraction

route-guidance-system-navigation-satnav-gpsGPS technology is one of the great conveniences of life in the 21st century. When it works right it enables us to find our way through unfamiliar areas with ease.

Other times it can lead us terribly astray.

But at all times we should follow the device directions by entering destination information while safely parked and use the “human override” of common sense is following the driving directions.

Today in Atlanta, we have a tragic example of the importance of keeping those principles in mind.

Police report that King Fareed from North Carolina was focused on his phone’s GPS directions when he got lost near the Atlanta airport, and made an improper U-turn into the path of an approaching motorcyclist coming the opposite direction on Sullivan Road in College Park. The motorcyclist, Jamel Houseworth, was killed, giving rise to a wrongful death claim for his survivors.

Having flown into a lot of cities, picked up rental cars and headed out into unfamiliar streets relying on GPS directions, I can well imagine the disembodied voice of the GPS saying to make a legal U-turn as soon as possible. The potential for unsafe distraction is huge.

According to a news report from WSB TV, police are charging Fareed is being charged with involuntary manslaughter, improper U-turn and failure to use due care in use of an electronic device.

The pertinent Georgia code sections are:

O.C.G.A  § 40-6-393( c ):

Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163 [passing a school bus], subsection (b) of Code Section 40-6-270 [hit and run], Code Section 40-6-390 [reckless driving] or 40-6-391 [driving under influence of alcohol or drugs], or subsection (a) of Code Section 40-6-395 [fleeing police officer] commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3 [up to $1,000 fine and 12 months in jail].

O.C.G.A  § 40-6-121. U-turns, when prohibited

No vehicle shall be turned so as to proceed in the opposite direction:

(1) Upon any curve;

(2) Upon the approach to or near the crest of a grade where such vehicle cannot be seen by the driver of another vehicle approaching from either direction;

(3) Where such turn cannot be made in safety and without interfering with other traffic; or

(4) Where a prohibition is posted.

O.C.G.A  § 40-6-241.1. Wireless telecommunications device use prohibited

(b)(1) No person who is 18 years of age or older or who has a Class C license shall operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data.

(2) No person shall operate a commercial motor vehicle on any public road or highway of this state while:

(A) Holding a wireless telecommunications device to conduct a voice communication;

(B) Using more than a single button on a wireless telecommunications device to initiate or terminate a voice communication; or

(C) Reaching for a wireless telecommunications device in such a manner that requires the driver to maneuver so that he or she is no longer in a seated driving position properly restrained by a safety belt.

Here are some important safety tips for using a GPS in driving:

  1. Remember that driving safely job one. It is more important than navigation. Better to get off course and lose a little time than to make an unsafe movement that could cost a life.
  2. Be extra careful in familiarizing yourself with operation of the GPS unit. If using one with which you are not intimately familiar, take time to read product directions and get oriented to its operation while you are sitting still in the parking place before you even start to drive.
  3. Don’t program the GPS while the car is moving. Enter the destination before you start. If you need to cancel or change a destination, pull over and stop in a safe place to do it.
  4. Learn to use voice directions from the GPS. Make sure you have that working audibly before you start to drive. Only rarely should you glance at the GPS screen.
  5. Mount the GPS out of driving sight lines so that it will not block your view of the roadway.
  6. Use common sense to override GPS misdirection. If the GPS tells you to do down a one way street or the cart path of a golf course, go by what you see on the ground rather than what the electronic device tells you.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.


 

 

 

Legal alchemy? Turning lead into gold by finding adequate insurance

If we have a nearly unique niche in our law practice it is the search for vastly more insurance for catastrophic truck crash cases where the visible insurance coverage is terribly inadequate. Other law firms — in Georgia and elsewhere — call us in to handle that part of a wrongful death or catastrophic personal injury case resulting from a tractor trailer crash.

Alchemist-Cropped

The approaches to finding significant additional insurance coverage are not really legal alchemy or voodoo.  But they do involve a critical knowledge of subtle complexity gathered over 38 years in law practice that does not appear in books or legal research databases.

It is no secret that big truck wrecks can cause a lot of carnage. When an 80,000-pound tractor trailer bigger than a Sherman tank runs over a small passenger car stopped in traffic at highway speed, a tremendous amount of kinetic energy is unleashed.  We often see the catastrophic outcomes involving multiple fatalities and injuries.

The minimum insurance required for interstate trucking companies has not changed since President Reagan was in office. Even though there has been a lot inflation over the past 30 years and the purchasing power of that insurance has steadily dwindled, all Congress has been able to do is block an inflation adjustment in response to industry lobbying.

Minimum insurance for general freight tractor trailers in interstate commerce was set at $750,000 in 1981. Minimum coverage for interstate hazmat trucks and passenger buses was set at $5,000,000 in 1985.

If the $750,000 minimum insurance limit were adjusted for inflation from 1981 according to the Consumer Price Index, it would be about $2 million. Adjusted at the medical inflation rate, which is more appropriate for personal injury claims, it would be $4,422,000. But we all know how effective Congress is these days.

It’s even worse In Georgia. For trucks operating only inside Georgia, the minimum insurance required coverage for big commercial trucks is only $100,000. That has remained stagnant for decades.

That’s where we come in, searching for additional insurance that is invisible to most lawyers. Here are a few examples.

From $1 million insurance to $50 million insurance. In a truck crash case on an interstate highway in south Georgia with multiple death and injury claims, the trucking company’s insurer insisted that there was only $1 million insurance coverage, so all the families had to just divide that and sign releases. Lawyers for several of the families brought me to look for more coverage. Knowing where and how to look, I found another $50 million of insurance coverage.

 From $1 million insurance to $10 million insurance.  In another recent case involving multiple fatalities in a tractor trailer crash on an interstate highway in Georgia, the trucking company’s insurer represented that there was only a single $1 million insurance policy. They insisted that we needed to have a mediation to decide how to divide that policy and release all claims.  We declined and pursued a combination of intermodal freight and maritime law theories. That led to uncovering $10 million in additional coverage.  We settled confidentially before trial for at least as much as the expected jury verdict value in the small south Georgia county where the case was filed.  Ironically, that was paid mostly by an insurance company that had before suit denied in writing that it had ever heard of the company it insured.

From $250,000 to $2 million. In another case, involving a defective piece of warehouse equipment rather than a tractor trailer, the insurer for the Florida welding shop that made a knockoff work stage on special order, represented that there was only $250,000 insurance for a wrongful death claim. We kept digging and found that company had a cumulative total of $1 million coverage under insurance policies they did not realize overlapped. After collecting that million in Florida, we then came back to Georgia, classified a forklift as an office supply to due the distributor for violation if the Georgia Fair Business Practices Act, and collected their $1 million policy limit. In the end we collected $2 million after the first insurance company insisted there was only $250,000 coverage.

From $25,000 to $400,000.  In one recent case, a log truck was making a u-turn in the dark on a rural highway without proper lights and reflectors. Witnesses said it was not visible until they were “slap up on it.” A man driving to work in predawn darkness was killed. The 18 wheeler log truck incredibly had only $25,000 insurance coverage.  After litigating over insurance coverage and bankruptcy issues as well as the original wrongful death claim, we collected about 16 times that much from the insurer for the logger who loaded the truck and the insurance agent that improperly handled the logger’s phone call reporting  the claim. It was less than the theoretical value of the claim but it was enough for the decedent’s daughters to get a good launch in adult life.

This often requires creatively “thinking outside the box.” I will not publish the methods for free on the internet, but I am happy to assist clients and lawyers anywhere in the country who hire me for that purpose.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.


 

 


 

 

 

Parents of juvenile home invaders may be ordered to pay $60,000 of medical costs from home invasion shooting

home-invasion-480x320Atlantans were shocked a couple of weeks ago by the story of a home invasion robbery attempt in which teenage males approached a young father on his front porch, forced their way into the house and shot the father twice. His wife fled out the back door with their six-month-old infant while the invaders fired shots at her, and called 911 while hiding from them.

The alleged shooter, 18-year-old Brandon Jerome Smith, was arrested several days ago. Now three younger teenagers — 15-year-old Trequan Sutton, 15-year-old Quindarius Slade, and 14-year-old Veshawn Smith — have turned themselves in. They are being charged as adults for  charges, including armed robbery, home invasion, aggravated battery, aggravated assault with a deadly weapon, cruelty to children and theft by taking.

Any prosecutor and judge addressing this case will make sure these thugs are locked away for a long time. As a young prosecutor years ago, I would have relished the opportunity to introduce them to the prison system. They have thrown their lives away in a senseless act for nothing. Perhaps it was a gang initiation. Perhaps something else. But it was surely a senseless waste of human potential. They are fortunate they did not succeed in killing anyone, as easily could have happened.

As a father, I wonder where their parents were and what kind of parental influence results in young men thinking this kind of conduct is even marginally acceptable. I know that good parents can have kids who get involved in drugs and go off track. But violent home invasion, shooting a father on his front porch and trying to shoot a mother with a baby in her arms? That’s not just off track. That is deeply evil.

These young men will pay a severe price for their horribly bad choices. They will be behind bars for the next 10 to 20 years, tragically wasting their lives. It is too late to take away what they did.

But what about the parents who abdicated any responsibility for guidance and discipline? Georgia law does provide a limited degree of parental accountability for parents of  young thugs who should reap some of the consequences along with the sons they failed to raise.

O.C.G.A  § 51-2-3 provides for liability of parent or guardian for willful torts by minor children as follows:

(a) Every parent or guardian having the custody and control over a minor child or children under the age of 18 shall be liable in an amount not to exceed $10,000.00 plus court costs for the willful or malicious acts of the minor child or children resulting in reasonable medical expenses to another, damage to the property of another, or both reasonable medical expenses and damage to property.

(b) This Code section shall be cumulative and shall not be restrictive of any remedies now available to any person, firm, or corporation for injuries or damages arising out of the acts, torts, or negligence of a minor child under the “family-purpose car doctrine,” any statute, or common law in force and effect in this state.

(c) The intent of the General Assembly in passing this Code section is to provide for the public welfare and aid in the control of juvenile delinquency, not to provide restorative compensation to victims of injurious or tortious conduct by children.

The three minors supposedly have six parents among them. Each of those six parents could be held liable for $10,000 plus court costs. Even if the victim has other resources to pay medical bills, each of the parents should be sued and then subjected to the most severe possible collection efforts to enforce the full amount out of whatever meager resources they may have.

I know from experience that parenting is hard. Poverty and race are not excuses; listen to Ben Carson on that topic. Single moms in poverty without education can raise good men who succeed. Even fathers in prison can try hard to influence their children not to follow their bad example.

Someone should hold their feet to the fire and squeeze out of them every dime of $10,000 per parent to help defray the medical expenses, even if it requires garnishing the prison cigarette accounts of absentee fathers.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

 

“Won’t Take Me Down” – living with chronic pain

 

Our personal injury clients often give us great inspiration with their fortitude and positive spirit. A client recently forwarded this poem written for her by her sister in Ireland.

WON’T TAKlibra public domain 1E ME DOWN

What you see on the outside
Is not what’s inside
Crippled in pain that I feel I must hide

The pain unbearable
Beyond my control
Trying and fighting with my mind body and soul

To get up each day and try to fit in
To work and love and play
I must fight this from within

My mind is strong
My will power on drive
My pain ongoing and long
But deep inside I will strive to survive

I can’t hide my tears
In pain I must cry
My futher my aims my goals full of fear
But who do I talk too
Who will listen
Who will hear

As long as I can walk
And still have my pride
I am going to speak up and talk

You will not knock me down
You will not take my sole
I will fight this pain till I am once again whole

Wrote this for my beautiful courage little sister who battles a life full of pain….my inspiration
I love you.

(Poem by Jackie Murphy in Ireland, for her sister and our client, Dee Fahy Mathewson. Published by permission)

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

 

 

What is the “full value of life” in Georgia wrongful death law?

life values

 

In Georgia wrongful death law, the measure of damages is the “full value of life,” which includes both economic and noneconomic value of the decedent’s life to him or her. Unlike some states, Georgia does not provide for recovery of losses suffered by those left behind, who are deprived of the companionship, advice, counsel, or consortium of the deceased. But unlike other states, in respecting the sanctity of all human life, Georgia does not impose any rigid formula or cap on the value of life.

The economic component of the full value of life include the present value of future earnings without any deduction for necessary or other personal expenses or taxes of the decedent had she lived. In determining the economic value of the life of the decedent, jurors may consider all the facts and circumstances of the case, including the decedent’s age, physical health and strength, the labor and work which he performed, income, value of any labor and work which performed, and every other fact and circumstance which would throw light upon the value of her life. That projection of economic value of life is reduced to present cash value such upon the basis of interest calculated at 5% per annum.

In projecting lifetime earnings, jurors may consider  age at the time of death, the likelihood of retirement from work, and the possibility that the capacity to earn money may or may not remain undiminished to old age. Jurors may also consider feebleness of health, actual sickness, loss of employment, voluntarily abstaining from work, dullness in business, reduction in wages, the increasing infirmities of age with the corresponding diminution of earning capacity, and other causes may contribute in greater or less degree to decrease the gross earnings of a lifetime.

Sometimes when a decedent was retired, or close to retirement, survivors may be counseled not to bother with seeking the economic component of the value of life which can set a low “anchor” number in jurors’ thinking.

The intangible aspect of the value of life does not depend upon any formula, though lawyers may suggest formulas based upon life expectancy and any other factors. There is no fixed rule in arriving at the full value of the life of the deceased. Jurors are told to determine the subjective, intangible value of life based upon what the decedent’s life was worth to her, using their enlightened conscience, experience and knowledge of human affairs. They may consider virtually all facts and circumstances affecting the quality and subjective value of a person’s life.  Factors considered may include the decedent’s relationships, living conditions and family circumstances, and anything that was important to the decedent, such as love of family, music, church, and leisure activities. I have used photos and videos of decedents’ activities, their own nature photograph, woodwork, artwork and writings.  However, some evidence of a decedent’s.

The intangible aspects of life may be demonstrated through testimony of family members and friends regarding their relationship with the decedent as well as evidence relevant to the decedent’s general enjoyment of life. While the survivors’ loss of relationship with the decedent is not compensable in Georgia law, such relationships may be considered as the mirror image of the relationship that the decedent lost.

Regarding both the economic and intangible aspects of the value of life, jurors may refer to life expectancy tables. Two such tables are included in the Georgia evidence code, and may be submitted without any further proof. Those are the Commissioners 1958 Standard Ordinary Mortality Table and the Annuity Mortality Table for 1949, Ultimate. In addition, other life expectancy tables may be used with a proper evidentiary foundation, such as United States Life Tables published in National Vital Statistics Reports, and various life expectancy tables in the Statistical Abstract of the United States. More extensive information about actuarial and mortality tables can be obtained from the website of the Society of Actuaries at http://www.soa.org  and at a general information website concerning actuarial science, http://www.actuary.com. In practice, after comparing the numbers there is often not enough difference between the 1949 mortality annuity table and the most current life expectancy table to justify using the newer ones which are broken down by race.

In addition to the wrongful death claim itself, the estate of a person who died may have a claim pain and suffering prior to the death, medical expenses and funeral expenses. Any claim for punitive damages must be based upon the estate’s claim, also known as a “survival action” because it survives the decedent’s death. Where the numbers in such a claim are relatively small, a decision must be made as to whether it is worth including that claim which could set a low “anchor” number in the minds of jurors.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

4 advantages of contingent attorney fees

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Almost all personal injury and wrongful death cases in the United States are handled on a contingent fee basis. That means that the lawyer is paid only in proportion to the amount recovered for the client. If there is no recovery, the lawyer is not paid. If money is recovered from the other side, the lawyer is paid an agreed percentage of that recovery plus reimbursement of the lawyer’s out of pocket expenses.

Years ago, when I was handling business-to-business commercial collection cases for small businesses in my hometown, I always gave those business clients the option of paying me by the hour or a percentage of the amount I collected. They always chose the percentage, even though I repeatedly made an effective hourly rate many times what they would have paid me if they had taken the other choice. But they still chose the percentage fee every time.

Many times I have offered new clients in personal injury and wrongful death cases the option of paying my hourly rate every month rather than a percentage of the recovery payable out of the check from the insurance company at the end of the case. Because nobody has ever taken me up on that, I quit mentioning the option.

There are at least four advantages of contingent fees.

  1. The contingent fee is the one device in law that gives injured people of moderate financial means a fighting chance in the courtroom against giant corporations and insurance companies. Hardly anyone dealing with the effects of a major injury could afford to pay an experienced lawyer $200 to $400 per hour or more for a couple of years of challenging litigation.
  2. Contingent fees help to weed out cases that lack substantial merit. Experienced lawyers will not waste their time on a lawsuit that does not have enough merit to justify investment of their time. We may take a calculated risk on hard cases where there is an intellectually honest but untested legal theory. However, any lawyer who repeatedly bets on cases that have no value may soon go broke.
  3. Contingent fees perfectly align the lawyer’s incentive with results for the client, and the lawyer’s pay is directly proportional to results obtained for the client. A lawyer who knows she will not be paid unless successful is highly motivated to get the optimal result for the client. By contrast, an hourly fee arrangement can encourage delay, inefficiency, and unnecessary action unless there is an incentive to earn future business from the same client. When law firms set billable hour quotas, the incentives often do not align with client outcomes.
  4. Expenses of litigation as well as fees can be prohibitively high for injury victims. Lawyers who work for contingent fees typically also advance the expenses of litigation (filing fees, accident reconstruction, expert witnesses, court reporters, videographers, medical illustrations, exhibit preparation, travel costs, etc.), knowing that most clients are unable to do so, and are reimbursed for the costs out of money recovered for the client. Experienced in the rough estimation of costs and benefits, and knowing they will get that money back only if they win for the client, sensible lawyers are motivated to be prudent and spend only as much as necessary.

Contingent fee percentages vary among lawyers and types of cases, but a range of 33 1/3% to 40% is typical. Occasionally, a lower percentage may be offered for cases subject to early resolution and higher percentages may be justified when cases are especially risky or involve appeals after trial.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.