Child death in day care van – uninsured child care & sovereign immunity for negligent licensing

child carseatEvery summer there are far too many instances of children dying when left in a hot vehicle. One such tragedy involving a child care center without adequate insurance led to a claim against a city government for negligent licensing of the child care center.

Many child care centers in Georgia have no liability insurance because child care centers in Georgia are not required to carry any specific amount of liability insurance. The regulations governing Family Child Care Learning Homes require only “notification of the absence of a liability insurance policy sufficient to protect its clients,” though the amount of insurance that would be  sufficient is never defined. The Rules for Child Care Learning Centers require only that a program seeking an  exemption from licensure “shall comply with the requirements regarding notification to parents of enrolled children if the program does not carry liability insurance.” Parents are asked to sign an acknowledgment that the center “does not carry liability insurance sufficient to protect my children in the event of an injury, etc.”

When I was chairman of the board of directors of a non-profit, church-based child development center, we carried substantial liability insurance, adopted strict policies and procedures, and installed state of the art security technology. We were a rare exception.

If a child is badly injured or killed in many Georgia child care centers, the absence of liability insurance is likely to leave the family without any effective legal recourse.Sovereign-Immunity

In the recent case of Calloway v. City of Warner Robins, 336 Ga.App. 714, 783 S.E.2d 175 (2016), a three-year-old child died of heat stroke when left in a hot vehicle for several hours while in the care of workers a child care center. Lacking effective recourse against the child care center and its employees, the parents included as defendants the City of Warner Robins and the city clerk for negligence in issuance of a business license without following certain procedures.

The Court of Appeals (McFadden, J.), held that the city was protected by sovereign immunity because a “municipality’s act of granting or revoking a business license constitutes a governmental function,” even if the issuance of the license was negligent.  Likewise, the city clerk who was sued only in his official capacity was protected by sovereign immunity.

From time immemorial the doctrine of sovereign immunity has restricted citizens’ rights to seek legal redress against the government for its wrongdoing. Georgia has subscribed to the doctrine of sovereign immunity since 1784, when it was adopted by statute from the common law of England. The concept of sovereign immunity is a carryover from the quaint legal fiction that “the King can do no wrong,” which survived the transition from individual absolute sovereign to representative democracy. Limiting the governmental treasury’s exposure to tort liability is the more contemporary justification for the rule.

Whatever the rationale, through most of Georgia’s history, the state enjoyed almost complete immunity for the wrongs of its agents. Sovereign immunity is recognized to be “a harsh doctrine, not an equitable one.” Indeed, it is just the opposite of equity–it is the state declaring that it cannot be sued even where it would otherwise be liable.

The extent to which governmental entities receive the protections of sovereign immunity varies, depending on the type of entity involved and the type of negligence claimed. Generally speaking, the state is subject to a broader waiver of sovereign immunity than counties and municipalities, with the prevailing law being that the state waives immunity unless liability is specifically excluded by the Georgia Tort Claims Act.

The inverse is true of counties and municipalities, which require a specific statutory waiver before they can be liable. In addition to the government’s own immunity, government officials enjoy personal immunity for their allegedly wrongful acts, referred to as official, or qualified, immunity, which is not absolute, but protects them from the burdens of liability and litigation in many circumstances.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

 

Strict notice requirement of Georgia Tort Claims Act is trap door for the unwary

georgia highway mapAbout once a month I get a call from an attorney in another state asking about the procedure for making injury and death claims against Georgia state government. Too often they are disappointed to learn that their letters to and correspondence with a claims adjuster for the state was not adequate notice of the claim. If a year has passed without sending notice of claim in proper form, their clients are out of luck. More than once,  I  have gently suggested that a lawyer notify his   legal malpractice insurance carrier.

Once again, on May 17, 2016, the Georgia Court of Appeals reiterated the old story that the ante litem notice of claim requirement of O.C.G.A. § 50-21-26 is strictly construed and correspondence with the state’s claims adjuster is not good enough.

In Callaham v. Georgia Ports Authority, 337 Ga.App. 120, 786 S.E.2d 505 (2016), Judge Chris McFadden wrote for the court in a case in which the injured plaintiff contended that correspondence with the Risk Management Division of the Department of Administrative Service (DOAS) and a claims adjuster satisfied the ante litem notice requirement. Once again, a lawyer unfamiliar with the details of the Georgia Tort Claims Act fell through a procedural trap door, taking his client with him.

In the Callaham case, the plaintiff was injured at the Georgia Ports Authority terminal in Savannah. His lawyer sent a representation letter to the Ports Authority’s claims adjuster providing information, pretty much as one would in any other car wreck case. Later the lawyer sent a notice of claim letter by certified mail to the DOAS Risk Management Division.

However, he did not send the ante litem notice to the Ports Authority or comply with other details of O.C.G.A. § 50-21-26, which mandates the following requirements:

(a) No person, firm, or corporation having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as follows:

(1) Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered; provided, however, that for tort claims and causes of action which accrued between January 1, 1991, and July 1, 1992, notice of claim shall be given in writing within 12 months after July 1, 1992;

(2) Notice of a claim shall be given in writing and shall be mailed 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 shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim. Each state government entity may designate an office or officer within that state government entity to whom a notice of claim is to be delivered or mailed;

(3) No action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection;

(4) Any complaint filed pursuant to this article must have a copy of the notice of claim presented to the Department of Administrative Services together with the certified mail or statutory overnight delivery receipt or receipt for other delivery attached as exhibits. If failure to attach such exhibits to the complaint is not cured within 30 days after the state raises such issue by motion, then the complaint shall be dismissed without prejudice; and

(5) A notice of claim under this Code section shall state, 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.

(b) No action may be commenced under this article following presentation of a notice of claim until either the Department of Administrative Services has denied the claim or more than 90 days have elapsed after the presentation of the notice of claim without action by the Department of Administrative Services, whichever occurs first.

The Supreme Court and Court of Appeals have consistently required strict compliance with this notice procedure. Even actual notice to the state agency is not sufficient to overcome the strict procedural requirements. Within twelve months of the incident, notice must be delivered in person or by certified mail or statutory overnight delivery, e.g., FedEx, to both the Department of Administrative Services Risk Management Division and the designated officer (usually commissioner or general counsel) of the state agency involved.

A substantial body of case law makes it clear that notice to a claims adjuster or attorney for the state is not good enough.

The ante litem notice must provide the listed information, including an amount of claim. Sometimes, if the extent of damage is undetermined, lawyers just state the amount as the per person cap under the statute, $1,000,000 as a place holder.

The Georgia Tort Claims Act was enacted in 1992, waiving sovereign immunity up to $1,000,000 per person and $3,000,000.  While providing a means for compensation in state tort claims, it is riddled with exceptions, exclusions and procedural trip wires and trapdoors for the unwary. Any lawyer who is not familiar with it, absolutely must study the statute and case law interpreting it in exhaustive detail. Even those of us who have worked with it for decades must review it every time we handle a state tort case.

From the early 1980s until after passage of the Georgia Tort Claims Act in 1992, much of my work at an insurance defense firm involved defense of tort cases for the Georgia Department of Administrative Services Risk Management Division, working closely with the Attorney General’s office in defense of state officials and employees. In Hartley v. Agnes Scott College, 295 Ga. 458, 759 S.E.2d 857 (2014), the Supreme Court quoted my book describing the system prior to 1992:

Prior to enactment of the GTCA, tort claims were brought against individual state employees and officials rather than the state agencies, and funds were allocated by the state to pay settlements or judgments against employees and officials within the course and scope of their duties. The GTCA reversed this scheme, so that claims are brought against agencies rather than individual employees and officials.

After the Georgia Tort Claims Act became law, the Attorney General decided that outside lawyers defending cases for the state had to become Special Assistant Attorneys General, working at SAAG rates which were much lower than I had been billing. I thanked him for the honor but, needing to feed a growing family, declined. Since then, I have handled personal injury and wrongful death cases against the state.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

 

Statute of limitation tolled for crime in tort suit against other parties even if criminal never prosecuted

During a 1964 speech on re-apportionment, Rep. Denmark Groover (D-Macon) nearly fell over the state House railing trying to adjust the hands of the clock to keep it from reaching the mandatory hour of adjournment. The clock ended up falling. MANDATORY CREDIT: Joe McTyre / The Atlanta Journal-Constitution

Stopping the clock in Georgia.  In 1964, Rep. Denmark Groover (D-Macon) hung over the gallery rail to stop the clock from reaching midnight on the last day of the legislative session. (AJC file photo by Joe McTyre)

When an injury or death claim arises from a crime, in Georgia the clock stops on the statute of limitation up to six years when a criminal prosecution is not complete. That extension of the limitation period now applies to other defendants in the civil case, even if the criminal is never caught and prosecuted.

In July 2016, the Georgia Court of Appeals used textual analysis of a statute to overrule prior court decisions and reach this conclusion.

In Harrison v. McAfee, 2016 WL 3654284, decided July 7, 2016, Judge Nels Peterson analyzed the text of  O.C.G.A. § 9-3-99 to overrule a series of earlier court decisions and hold that this statute tolling the time limit for filing suit “applies regardless of whether the defendant in the case has been accused of committing the crime from which the cause of action arise.”

Thus, the textual analysis methodology of the late U.S. Supreme Court Justice Antonin Scalia was applied by a young conservative judge, a product of Harvard Law School and the conservative Federalist Society, to slightly broaden the rights of tort plaintiffs in Georgia.

O.C.G.A. § 9-3-99 provides:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.

Parsing definitions of the word “any” in the code section, Judge Peterson concluded that “the statute applies to any cause of action in tort, without limitation, so long as that cause of action is brought by a crime victim and ‘arises out of the facts and circumstances relating to the commission of such alleged crime.’”

Therefore, the statute tolled the two-year limitation period for the negligence security personal injury claim against a bar owner by a plaintiff who was injured in a criminal assault in a bar, even though the criminal was never apprehended and prosecuted.

Since two other judges concurred in the judgment only, this decision is “physical precedent only” rather than binding precedent. However, the reasoning applied and respect for Judge Peterson’s intellect may make it persuasive to other judges.

The impact on both negligent security and truck crash cases is not hard to imagine. Often in truck wreck cases, law enforcement withhold access to investigative reports while the criminal case is not concluded. Some District Attorneys cooperate with victims’ attorneys by opening their files but some do not. Under the Harrison decision, the limitation period would be tolled in a claim against a trucking company and others while prosecution of the truck driver is still open.

Similarly, as in the Harrison case, when there is a claim against a business for failure to provide adequate security, the limitation period would be tolled even if a criminal assailant is not caught and prosecuted. Such cases may include shootings and sexual assaults in apartment complexes, hotels and motels.

Every legal claim has a time limit. The reasons for statute of limitation are that a plaintiff with  valid claim should pursue it with reasonable diligence, with passage of time evidence of a stale claim may be lost with passage of time, and that prosecution of a long-dormant claim may involve “more cruelty than justice.”

In Georgia, the limitation period for personal injury, wrongful death and medical malpractice claims is two years. However, there are several legal rules for stopping the clock or “tolling” the statute of limitations. Those include minority of the victim, which stops the clock until the 18th birthday so that suit must be filed by the 20th birthday); fraud that prevented the victim from filing suit; unrepresented estate of deceased claimant, tolling limitation period for five years; and unresolved crime that gives rise to the civil claim.

While I would seldom recommend delaying suit for years while waiting for conclusion of a criminal prosecution, there are times when it would be prudent. The Harrison decision provides one more arrow in the quiver in such situations.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and lead author of Georgia Law of Torts: Trial Preparation & Practice. A former prosecutor, he was appointed by Gov. Nathan Deal to the Criminal Justice Reform Council. His law practice is based in Atlanta.

A year of bright ideas in advocacy

bright-ideaNo matter how many years a lawyer has practiced, there is no end to the need for exposure to bright new ideas from the best lawyers around the United States.

Over the past year, I had the opportunity to serve as chair of the Motor Vehicle Collision, Highway and Premises Liability Section of the American Association for Justice (AAJ). The largest section of AAJ, it encompasses the work of most “meat and potatoes” personal injury and wrongful death lawyers in America.

The section includes over 2,500 trial lawyers in all 50 states and specialized litigation groups on trucking litigation, bus litigation, traumatic brain injury (TBI), spinal cord injury (SCI), motorcycle litigation, bicycle litigation, resorts torts litigation and inadequate security litigation. The section and its litigation groups have active listservs for exchange of bright ideas.

Having worked for decades in all of these areas of personal injury litigation, chairing the section for a year was like a year of graduate school in my practice area.

After I became chair last year in Montreal, we sponsored national continuing legal education programs in New Orleans and Los Angeles, and I was moderator of an advocacy seminar at Boca Raton.  Presentations in our programs in the past year in seminars at Montreal, Boca Raton, New Orleans and Los Angeles included:

  • Accident Investigation and Reconstruction in Motor Vehicle Cases
  • Bus Cases Are Different From Auto Cases: Investigation and Evidence
  • Cross-Examination of A Defense Medical Examiner, With Rules Of The Road™
  • Daubert Motions In Motor Vehicle And Premises Cases
  • Industry Standards: Evidence of Negligence in Premises Liability Cases
  • Investigation and Discovery in a Sexual Assault Case
  • Liability and Causation Defenses in the Typical Auto Case
  • Rules Of The Road for Security and Violent Crime Cases
  • Trying Better, Faster, And Cheaper!
  • Twenty-Minute Auto Wreck Case Voir Dire
  • Why I Handle Negligent Security Cases
  • Greyhound’s “Most Precious Cargo”
  • Making Small Cases Big Cases
  • Eliminating the Soft Tissue Myth: Spine Injuries Are Serious
  • Deposition
  • Practicing In Multiple States
  • Using Social Network Sites in Trucking and Motor Carrier Cases
  • Trying High-Profile Motor Vehicle and Premises Cases
  • Self-Driving Cars and Crash Avoidance Systems: The Future of Car Crashes
  • Truck Crash Litigation For The Car Crash Lawyer
  • Safe Or Scary: Negligent Security In Schools, Colleges, And Day Care
  • Effects And Ethics Of Social Media In A Personal Injury Case
  • Taking Down The Defense Medical Examiner
  • How To Zealously Represent Victims Of Sexual Assaults While Protecting Your Client
  • Auto Defect Cases: The Future Of Your Auto Practice

 

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

 

Venue options broaden for Georgia State Tort Claims cases

georgia-county-mapWhen younger lawyers ask me for advice on their cases, among my first questions are, “What is the venue?” and “Who is the judge?”   Often the response is, “Uh, I’ll get back to you.”

Facts and law are vitally important. But the identity of the decision makers – judge and jury – are crucial too. While phenomenal verdicts may occur in conservative rural counties in great cases, and the plaintiff will likely recover nothing in a rotten case even in the most generous venue, in average cases the identify of judge and county are crucial. For example, in a fatal log truck crash a couple of years, I worked hard to secure venue in Fulton County (Atlanta) rather than a rural county heavily dependent on the pulpwood industry in which the crash occurred. It made all the difference in the value of the case.

Earlier this year, the Georgia Court of Appeals published an important decision regarding venue in tort cases against state
government. When an action is brought under the Georgia Tort Claims Act against a State government defendant, even when the State entity is not the sole tortfeasor, the mandatory venue provision of O.C.G.A. § 50–21–28 applies. That code section provides that “[a]ll tort actions against the state under this article shall be brought in the state or superior court of the county wherein the loss occurred[.]”

Thus, the determinative factor in venue for personal injury and wrongful death cases against state government in Georgia is determination of where “the loss occurred.”

In Board of Regents of University System of Georgia v. Jordan, 335 Ga.App. 703, 782 S.E.2d 809 (2016), the Court of Appeals of Georgia held:

The term “loss,” as used in the Georgia Tort Claims Act, is defined in OCGA § 50–21–22(3) as “personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.” (Emphasis supplied.) Had the legislature intended to limit venue for claims under the Georgia Tort Claims Act to the county where the negligent acts or omissions giving rise to the damages occurred, instead of where the “loss” occurred, it could have so provided. When the language of a statute is plain and unambiguous and does not lead to an absurd result, it supplies the sole evidence of legislative intent, and it must not be contravened. See Hall County Bd. of Tax Assessors v. Peachtree Doors, 214 Ga.App. 613, 614, 448 S.E.2d 476 (1994). Upon a plain reading of OCGA §§ 50–21–22(3) and 50–21–28, it is clear that the legislature intended to allow a tort action to be brought against the State in the county where economic loss, pain and suffering, mental anguish, and other elements of actual damages occurred. Since it is undisputed in the cases before us that the plaintiffs incurred losses in DeKalb County, venue is proper in DeKalb County.

In this case, even though the claims arose from medical treatment at a state hospital at Augusta in Richmond County, the plaintiffs had corrective surgeries and long hospitalization in DeKalb County. Because part of “the loss occurred” in DeKalb County – generally a more plaintiff-friendly venue – venue was proper in DeKalb County.

The court appears to have invited the legislature to amend the statute to more narrowly define venue options. However, not all such judicial invitations elicit a response from the General Assembly.

There are many potential ramifications for venue determination in tort claims against state government. One illustration is that if a crash involving a state vehicle causes injury in County #1, the victim is transported to a hospital emergency department in County #2, then is transferred to a tertiary care hospital in County #3, and later dies in County #4, there may be venue under the statute in any of the four counties.

With 159 counties in Georgia, ranging from rural and conservative to liberal and urban, venue options are crucial.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

Virtuous Lawyer Is Not an Oxymoron

Virtues

Versions of this article were published by Ken Shigley as a president’s column in the Georgia Bar Journal (August 2011) and as the chairman’s column in the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section Newsletter (Spring 2016).


 

James[1] had great unrealized potential. Son of a minister in another Southern state, he won admission to an Ivy League university but washed out during his first year and went home to complete college and law school. A marvelous story teller, his closing arguments could hold juries spellbound. But his cleverness was so unrestrained by mere facts that judges and other lawyers learned to distrust anything he said.

With appetites as unrestrained as his legal arguments, he loved food almost as much as liquor. Over time he became a tragi-comic figure, bulging out of polyester leisure suits with his hair permed into a frizzy halo around his bald pate. A persistent, scandalous rumor about his “fee couch” was confirmed by a college girl whose brother he defended in a murder case. Observing his habits, I thought that if faced with a list of the traditional seven deadly sins — pride, wrath, greed, sloth, lust, envy and gluttony – he might burst into an impression of Julie Andrews in The Sound of Music, singing “these are a few of my favorite things!” Despite his jolly veneer, James swirled into a vortex of alcohol and depression, lost his law practice and his family, and died alone far from home.

When I think of James and his fate, I am reminded of a conversation I overheard at the Haralson County courthouse on an autumn morning in 1978. Two grizzled men, tobacco juice staining their gray stubble and faded bib overalls, sat on a bench outside the back door of the courtroom. As they awaited probation revocation hearings, they looked like they could have been failed moonshiners of a slightly earlier era. I overheard a fragment of conversation between these two “old men,” who at the time were probably younger than I am now.

“What you in for,” asked the first.

“My wife’s been running down my character,” moaned the second.

Mournfully, the first man replied, “I ain’t got no character to run down.”

In my arrogant hubris, I chuckled about these two pathetic old losers.  Eventually, as the scar tissue of life accumulated, I came to recall their exchange in a different light, as a plaintive cry from the bottom of a deep well of existential despair by human beings who, at the end of a long road of bad habits and poor choices, had given up on life.

With our fine educations, suits, briefcases and high-tech toys, we may see ourselves as far removed from those two codgers awaiting their probation revocations. But remembering the fate of the brilliant James, we can appreciate the importance of at least aspiring to develop virtuous habits and a character worthy of being run down by people who delight in repeating those tired lawyer jokes.

Not that I am any paragon, mind you.  I’m as much a work in progress, and miss the mark as much as anyone. If my vices are less blatant than those demonstrated by James, they are no less real. The leaning towers of paper on my office floor and the change in my waistline since my last marathon four years ago demonstrate that my habits do not match my aspirations.

The Rules of Professional Conduct are necessary for drawing clear lines and setting enforceable standards.[2] Several excellent aspirational statements on professionalism and civility[3] help to gently mold our conduct to a higher standard. But none of these are sufficient to build good character.  Through the cumulative effect of what one learns from parents, grandparents, teachers, clergy, scoutmasters, mentors and professional colleagues over a lifetime, accompanied by philosophy, theology, culture and common sense, we may be habituated to virtue.[4] Even if one lacked such early mentors, as long as we are on the green side of the grass it is not too late to begin a transformation.

Georgia’s state motto, “Wisdom, Justice and Moderation,” points toward timeless “hinge virtues” upon which scores of other depend — prudence (practical wisdom), fortitude (courage), temperance (moderation), justice, faith, hope and love.

Prudence, or practical wisdom, is the quintessential lawyerly virtue, essential to competent lawyering. It involves the pragmatic ability to see reality without delusions, to face good and bad in human nature, choose means and courses of action, soberly balance risks and possibilities, and manage life, practice and finances.[5] The prudent lawyer can recognize that the perfect is often the enemy of the good, and that the hardest choices are not between good and bad but between good and good and between bad and bad.

One is reminded of the airline instruction to place the oxygen mask over your own face before your child’s face, so you can be able to help.  Similarly, practical wisdom is necessary if a lawyer is to serve clients effectively over the long haul. This prudence is “a virtue of decision making that brings together thoughtfulness, experience, and analytical reasoning with empathy and humanity,” necessary to maintain a balance between sympathy and commitment to the client or matter at hand and loyalty to larger social and ethical imperatives.[6]   By increasing the likelihood that choices are made with thoughtfulness, analysis and empathy, prudence reduces the likelihood of regret.[7]

Prudence includes the analysis of all the ways that things could go horribly wrong for the client’s case or transaction, and how to deal with those negative potentialities. It may dictate careful case selection, telling people they don’t have a case that should be pursued or that a defense is without merit. It includes a duty to refer or associate when a case is outside the scope of one’s expertise. Also included are good office management practices and employing the equipment, staff, training and effective management needed for efficiency in a practice area, which are things law schools don’t teach and many of us don’t do as well as we should.

The flip side is that while prudence may make us better lawyers, if we cannot tone it down when we leave the office, it may ironically bear seeds of our destruction. An acute recognition of all the bad things that may flow from a decision may contribute to a general pessimism or “paralysis by analysis.” This may be a “chicken and egg” issue, insofar as there is a correlation between a pessimistic personality type and the prudence required to excel in law. If pessimism and anxiety leads to chronic depression, the potential adverse effects on health and relationships are predictable.[8]

Fortitude includes courage and the firmness of mind and will required to stand resolute for a cause or client and work against all odds to see that justice is done, even at great personal, financial and occasionally even physical risk. Though years may pass in mundane routine, risking nothing more than a paper cut or normal fluctuations of income, any of us may at some point find it necessary to muster the courage to risk anger, contempt, retaliation and severe hardship for the sake of the law’s own good. There is no substitute for such fortitude.[9]

The future doesn’t belong to the fainthearted but to the brave.[10] We ought to love something larger than ourselves – truth, justice and the common good of the community and the nation. Fortitude moderates our fear so that we may endure in doing well, even in the face of apparently insurmountable obstacles. We cannot be whole without bravely stretching toward some cause larger than ourselves.  By combining prudence and fortitude in the service of worthy purposes, we can avoid the trap of smallness of the soul.

We necessarily deal with conflict, but when our clients come to us seeking vengeance, we have an obligation to counsel peace. We may face adversaries who we dare not tempt with weakness and with whom it is necessary to deal from a position of strength. But the fortitude required of us is not the same as foolhardiness or intransigence. We must remember, in the words of President Kennedy, “that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate.”[11] While there are times when a lawyer must courageously lay it all on the line, we should allow for the possibility that we may be wrong in our judgment. We must be wise in picking our battles.

Lless dramatic, but no less important, we need fortitude in the daily grind of tedious, hard and unpleasant tasks, to do what needs to be done year after year without falling into destructive patterns of avoidance, procrastination, distraction and intemperance that ruins careers and lives.

Temperance, or moderation, does not refer to my great-grandmother’s support for the Prohibitionist Party candidates in every election from ratification of the 19th Amendment until her death. Rather, it is a reasonable, common sense, healthy moderation of habits, and maintenance of a healthy balance in professional, personal and family life.

In the movie A Time to Kill, the young lawyer reminds his burned-out mentor – who is swaying across the lawn with a bottle of liquor in his hand – of his old aspiration to “save the world, one case at a time.” The subtext was that the old warrior had lost his will to fight for justice, at least in part because he fell victim to intemperate habits. Personal moderation and temperance for us as lawyers requires reasonableness, detached impartiality, common sense and resisting temptations that would lead to dead ends – including but not limited to the temptations of substance abuse and infidelity.

Justice is a concept debated by philosophers for millennia, but a precise definition is still somewhat elusive and subjective. At root, justice embodies not just legal positivism but a sense of fairness and morality, both within the individual and in relation to others – balance, harmony and what one writer referred to as “social music.”[12] Of course, in our daily work with conflict, that music is often discordant.  For the individual practicing lawyer, our role requires a commitment both to advocate for justice for clients and to sustain the operation and the fairness in the legal system.

Remember the prophet Amos who wrote, “Let justice roll on like a river, righteousness like a never-failing stream.”[13]  Though we cannot ignore economic reality, we should not be so totally focused on money that we fail to serve the cause of objective fairness.  Few of us have opportunities to imitate the fictional Atticus Finch or to become a “drum major for justice” like the real life Martin Luther King. But in smaller and less dramatic ways we have opportunities to promote our visions of justice.  In doing so, we might keep in mind that service to others, whether organized pro bono legal work, ad hoc “low bono” labor, or work with the many forms of community service, can be “billable hours for your soul.”

Faith requires a comprehensive worldview sufficient to make sense of the harsh realities we often face in the practice of law. Running ahead of pure reason, faith sees higher and farther than our own experience can. It is not mere belief rooted in intellect, or mere trust rooted in emotion. Rather, it is rooted in the heart and, dare I say it in a secular bar journal article, in the soul of the person in relationship with a higher power.[14] Faith motivates us to persevere and to serve even when reason tells us all is lost.

Hope is directed to the future and is more than mere wishful thinking. It includes a view that out of the messy conflicts with which we must labor in the law, something good and worthwhile may yet somehow emerge.  Without hope of something better beyond our low ceiling and limited horizon, courage turns to despair. With hope, our deepest values and ideals are not meaningless subjective blips but foretastes of an objective reality, even if we are not here long enough to see it.[15]

Love in this context involves a commitment to treat others as you would have them treat you, and an unselfish concern on some level for the welfare of clients, witnesses, staff, colleagues, judges, court staff and even adversaries. It should become radically unselfish and gracious, beyond mere feeling, attraction, affection or compassion.  Without love, justice turns to cruelty.[16] But to manifest love for the unlovable, we need to develop both a kind of dangerous unselfishness and a capacity to exercise “tough love.”

Prudence, fortitude, temperance, justice, faith, hope and love.  Cynics may claim they are but hollow words signifying nothing to us, that the idea of a virtuous lawyer is an oxymoron.  Those who have done battle in courtrooms long enough to recall when bailiffs addressed all lawyers as “Colonel” can readily identify a rogue’s gallery of such lawyers who exemplify the worst public perception of the profession as callous, self-serving, devious and indifferent to justice, truth and the public good. They would try to downgrade the very concept with mockery and ridicule.  But aspiring to mold our personal and professional characters in accordance with these virtues will help equip us to fulfill a high calling as the stewards of the justice system, and remind us that despite the effects of legal education and culture, we lawyers are still humans with hearts and consciences.

Habits built upon an aspiration to adhere to these virtues may strengthen us, in the words of General Douglas McArthur when he spoke of “duty honor and country”:

They make you strong enough to know when you are weak, and brave enough to face yourself when you are afraid. They teach you to be proud and unbending in honest failure, but humble and gentle in success; not to substitute words for actions, not to seek the path of comfort, but to face the stress and spur of difficulty and challenge; to learn to stand up in the storm but to have compassion on those who fall; to master yourself before you seek to master others; to have a heart that is clean, a goal that is high; to learn to laugh, yet never forget how to weep; to reach into the future yet never neglect the past; to be serious yet never to take yourself too seriously; to be modest so that you will remember the simplicity of true greatness, the open mind of true wisdom, the meekness of true strength. They give you a temper of the will, a quality of the imagination, a vigor of the emotions, a freshness of the deep springs of life, a temperamental predominance of courage over timidity, of an appetite for adventure over love of ease. They create in your heart the sense of wonder, the unfailing hope of what next, and the joy and inspiration of life.[17]

The lawyer with a heart and soul trained through striving to develop such virtuous habits may try in some small way to emulate the fictional Atticus Finch, promoting justice, fairness and morality in one’s own daily practice.  We are not shown the fictional Finch’s daily grind of law practice in mundane situations devoid of potential for heroic drama. But perhaps at some point we too might become worthy of the scene where, beaten but unbowed, Atticus leaves the courtroom as the folk in the balcony stand and the Reverend admonishes Jem, “Stand up – your father’s passing.”[18]

 

[1] This article was first published as a “From the President” column at 17:2 Georgia Bar Journal 4 (Oct. 2011). The author served as president of the State Bar of Georgia (2011-12) and chair of the board of trustees of the Institute for Continuing Legal Education in Georgia (2012-13).

[1]             “James” is a composite of many lawyers encountered over the course of my career. Any recognizable similarity to an actual person, living or dead, is coincidental.

[2]             William T. Ellis and Billie J. Ellis, Beyond the Model Rules: Aristotle, Lincoln, and the Lawyer’s Aspirational Drive to an Ethical Practice, 26 T.M. Cooley L. Rev. 591 (2009).

[3]         Lawyer’s Creed and Aspirational Statement on Professionalism, State Bar of Georgia Directory & Handbook, http://www.gabar.org/related_organizations/chief_justices_commission_on_professionalism/lawyers_creed/ (viewed Sept. 5, 2011); Macon Bar Association, Assurances of Professionalism, http://www.redi.net/maconbar/prof.pdf (viewed Sept. 5, 2011);  Local Rules, Standards of Conduct, U. S. District Court, Middle District of Georgia, http://www.gamd.uscourts.gov/local%20rules/local%20rules%20amended%2012-1-09.pdf (viewed Sept. 5, 2011).

[4]             Charles P. Nemeth, Aquinas in the Courtroom: Lawyers, Judges, and Judicial Conduct 62 (2001).

[5]             Id. at 65;  Robert F. Blomquist, The Pragmatically Virtuous Lawyer, 15 Widener L. Rev. 93 (2009).

[6]             Jay Michaelson, In Praise of the Pound Of Flesh: Legalism, Multiculturalism, and the Problem of the Soul, 6 J. L. Society 98, 132 (Spring 2005).

[7]             Id.

[8]             Martin E.P. Seligman, et al, Why Lawyers Are Unhappy, 23 Cardozo L. Rev. 33 (2001).

[9]             Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 145 (1993).

[10]            Ronald Reagan, Space Shuttle “Challenger” Tragedy Address, January 28, 1986.

[11]            John F. Kennedy, Inaugural Address, January 20, 1961.

[12]            Peter Kreeft, Back to Virtue: Traditional Moral Wisdom for Modern Moral Confusion (1986) (Kindle Edition, retrieved from Amazon.com).

[13]            Amos 5:24 (NIV).

[14]            Kreeft, supra.

[15]            Id.

[16]            Id.

[17]           Gen. Douglas MacArthur, Sylvanus Thayer Award Acceptance Address, “Duty, Honor, Country, ” U. S. Military Academy, May 12, 1962.

[18]            Harper Lee, To Kill A Mockingbird (1960).

A Lawyer’s Calling

A lawyer's calling

A lawyer’s calling

Learn to do right; seek justice.
Defend the oppressed.
Take up the cause of the fatherless;
plead the case of the widow.

– Isaiah 1:17

It was a Sunday in December 1971, at my grandparents’ home in Mentone, Alabama, halfway down the hundred-mile-long plateau from Chattanooga to Gadsden that is Lookout Mountain. Within a mile radius were the simple homes, church, school and country graveyard intimately entwined with several generations of our family.

At the “children’s table” off the kitchen with my cousins, I could faintly hear the conversation of our elders at the “grownup table” in the dining room.   In my dad’s voice I heard the words “Ken” and “law school” as he told of the path I hoped to pursue after college.  The response to his announcement seemed strangely muted. I heard him explain that, similar to ministry or teaching, law could be a calling too. My grandfather, who served a lifetime as a minister all over Alabama, made some quiet expression of resigned acceptance.

We were a family of preachers and teachers, builders and farmers, solid and devout country people.  Not only had there never been a lawyer in the family in living memory[2], but so far as I knew then, no one in the extended family had even remotely considered a legal career. Until I was twelve, we had lived at Mentone, across a pasture from my grandparents. I spent many happy days roaming the woods with my dog and building my immune system in the cow pond.  My father, a principal, and my mother, a schoolteacher, took me across the state and time zone line every day for school ten miles away in Menlo, Georgia. But by the time I entered high school, my family had moved to the “big city” of Douglasville, Georgia, where at night on a then-rural hilltop restless teenagers could see the lights of Atlanta twinkling in the distance. Visits home to the mountain grew less and less frequent.

When the dishes were cleared away, and the women were clattering dishes and talking in the kitchen, Uncle Leonard took me aside. He was the only one of his generation who seldom left the mountain for more than a few days except to pick up a piece of German shrapnel that he would carry in his body all his life. He lived within sight of his birthplace, building and remodeling second homes for city folks, while his siblings pursued degrees and careers far from their roots. In some ways he was the best of the bunch.

With a look of profound concern on his weathered face, Uncle Leonard jabbed a work-scarred finger in my chest and demanded, “Kenneth, don’t you know that it’s impossible for a lawyer to go to heaven?”  In retrospect, I realize his challenge was based upon a strictly literal reading of certain passages in the King James Version of the Bible. In his dealings down at the county seat, including service as a part-time constable and a Republican bid for Sheriff when the Democratic nomination was still tantamount to election, he apparently had seen no reason to doubt this interpretation.

In the cockiness of youth, I laughed off my uncle’s warning. What could this good man who left school at sixteen and made a living with a hammer and saw possibly know about the moral and spiritual health of the profession to which I aspired? Nonetheless, I silently vowed to prove him wrong.

Laboring in the trenches of the law in the decades since, I have often recalled Uncle Leonard’s warning, especially on those occasions when I strayed across some line, either hazy or clear, that I should not have crossed. Moral compromises are by no means unique to the legal profession, but none of us are immune from temptation.

Uncle Leonard’s warning, delivered in the most literal, fundamentalist terms, may reveal spiritual and secular concerns about the soul of our profession, but it also contains a hidden kernel of hope when we reflect upon our lives and motivations. We all know lawyers, most in other practice areas but including some in the plaintiffs’ bar, who are disenchanted with their work, unhappy with their workaholic lifestyle, and questioning the wisdom of their career choices.

As Justice Sandra Day O’Connor observed in a speech a few years ago:

[L]awyers, as a group, [are] a profoundly unhappy lot. . . . Attorneys are more than three times as likely as non-lawyers to suffer from depression, and they are significantly more apt to develop a drug dependence, to get divorced, or to contemplate suicide. Lawyers suffer from stress-related diseases, such as ulcers, coronary artery disease, and hypertension, at rates well above average.[3]

A novelist wrote that “[a] profession is like a great snake that wraps itself around you.  Once you are wrapped up, you are in a slow fight for the rest of your life, and the lightness of youth leaves you.”  Of a lawyer he wrote, “I saw how greatly he suffered the requirement of being clever.  It separated him from his soul, and it didn’t get him anything other than a living.”[4]    Lawyers seeking to retain their souls and some remnant of the “lightness of youth” after decades of practice must seek not only to avoid punishment by following the disciplinary rules of conduct, but also to escape indifference by reuniting our sense of humanity with our profession and, ultimately, recognizing the law as a passionate vocation.[5]

Like many of us in the plaintiffs’ bar, I labored for years on the other side, defending the interests of insurance companies and large corporations against injured individuals and families.  Stressed and unhappy in that firm, I was well on my way to the lot Justice O’Connor described.

But then an older lawyer against whom I had secured a defense verdict referred me the case of Rachel, a 19-month-old who was catastrophically brain damaged in a near-drowning in a condominium swimming pool with a defective gate and lock. After the usual conflict check and with grudging approval from the senior partner, I took the case.

When Rachel slipped away from her mom, distracted by care for a newborn sibling, she was able to enter the pool enclosure through the defective gate. She was found floating face down in the March-cold water of the pool. Due to anoxia, Rachel’s body was alive but cognition apparently was gone. Her beautiful blue eyes would track visitors around the room as caregivers tended to her g-tube, suctioned airways and exercised limbs in an effort to avoid contracture. Through a year of fighting for as much compensation as was recoverable for Rachel’s care and frequently visiting with the family, I found my heart and soul as a lawyer.

Many of us in the plaintiffs’ bar have had similar experiences in which we found a calling to “do right, seek justice, defend the oppressed, take up the cause of the fatherless and plead the case of the widow.” Insofar as our work of passionate advocacy is inspired by such a calling we can reduce our risk of falling into an “ethical winter,” or a “hibernation of the soul,” which can result in cynicism and even self-contempt among so many of our professional colleagues.[6]  But even we, when we treat law as simply a money making machine, when are subject to forgetting that “law is rooted in something bigger than the people who hand it down, that law is rooted in history and in the moral order of the universe.”[7]

Viewed with the right perspective, the law can offer among the best opportunities to help people who are hurting and to temper and resolve human conflict.[8]  Those of us who bear the scars of long legal careers, however, know all too well how easy it is to lose sight of the intrinsic values of our work when we are laboring in the muddy trenches of the law day by day, besieged with phone calls and emails, stressed out about deadlines and seemingly insoluble conflicts, struggling to cover overhead, make payroll, feed all the mouths we are expected to feed, and reserve some personal space in our lives.

But when we view our daily work as a calling to do what we were meant to do in this life, in a place where our deep gladness and the world’s hunger meet, then we may find in the work of helping people solve their problems a value and meaning that transcends our fluctuating material rewards. [9]  Blooming where we are planted, we may find our callings to serve as instruments of both justice and love in our labor on behalf of the injured and grieving families.  Personal injury lawyers who are true to their calling help clients retain dignity and independence that has been diminished by injury.

AAJ, this section and our litigation groups provide rich opportunities for us to hone our skills and preserve the rights of our current and future clients.

Compared to the infinite scale and complexity of the universe, our lives are infinitesimally small and finite.  But in this snippet of time and space we occupy, we are called to interpret the moral order of Creation into pragmatic legal solutions for the messy problems presented to us, and to use our skills to temper the chaos to which human nature gives rise.[10]  Being able to recognize this calling and our peace-making and problem-solving abilities may allow us to regain, and live with, a sense of passion and purpose in the face of difficult circumstances and never-ending temptations to ethical compromise.

Through it all, we should remain thankful for the opportunity to work and serve in the law, rekindling a more mature and probably more humble version of whatever first inspired us to pursue legal careers.  Laying aside the pretenses of professional arrogance, we can rekindle our passion for justice and pursue more conscientious and effective relationships with clients and colleagues.[11]

In the words of the prophet Micah, we should seek to “do justice, love kindness and walk humbly with our God.”[12]  In so doing, we should prudently seek ways in which we can no longer conform to the flawed patterns of this world, but instead to be transformed by the renewal of our minds.[13]

When I return to Mentone and walk among the graves of kin who followed their own callings – my great-grandfather the builder who started a church and a school, my grandfather the minister, my grandmother who read to me stories that unknowingly first launched me toward the law, my parents the educators, and Uncle Leonard who issued that stark warning – I silently pray that I might be worthy of the calling I followed in the law.

 

 

 

[1] Originally published by the author as a president’s column in the Georgia Bar Journal, August 2011, and later adapted for the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section Newsletter in Fall 2015.

[2] I later learned than a forgotten collateral ancestor has been a lawyer, judge and congressman in antebellum Georgia, and died of “a fit of apoplexy” in the courtroom while defending a black man against a murder charge in Americus, GA, in 1860.

[3] Sandra Day O’Connor, Professionalism, Speech at the Dedication of the William W. Knight Law Center, in 78 Or. L. Rev. 385, 386 (1999).

[4] Mark Helprin, A Soldier of the Great War 110 (1991).

[5] John L. Cromartie, Reflections on Vocation, Calling, Spirituality and Justice, in Can a Good Christian be a Good Lawyer? 139, 143 (Thomas E. Baker & Timothy W. Floyd eds. 1998); see also Schutt, supra note 2, at 93.

[6] Robert F. Blomquist, The Pragmatically Virtuous Lawyer, 15 Widener L. Rev. 93, 107 (2009).

[7] Harold J. Berman, The Crisis of Legal Education in American, in Faith & Order: The Reconciliation of law & Religion 333-34 (1993).

[8] Cromartie, supra note 7, at 143-44.

[9]  Id., at 144-145.

[10] Thomas A. Wiseman, What Doth the Lord Require of Thee? in Can a Good Christian be a Good Lawyer? 35, 39 (Thomas E. Baker & Timothy W. Floyd eds. 1998).

[11] Jacqueline Nolan-Haley, Finding Interior Peace in the Ordinary Practice of Law: Wisdom from the Spiritual Tradition of St. Teresa of Avila, 46 J. Cath. Legal Stud. 29, 39 (2007).

[12] Micah 6:8.

[13] Romans 12:2.

A foolproof way to avoid leaving a child in a hot car

child carseatOnly a monstrous parent would intentionally leave a child in a hot car for hours to suffer and die. While that is the allegation in a pending murder case in Georgia, even if proven true it would be aberrational.

But every summer we hear of a rash of incidents in which a distracted, multitasking parents, usually functioning outside their normal routine, forgets a child sleeping in the back seat. The results are tragic — death or brain damage due to heat stroke. On average, 37 children die in this way in the US every year.

It can happen even to loving, caring, normally competent parents who thought this could never happen to them, but then become distracted.

Why has this become a common phenomenon in recent times? It is largely due to a string on unintended consequences. During the ‘90s that laws began requiring children ride in car seats, facing toward the rear, in the back seat, where they were safer but also more easily forgotten. About the same time, cell phones proliferated, providing another source of distraction for overstressed, multitasking parents.

There have been many suggestions in the media for parents to prevent such tragedies:

  • Put something in the back seat –  handbag or briefcase, cellphone or employee badge.
  • Keep a brightly colored stuffed animal in the car seat, and switch it to the front passenger seat when you put the child in the car seat.
  • Ask someone to call you 10 minutes after your expected arrival time to make sure you didn’t forget the child.
  • Always look in the back seat when you get out of the car, just in case.
  • Rig up mirrors to always have the child in view.
  • Development of auto or cell phone app technologies to back up parental memories.

None of these suggestions are foolproof. When I think of the times I left my cell phone or briefcase in the car, the times I intended to call my wife at a certain time, my own fallibility in remembering to look somewhere at a certain time, I realize how vulnerable busy parents are. While it has been a long time since I had small children, and they were out of child seats by about 1993 — before child seats had to be in rear-facing in the rear and before we all carried a smart phones in our pockets — I can easily imagine having a momentary but tragic lapse of mind.

So what do I suggest? Something simple, low tech, foolproof and easily made into a habit.


When you put a child in the car, take off one of your shoes, put your cell phone in that shoe, and place it next to the child seat. You will not leave the car without the shoe, and thus not without the child, and you will not be on the cell phone while driving.

leftshoeMake it a habit, each and every time you put your child in the car, and while you are totally focused on the adorable child you love so much, lovingly take off one shoe. Lovingly put it on the floor or seat by the child. Lovingly put your cell phone in the shoe.

Then no matter how long the drive, how quietly the child sleeps or how distracted you may become in thoughts about the 4,736 things on your “to do” list, when you step out of the car with one shoe off and one shoe on, you will remember to get the child out of the car. Nobody is so distracted as to walk away with one shoe. On hot summer weekends, I often drive barefoot (perfectly legal in all states and safer than driving in flipflops), but I never forget my shoes when I reach my destination; if nothing else, hot asphalt reminds me.

While we still are looking forward to the possibility of grandchildren someday, we are prepared with the shoe in the back seat trick when the time comes.

———————

Ken Shigley, a double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is lead author ofGeorgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken@shigleylaw.com. His services as a mediator may be scheduled through Henning Mediation & Arbitration Service, Inc., in Atlanta, Email info@henningmediation.com
Telephone (770) 955-2252 or (800) 843-6050.

What is mediation and why do judges insist upon it?

mediation_explainedHaving served as the neutral mediator in hundreds of cases as well as the advocate for clients in hundreds of other mediations, I have come to see both the strengths and weaknesses of this method of settling personal injury and wrongful death cases.

Judges love to refer cases for mediation because every case that settles is one less case the judge has to deal with on the court docket. It simply saves the judge a lot of time and work. Perhaps the chances of court ordered mediation succeeding could be improved with a little more court involvement in setting up the process for success rather than failure.

For people new to this process, the vocabulary alone can be confusing. “Mediation” is a kind of brokered negotiation and settlement conference used to settle a lawsuit or other dispute, and sometimes seek reconciliation between the parties. Throw a “t” into the middle of the word and you get “meditation,” a time spent in quiet thought for religious purposes or relaxation. These are distinctly not the same thing.

In personal injury case mediations, typically the lawyers, the plaintiff and an insurance claims adjuster meet with a mediator both sides have agreed at a neutral location for several hours of brokered negotiation. Except in medical malpractice cases, it is unusual for the defendant to attend in person as it is the insurance company’s decision whether to settle. However, sometimes a defendant attends to deliver an apology in person.

Most mediators are either senior attorneys with decades of experience or retired judges. Both lawyers who have been advocates and judges who have had the authority to rule on issues have to make an attitude adjustment to become effective mediators.

Good mediators often ask for confidential summaries from both sides in advance, and may call the lawyers to chat in advance of the mediation date in order to focus on the issues involved. Often a mediator must prod counsel to think about ancillary issues affecting settlement such as the status of medical and health insurance liens, probate court authority to settle for a minor, desirability of trusts or annuities to manage settlement funds, etc.

Prior to mediation, counsel must consider how much information to share with the other side in advance. As a practical matter, any information that the plaintiff does not get to the claims adjuster at least two weeks before mediation will not be considered in the claims evaluation process. I have seen cases in which material was provided to the defense lawyer weeks before mediation but the adjuster did not see it until the day of mediation, so it was useless. Sometimes it is appropriate for the plaintiff’s lawyer to ask permission of the defense lawyer to send a copy of materials directly to the claims adjuster.

At the beginning of the session, the mediator gives a brief introduction to the process, primarily for the benefit of the plaintiff who has not been through this hundreds of times.

Then, still in a joint session, the lawyers for all parties make brief statements of their view of the case. Often the plaintiff’s lawyers makes a presentation on liability and damages with Power Point, photos, etc.

The defense lawyer often tells the plaintiff that they are very sorry this happened, wish they could turn back the clock so that it never happened, think the plaintiff is a good person, but have different views of the facts on liability and damages.

The plaintiff usually has an opportunity to briefly tell how the injury has affected her. This serves two purposes. It allows the plaintiff to tell her story while enabling the claims adjuster to see that she is a decent person and credible witness.

After the joint session that may last an hour, more or less, the parties are split up into separate rooms. Sometimes when multiple defendants and insurance companies are involved, they might be put in 3 or 4 different rooms. When I was a mediator in complex medical liability cases, it was not unusual to have separate rooms for the hospital team and each of several doctors’ teams.

The mediator then goes back and forth between the parties in a free from process of encouraging, cajoling and pressuring them to change their positions with a view toward reaching a compromise by the end of the process. I have seen lists of up to 50 techniques used to break impasse and broker agreement. That sounds about right but I won’t list them here.

One key point is to lead all parties to realistically view their options. For years negotiation teachers talked about the “BATNA” (“best alternative to negotiated agreement”).  A more realistic model may be “MLATNA” (“most likely alternative to negotiated agreement”).

A good mediator helps parties and lawyers overcome their “advocacy bias,” whereby everyone on the plaintiff’s side tends to overvalue their case and underestimate the obstacles while everyone on the defense side tends to undervalue the plaintiff’s claim and underestimate the risks to the defense.

In private mediations in Georgia, it is customary for the mediation firm to provide lunch, either a buffet or ordering lunch delivery from a menu. It is rare for a mediation to conclude before everyone has eaten lunch.

The objective is to attempt to reach an agreement by the end of the day that everyone can live with — less than the plaintiff wants but more than the defense wants to pay.

Sometimes at the end of the day the parties have not reached agreement but the mediator proposes a number for both sides to think about over the next several days. With a “mediator’s proposal,” attorneys for both sides then report to the mediator confidentially whether or not their client accepts that number. Unless both parties agree on the number, neither knows how the other responded to the mediator.

Generally, mediation in injury cases works pretty well if: (a) both parties are looking at the same information; (b) both parties are represented by experienced counsel and listen to their counsel; and (c) both sides are ready to do a deal. This can happen at any time — from before suit is filed until the day before trial. If any of those pieces are missing, the chance of success is less.

Within the next year, I may set up a separate blog to discuss the many nuances of the dispute resolution process, all with a view to shifting into mediation whenever I hang up my cleats as a trial lawyer. That will be the time and place to examine the process in much more detail.

——

Ken Shigley, a double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is lead author ofGeorgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken@shigleylaw.com. His services as a mediator may be scheduled through Henning Mediation & Arbitration Service, Inc., in Atlanta, Email info@henningmediation.com
Telephone (770) 955-2252 or (800) 843-6050.

 

 

10 Social Media Instructions for Injured People

facebook-iphoneMost of us today carry cell phones in our pockets with more processing power than the computers aboard the Apollo moon missions. Frequent news reports illustrate the dangers of thoughtless use of smartphones and social media. It has ensnared politicians and celebrities, sometimes crashing promising careers. This technology has created similar hazards for both plaintiffs and defendants in litigation who are careless about online social media privacy. While we are quick to look for the other side’s vulnerabilities, we must also play defense in protecting our clients from their own electronic blunders.

Many people today, especially younger ones, think nothing of sharing details of personal lives with the world through social networking sites. For this very reason, insurance companies, investigators, and defense attorneys may seek to compel access to social media accounts, computers, cell phones, and hard drives. Careless use of social media can be a kind of self-surveillance, a gift to the other side.

Information from such sources may be used to embarrass or discredit you when you are hurt. It may be used to falsely suggest that the your are exaggerating or that something else caused the injury. Even innocent joking between friends on social media might convince judges and juries that a plaintiff has been dishonest.

Here are ten precautions to avoid self-inflicted wounds through use of social media – Facebook, Twitter, Instagram, etc.

  1. Archive the content of current accounts. Destruction of potential evidence may create bigger problems than the information itself. Therefore, it is important to preserve the current content of any social media accounts. Most social media sites include directions for archiving. We designate a staff person to help clients archive correctly.
  2. Deactivate or discontinue using social media accounts. If you are going to be the plaintiff in a personal injury case, consider deactivating your Facebook profile and other social media accounts.  If you are not willing to completely deactivate an account you should—after archiving content —remove any information related to your injury or activities and avoid future posts.
  3. Turn on the highest privacy setting. If you won’t discontinue use of social media, adjust privacy settings to the highest levels. This means making sure that only actual friends can see the information, rather than friends of friends or the general public. A useful tool is Facebook’s “View As” feature, which allows users to view their profile as it appears to someone else, whether a stranger or a Facebook friend. This might help you see exactly what is visible to the general public, something that isn’t always apparent from privacy settings. Be aware that Facebook publicly publishes “Interests,” even if accounts are otherwise private.
  4. Beware of “friends.”  If social media use continues, it is important to edit “friend lists” so that only certain friends can see photo albums and status updates. Remove any “friends” you do not know well or at all, and accept only friend requests from people you know and trust.
  5. Become invisible. You can remove yourself from Facebook search results by selecting “only friends” under the “search visibility” option in their profile settings. You can also remove your Facebook page from Google by unchecking the box for “Public Search Listing” in your Internet privacy settings. Make comparable changes to privacy settings in all other social media accounts.
  6. Take down photos. After archiving current content,  remove and un-tag all photos of yourself that are not simple head shots.
  7. Be cautious. Assume that anything you write on your social media accounts—including status updates, messages, and wall postings—will at some point be seen by defense lawyers, judges, and juries. Think about how such things might be perceived when viewed out of context.
  8. Preserve all computers, tablets, or cell phones. If you lose or destroy an electronic communications device, opposing counsel could try to make it look like deliberate destruction of evidence. It is better to fight a battle over access to your devices than have a judge instruct a jury that it may assume the contents of the discarded or destroyed device would have been unfavorable to you.
  9. Don’t send messages or information about the case. Do not send emails, text messages, or “private” social media messages about your claim, health, or activities to anyone except your lawyers. Careless emails and electronic messages can destroy a case.
  10. Don’t post on websites or web chat groups. While you may find useful information in online support groups, you don’t own the information you post online. Such information you post is highly searchable. You should not enter any information on dating or insurance websites, post on message boards, participate in or comment on social media “private” groups or blogs, or use chat rooms.

 

This post is adapted from an article published in the January 2016 issue of Trial magazine by Ken Shigley, a double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken@shigleylaw.com.