April 2007

The April 30th issue of Fulton County Daily Report  includes an interview with Chief Judge Dee Downs of Fulton Superior Court.  (She and I made some stump speeches together in her first campaign, as I filled in as a surrogate for the successful candidate for another seat on the same court.)  The judge, who career before election to the bench in ’96 was as an Assistant District Attorney, explains at length the nature and causes of the choking backlog of felony criminal cases in her court.  There is no mention of any civil docket in the court.

[Fulton Superior Court] has 19 judges, including Downs—the most of any superior court in the state. But it also has the highest number of felony cases per judge in the state. . . .   Her biggest challenge is to improve caseload management for the perpetually overloaded court, which is plagued by a backlog of cases. She also has expanded its drug and mental health diversion courts so that more offenders with addictions or mental illnesses get treatment and, she hopes, stay out of trouble. And the court also needs a system-wide computer system to link the balkanized fiefdoms of Fulton’s courts, jail and district attorney’s and public defender’s offices so they can get case dispositions in real time. The county agreed to fund an integrated system in January, and it is expected to be operating in two years. . . .

The number of pending criminal cases at Fulton Superior—which Downs estimates make up about 70 percent of the judges’ workload—jumped from 6,816 at the end of 2004 to 8,322 by July 31, 2005, because the court lost time to work disruptions and security concerns following the March 11, 2005 courthouse shootings. That number did not start to drop until this year. By February the criminal caseload was down to 7,484, Downs said.

the city of Atlanta in 2003 started shunting arrestees charged with state offenses from its jail on Garnett Street to the Fulton County Jail. That shifted all of the city arrestees’ early calendar hearings from the municipal court to the Fulton courthouse, which increased the number of prisoners who had to be bused over from Rice Street.

After the shootings, Downs and Fulton County Sheriff Myron E. Freeman decided to cap the number of prisoners in the holding cell at 250 because of security concerns. Consequently, she said, “the building was taken over with early appearances from the city,” which filled up the cell. The number of felony cases her court could hear dropped because a lot of those felony defendants got squeezed out.

“There was a backslide in 2005 because we did not have the facilities to do the job,” she said, adding that the court didn’t get much work done for about a month after the shootings because of the attendant upheaval and because it was in mourning. . . .

“I tell new judges, ‘You don’t have time to get it perfect. There are X many new cases coming in each month, and we have to get X many out the door. We all want to get it right, but there is a tremendous crush of cases, and we simply cannot lose ground by not processing the number that comes in.’” …

Downs said low-level, nonviolent offenses, which are property and drug crimes as opposed to crimes against persons, make up about 65 to 70 percent of her court’s felony cases. Disposing of them quickly is key to her strategy for reducing the court’s caseload.

These non-complex felony cases should resolve well before trial, but instead, a backlog has built up, in part because they get pushed aside for bigger, more important cases. “There were so many cases that the lawyers had no time to do the pre-trial processing and get them sorted out. They would see [their client] in court for the first time,” she said. …

In mid-February, Downs shortened the non-complex case calendar to 60 days, which gave the county’s lawyers and pretrial personnel smaller caseloads. She and Judge Alford J. Dempsey Jr. are handling all non-complex cases to keep them from clogging up other judges’ calendars….

Keeping more hearings at the jail is central to Downs’ triage strategy and, more importantly, she said, to good security. For all criminal cases, first appearances are handled at the jail by one of Fulton Superior’s three magistrate judges. For non-complex cases, the magistrates now also handle pleas and arraignment at the jail instead of the courthouse. For complex cases, plea and arraignment is still done at the jail, but Downs hopes to handle it by video, without transporting prisoners, once the technology is in place. The only non-complex cases that go to the courthouse are those that make it as far as Downs’ and Dempsey’s trial calendars.

Occasionally, I have heard my friends on Fulton Superior Court complain about wanting more quality civil cases, and I’m sure they do.  This interview gives us a glimmer of the crushing blow of criminal cases that led to many civil cases being filed in State Court rather than Superior Court.  However, I am still inclined to file a high profile, complex civil case in Superior Court from time to time.

At 3:41 AM on Sunday, a tanker truck crashed and burned at the intersection of three freeways, causing the collapse of an overpass.  This will likely  snarl commutes for hundreds of thousands of people for months until repairs can  be completed.  California officials are urging residents to shift to public transit and telecommuting due to the effect on area commuting.

The tanker carrying 8,600 gallons of gasoline ignited around 3:45 a.m. after crashing into a pylon on the interchange, which connects westbound lanes of Interstate 80 to southbound I-880, on the edge of downtown Oakland about half a mile from the Bay Bridge’s toll plaza.A preliminary investigation indicated he may have been speeding on the curving road.  Flames shot 200 feet in the air and the heat was intense enough to melt part of the freeway and cause the collapse, but the truck’s driver walked away from the scene with second-degree burns.

The tanker driver left the scene before police arrived, by crawling out the truck’s passenger window and walking down the ramp to a gas station.  He worked the past 10 months for a South San Francisco trucking firm. He apparently took a freeway ramp from westbound I-80 to southbound Interstate 880 too fast.  Details of his driving record were not immediately. His employer was involved in a June 2006 crash in Vallejo that sent about 4,000 gallons of diesel into storm drains. In that case, a double tanker overturned on a ramp connecting I-80 to I-780.

A report which will be published in May in the Michigan Law Review.confirms what most tort law practitioners have long recognized: the defense has a strong advantage in medical malpractice trials.

Philip Peters Jr., of the University of Missouri-Columbia School of Law, concluded that juries treat doctors favorably, "perhaps unfairly so," and are more likely than even fellow physicians to defer to a doctor’s opinion. Peters found that most malpractice suits end in defense verdicts, and that the cases that go to trial tend to be the weakest ones, since those with strong evidence usually settle before trial.In an examination of win rates, Peters found that 27 percent to 30 percent of filed medical malpractice suits end in a plaintiff’s verdict, the lowest success rate of any type of tort litigation.

In the study, jurors found in favor of physicians significantly more often than independent reviewing physicians would have.  The study asked independent physicians to evaluate incoming claims and rate them as defensible, indefensible or unclear. Plaintiffs won 21 percent of those cases rated as defensible, 30 percent of those rated unclear and 42 percent of those rated indefensible. Thus, plaintiff wins were in the minority even in the most meritorious cases.

Frankly, I wouldn’t think the plaintiff’s win rate is as high in Georgia as the 27 – 30% rate cited in the study.  For years I have heard that the defense wins 80% of medical malpractice trials in Georgia, and have seen no data to the contradict that.

"Both piecemeal reforms and more fundamental alternatives to malpractice litigation should not be driven by the mistaken assumption that juries treat physicians unfairly," Peters wrote. "Although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them."

A coalition of trucking, environmental and safety organizations has filed suit seeking an injunction against implementation of the Bush Administration’s decision to allow up to 100 Mexican motor carriers – with an unlimited number of trucks – to perform long-haul operations within the U.S. 

The Owner-Operator Independent Drivers Association, Sierra Club; Public Citizen; the Environmental Law Foundation; and the Teamsters Union filed suit in federal court in San Francisco on Monday.  They claim that the Bush Administration’s program authorizing Mexican trucking companies to operate on US highways is in violation of public notice and comment requirements federal law imposes on pilot programs.

OOIDA Executive Vice President Todd Spencer stated: 

“The DOT has still not answered questions about verification of drivers’ records, drug and alcohol testing, hours of service, cabotage, inspections and insurance. They make general statements about audits of Mexican motor carriers, but have shown nothing that should make the American public feel confident that they have fulfilled all the obligations necessary before moving forward.”

The Federal Motor Carrier Safety Regulations require that a truck driver must be able to function competently in the English language.  Already I have been seeing accidents in which the truck drivers require interpreters.  Imagine how it will be when Mexican trucking companies are allowed to operate throughout the US.

Observing how some trucking and logistics companies operate, I have often joked that they would outsource truck driving to third world countries if they could find a way.  Well, now the Bush team is enabling them to do just that.  I will watch this case with great interest.

See the following articles and comments on this topic:
Mexican truckers’ free travel put on hold (San Diego Union Tribune, 4/27/07)
Teamsters sue the Feds (Sky Puppy blog)
Bush: Mexican Truckers Are Okay (Bloviating Zeppelin blog)

Wisconsin jurors heard testimony this week about a trucker who stayed out all night with friends the night before a fatal crash, and had his truck on cruise control in tenth gear when he fell asleep and overturned in 2005.  A bus carrying a high school marching band collided with the overturned big rig on I-94 near Eau Claire.  Five of the kids died in the crash. The truck driver claimed that he was just trying to pull over to go to the bathroom when he overturned.

4/15/07.  The  doctrine of respondeat superior has been deeply ingrained in Anglo-American common law tradition since long before the American Revolution.  The origins of respondeat superior are disputed. Compare Holmes, Agency I, 4 HARV.L.REV. 345 (1891) (respondeat superior developed from Roman law) with Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV L.REV. 315 (1894) (respondeat superior developed from Germanic law). It was firmly established as part of the common law by 1725. T. BATY, VICARIOUS LIABILITY 28-29 (1916) (as to negligent acts).

Under this rule, employers have long been responsible for the negligence of employees acting in the course and scope of employment. Thus, if a  truck driver negligently runs over an innocent motorist on the road, for example, the injured person can look to the trucking company for financial accountability.  If an airline pilot were drunk and crashed a plane carrying hundreds of people, the families of the deceased can look to the airline for accountability.

Now, however, some members of the Georgia General Assembly, seeking a compromise between the National Rifle Association and the Georgia Chamber of Commerce to bar employers from prventing employees from carrying concealed guns to work, seek to sweep away many centuries of common law tradition in a week.  In a classic example of legislative logrollng and back room deal making, we have learned that a "committee substitute" for House Bill 89 (the "take your gun to work" bill), will be introduced in the Senate Rules Committee on Monday morning.  Section 5 of that substitute bill includes the following:

SECTION 5.
Said title is further amended by adding a new Code section to Article 1 of Chapter 11, relating to general provisions concerning defenses to tort actions, to read as follows:
.51-11-22.
(a) No employer, company, firm, limited liability company, corporation, or shareholder, director, officer, manager, or supervisor thereof shall be directly or indirectly liable for any illegal act or harm or act of omission of an employee or former employee which occurs without the actual knowledge and authorization of the employer or when the employee´s actions are contrary to company policy unless it is shown by clear and convincing evidence that the actions of an employer, company, shareholder of a company, director, officer, manager, or supervisor of a company itself constituted gross negligence or reckless, willful, and wanton conduct.
(b) Such standard shall apply whether the employee or former employee was wholly or partially engaged in the employer´s business, reasonably appeared to be engaged in the employer´s business, was or was not on the employer´s premises when the alleged act or omission of the employee occurred, or was otherwise under the direction or control of the employer when the act or omission occurred. This presumption may only be rebutted by clear and convincing evidence that the employer´s acts or omissions constituted gross negligence or reckless, willful, and wanton conduct and were a proximate cause of the damage sustained.
(c) In every civil and criminal action to which this Code section applies, an employer shall have the right, pursuant to a pretrial motion and after opportunity for discovery, to a hearing before the court in which the person asserting a claim against an employer shall establish a reasonable likelihood of proving facts at trial sufficient to support a finding that liability for damages should be apportioned to the employer under the standards set forth in this Code section. If the court finds that this standard is not met, the claim against the employer shall be dismissed.

My understanding is that the National Rifle Association proposed the "take your guns to work" bill but the Chamber of Commerce opposed it.  Then the Chamber lobbyists apparently agreed to support the NRA’s bill if they got this sweeping abrogation of centuries of tort law development in the bargain.

This is lunacy.  If our legislators pass this, they are no longer conservatives.  To sweep away centuries of common law tradition in a week is revolutionary.  I’m willing to give some of them the benefit of the doubt on the basis that they are merely ignorant of the law and have no idea what they are doing. For those who have even a little legal background however, there is absolutely no excuse.

If their constituents knew what they were up to and understood the broadly sweeping implications, they would toss those politicians out on their ears. However, some politicians make these corrupt bargains in the shadows, trusting that the voters in their districts will never know or understand what they did, and that the special interests they serve will deter opposition candidates and keep them in office.  I hope that anyone who votes to pass this will have strong opposition within their own party primary in the next election.

4/17/07.   The proposal quoted above came out on Friday.  Over the weekend it was distributed by email to members of the Bar, many of whom showed up at the Senate Rules Committee at 8:30 AM on Monday.   I learned about the proposal Friday night in California, flew home, emailed my analysis to all members of the Rules Committee, and was at the Capitol Monday morning.  Five minutes before the committee meeting convened, we learned that the elimination of vicarious liability had been stricken from the bill. While it is comforting that the proposal was killed, it is disturbing that there are people in the Capitol who would seriously propose such a complete revocation of corporate accountability.