Atlanta Injury Law Blog

As an Atlanta trial attorney representing people seriously injured in traffic crashes, I seldom advise procrastination in filing suit as cases seldom improve with age. However, there are exceptions.

Yesterday, the Georgia Supreme Court held that the two years statute of limitation for personal injury is ("tolled") until the traffic court case against the person at fault is concluded.

That means that the two year clock doesn't start running until the traffic charge arising from an auto accident is disposed of, one way or another, in court. I have seen cases where the traffic charges languished on court dockets for as much as four years. In those instances, the injury victim could have up to six years to file suit rather than only two.

And defendants who manage to stall resolution of their prosecutions for serious traffic offenses do so at the risk of extending the time in which they can be sued.

A Georgia statute, O.C.G.A. § 9-3-99, says the statute of limitations for any tort action a victim brings over an alleged crime is tolled from the date of the alleged crime until the prosecution of the crime becomes final or is terminated, as long as that time does not exceed six years.

The Supreme Court held that “the plain language of OCGA § 9-3-99 would encompass a violation of a Uniform Rule of the Road. To impose a more stringent definition of 'crime' within the context of the statute would render superfluous its language that the statute of limitation is tolled from the date of the alleged crime 'or the act giving rise to such action in tort' until the prosecution or other termination of such crime 'or act.'”

Chief Justice Hunstein wrote that the court had to reach the result it did notwithstanding the significant impact the decision will have. “If the Legislature had intended to limit the application of OCGA § 9-3-99 to tort actions arising from only certain types of crimes, e.g., felonies or specific intent crimes, it certainly could have done so. It did not, and any undesirable result is a matter properly addressed by the General Assembly rather than the courts.”

I would not generally advise such delay in filing suit or taking a case to trial. If a felony traffic charge is pending against the defendant, it can be a tactical advantage for the plaintiff if the defendant repeatedly invokes the fifth amendment right against self-incrimination in front of the jury in the civil trial, and the judge then instructs the jury that they may infer that a truthful answer would not have helped the defendant.

And delay can often result in loss of evidence and witnesses' loss of memory.

More and more, I'm inclined to file suit promptly when the injury is clearly catastrophic, and move aggressively to complete necessary investigation and discovery.

However, when people do wander in late, or where it is essential to compel answers to questions in disvoery, yesterday's court decision allows us one more arrow in the quiver.

Following is a copy of the Georgia Supreme Court unanimous decision

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For years both lawyers and insurance claims professionals assumed that a plaintiff could not win a substantial verdict in certain suburban Atlanta counties, notably Cobb and Gwinnett.  Until the past couple of years, I felt the same way.

Last week, there was a verdict for $1,937,500 in Cobb County.  The plaintiff was an assistant attorney general who was a passenger on a motorcycle driven by her brother. She had a broken pelvis,  12 days in the hospital with surgery on the pelvis, about $151,000 medical expense, and no wage loss claim. The defendants were a then-16 year old high school student and the teen's parents who were included under the family purpose car doctrine.

It vaguely reminds me of a $2.3 million verdict I won in rural Gordon County a while back, with somewhat less medical expense but with a trucking defendant.

The point is that it seems that the county a case is in doesn't make as much difference as it did 10 or 20 years ago. A good case is a good case in most any venue. 

Of course, that generality does not factor in the potential for "home cooking" if the defendant is prominent and well liked in the county. That can happen anywhere, depending on the vagaries of local politics.

 

 

 

 

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"Independent" medical exams are commonplace in personal litigation, workers compensation, and disability insurance contexts.  Experience has made us cynical so that we now refer to these as "defense medical exams" or "insurance medical exams."

The New York Times on 3/31/09 carried an investigative article, "Exams of Injured Workers Feed Mutual Mistrust," detailing abuses of such exams in the New York workers compensation system.  In fairness, there are also common forms of fraud by claimants, companies and others. But that does not excuse the fraud in "independent" medical exams.

Some highlights of the article:

• Quote from an IME doctor who was videotaped in an exam making positive finding, directly contradictory to the report he later submitted: "“If you did a truly pure report, you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”
• “You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did.”
• “There are some noble things you can do in medicine without treating. This ain’t one of them.”
• “Physicians regrettably have moved away from being neutral observers. They’ve moved toward one camp or the other.”
• Often IME doctors are hired  by brokers that then have clerical staffs prepare reports based on dictation or checklists completed by the doctors, who often do not read the reports before signing them.  The article gives examples of doctors signing reports on exams they never performed.
• The best protection against this sort of thing is to record or videotape an IME.

My experience in Georgia is almost entirely in civil litigation rather than workers comp, which is a different animal.  In personal injury litigation, a small number of "reliable" doctors perform most of the IMEs. They stiffly resist any attempt to record or videotape exams.

 OCGA 9-11-35 provides for a medical examination in the discretion of the court for good cause shown. 

The choice of examiners  is ultimately within the discretion of the court, which need not approve an exam by a doctor who is a hand-picked defense advocate.  Though some judges seem not to understand this point, the law does not provide for an adversarial medical examination by a hand-picked defense advocate.  There is nothing in the Code to authorize the defendant to require the court to select, or the plaintiff to submit to examination by, a physician who is a handpicked and reliable advocate for the defense.

The burden is on the party seeking the exam to show "good cause."  A critical factor in determining whether to grant a motion for examination are the ability of the movant to obtain the desired information by other means and the timeliness of the motion and the events leading up to it.

We have had some success in blocking or neutralizing defense medical exams.  When we have blocked use of notoriously biased defense medical examiners, or successfully insisted on videotaping the exams, we have found that the insurance companies do not proceed with exams by neutral doctors or with the biased doctors being videotaped.

 

 

 

 

 

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If I were conscripted to listen to sit quietly in court and listen to lawyers, judges and witnesses talk all day, I would probably doodle some.

Now there is a web site dedicated to art by real jurors while on jury duty.  See the American Gallery of Juor Art.

 

 

 

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There is an old saying that no one's life or property is safe while the Georgia legislature is in session. As a trucking safety trial attorney in Atlanta, I have often reflected on the truth of that quip.

This week, we have seen some remarkable developments under the Gold Dome, which have been surprisingly benign.

• The "frivolous litigation / loser pays" bill (SB 108) sought to impose attorney fees against anyone whose case was kicked out of court on a motion to dismiss and an indefinite stay of discovery whenever a motion to dismiss was filed.  First the bill was stripped of the incomprehensible definition of"substantial merit"  which was difficult to distinguish from "without substantial justification" in OCGA § 9-15-14 and § 51-7-80(7). Then the "loser pays" attorney fees provision was withdrawn because it was largely duplicative of "loser pays" rules in OCGA §§ 9-15-14, 9-11-68, 13-6-11, and 51-7-80, et seq.  Finally, it was conformed to a committee substitute of HB 414, which provides a stay of discovery for up to 120 days after a motion to dismiss is filed, except that discovery is allowed on the basis of the motion to dismiss.

There is considerable potential for abuse. Some lawyers will initially file a lot of frivolous motions to dismiss just for purposes of delay.  Evidence that had been requested in initial discovery requests will be "lost" through "routine document retention policies" while the automatic stay is in effect.

However, this may turn out to be much ado about nothing.    Once it becomes law, I expect a rash of frivolous motions to dismiss as a stalling tactic.  Good plaintiff lawyers will promptly respond with aggressive discovery on the basis of the motions,  demands under OCGA §§ 9-15-14 and  51-7-80 to withdraw the frivolous motions to dismiss, and will get judges to set prompt hearings on the motions.  After a brief flurry of activity, I expect it will become a rarely utilized curiosity. 

Two years from now, the main effect may be that lawyers who advertise heavily on TV and run plaintiff mills will unilaterally use the specter of this law to browbeat their unsuspecting and ill-served clients into taking cheap settlements before suit is filed even when it is not used by the defense.

• The seatbelt bill (HB 200) would have made evidence of failure to wear a seatbelt admissible as evidence of negligence of the injured party. It was eventually amended to allow such evidence only in mitigation of damages and only if the defendant introduced evidence of the extent to which the failure to wear a seatbelt made the injury worse. It would also require seatbelt use in pickup trucks, which is excluded from evidence now. Then yesterday, the compromise bill went to a vote on the floor of the House of Representatives and was rejected by a vote of 148-15.  Some legislators saying they didn't want to further victimize people injured in accidents and others opposed requiring use of seatbelts in pickup trucks.
• The FDA immunity bill (SB 101) would have granted immunity from civil liability for any pharmaceutical or medical device manufacturer with 200 or more employees in manufacturing or R&D in Georgia, with regard to any product that had been approved by the federal Food & Drug Administration.  Some very conservative legislators argued vehemently against it, pointing out systemic failures of the FDA to screen out drugs that turned out to have catastrophic impacts. Some folks pointed out that it probably would have been held unconstitutional under the Commerce Clause of the U.S. Constitution in that it discriminated between in-state and out-of-state companies. This bill died, at least for now, in the Senate Economic Development Committee.

As I've spent some time at the Capitol this week, I have marveled at the sacrifices required to serve in the legislature. It's amazing that anyone can do that and run a business or professional practice at the same time.  It was probably a good thing that I narrowly lost when I ran for the House of Representatives on year out of law school. I was 27 and looked about 17.

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As a personal injury trial lawyer in Georgia, I have often told clients that they do not want what goes with the kind of case that makes headlines. It is better to have good health than a multi-million dollar injury case.

A recent New Jersey case is a good illustration of that.

In 1999, an Aramark concession employee at Giants Stadium broke stadium rules by continuing to sell beer to a fan who had been drinking much of the day and was slurring his words. The drunk fan drove away and crashed into a family vehicle, rendering a two year old girl a quadriplegic.  The girl, now 11, is still paralyzed and dependent on a ventilator to breathe.

Three years ago, a jury awarded damages of $105 million.  An appeals court reversed that judgment and ordered a new trial, saying the lower court improperly allowed testimony about the "culture of intoxication" at the stadium. Now the case has been settled, with $23.5 million for the girl and $1.5 million for her mother, who was also injured. There is no further appeal from a settlement.

Having been represented  young quadriplegics with well-designed life care plans, I know what is involved and how expensive proper lifetime care for a quadriplegic is. 

Since receiving payment on the settlement,  the family began building a handicapped-accessible home equipped with  technology to provide the girl as good a life as she can have as a quadriplegic. The house should be ready by the holidays.

This young girl can only move her head, but with state of the art technology she will be able to control her wheelchair, elevator, TV and computer with her voice.  She will also be able to have  round-the-clock nursing care, which  is necessary in case her ventilator becomes clogged creating a life-or-death situation.

No amount of money can fully compensate a young girl for the loss of the ability to run and play, to hold hands, to enjoy all the blessing of life that the rest of us take for granted. But the money can allow her dignity, humanity, and the best life that is accessible to her.

And maybe, just maybe, this case will make an impression on businesses that serve alcohol around the country, and in that way prevent other tragedies over the years.

 

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Last week the U. S. Congress passed a new Federal Rule of Evidence 502 to address disclosure of information protected by the attorney-client privilege and work-product doctrine. It addresses concerns about conflicting rulings regarding inadvertent disclosures and the scope of privilege waivers.

The new rule seeks to protect litigants from subject-matter waivers, unless “fairness” requires otherwise. The new rule will also codify the majority rule in the federal courts to determine whether an inadvertent disclosure operates as a privilege waiver. Such disclosure will not waive the privilege as long as the holder takes reasonable steps to prevent disclosure and acts promptly to retrieve the inadvertently disclosed documents. Rule 502 will also allow parties to seek court orders providing that the disclosure of privileged or protected information does not constitute a waiver. Finally, parties in federal proceedings can enter into confidentiality agreements, which, if incorporated into a court order, will bind nonparties. The legislation does not affect the substantive law of privileges.

While not limited to the electronic discovery context, the Advisory Committee notes make it clear that this is an area of central concern underlying development of the Rule.

See the text of the new Rule 502 and comments below.

 

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Over the past year I have had the pleasure of serving, along with some folks who are clearly smarter than me, on the advisory board of Georgia Court Watch, which is a project of Georgia Watch, a nonprofit and nonpartisan group committed to consumer rights in Georgia.

We recently issued an annual report on Georgia appellate courts. The reports shows that, contrary to the politically motivated statements of some, the Georgia Appellate judges are not big liberal  activists. I have become acquainted with most of the judges through Bar work, and can assure one and all that they are generally a conservative, well-grounded bunch of folks.

“Many of the decisions reached by the state Supreme Court and Court of Appeals significantly impact the rights that consumers have under law,” said Georgia Watch Executive Director Allison Wall. “Georgia Watch launched this project to provide ongoing, thoughtful, fact-based analysis.”

The “2007 Annual Report” identifies and profiles the most noteworthy consumer-related decisions released by the appellate courts throughout the year, and identifies emerging trends. It focused on decisions on payday loan, insurance coverage, medical malpractice, and other consumer issues.

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As an Atlanta lawyer handling both defective product and motor carrier cases, I have been troubled over the past several years by a trend of federal agencies seeking to block juries from ever getting a chance to consider the evidence  against manufacturers through the doctrine of federal preemption, often beyond anything expressly intended by Congress. Unfortunately, the U.S. Supreme Court has been lending support to that doctrine. Now, however, U. S. District Judge William R. Wilson, Jr., in the Eastern District of Arkansas, has forthrightly "called a spade a spade."  In the case of In re: PREMPRO PRODUCTS LIABILITY LITIGATION, DONNA SCROGGIN  v. WYETH, et. al., MDL Docket No. 4:03CV1507-WRW, 4:04CV01169, Judge Wilson entered the following Order.

SUPPLEMENT TO APRIL 10, 2008 ORDER

As Defendants note, I did state that I was “as confident as a Christian with four aces” with respect to my FDA preemption ruling. In view of the United States Supreme Court’s decision in Riegel v. Medtronic, Inc., 1128 S. Ct. 999 (2008). and other recent appellate decisions, my confidence, while still in place, is at a lower level.

It appears to me that an expansive reading of preemption is a part of the overall “assault upon the citadel of the right to trial by jury” (to paraphrase Cardozo). The finer points of the vice of too much preemption are well presented in Justice Ginsberg’s dissent in Riegel, and by Judge Thomas Ambro in his dissent in Colacicco v. Apotex, 22008 WL 927848, at *18-26 (3d Cir. April 8, 2008).  The thought underlying expansive preemption (“backdoor federalization”, Id. at 25.) is that bureaucratic experts are better at determining what is reasonable, what is too dangerous, etc., than are juries.
Over the past several years I believe all three branches of government have become more and more distrustful of juries. They seem to forget that a jury is a cross section of the citizens who elected them to office (or elected those who appointed them). In political campaigns these citizens are paragons of virtue; but when they are called for jury service, they somehow become
incapable of making important decisions. The language in the decisions favoring preemption is high flown; but, at bottom, it reflects distrust of the randomly selected citizens who sit on juries.

Perhaps our public officials, including judges, have read too much Plato and too little Alexis de Tocqueville. Trial by jury is the essence of government reposed in the people. We should trust this institution in fact, not just in word.

IT IS SO ORDERED this 16th day of April, 2008.
/s/ Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE

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Ron Miller has a good post on the Trial Lawyer Resource Center blog on "Should Your Bring Your Expert Witnesses Live to Trial?"  He makes a number of good points, and I commend it to your reading.

I'll spare you the buggy-load of jokes about the status of technology when I started practicing law.  But up until about a decade ago, we had to get either a court order or a stipulation in order to use a video taped deposition in Georgia state courts. Stipulations and orders often went into stultifying detail about camera positions, zooming, backgrounds, etc.  Opposing counsel who wanted to be obstructionist could refuse to stipulate, forcing you to file a motion and get an order from the judge, which of course could take months with some judges. For several years after I switched from defense to plaintiff practice, I made a practice of filing a motion to authorize videotaping of depositions as soon as an Answer was filed so that I would not be stymied when time for taking doctors' depositions finally came.

When I became chairman of what is now called the Tort & Insurance Practice Section of the State Bar of Georgia in  June 1994, I appointed a committee co-chaired by plaintiff and defense lawyers, to work on a legislative proposal to adopt the federal rule on means or recording depositions, including video. It should not have been a controversial point, and it was easy to get consensus once we got folks to sit down and consider what the rule should be. However, an insurance industry lobbyist blocked it the first time it came up in the State Senate Judiciary Committee in 1995, and told me outside the hearing room that doctors who were defendants could come across as [expletive deleted] on a video deposition taken for discovery, and he wanted more opportunity to prepare them to avoid that.  A couple of years later, after the court reporters' lobbyists had assured that stenographic recording would always be required, our amendment to OCGA 9-11-30 passed, authorizing video recording of depositions by notice.

Since then it has become routine to videotape nearly all physicians' depositions and a great many opposite party depositions. Experience has taught us a few things, including but not limited to:

• Use a reliable videographer who understands setting, lighting, sound control, and can give you video in any format. While it is permissible to run your own camcorder and have the court reporter certify it, I would never take a chance on that false economy.
• Pay attention to backgrounds.  Generally a plain background without distractions is best. Many videographers bring a background screen to set up.  However, a book-lined doctor's office with impressive degrees hanging on the wall, or with lots of anatomical models sitting around, can be good too.
  
• Avoid glare.  We spend a lot of money on medical illustrations for doctors to use in explaining their testimony. Videographers should zoom in on the section the doctor is explaining.  However, glare from overhead lights or windows can spoil much of the effect.  Set up early in the room and check for all sources of glare on exhibits. Adjust blinds, adjust the angle of the easel, etc., to overcome this problem.
• Prepare illustrations with captions on an acetate overlay that can be removed, so that you can avoid the "continuing witness rule" and send the illustration out with the jury. This is not strictly a video deposition point, but it is worth mentioning.
• Get the video deposition produced in DVT format, synchronized with the stenographic transcript.  This is compatible with courtroom presentation software such as Summation.  Even without Summation, however, it enables you to easily prepare clips of deposition testimony to present at the commencement of the case in chief and in closing, as one can use the deposition of a party -- individual or corporation -- "for any purpose" at trial.  Just as significantly, if opposing counsel objects in the midst of trial to a portion of a video depositions, a DVT video can be redacted on the fly in the courtroom during a recess.  I recently had a trial where for the first time in years I was without the assistance of a paralegal who had been at my side for fourteen years, but even I was able to redact an expert video deposition and let opposing counsel review the redactions during the lunch break.
• Think far in advance about the mode of playing back a video deposition in the courtroom.  A few courtrooms come equipped with all the latest technology. Most do not. Some are weirdly configured in a manner almost hostile to any use of projectors and screens. Recently I had a trial in Alabama in a courtroom that must have seemed like a brilliant design to an architect who did not bother to consult any lawyers or judges. Sight lines for jurors were, to put it mildly, bizarre.  Often we do not even know which courtroom will be in until nearly the day of trial.  In the past year I have presented video depositions in at least three different formats - VHS, DVD and DVT -- on courtroom TV sets, awkwardly configured courtroom projection systems, and with my own projector and screen through either a DVD player or a laptop computer. I have come to the conclusion that the perhaps the best current technology is to use a lightweight plastic screen that can be placed on counsel table, with a rear projector that can be placed behind it on counsel table (my next technology purchase), and playing a DVT through a laptop computer. It's best to have a competent assistant handling the technology, but in a pinch a reasonably competent lawyer can handle it.
• Above all, remember that Murphy's Law is in full force and effect. If anything can go wrong, it probably will. Before you spend thousands of dollars on fancy graphics, or to bring a professional crew across the state to handle your courtroom technology, think through all the ways opposing counsel,  the judge, antiquated courthouse wiring, or cruel fate can throw a monkey wrench in your finely tuned machine.  Always have a backup plan, a backup system for replaying a video, an extra power strip, and an extra long extension cord.

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Once again, reality is stranger than fiction.  You just can't make this stuff up.

San Diego Superior Court Judge Patricia Cowett has ordered Starbucks to pay its California baristas (coffee servers) $86 million, plus interest, for using some of its employees' tips to pay shift supervisors. A plaintiffs attorney in the case said the total judgment will exceed $100 million. The latest ruling follows a ruling last month that the company was liable for shairng tips with managers such as shift supervisors.  California's tip-pooling law says that gratuities meant for hourly workers can't be taken by an employer or its "agents" -- and Cowett found that Starbucks supervisors were "agents."

And to think that I recently suggested to my son who is in college in California that Starbucks would be a good place to get a part-time job. My nephew had a good experience working as a barista in New Jersey as a college student, but then he went on to bigger and better things at Best Buy and now as an intern in what's left of Wall Street.

 Starbucks has vowed to appeal.  Since some of those supervisors are probably designated as "management" mainly in order to avoid paying them overtime, that makes sense. I am reminded of how my son's girlfrend was promoted to "assistant manager" of a fast food place when she was a junior in high school, realizing only later that it was how they avoided paying her overtime.
As a trial lawyer, I hate to say that any lawsuit is frivolous and abusive, but that's how this one strikes me. The biggest difference between baristas and shift supervisors is the wording on the name tag.  A lot of them are young folks in school or just out of school, working there while looking for a career job. Hitting Starbucks for $100 million because they included shift supervisors in the split of the tip jar doesn't make a lot of sense.

The next time you dump your change in the tip jar after getting your Pumpkin Spice Frappuccino, remember this mess. Personally, I have never mastered the vocabulary of the Starbucks menu. (What the heck is "venti" anyway? I just want a regular cup of coffee.)  It's pretty good, but I don't know that it's that much better than the "jailhouse coffee" that used to be served up by jail "trustees" and  bailiffs who called all the lawyers "Colonel"  in ten gallon urns in witness rooms,  a few steps from the courtrooms that still had spittoons in the jury box. That jailhouse coffee didn't get a lot of points for yuppie style, but it sure would wake you up and put hair on your chest.


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The Fulton County Daily Report has published my analysis of the unintended consequences of a sales tax on legal services, an earlier draft of which appeared in this blog a couple of days ago. It must have been a slow news day because they gave me a full page.
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Governor Perdue has appointed Fulton State Court Judge Henry Newkirk to succeed Judge Stephanie Manis in Superior Court.  As an Atlanta attorney familiar with the quality of his work, I think It's a great appointment.

I first met Judge Newkirk at Furman in about 1971 when he was a freshman and I was a junior. He transferred to Florida State, became a homicide detective, moved to Atlanta, went to law school, became an Assistant District Attorney, and roughly a decade ago became a State Court Judge.  He is of course well qualified to handle the heavy felony caseload in Superior Court. He has also handled some of the most complex civil litigation in State Court.

He succeeds Judge Stephanie Manis, who was one of my classmates in law school at Emory. She has taken Senior Judge status, and is doing a lot of judicial mediations at the courthouse.

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As a trial attorney handling serious injury and wrongful death cases in  Georgia, I have an intense interest in seeing that my clients are dealt with fairly, that the playing field is relatively level, and that the court system works reasonably well.

Currently there is a proposal in the legislature to impose a sales tax on services, including legal services, as part of a plan to eliminate property taxes for support of education. That proposal arises from deeply held feelings that the tax burden falls unfairly upon property owners. As a homeowner, I share that sentiment every time I receive a property tax bill. But as a parent whose children graduated from excellent public high schools, I know what a bargain that can be compared to private school tuition. Georgia should improve, and not diminish, support for quality public education.

Whatever general revenue measures our legislators may choose to support the quality of public education needed to provide Georgia an economically competitive workforce, it is important to examine the ramifications in detail. Specifically regarding the proposed tax on legal services, our legislators should consider a broad range of potential unintended consequences on our system of justice and the delivery of legal services.

Conflict with duty of confidentiality. Under current enforcement statutes, the Georgia Department of Revenue, under its audit authority, could claim access to detailed client billing records which are confidential under Georgia Rule of Professional Conduct 1.6. This could create a serious conflict between lawyers' confidentiality obligations to clients and the requirement to respond to audit requests.

Burden on individuals but not businesses or governments that litigate against them. Individual Georgia citizens would bear the entire burden of the tax as currently proposed, while governments, corporations and insurance companies who litigate against them would be entirely free from the tax. This would make the playing field even more uneven in favor of corporate and governmental litigants and against individual Georgians.

Economic incentive to shift legal services – and law firms’ work, staff and investment – outside Georgia.  A tax on legal services would encourage sophisticated clients, and those in border communities, to use untaxed legal services outside Georgia. It would also create an incentive for Georgia law firms to perform more services outside Georgia, and to shift investment in facilities, staff and support services to other states. Given the ease of gaining admission in many other states by reciprocity, even the smallest firms might find it advantageous to do so. Determining which services are taxable in Georgia would be an administrative nightmare.

Burden on citizens’ constitutional right of access to courts. A tax on legal services would be a burden on the exercise of Georgia citizens’ basic, constitutional right of access to justice and to the courts.

“Misery tax”. The sales tax on legal services as proposed would amount to a “misery tax” levied on individuals and families in Georgia at times of misfortune and vulnerability. It is generally necessity rather than choice that leads Georgians to seek legal assistance in cases involving death, divorce, domestic abuse, end-of-life decisions, injury, accusation of criminal offenses, or bankruptcy.

 Effect on injury cases. Recovery for bodily injury is not taxable under either federal or state income tax laws, as our lawmakers have long recognized that there is no profit when an injured person involuntarily exchanges good health for a specified amount of money. The tax on legal services would erode the injury victim’s recovery for such injury, thereby making it even more difficult – and potentially more expensive – for corporations and insurance companies to reach reasonable compromise settlements. Moreover, an Georgian injured on the job gets no more than $450 per week in workers compensation indemnity benefits. If an attorney is required to obtain the benefits, a 25% attorney fee of $112.50 per week leaves only $337.50 for the injured worker. (The weekly benefit was recently increased to $500 per week for new claims, but you get the idea.)  A tax on legal services would further erode that meager benefit, thus increasing pressure to raise workers compensation benefits, a cost which eventually would be passed on to Georgia businesses.

Experience of other states. Apparently only Hawaii, New Mexico, and South Dakota currently tax legal services. Florida and Massachusetts enacted such taxes, but promptly repealed the measures when they proved to be unpopular and difficult to administer. Several other states, including Maine, Maryland, Ohio, and Vermont, as well as the District of Columbia, rejected similar proposals.

Constitutional questions.  There are numerous unresolved questions as to the constitutionality of the proposed tax on legal services, which the State of Georgia might well have to litigate over the next several years, including but not limited to the following:

    •    Access to courts. Would the proposed tax on legal services  impermissibly burden  access to and use of the state or federal courts in violation of Art. 1, § 1, ¶ 9 Ga. Const. of 1983, Article III of the U.S. Constitution and the 5th, 6th and 14th      Amendments to the U.S. Constitution?
    •    Equal protection and due process. Would unequal treatment of individuals and corporations, whereby a tax would be imposed on an individuals party’s access to the courts but no tax would be imposed upon a corporate party in the same litigation, be a violation of the Georgia Constitution under Art. 1, § 1, ¶ II  (equal protection) and under Art. 1, § 1, ¶ I (due process of law), and the 14th Amendment to the U.S. Constitution?
    •    Separation of powers.  Would the proposed tax on legal services constitute an unauthorized regulation of the practice of law by the Legislature in violation of the constitutional guarantee of separation of powers under Art. 1, § 2, ¶ III of the Georgia  Constitution?
    •    Tax on litigation in federal courts may violate U.S.  Constitution Supremacy Clause.  Would the proposed tax on legal services, in connection with litigation before the federal courts, violate the Supremacy Clause contained in Article VI of the U.S.  Constitution?
    •    Breach of confidentiality burdening right to counsel. Would the proposed tax on legal services breach the attorney-client privilege and confidentiality, and thus impermissibly burden the right to counsel under both Art. 1, § 1, ¶ I of the Georgia  Constitution and the 6th and 14th Amendments of the U.S. Constitution?
    •    Taxing some professions while exempting others may violate equal protection of law. Would imposing a tax on services performed by the legal, accounting, architectural and other professions, while exempting services rendered by the medical profession, be a violation of equal protection rights under Art. 1, § 1, ¶ II of the Georgia Constitution, and the 14th Amendment to the U.S.  Constitution?
    •    Burden on rights guaranteed in U.S. Constitution. Would the  proposed tax on legal services impermissibly burden the exercise  of rights secured by the 5th, 6th, and 8th Amendments to the U.S. Constitution?

We should encourage efforts to make our system of taxation more fair and efficient. At the same time, we should be careful to avoid the “law of unintended consequences," which could wreak havoc if a tax on legal services were enacted.
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I was pleased to see that Judge Henry Newkirk of the State Court of Fulton County made the "short list" for the Superior Court seat being vacated by Judge Stephanie Manis taking senior status.  While Judge Manis was one of my classmates at Emory Law School, I first met Judge Newkirk at Furman when he was a freshman and I was a senior.  He later transferred to Florida State, entered law enforcement, became a homicide investigator, went to  night law school, became an excellent Assistant District Attorney in Atlanta, and roughly a decade ago was appointed as a State Court Judge. His background is excellent for dealing with the heavy felony caseload in Superior Court.  While his wife is a prominent insurance defense lawyer, he is fair and knowledgeable in dealing with the civil cases. I hope he gets the appointment.

Here's what the Fulton County Daily Report published about the nominees:

Elizabeth P. “Liz” Archer, 39, who for the last year-and-a-half has served as interim state inspector general. She also has served as a public defender in Florida and in Fulton County. A law graduate of Mercer University, Archer is married to Balch & Bingham Atlanta managing partner T. Joshua R. Archer. JNC chairman Michael Bowers is a partner at Balch & Bingham.

Susan E. Edlein, 37, a graduate of the University of Virginia law school, is a litigator for Holland & Knight specializing in real estate litigation and corporate tort liability.

Katherine B. Monahan is an assistant U.S. attorney in Atlanta and chief of the Terrorism, Violent Crimes and Firearms Unit. Prior to that, she served as a Fulton County prosecutor. Monahan is a graduate of the University of Georgia School of Law.

Henry M. Newkirk, 54, is a Fulton County State Court judge. A former police officer, he graduated from the Woodrow Wilson Law School and worked in the DeKalb solicitor’s office and as a Fulton assistant DA before becoming a judge.

Andrette Watson, 42, a medical malpractice specialist at Green, Johnson & Landers, is a former Fulton and DeKalb assistant DA. She is a law graduate of St. Louis’ Washington University and has worked in the criminal division of the state attorney general’s office and as an assistant DA in DeKalb and Fulton counties.

You see the pattern. Of the nominees other than Judge Newkirk, two are current government employees.  Another has spent most of her career as a prosecutor before recently entering an medical malpractice defense firm. None have significant experience representing individuals who have been hurt.  From the little bit I have picked up outside the news article, none appear to be the sole support for their families with kids in or headed toward college. (If I'm wrong, someone will correct me.) The pattern continues with underpaid judicial positions attracting only government lawyers who have years invested in retirement plans that flow easily into the judicial retirement plan and/or lawyers who have well paid spouses.  Experienced lawyers who have built a successful private practice, who are the sole support for their families, who have kids to send to college, and who are not independently wealthy, generally cannot take those positions without a great deal of personal and family sacrifice. Under the circumstances, it is amazing that we get as many good judges as we do.

At a reception Thursday night, I talked with a candidate for a Superior Court seat in a suburban county.  He has spent his entire legal career of 25 years as an Assistant District Attorney in that county and now feels "called" to judicial service.  I wish him well and hope he becomes a great judge. I will make a modest donation to his campaign, though I will probably never have a case in his court.  Of course there is no financial sacrifice in moving from Assistant District Attorney to Superior Court Judge.  Having spent some time as an ADA, after law school, I am very sure that one does not get civil litigation experience or any understanding of the practical realities of private practice in that position. The system would be better if it were financially sane for lawyers who have successful private practice experience to go on the bench.

I will continue to work within the Bar to support judicial pay raises.  Given the obvious hostility of some of our more vindictive demagogue politicians toward the concept of an independent judiciary, I am not optimistic about that.  I will also support judicial candidates who appear capable of transcending their lack of experience representing individuals in private practice.  And when I have cases before judges who do not have significant civil experience, I will not assume any familiarity with the legal issues in my case.

 

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Yesterday, for the fifth consecutive year, I served as program chair for the Georgia Personal Injury Practice Seminar sponsored by the Institute for Continuing Legal Education in Georgia.  As always, I followed my father's advice to "surround yourself with people who are smarter than you" by recruiting as speakers some of the brightest lawyers in Georgia. As always, I learned far more from the other speakers than I taught in my own presentation titled simply, "Truck Wreck Cases."  While participation in CLE programs is time consuming, I find that I always get more out of it than I put in.

 

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Though I have not personally encountered it yet, there apparently has been a recent proliferation of a defense tactic of offering to represent witnesses at no charge in order to limit the plaintiff attorney's access to the witnesses.  This may be particularly a problem in medical malpractice cases but it could occur in any type case.  In a recent Georgia case against a nursing home and its CEO, defense counsel contacted witnesses who had been subpoenaed for depositions and offered to represent them at no charge. The defense lawyer then wrote to plaintiff's counsel stating that he represented the witness so the plaintiff's attorney could have no further contact with the witness without going through the defense lawyer.  On October 24th, Judge Frank Jordan of the Chattahoochee Judicial Circuit entered an order finding this created a conflict of interest in violation of Rule of Professional Conduct 1.7 and disqualifying the defense lawyer from representing the non-party fact witnesses.  However, the court stopped short of disqualifying the defense firm from participation in the case or precluding the defense from contesting the issues on which those non-party witnesses would testify.  The Butler Wooten firm did a great job of stopping that defense tactic in its tracks.

 

 

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Recently I wrote about the crisis in judicial salaries.  Today I got some private feedback from an old friend who went from a very successful private practice to a judgeship several years ago. I'm not even going to hint at who, where, or what level of court.  This judge said that, other than retirement accounts, he is down to his last $20,000 of savings.  Fortunately, he does not have kids in college at this point. This reconfirms only poorly paid government lawyers, the truly wealthy, and those who have a very highly compensated spouse can afford to take a judgeship.  The longer the judiciary goes without a very signfiicant raise, the more these types of stories spread among folks who would be good judges, and the more the system loses the experience of seasoned lawyers from the private sector. That's not good.

 

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A judge in Queens County, NY, recently wrote a 13-page order awarding double the standard compensation for a sign language interpreter and spotlighting a severe shortage of court-certified interpreters in American Sign Language for the deaf. He noted that even in Rochester, NY, which has the largest per capita deaf population in the country, only a limited number of certified court interpreters are available. (The Rochester Institute of Technology / National Technical Institute for the Deaf, where I will help my daughter move into a dorm next weekend, is there.)

A federal court case in Rochester under the Americans with Disabilities Act a few years ago helped bring about a Deaf Equal Access Fund, in cooperation with the local bar association and an interpreting service, to enable the deaf community to have full access to services of the legal community. That is worth studying as a model for what might be done in Georgia, though I doubt any community in Georgia approaches the concentration of D/deaf population that you find in Rochester.

Because of my daughter (who lost her hearing at 18 due to NF2, got an Auditory Brainstem Implant at House Ear Institute, and spent this summer taking ASL at Gallaudet University), I have begun to learn ASL.  This fall I will be taking ASL classes with my wife two nights a week, subject of course to trial, deposition and work related travel schedules.  Though my ASL skills are still at the unskilled beginner level, and may never become fluent, my daughter has raised my consciousness about the challenges facing the D/deaf and hard of hearing. At least I know how to sign, "old dogs can't learn new tricks."

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Most of the top Atlanta law firms have now joined the trend to raise starting salaries for Atlanta associates to $145,000.  Without adjusting for inflation, that is exactly ten times my starting salary as a prosecutor thirty years ago. Of course, spiraling starting salaries lead to hourly billing requirements that leave no time for a personal life, compression of salary increases for experienced associates, and probably billing for a lot of unnecessary legal work to meet  quotas. Predicatably enough, there are law students and associates anonymously whining that it isn't enough and that they can't afford $600,000 houses on first year associate salaries. My heart bleeds for their hardship.

I don't care how much money big law firms throw at bright kids with no experience straight out of law school.  Neither do I care how much the Atlanta Falcons pay Michael Vick.  The real scandal is when you compare those law firms' starting salaries with the salaries of judges who are responsible for running the court system:

• Median salary for law school deans and senior professors: $230,000
• Median salary for top 10% of attorneys outside law firms: $227,500
• First year associates at top Atlanta law firms:  $145,000
• U.S. Court of Appeals Judges: $175,000
• U.S. District Court Judges: $165,000
• Georgia Supreme Court Justices: $158,000
• Georgia Court of Appeals Judges: $157,000
• Fulton County Superior Court Judges: $151,459 (with local supplement)
• U.S. Bankruptcy Court Judges: $142,300
• U.S. Magistrate Court Judges: $142,300
• Median salary of Georgia Superior Court Judges: $133,000 (with local supplements)
• Base state salary for Georgia Superior Court Judges: $113,470
• Fulton County State Court Judges: $126,221

When a distinguished judge with 30 or 40 years of experience is paid about the same as, or less than, a 25 year old just out of school, we have a problem.  When judges see their law clerks leave after a year or two to make more than the judge makes, we have a problem. 

The solution is not to restrict the operation of highly competitive free market forces, as the big law firms say they are reacting to client expectations and a limited pool of top law school graduates.  Rather, it is to make judicial salaries competitive.  Nor is it appropriate to suggest, as one wag has done, that all judges should just "marry rich" so they can live well despite the non-competitive judicial salaries.  It is important to pay judges enough that private practice lawyers in their prime years can afford to go on the bench and still send their kids to college. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.

At the federal level, Chief Justice Roberts has called the inadequacy of judicial salaries a "constitutional crisis."  In Congress, there is now bipartisan support for legislation to remedy this situation. S.1638, the Federal Judicial Salary Restoration Act of 2007. Supported by the ABA, this bill provides for a 50% increase in current federal judicial salaries -- i.e., $247,800 for district and the Court of International Trade judges; $262,700 for appellate judges; $304,500 for Associate Justices; and $318,200 for the Chief Justice of the United States. Magistrate and bankruptcy judges’ salaries, which are statutorily set at a level equal to 92% of a district judge’s salary, also will increase proportionately. The Board of Governors of the State Bar of Georgia recently passed a resolution calling on Georgia's congressional delegation to support this bill.

At the state level in Georgia, there is a similar effort to raise judicial salaries enough to attract successful attorneys from the private sector. The Commission on Judicial Compensation has proposed raising the state base pay for all Superior Court Judges to $136,164, the median pay for Superior Court Judges with local supplements to $155,700, the Court of Appeals to $188,400, and Supreme Court to $189,600.

This is not a matter of pampering attorneys who get to be called "your honor" and have everyone laugh at their jokes.   It is a matter of preserving the independence of a competent judiciary, staffed by people who could make a lot more money in private practice and are above letting the trappings of judicial office go to their heads.

 

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Jury selection (really deselection) is more art than science and involves at least as much luck as skill.  However, the public attitudes of a time and place are a factor.  That's why I read public opinion surveys with a great deal of interest.

From June 28 to July 3, 2007, Peter D. Hart Research Associates, Inc., conducted a national telephone survey for the American Association for Justice among 1,007 likely 2008 voters (margin of error equals ±3.2 percentage points). The survey explored voters’ attitudes toward the civil justice system and the impact of civil justice issues on voting preferences.  A few key points related to the work we do for our clients in court:

• 82% are worried about the outlook for the American middle class
• 76% worry about the future facing the average working person
• 54% feels worried about the outlook for themselves and their family
• 74% believe that large corporations should give priority to being fair and responsible in dealing with their consumers and employees over looking out for the bottom line
  
• only 13% say that being fair and responsible is actually corporations’ priority today while 81% say it’s the bottom line.
• 83% feel companies should give priority to consumers and workers but just 7% believe this occurs today
• 70% say that making sure corporations are held accountable when their actions harm consumers, employees, or communities should be a much higher priority for the civil justice system than limiting the amount of compensation that juries can award for pain and suffering
• Only three voters in 10 trust large corporations when it comes to being fair and responsible in looking out for the interests of consumers (28%) or employees (30%).
• Worried swing voters offer an even more critical view, with just 19% confident that corporations look out for consumers (81% a little or not much trust) and 16% confident about fair and responsible treatment of employees (82% little/not much trust).
• 64% say corporations giving huge salaries and bonuses to CEOs, while cutting the jobs and benefits of employees (76% among worried swings)
• 64% express concern about corporations defaulting on pension obligations, even when top executives continue to get large retirement packages (74% among worried swings)
• 62% are concerned about health insurance companies and HMOs refusing to pay for medical treatments, even when doctors said they are necessary
• 54% say insurance companies refuse to pay settlements even in cases where they have clear obligation to do so
• Voters choose fair compensation over placing caps on plaintiffs’ compensation by 69% to 25%, and over reducing “frivolous lawsuits” by 60% to 32%.

It is interesting to contrast these results with responses on the messages the insurance industry and others have been trying to sell to the public for years:

• Only 34% say that trial lawyers make too much money when they successfully represent a client in a lawsuit
• Only 24% say victims in cases involving personal injury or medical malpractice are receiving too much money from juries

These two items rank at the very bottom of voters’ concerns, behind all 11 examples of corporate misconduct included in this question. Clearly, Americans’ concern about “lawsuit abuse” is greatly eclipsed today by their concern over corporate abuse of consumers,
employees, and shareholders.

Of course, those of us who try cases for a living know that it only takes one bad juror to ruin the jury and the case for a deserving injury victim, so we still have to be extremely diligent in discerning the true feelings of potential jurors who may not be eager to tell lawyers what they really think.
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A study published yesterday in The Archives of Internal Medicine, reached the conclusion that doctors’ disclosures about themselves fail to either help patients or establish rapport with the patients. Rather, the study showed that many doctors waste patients’ time and lose their focus in office visits by interjecting irrelevant information about themselves. 

The researchers started with the hypothesis that some self-disclosure by physicians had  a potentially positive aspect to building a doctor-patient relationship.  To their surprise, patients were not comforted and conversations got off track. Four out of five times when a doctor interjected personal information, the doctor never returned to the topic under discussion before the interruption. However, the researchershope that  doctors do not conclude that the best course is to clam up completely about themselves.

I wonder if this is also applicable to lawyers' interviews with clients, and if I should cut out some of the personal conversation about personal experiences that seem -- to me at least -- relevant to a client's situation.  However, in the long duration of most of my cases, I still think there is value in developing genuine friendship with clients that goes beyond the nuts and bolts of litigation.



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"Judge" Pearson's $54 million suit against a Washington dry cleaner for an allegedly lost pair of pants went down in flames today.  No damages were awarded to Pearson, and he was ordered to pay the dry cleaner's court costs.  The dry cleaner's attorney fees will be awarded only if the court determines the claim was frivolous.  That seems like a no-brainer to me.

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Insurance defense lawyers have a tough job when the value of a plaintiff's case exceeds the amount of liability insurance coverage.

The tripartite relationship between insurer, insured and defense counsel is unique in the legal profession, variously described as “deeply and unavoidably vexing” and presenting an ethical dilemma that would “tax Socrates.”  See Charles Silver, Does Insurance Defense Counsel Represent the Company or the Insured?, 72 Tex. L. Rev. 1583, 1587 (1994);  Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255, 273 (Miss. 1988).  The insurance defense lawyer serves two masters – the insurer that hires him and controls the defense, and upon whose continuing good will he may depend for future business, and the insured client who did not choose him, will not pay him, and may never be in the position to refer him future business.  This presents inevitable ethical conflicts.  Nancy J. Moore, The Ethical Duties of Insurance Defense Lawyers: Are Special Solutions Required?, 4 Conn. Ins. L. J. 259 (1997-1998).

Generally, in the “tripartite relationship” of insurer, insured and defense attorney, insurance defense counsel may not subordinate the interest of either insurer or insured to the other.  If their interests come into conflict, defense counsel cannot ethically continue to represent either without making disclosure to both and refraining from taking sides with either against the other.  If there is a coverage dispute between the insurer and insured, defense counsel must not take either side.  See generally, Restatement (Third) of the Law Governing Lawyers § 215 (2000); Susan Randall, Managed Litigation and the Professional Obligations of Insurance Defense Lawyers, 51 Syracuse L. Rev. 1 (2001); Thomas D. Morgan, Whose Lawyer Are You Anyway?, 23 Wm. Mitchell L.Rev. 11 (1997); Douglas R. Richmond, Lost in the Eternal Triangle of Insurance Defense Ethics, 9 Geo. J. Legal Ethics 475 (1996); Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke L. J. 255 (1995); J. Kevin Owens, Wrestling with the Tar Baby: Ethical Obligations of Mississippi Insurance Defense Lawyers, 17 Miss. C. L. Rev. 359 (1997); Leo J. Jordan & Hilde E. Kahn, Ethical Issues Relating to Staff Counsel Representation of Insureds, 30 Tort & Ins. L. J. 25 (1994); Robert E. O'Malley, Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed, 66 Tul. L. Rev. 511 (1991).

Rule of Professional Conduct 1.2(4) provides that “[w]hen a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters covered by the insurance policy.”  However, the terms of an insurance policy may not limit the obligations owed by insurance company lawyers to insured clients, including the duty to inform the insured defendant of settlement offers and of the opportunity to settle within policy limits. See, e.g., Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255 (Miss. 1988).

The insurance company owes the insured a duty to use ordinary care and good faith in handling a claim against its insured.  See Smoot v. State Farm Mutual Automobile Insurance Co., 299 F.2d 525, 533 (5th Cir. 1962).  As Clarendon is well aware, it has a duty to give "at least equal consideration to the interests of the insured" and the "same faithful consideration it gives its own interest."  Southern General Insurance Company v. Holt, 200 Ga. App. 759, 409 S.E.2d 852 (1991);  Jones v. Southern Home Insurance Company, 135 Ga. App. 385, 217 S.E.2d 620 (1975); Great American Insurance Company v. Exum, 123, Ga. App. 515, 181 S.E.2d 704 (1971).  Even a negligent failure to compromise a claim may give rise to tort liability to the insured.  Delancy v. St. Paul Fire & Marine Ins. Co., 947 F.2d 1536 (11th Cir. 1991); Home Insurance Co. v. North River Insurance Co., 192 Ga. App. 551, 385 S.E.2d 736 (1989).  Failure to comply with a reasonable time limit for such settlement may also give rise to liability of a liability insurer for the full amount of a jury verdict in the underlying case.  Southern General Insurance Company v. Holt, 200 Ga. App. 759, 409 S.E.2d 852 (1991).  Here the only time limit was the return of the jury’s verdict.  See also, Kingsley v. State Farm Mut. Auto. Ins. Co., 353 F.Supp.2d 1242 (N.D.Ga. 2005); Ogle v. Nationwide Ins. Co. of America, 2006 WL 418148, *3+ (N.D.Ga. Feb 21, 2006) (NO. 1:04 CV 2802 GET).

Where the insurance company has refused to take advantage of opportunities to settle a claim within policy limits, the plaintiff wins a judgment for some multiple of the policy limits, and the insured is on the hook for the excess, the insurance defense lawyer should exercise great caution.  If the plaintiff's attorney asks for contact information to communicate directly with the insured defendant's corporate or coverage counsel regarding the insured's interests vis-a-vis the insurance company, the insurance defense lawyer should either facilitate that communication or report a potential malpractice claim to his own legal malpractice insurance company. Continue Reading Questions & comments 0

The Fulton County Daily Report today reports on a rule change to allow assignment of cases to the Business Case Division without consent of all parties.  Having had a small role in this, I can't resist the temptation to write about it.

The "Business Court" idea developed several years ago when the big banks took their major business litigation among themselves to North Carolina, which already had a statewide Business Court.  The idea was that a specialized court without the burden of routine criminal, domestic, tort and small business litigation could more efficiently handle larger business cases.  My friend Ray Fortin, general counsel at Suntrust, spearheaded the effort and educated me about it in the back of the room at Boy Scout meetings while our sons (both of whom made Eagle this year) were otherwise engaged.

While the Fulton County Superior Court proceeded with its pilot project Business Case Division, cases could be assigned only with consent of the parties.  If one party suggested transfer to that division, all too often the other party was suspicious and resisted. Last year, the judges proposed a rule change to allow assignment of business cases without consent of all parties, but did not touch base with some of the bar sections that could have been concerned.  The Supreme Court wanted the rule change to go before the State Bar Board of Governors before acting upon the proposal.  When it came up in January, the stuff hit the fan because the rule, as worded, could have allowed assignment of some products liability and consumer cases to the Business Case Division.

When we got to Savannah for the January meeting of the Board of Governors, the Superior Court was under time pressure to get the rule change in a hurry due to a deadline on renewal of a grant to pay staff.  My friends in the plaintiffs' bar were up in arms about the potential for the Business Court to become a graveyard for products and consumer cases.  I quickly cobbled together a proposed amendment to exclude non-consensual assignment of cases involving claims for personal injury, wrongful death, employment discrimination and consumer claims under $1 million.  

It was a strange day as I huddled with the corporate counsel of a major corporation and a business litigator from one of the megafirms, and stood up to argue the opposite side of the debate from my good friends in the plaintiffs' bar.  The motion was tabled that day because board members did not like the fact that the proposal had not been submitted in advance to any bar sections other than the corporate folks.

Soon thereafter, the chief judge met with the president of Georgia Trial Lawyers Association and me to iron out the glitches.  At our suggestion, the court submitted the rule change for comment by every bar section and bar-related organization that could possibly have had any interest in it.  The rule change was approved at the April meeting of the Board of Governors, which I was unable to attend due to a family medical situation out of state, and now has been approved by the Supreme Court.

The final rule includes the language I drafted in Savannah on a Friday night  in January, with just a little polishing of the "consumer claims" provision, as follows:

(b) Notwithstanding anything contained herein to the contrary, cases that include the following claims shall not be classified as a Business Case without the consent of all parties:

(i) Personal injury;

(ii) Wrongful death;

(iii) Employment discrimination; and

(iv) Consumer claims in which each individual plaintiff’s claims are in the aggregate less than $1,000,000.

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The nut case administrative law judge in Washington, DC, who sued a dry cleaner for $65 million for a lost pair of pants has lowered his price to $54 million.  Roy L. Pearson  -- who turned down an offer of $15,000 for his precious pants -- is proving the maxim that he who represents himself has a fool for a client.  And he is professionally incompetent to boot. 

Yes, "Judge" Pearson, I am publicly defaming you in your business or profession because you obviously have no connection with reality, justice or professional competence.  Come on down to Georgia and sue me for $65 million.  Heck, make it $650 million or $65 billion.  Why hold back?

Perhaps he is representing himself because no sane, ethical lawyer would have anything to do with this travesty.  Perhaps he cried in court because of some glimmer of recognition that he has made a complete fool of himself.

Once a dry cleaner in my neighborhood ruined a pair of my suit pants.  Did I sue the dry cleaner? No, I just changed dry cleaners.  One of my lawyer friends in Atlanta mentioned this week that a dry cleaner once lost over 20 pairs of pants he was having altered after losing a lot of weight.  He wrote it off.

Anyway, the whole nation hopes the judge who heard the case will sock "Judge" Pearson with all available sanctions for this travesty.

The sad thing is that this idiot is not just abusing the Korean immigrant dry cleaners and making a fool of himself.  Worse, he is holding the whole legal system up to public ridicule, doing untold harm to countless people who have real problems, real injuries, real damages.  Predictably, the U.S. Chamber of Commerce lobbyists are blaming trial lawyers (and the people with serious cases that we represent)  for "Judge Pearson's" idiocy. 

Never mind that the CEO of the American Association for Justice (formerly Association of Trial Lawyers of America) filed an ethics complaint with the DC Bar against Judge Pearson.  Never mind that the case is an aberration, that "Judge" Pearson is not a trial lawyer but former legal aid lawyer promoted to a local administrative law judge in DC who has never spent a day in private law practice, or that his claim is based on an absurd interpretation of some obscure local law in DC rather than tort law.  Real lawyers are constrained by common sense and economic reality, none of which appear present in "Judge" Pearson's conduct.

Now every time we strike a jury in a case of wrongful death or serious physical injury, we will have to deal with juror perceptions not only of the McDonald's hot coffee case (which at least involved a significant burn injury) but also the "lost pants" case.  I wonder how many thousands of people will be indirectly harmed by this moron's stupidity.


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The Georgia Supreme Court has held that OCGA 9-11-68 is unconstitutional, at least with regard to cases that arose before the effective date of the statute. See the full opinion in Fowler Properties Inc. v. Dowland here.

The opinion is a bit enigmatic in that the Court stated "Our conclusion that OCGA § 9-11-68 is unconstitutional as a retrospective law renders it unnecessary to pass upon the other ground[s] of attack upon the constitutionality of this act."  
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The Court of Appeals last week restricted the use of medical narrative reports in injury cases, holding it was reversible error to admit a neurologist’s unedited notes from the patient's medical visits. The notes did not comply with O.C.G.A. § 24-3-18’s requirements for medical narratives, because they contained unexplained medical terms and test results and were not organized or structured to make them more readily understandable to the jury.

This decision is both good and bad for injury victims.  The statute was passed to make it less expensive to introduce medical evidence at trial.  When medical reports are written in clear prose, narrative reports help establish the plaintiff's case.  We generally use only the ones that are reasonably understandable reports to fill in gaps between medical depositions.  Some lawyers like to use them as the entire medical proof in a smaller case.  On the other hand, defense lawyers like to dig up old medical reports and introduce office notes as medical narratives. So this decision cuts both ways.

Frankly, if I have to pay a doctor to write a narrative, I'd just as soon pay a few hundred dollars more and take the doctor's deposition on video for use at trial, with the doctor explaining everything with some visual aids.
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A good, well trained court interpreter is essential when a witness is not fluent in English.  However, it is not enough to be merely bilingual. While we can usually get trained, certified court interpreters in the more common languages, that is often impossible when dealing with more obscure tongues. 

I had a vivid example today, taking a deposition in Kansas City of a Croatian speaking truck driver.  We could not find a certified court interpreter in Croatian in the Kansas City area, so we just had to go with the Croatian interpreter that a local agency there was able to provide.  However, try as we might, we could not get her to stop paraphrasing and summarizing, repeatedly saying "he says that.....," rather than interpreting verbatim.

In Georgia, the Judicial Branch of state government includes the Commission on Interpreters, which examines interpreters for linguistic competency, provides court interpreter orientation workshops, and provides standards for court interpreting.  Clearly our Croatian interpreter in Kansas City had not had the benefit of that sort of court interpreter training.  Some of the key points are:

1. Do not discuss the pending proceedings with a party or witness, outside of professional employment in the same case.
2. Do not disclose communications between counsel and client.
3. Do not give legal advice to a party or witness. Refer legal questions to the attorney or to the court.
4. Inform the court if you are unable to interpret a word, expression, special terminology, or dialect, or have doubts about your linguistic expertise or ability to perform adequately in a particular case.
5. Interpret all words, including slang, vulgarisms, and epithets, to convey the intended meaning.
6. Use the first person when interpreting statements made in the first person. (For example, a statement or question should not be introduced with the words, "He says . . . .")
7. Direct all inquiries or problems to the court and not to the witness or counsel. If necessary you may request permission to approach the bench with counsel to discuss a problem.
8. Position yourself near the witness or party without blocking the view of the judge, jury, or counsel.
9. Inform the court if you become fatigued during the proceedings.
10. When interpreting for a party at counsel table, speak loudly enough to be heard by the party or counsel but not so loudly as to interfere with the proceedings.
11. Interpret everything including objections.
12. If the court finds good cause under section (E), hold a pre-appearance interview with the party or witness to become familiar with speech patterns and linguistic traits and to determine what technical or special terms may be used. Counsel may be present at the preappearance interview.
13. During the pre-appearance interview with a non-English speaking witness, give the witness the following instructions on the procedure to be followed when the witness is testifying: (a) The witness must speak in a loud, clear voice so that the entire court and not just the interpreter can hear.
(b) The witness must direct all responses to the person asking the question, not to the interpreter.
(c) The witness must direct all questions to counsel or to the court and not to the interpreter. The witness may not seek advice from or engage in any discussion with the interpreter.
(d) During the pre-appearance interview with a non-English speaking party, give the following instructions on the procedure to be used when the non-English speaking party is not testifying: (i) The interpreter will interpret all statements made in open court. (ii) The party must direct any questions to counsel. The interpreter will interpret all questions to counsel and the responses. The party may not seek advice from or engage in discussion with the interpreter.

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It's always a good day when you pick up a fi fa in the amount of $2,245,940.17, and at the same time get an order for the defendant to submit an appeal bond to cover that plus a year's post-judgment interest.  Continue Reading Questions & comments 2

My youngest child graduates from high school next week, and a couple of weeks later I will celebrate the 30th anniversary of my admission to the Georgia Bar.  With one child in line for a "full ride" at RIT in New York, and the other child going off to play football in California with hopes to earn a "full ride" as a kicker after a year or so, someone asked when I plan to retire. 

My great-grandfather was still building houses and climbing on roofs until shortly before he died at 89. My grandfather was a minister-builder who was still preaching on Sundays, developing a subdivision, and building a new parsonage almost single-handed, until he worked himself to death at 84.  My dad turns 83 in a few weeks, and until 60 years of cigarettes caught up with him a few years ago, he was about as active as I am at 56.  Of 10 great aunts on the Shigley side of the family, several have made it to 102, and most made it past 90.   When I think of retirement, I think of my friend Bobby Lee Cook in Summerville, who still has a very active and successful trial practice at 80.  And of course there was the elder Frank Winn in Douglasville, who as clerk emeritus of Superior Court, continued walking to the courthouse and putting in half a day in the office until he was 102.

However, I do hope to cut back to half time -- 12 hours per day -- and take more trips with my wife.  Maybe she would like to accompany me on trips like the one to Kansas City for a deposition tomorrow, or one to Toledo and Bluffton, Ohio, for a conference next week, or to Tampa for a deposition the following week.
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Occasionally we get requests for free advice from lawyers who are younger, or whose practices focus in another field of law, and who are struggling to figure out how to handle a complex personal injury or wrongful death case.  Eventually I sometimes ask if they have considered referring the case to someone who handles such matters routinely. 

A majority of my cases over the past 17 or 18 years have come by referral from other lawyers.  This occurs in three or four primary circumstances.   Many lawyers send their clients to us when they get a case outside their daily practice area.  Others ask for our assistance with they get a particularly complicated case in their practice area - a case that will require a tremendous commitment of time and/or money. For example, a lawyer handling car wreck cases may recognize the need for help with an interstate trucking case or a products liability case.  Other lawyers ask us to work with them when they obviously have the skills and money to handle the case but they simply have too many other irons in the fire to handle the case in a timely, responsible fashion. 

And of course there are cases that come from lawyers in other states who need to refer to a Georgia lawyer. Next week I will fly up north to meet with referring and cooperating lawyers to confer about a mass disaster case that occurred in Georgia.

It is extremely difficult to have the large number of files the average lawyer handles and throw into that mix a significant personal injury or wrongful death case.  A significant case can require hundreds or even thousands of hours of work, even for people who routinely handle those cases.  That can adversely impact all of their other clients and adversely impacts cash flow.  Then, in an effort to tend to those clients, the major case languishes, increasing the risk of error and potentially diminishing the value of that case.  Lawyers in that position should recognize that they are all their clients are much better off getting some help with that case on the front-end.

The caller occasionally says, yeah, but I don't want to give up the fee.

Georgia Rule of Professional Conduct 1.52 (e) authorizes fee sharing as follows:

A division of a fee between lawyers who are not in the same firm may be made only if:

    (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;

    (2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and

    (3) the total fee is reasonable.

We routinely share fees consistent with this rule, and pay out a lot of money in referral fees.  Once I calculated that one lawyer -- who is now retired -- had made over a million dollars in referral fees on cases where I had done the lion's share of the hands on work.  Referring lawyers are routinely pleasantly surprised when they receive a referral check and reflect on the number of hours they spent to earn the fee.  And when the referring lawyer gets to share the fun of a good trial in his hometown far from Atlanta, the rewards in be associated with a record verdict in the hometown can extend beyond the fee in that one case.

I think the referral system is a fair one.  It rewards lawyers who work in the trenches, develop relationships with clients,  and for one reason or another are not able to handle a given case at a given time.  It helps clients - it gives them access to a larger team of lawyers who often handle a larger volume of "bigger" cases, and therefore are more familiar with the particular challenges of those types of cases.  It does not cost the client more money - we charge the same fee whether a client calls us directly or the case is referred by another lawyer.  It works for everyone.

Finally, thanks to John Day for reminding me in his blog that this is even a question that needs to be addressed.
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The American Association for Justice (formerly Association of Trial Lawyers of America) has  filed an ethics complaint against Washington, D.C., administrative law judge Roy Pearson Jr., the guy who made news with a  $65 million lawsuit against a local dry cleaner for losing a pair of his pants.  Clearly we lawyers need to do something about the idiots whose frivolous lawsuits mess up the system for those with ligitimate claims.

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Here's a great post at the Virginia Injury Lawyer Blog on how to get great settlements. The most important factors are the willingness to work hard, think hard, try cases to verdict, and take risks. In that regard, I am reminded of The Book of Five Rings, a reflection on the zen of individual combat written in 1643 by Miyamoto Musashi, an undefeated samurai sword fighter who wrote that "the Way of the warrior is resolute acceptance of death."  Knowing that opposing counsel sometimes read this blog,  I won't elaborate further.

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I just got word last night of a $9 million jury verdict in Chambers County, Alabama, in a case involving a maintenance man raping a 60 year old woman. My friend Pete Law won that one. Along with our $2.3 million verdict on a fractured femur truck wreck case in Gordon County, Georgia, these cases illustrate that, despite all the tort reform rhetoric, deeply conservative white rural jurors are fully capable of rendering adequate verdicts.

When I look at the $41 million verdict my friend Robert Eglet won last week in Las Vegas on a horrific burn case, and the $23 million my friend Tommy Malone won in San Francisco earlier in the spring on a bad brain injury case, I realize that if those cases were tried in places like Gordon County, Georgia, and Chambers County, Alabama, the same verdicts might be reached.

When good folks get on juries, they want to do the right thing, no matter where in the US they might live.  If the defendant offends their sense of right and wrong, and a plaintiff they see as reasonably deserving is badly hurt, they will swing the sword of justice.  But if they see the plaintiff as greedy, overreaching, undeserving, etc., the same sword will swing the other way. Continue Reading Questions & comments 2

Here's how to obtain a client's Claims Index report for $25 from American Insurance Services Group, the form for which has now been posted on the Maryland Injury Lawyer Blog.
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We have all seen the media coverage of the Washington, DC administrative law judge who sued a "mom and pop" dry cleaner for $65 million over a lost pair of trousers.  Those who want to destroy the civil justice system are trying to make this another "McDonald's hot coffee case"  to  mislead  the public into "reforms" to diminish legal rights.  But there are several reasons why this case should not provoke radical "reforms."

First, this is not a tort case or an injury case.  It is commercial litigation involving a misapplication of District of Columbia consumer protection laws.  The lawyer who filed the suit is not  a trial lawyer but a District of Columbia government bureaucrat.  He is a great example of the adage that "the lawyer who represents himself has a fool for a client."  The lawyer defending the dry cleaners is a member in good standing of the District of Columbia Trial Lawyers Association. 

Moreover, the suit violates the American Association for Justice (formerly Association of Trial Lawyers of America) Code of Conduct, which reads in part that our members will "not prosecute or counsel any action, or assert any claim or defense, which is false, frivolous or wholly insubstantial."

We must not allow this irrelevant aberration to become the catalyst for robbing millions of honest citizens of substantial legal rights. Rather, the court should dismiss the case and impose sanctions, the DC government should remove this nut case from his judgeship, and the DC Bar should consider disciplinary action. Questions & comments 1

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.

 

 

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Fri., 3/9/07, Calhoun, GA. 

In a scene reminiscent of the 1982 Paul Newman movie, "The Verdict," the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client's permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don't drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant's insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a "runaway jury."  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

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George Washington said that "eternal vigilance is the price of liberty."  Eternal vigilance is also required in litigation to avoid being blindsided by late hits.

Since late last night I have learned that service through the Lexis File & Serve system in Fulton State Court may be delayed as much as a day and a half.  That is not significant in most contexts, but if there is a short fuse it matters.  On 1/8/07 at 12:54 PM opposing counsel filed on-line an amended notice of the deposition of my client to add videotaping.  It did not hit my email box until sometime after I left the office after 7 PM on 1/9/07, and I did not see it until I checked my email again shortly after 10 PM.  I know the delivery was this late because I got through a web access that delivered only email that arrived after I exited my office computer shortly after 7 PM.

This was of course several hours after completion of my session preparing my client for a non-video deposition.  If I had known it was a video depo, I would have prepared him as for trial.

There was in this instance a delay of email service through Lexis File & Serve of roughly 32 to 35 hours.  This delay is not consistent, but I now know it can happen.  This appears to be a significant difference from the federal on-line filing system in which service appears to be almost instantaneous.

O.C.G.A. § 9-11-30 requires that "A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, the means by which the testimony shall be recorded, and the name and address of each person to be examined . . . .

The amount of time deemed necessary for “reasonable notice” for depositions generally receives a variety of interpretations.  See., e.g., Sims v. Metropolitan Life Ins. Co., Slip Copy, 2006 WL 3826716 (N.D.Cal.,2006)(4 days insufficient; 10 days minimum “reasonable time,” citing Federal Civil Procedure Before Trial, 11-164; issue moot by time of order);  Simpson v. Kuchipudi, Slip Copy, 2006 WL 2796278 (Ohio App. 3 Dist.,2006) (five days notice to re-depose expert not reasonable); Herrera-Mendoza v. Byrne, Slip Copy, 2006 WL 2838952 (D.Conn.,2006)(one day notice of rescheduling deposition not reasonable).

Videotaping of depositions generally was a step forward in civil procedure.  When I was chairman of the Tort & Insurance Practice Section of the State Bar of Georgia in 1994-95, adoption of the rule authorizing videotaping by notice was one of my top priorities.  It took a couple of years to overcome opposition from the insurance industry lobby.  In the corridor outside the Senate Judiciary Committee hearing room, after killing the bill for the 1995 session, the insurance industry lobbyist told me that he was opposed to it because he did not want certain categories of defendants coming across like arrogant [expletive deleted] on video.

A quick Westlaw search reveals no published decisions defining what is reasonable notice of videotaping of a deposition of a party.  However, our general practice is to include in all deposition notices a provision that recording of the deposition may include video as well as stenographic means.  We are then covered in all events, and can later drop the video recording if we decide it is unnecessary.  The best practice would be to let the other side know a few days in advance is the deposition will not be videotaped after all.

It is well recognized in the profession that preparation for a video deposition is different from deposition for a deposition that is not to be videotaped.

A witness appearing for video deposition must be as prepared as he would be for trial. A trial quality performance is important because even things like the witnesses tone of voice and facial movements may be examined at trial. Also, this technology will focus lawyers on questions like, who must be on camera and when, what kind of camera angle, lighting etc. is used, to assure that the witness is not unfairly depicted and makes a reasonable appearance on the screen. Stephen T. Maher, “Lawfutures, or, Will You Still Need Me, Will You Still Feed Me, When I'm Sixty Four?,” 1 RICH. J.L. & TECH. 6 (1995).

In addition to preparing yourself, it is important to adequately prepare your client if he or she is to be videotaped. Preparing a witness for video deposition requires attention to such additional considerations as the witness' dress and appearance, the manner of delivery of testimony, the way in which he or she will utilize exhibits, and how injuries or limitations will be demonstrated by the witness if requested by counsel. James Reed, “Sex, Lies and Videotape,” 68-OCT N.Y. St. B.J. 53 (Sept.-Oct. 1996).  

See also, Terrell, “Preparing Your Client for a Video Deposition,” Res Gestae (Dec. 2004); Fred I. Heller, “The Televised Witness: Preparing Videotaped Depositions,” Trial (Sept. 1992, at 50).

Lack of reasonable notice of videotaping of a deposition precludes such appropriate preparation of a witness for videotaping.   Analogous tactics are appropriate in aerial dogfights and elsewhere in warfare where the objective is to kill an enemy. See, e.g., Robert Coram, Boyd, The Fighter Pilot Who Changed the Art of War (2005); David Fadok, John Boyd and John Warden: Air Power's Quest for Strategic Paralysis (1995);William S. Lind, Maneuver Warfare Handbook (1985). However, this is not appropriate for deposition notices under either the Georgia Civil Practice Act or the Federal Rules of Civil Procedure.
                                   
So, I stayed up like a college kid cramming for an exam, prepared and filed a motion for protective order first thing in the morning, called opposing counsel from home to reschedule the depositions, took a nap, and went in late to the office. 

In the future in courts using the Lexis File & Serve system, I may propose a consent order and stipulation for other forms of service of anything requiring any action or notice in less than ten days.




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As of today, the Association of Trial Lawyers of America is no more.  The new name of the organization is the American Association for Justice.  After a vigorous debate, it was determined that rebranding the organization would help to reframe the debate about the role of the civil justice system by taking the focus off the lawyers and putting it on what we try to do.  The mission statement of the AAJ is as follows: "The Mission of the American Association for Justice is to promote a fair and effective justice system – and to support the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests." Continue Reading Questions & comments 0

For several years in Georgia and across the country, there has been a quiet debate about whether trial courts should allow or encourage jurors to submit questions to be asked of witnesses.  A 2003 article in Kent Law Review summarizes the issues on both sides of the debate. Maybe I'm a "control freak" (as a certain teenager in my house has occasionally suggested) but I've always been a bit skeptical about that innovation in trials.

Now, however, I've become a convert.  Three weeks into a products liability trial in Nevada, which recently adopted this change, I have begun to see the value of allowing jurors to submit written questions. 

We have seen several juror questions for nearly all witnesses.  The judge screens the questions with the lawyers at the bench (with a "white noise" machine masking the colloquy), determines which  questions are legally objectionable, and then the judge asks the permissible juror questions of the witness.  Points that trouble jurors are both revealed and addressed immediately, rather than leaving them to fester.  Lawyers can see what the jurors' concerns are, and how individual jurors are processing the evidence. Even during examination of a witness the lawyer can see when jurors begin to write questions and pass them to the bailiff.  Presentation of evidence can be modified accordingly. Moreover, I suspect that some jurors are more actively engaged in the search for truth when they can submit their own questions of each witness.

 

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Georgia juries are capable of surpassing expectations.  An example occurred this week in Marion County, population 7,144 according to the 2000 census.  It is the prototype of the conservative, predominantly white rural Georgia county.  I have been told that the highest jury verdict in the history of the county prior to this week was $10,000.

 

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The attempt of corporations and billionaires to buy the Georgia Supreme Court fell far short this week, as Presiding Justice Carol Hunstein was re-elected with more than 61% of the votes cast. Apparently about $3 million  was spent by out of state interests funding the "independent" committees and the Georgia Republican Party, all to defeat a one-legged woman judge with a Jewish-sounding name, even though she is not. 

The troglodytes who are inclined to spend millions to bump off a fair-minded, independent judge and thereby intimidate all other judges just couldn't pass up an opportunity to play to biases they think the electorate would share.

Her opponent surely must have made some mightly big promises to the money guys about what he would do to the Georgia justice system if he were elected.  Fortunately, the voters of Georgia were able to see through that and overwhelming re-elected a fair, competent, independent judge, despite the barrage of misleading propoganda. Questions & comments 0

I have been writing to everyone I know this week to urge them to vote to reelect Justice Carol Hunstein to the Supreme Court of Georgia.  The future of an independent judiciary in Georgia is at stake.  We cannot afford to stand by and allow the financial assassination of our judiciary by big business.

The first in her family to attend college, Carol Hunstein built a distinguished career as a moderate conservative during her 22 years as a judge.  Unaffiliated with any political party, she has wide support among both Republicans and Democrats who respect her skill, independence and fairness.

However, a largely anonymous group of billionaires and large corporations acting through  "independent" committee have funneled $1.8 million into aiding the campaign of her opponent, Mike Wiggins, through "independent expenditures" that are not subject to the limits on campaign contributions.  One Washington-based committee whose donors have not been identified is spending $1.3 million to defeat one nonpartisan Georgia judge. 

One must ask what promises Mike Wiggins made about what he would do on the bench in return for such extremely generous financial support for his campaign. The folks who are willing to pump $1.8 million into a state judicial race have to have a financial motive and an assurance of a financial payback.

Carol Hunstein was forced at an early age to learn the value of hard work, discipline and dedication. Born into poverty, she contracted polio when she was two, survived her first bout of bone cancer at age five, and lost her mother at age 11.  Her father did not think girls needed a college education, so she married at 17 and had a child at 18.  When she was 22, her husband abandoned her, she lost a leg to cancer, and doctors told her she had only a year to live.  Struggling to support herself and her child, she entered a community college on a vocational rehabilitation scholarship.  She made her way through college and most of law school while raising her son on less than $200 per month.  After remarrying she had two daughters.  Her kids are all grown, and she has one grandson.

In 1977, Carol opened a law practice in Decatur, where she represented ordinary people in a wide variety of domestic, criminal and civil cases. Spurred by a county judge who repeatedly called her “little lady” in court, she ran for Judge in 1984, defeating four men to become the first woman elected to DeKalb Superior Court.

In 1992, then-Governor Zell Miller appointed Carol to the Supreme Court of Georgia.  During 14 years on the Supreme Court, Carol has participated in more than 5,000 cases and authored more than 600 published opinions.  She has ruled against me more than for me, but I respect her integrity and independence. She is widely regarded as one of the hardest working members of the Court, a model of impartiality and fairness, and a judge who strictly adheres to the rule of law.  She is particularly known for being hard on repeat criminal offenders, deadbeat dads, purveyors of domestic violence, and lawyers who violate ethical rules.

Justice Hunstein has achieved national stature based on her work and her character.  In 1999, the American Bar Association gave her an award given to less than 90 women in history.  Other winners include U.S. Supreme Court Justice Sandra Day O’Connor.

No matter what her well-funded opponent’s TV ads may tell you, Justice Hunstein is not a “liberal activist judge” and she is not “soft on crime.” I have read hundreds of her published decisions and have found absolutely no such pattern.  Any judge who has ruled fairly on thousands of cases, based on the facts and the law, is vulnerable to having  a few individual decisions taken out of context and misrepresented by a political opponent in slick TV ads.

She has struck back with a tough but truthful ad about the fact that her opponent's mother sued him and his sister gave an affidavit saying he threatened to kill her.  I don't know about his family dynamics, but I have seen copies of the court documents and the statements in the Hunstein ad are as true as they are tough. Now I have seen a statement released by Mr. Wiggins' sister's lawyer in Alabama, confirming that she stands by the statement in her 1997 affidavit that Mr. Wiggins threatened to kill her.

The extremely well funded campaign against Justice Hunstein is part of a coordinated nationwide assault on judicial independence that seeks to overwhelm with big money state Supreme Court justices around the country, and thereby intimidate all other state judges. In state after state, these campaigns have used very similar TV ads to misrepresent judges’ records and mislead voters.  In this instance, the candidate running against Justice Hunstein is an academically bright ideologue and has been a political appointee in Washington, but he has never tried a case in any trial court and has never argued a case in a Georgia appellate court.  The one published court decision in which he was lead counsel was a federal case several years ago in which he unsuccessfully argued that a drug dealer’s sentence was too harsh.  That sounds like a prescription for a politically active judge who would legislate from the bench, rather than simply applying the law to the facts in each case. 

It appears to me that folks who don’t like independent judges simply picked out someone they thought looked vulnerable – a non-political, one-legged woman with a Jewish-sounding name  (though she is a Christian) --  raised a few million dollars, and recruited an ambitious candidate to try to knock her off. 

Please don’t fall for that.  Please vote to re-elect Carol Hunstein, and urge your friends and family members to do likewise.

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Occasionally we encounter situations where a corporate defendant claims that the employee who was driving the business's truck was on some personal mission, and therefore not in the course and scope of employment.  It is always important to develop the evidence of business related purposes that are somehow related to the trip, as well as any evidence that the employer knew of the employee's unsafe driving in the past.  In Remediation Resources Inc. v. Balding, decided August 9, 2006, the employee stated that his real purpose in traveling to Statesboro was to eat and that his intent to pick up work supplies was secondary, he also testified that he definitely planned to pick up some work supplies. The Court of Appeals held that there was therefore a jury question whether he was within the scope and purpose of employment at the time of the wreck.  The Court also held that a jury issue remained on Balding’s claim for negligent training and supervision, since Findley received two speeding tickets and was involved in two minor car accidents during the 22 years in which he drove for companies owned by the same people, Remediation had no policy manuals to govern employee conduct while driving a company vehicle and Remediation did not keep driver history or qualification files for any employees.

See the full text below.


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It's old news to personal injury litigation specialists but often a surprise to others that, under Georgia law, filing a bankruptcy petition without disclosing the existence of a personal injury claim may bar the injury claim.  It's called the rule of judicial estoppel, and the consequences can be extremely harsh. The courts have softened the harsh application of the rule in recent years by allowing folks to reopen and amend their bankruptcy cases in order to add the injury claims as assets of the bankrupt estates. When that is done the bankruptcy trustee then retains the personal injury attorney to represent the interests of the creditors as well as the injury victim.

Zahabiuon v. Automotive Finance Corp, decided August 10, 2006, involved a tort claim not for personal injury but for conversion of a vehicle that was in a shop for repairs and wrongfully included in repossession of a large number of vehicles at the dealership.  The car owner subsequently filed a bankruptcy petition on which this claim was not listed as an asset, and did not amend the bankruptcy petition to cure the omission.  Consequently, his tort claim was lost due to judicial estoppel.  See the text of the decision below.

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Once again the Georgia Court of Appeals has given the bar an object lesson about the importance of a complete record on appeal.  In Hattaway v. Conner, decided August 8, 2006, the cental issue of the appeal was whether the the trial court was correct in its determination that language in the insurance policy’s application made it readily apparent that Question 56 related to partial losses.  However, the insurance application was not included in the record on appeal, so the Court of Appeals had to presume that the trial court was correct.

Folks, it's tedious to review the record before the trial court clerk transmits it to the Court of Appeals or Supreme Court. But we can't necessarily count on clerks to get it right.  Review of the record is a necessity.

See the text of the decision below.
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Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.
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When the Georgia General Assembly passed Senate Bill 3 -- the "tort reform" conglomeration -- in February 2005, most of the legislators hadn't even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement.  I heard one prominent Republican legislator privately describe it has having been "written with a crayon."  Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate.  Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn't understand what was in the bill," etc. 

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970's, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar's proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

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Fundraising for judicial elections has often raised eyebrows. However, where a large number of attorneys practicing before court make small contributions to a judge's election campaign, there is little danger that the judge's actions will be affected.

But now in West Virginia. Don L. Blankenship, chairman and CEO of Massey Energy Co. of Richmond, Va., contributed at least $3 million to a pair of committees that ran advertisements attacking Supreme Court Justice Warren McGraw in the November 2004 election. The beneficiary of those donations was Brent D. Benjamin, who defeated McGraw in the election. Now Justice Benjamin has declined to recuse himself from hearing the appeal of a $50 million judgment against the company owned by the guy who gave $3 million to pay for ads blasting his opponent.

How can a judge possibly be impartial in a case involving a $50 million judgment against a company owned by someone who gave $3 million to get him elected? If this is permitted, it will send a message to corporate interests all over America that justice is for sale, and that the idea of equal justice under the law for rich and not-so-rich alike is an outmoded fantasy. But I suppose that's what some folks want.

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I have instructed my staff that if I ever write anything that provokes this kind of response from a court, just take me out and shoot me. A Bankruptcy Court Judge Leif Clark in Texas entered an order on February 21st, denying a motion on the following grounds:

The court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible.

In a footnote, the judge quoted from the movie, Billy Madison:

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

The judge went on to note: "Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote."

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On Wednesday, April 12, 2006, the United States Supreme Court approved, without comment or dissent, the entire package of proposed amendments to the Federal Rules of Civil Procedure concerning the discovery of "electronically stored information." The package includes revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The proposed amendments were transmitted to the Supreme Court last September, after the Judicial Conference unanimously approved them. The new rules and amendments have now been transmitted to Congress and will take effect on December 1, 2006, unless Congress enacts legislation to reject, modify, or defer the amendments. Thanks to Electronic Discovery Law blog for calling this to our attention.

The key provisions are:
- FRCP 26 (a)(1) initial disclosures will include "electonically stored information."
- In the FRCP 26(f) preliminary scheduling conference counsel will be required to discuss "any issues relating to preserving discovable information," "any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced," and issues related to privilege and work product protection. The report of the parties' planning meeting and the discovery plan must cover these topics.
- FRCP 26 (b)(2)authorizes a party to respond to a request by identifying sources of electronically stored information that is not reasonably accessible due to undue burden or cost. On a motion to compel, the responding party has the burden to show that the sources are not reasonably accessible, and the court may still order production. One concern is the potential for corporations to "bury" incriminating information by making it less accessible for purposes of litigation. While the potential complexity involved here is immense, it is likely that most disputes will be resolved through sometimes tedious negotiation.
- FRCP 33 (interrogatories) and 34 (requests to produce) are modified to include referencees to "electronically stored information" and "data stored in any medium." Requests may specify the form or forms in which data is to be produced.
- FRCP 37(f) provides that "absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as the result of the routine, good faith operation of an electronic information system." (The potential for mischief in the systematic early destruction of categories of records that would be potentially incimrinating is not to be ignored. See Why it is crucially important to hire a knowledgeable trucking lawyer within hours after a catastrohic truck wreck. While plaintiffs may argue that early destruction of records related to a catstrohic incident constitutes spoliation, we can bet that corporate defendants will frequently try to hide behind this rule.
- FRCP 45 was expanded to provide for subpoenas for electronically stored information, with provisions generally parallel to Rules 26 and 34.

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In the Amazing Firms, Amazing Practices blog, Gerry Riskin speculates that a new generation of suborbital commercial flight may lead to a breed of highly specialized global superlawyers who will go almost anywhere to bring unique skill and knowledge to bear on a legal problem. There is also an article in today's New York Times about predictions of rapid growth in air taxi service. Well, we may not be global and we may not be taking suborbital flights around the world, but we are increasingly specialized in motor carrier litigation, through the world's busiest civilian airport (Hartsfield-Jackson in Atlanta) we have ready access to most of the U.S., through the Internet we have the ability to let the world know of that specialty, and through multijurisdictional practice and pro hac vice rules we have the capability to pursue that specialty across a large swath of the country. Thus, these days I find I'm as likely to be off to off on a 6:30 AM flight to a distant state for a day's work as driving to a nearby county, and back home by bedtime if not for dinner.

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From time to time we encounter problems in obtaining service of process on corporations based outside Georgia. In GMAC Mortgage Corp. v. Bongiorno, Case No. A06A0053, decided January 23, 2006, the Court of Appeals reasserted that service may be made not just on a registered agent, but on "the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof." Judge Johnson wrote for the court as follows:

Pursuant to OCGA § 9-11-4 (e) (1), an action against a foreign corporation may be served on "the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof." GMAC argues that the above-referenced individuals may only be used for service of process if the foreign corporation has failed to designate a registered agent for service of process. However, OCGA § 9-11-4 (e) (2) directly contradicts such an argument. That Code Section specifically states, "If the action is against a foreign corporation . . . doing business and having a managing or other agent, cashier, or secretary within this state, [service may be made] to such agent, cashier, or secretary or to an agent designated for service of process."

Several years ago we sued a Georgia limited partnership organized in Curacao and based in New Jersey that had never bothered to appoint a registered agent in Georgia. The only agent they had designated in Georgia was the maintenace man at an apartment complex, who was listed as agent on a county business license application. We served the maintenance man who faxed something to the home office but apparently not everything. The case went into default, we took a default judgment for $186,000, and waited for the balloon payment on the mortgage to come due the next year. When the defendant moved to vacate the default judgment, the court ruled that our service on the maintenance man was sufficient and we collected the judgment with interest.

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All states allow a lawyer licensed in another state to be temporarily admitted to represent a client in a specific case, generally with the involvement of a local attorney in that state. The Latin term for this is admission "pro hac vice." I had been admitted pro hac vice for cases in other states from time to time, and frequently serve as local counsel in Georgia with lawyers from other states. The trend in recent years has been for the state bar organization to review and approve a "pro hac vice" application before a trial judge signs an order approving the application.

Georgia has now followed that trend. Effective 11/10/05, the Supreme Court adopted Uniform Rule 4.4. The purpose is basically to provide a standard procedure for confirming that lawyers from other jurisdictions are who they say they are, are in good standing in their home state, and are subject to the disciplinary rules like Georgia lawyers. You wouldn't want a lawyer who was disbarred or suspended in his home state to waltz into another state and start trying cases. Under this new rule, the Office of the General Counsel of the State Bar of Georgia has an integral role in out-of-state attorneys' applications for temporary appearances in State and Superior Courts in Georgia (i.e., Admission Pro Hac Vice).

Pro hac vice applicants must serve a copy of their notarized applications on the Office of the General Counsel of the State Bar of Georgia. The application fee for each application is $200, and can be paid by check or money order to State Bar of Georgia. There is no prescribed form for the application.

The full text of Uniform Rule 4.4 follows:

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The big law firms in Atlanta are raising the starting salary for new associates straight out of law school to $115,000. I have a lot of friends in those firms, and certainly enjoy the view from their regal offices when I visit. However, I have yet to see a first year associate who is worth $115,000.

Some politicians and news media folks like to blame plaintiff's personal injury lawyers for all the ills of a "litigious society." However, you haven't seen litigation til you've seen business litigation, with big firms assigning platoons of senior partners, junior partners, senior associates, junior associates, paralegals and support staff, all billing by the hour. The big firms tend to engage in a vicious cycle of overpaying bright young lawyers, and then needing to generate enough billable hours to carry exorbitant overhead expenses (salaries, lavish offices, etc.), and still pay the partners very well. Generally their incentives are to increase complexity and expense rather than to get to the bottom line quickly and efficiently.

Those of us representing individuals and families on a contingent fee basis get paid only in proportion to the results we obtain for our clients, and only when the case is concluded. We control our overhead, staff lean, expand on an ad hoc basis when necessary, and work hard. It is a model of economic efficiency, as our focus is necessarily on getting optimal results for our clients as quickly and efficiently as possible. While I was never in one of the giant law firms, I did spend a decade in a defense litigation firm where we all had hourly billing quotas. Often one looked for things to do on a file more to meet a billing quota than to advance the client's interest.

Occasionally corporations are willing to "think outside the box" and hire a small law firm to handle business litigation on a contingent or blended fee basis. Certainly there may be concerns about a small firm's capacity to handle some very large, complex cases that may legitimately require a higher level of staffing. And I recognize that the big firms generally have bright people doing high quality work. On the other hand, I have seen cases in which large firms assign platoons of lawyers to matters which a sole practitioner with a focus on the bottom line could handle at least as well.

Frankly, I don't spend a lot of time marketing to corporate legal departments because I realize that no one in a large corporation ever got fired for hiring a blue chip law firm to represent the company, but one could fear criticism in a corporate culture for hiring a small plaintiffs' firm for corporate litigation. It takes a degree of courage to make such a choice, even if it could help control legal expense and tie fees to performance.

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Yesterday I had an oral argument in the U.S. Eleventh Circuit Court of Appeals. We had won summary judgment on a disability insurance case for a former dentist / real estate developer a year ago. My client was disabled due to a constellation of ailments all related to autoimmune disease and liver failure. The insurance company had not even attempted to put up any contradictory evidence, a point that obviously was not lost on the judges yesterday. The insurance company appealed and requested oral argument. Our panel included Judges Carnes, Hull and Pryor.

You always try to learn something about the personalities of judges before you appear before them. Two of these judges are from my native state of Alabama, and one was originally from my wife's home state of South Carolina. While I don't know any of these three judges personally, it was reassuring when my friends who have known each of them over the years told me of their kind hearts. Those personal insights are sometimes at odds with how one may have been portrayed in a political context in the news media.

Judge Hull started out with pointed questions to the insurance company's lawyer. Toward the end of the appellant's 15 minutes Judge Carnes asked him what is one best case was in support of his position on the meaning of "total disability" under Georgia law.

That served up one of those moments an advocate loves, when preparation meets opportunity. I had in my thin file folder a set of bullet points about what he said was the best case supporting his position. In a moment it was my turn to to talk, so I began with a critique of his "best case," a 1942 decision that involved an "any work" rather than "own occupation" definition of disability, in which the insured was still able to do a job less demanding than running his own store before he got TB, and in which the insured won anyway. I even had in my notes a quote stating the court's rationale in favor of awarding benefits, showing that the insurance company's lawyer had taken his "best case" language out of context. (I'm not quite sure who it was in the courtroom who suppressed a laugh when I started by pointing out his "best case" was a 1942 decision. Maybe I only imagined it came from the bench.) Then, I referred to an unbroken string of Georgia appellate decisions since 1927 supporting Georgia's rejection of narrow and technical definitions of total disability in insurance policies, and discussed the facts of our case in that context.

The insurance company had made a big deal of criticizing the trial judge's decision to admit disability testimony of two treating physicians. The Court of Appeals judges demonstrated no overt interest in that issue so I touched on it just briefly. There were no questions on that issue.

You never know how an appellate court will rule until you get the order, but yesterday felt good.

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Here is a "must read" paper on "best practices" in electronic discovery. A few key points to ponder: * "The recent Morgan Stanley case in which massive punitive damages were awarded ? at 1.5 times the actual damages sought?highlights a judicial and jury lack of tolerance for perceived refusal to produce electronic information promptly and completely." * A problem with electronic discovery is the inadvertent revealing of privileged documents to opposing counsel. Duplicate copies may be forwarded even though the original copy had been labeled ?privileged.? * "Metadata presents a crucial difference electronic and printed documents. . . . As lawyers become aware of metadata as an additional source of evidence, it will continue to gain importance in litigation. Recognizing its evidentiary value, more lawyers are requesting it from opposing counsel as well as using it as a resource in making their own evidentiary presentations. . . . Lawyers can expect at some point to face requests, or a court order, to produce metadata. Metadata is now considered to be an integral part of the document it describes. Recent advances in technology make preserving and reviewing metadata easier." * "When a requesting party demonstrates a good faith effort to establish reasonably tailored electronic discovery requests, courts will hold the responding party to a higher standard in providing a full response. A party unable to readily produce responsive documents may open itself up to intrusive measures, such as, the court ordering that an opponent?s expert be given direct access to its computers. Further, one court has interpreted Federal Rule of Civil Procedure 35 to require some showing of non-compliance with discovery obligations before an opponent will be allowed direct access to a company'?s computer databases. If a corporation?s own actions contribute to its discovery difficulties, it is especially unlikely that a court will be sympathetic to pleas for relief. Courts are particularly unimpressed with vague claims that a particular request is unduly burdensome." * Discoverable electronic information may be stored on hard drives, networks, back-up tapes, lap tops, floppy disks, employees? home computers, PDAs and cell phones. * Reliance on representations of senior managers about what electronics information existed is not enough. * We will be wrestling with issues of cost-shifting, document retention policies and spoliation issues for a long, long time. * The "best practices" regarding electronic discovery, which obviously apply much more to corporate parties rather than individual personal injury victims, include:

1. Consider implementing a formal document retention policy to formalize rules for saving and destroying electronic documents. 2. Focus on making litigation preparedness a part of employees? daily work. 3. Establish an ongoing working relationship between in-house legal and IT personnel. 4. Organize data storage efforts and establish systems that simplify later identification, retrieval, and production of responsive information. 5. To preserve evidence when necessary, outline a ?litigation hold? plan (as discussed above) for this suspension of usual document destruction and back-up tape recycling protocols. 6. To designate and train an IT department representative to act as the company?s Rule 30b(6) deposition witness when electronic data storage may be at issue. 7. Expand the working knowledge of the client?s operations to include client information systems o that outside counsel is equipped to establish discovery parameters with opposing counsel early in the case and challenge overbroad requests if necessary. 8. Outside counsel should maintain a focus on minimizing the disruption of client operations. 9. Before and after discovery requests are received, adequately explain the scope of the obligation to preserve electronic data and the duty to search different systems and storage media. 10. Outside counsel should become acquainted with key IT personnel.

We have only just begun to explore the challenges and opportunities that electronic discovery pose to those of us who represent devastated individuals and families in claims against large corporate entities.

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Once again the Georgia Court of Appeals has demonstrated willingness to support a trial court's imposition of extreme sanctions for discovery abuse. In Gropper v. STO Corp., the plaintiffs established a long pattern of failure to cooperate in discovery. The trial judge ultimately lost patience and dismissed the complaint. The Court of Appeals found no abuse of discretion by the trial judge. I won't belabor the details, which are recited at length in the court's opinion copied below, but I will make a few general observations:

* It is sometimes difficult to get clients to understand why it is important to respond to all those obnoxious questions from the other side. This case is a reminder that if you are not prompt and responsive, you may just get bounced right out of court. Fortunately, I have an excellent paralegal who bird-dogs compilation of information from clients and other sources for discovery responses.

* Usually in the types of cases we handle, we have to use formal discovery to extract information that only the other side possesses and does not want to give up. If you are going to ask the court to compel discovery from the other side, you had better have a respectable track record of responsiveness yourself. You don't want to be "the pot calling the kettle black."

* It is extremely important to docket all discovery response dates and internal deadlines for response preparation, and to document agreements to extend deadline, either by letter or with a consent order. Competent staff support is essential in keeping up with this, but someone should cross-check timelines themselves with some regularity. Just this week, after noticing depositions of a truck driver and his employer for mid-December, and agreeing to reschedule them in Ohio in late January at the request of defense counsel, we noticed that the new date was two days after the court deadline for filing motions to compel discovery. It was easy to get a consent order to extend deadlines when I caught the problem two months out, but if we hadn't monitored the timeline, we would have given up the ability to compel answers if the defense stonewalls.

* While it was the plaintiff's complaint being stricken in Gropper, it can just as easiliy be the defendant's answer being stricken for discovery abuses. Those on the defense side who blithely destroy or hide key documents, conceal excess insurance policies, or subtly encourage defendants to become "unavailable" for their depositions when plaintiffs' counsel drives halfway across the state for a noticed deposition, should pay heed.

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Plaintiff was entitled to a new trial on damages in his wrongful death action against the defendant doctor after his child was delivered stillborn, since the jury's award of zero damages after returning a verdict in favor of the plaintiff and his wife was contrary to the law and inconsistent with the evidence. See Court of Appeals opinion below.

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Under O.C.G.A. § 9-15-14, trial courts must limit fee awards to those fees incurred because of sanctionable conduct. See court opinion below.

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And they call some tort cases frivolous!?

In Caincare Inc. v. Ellison, decided 3/15/05 in the Georgia Court of Appeals, a contract for sale of a pharmacy provided liquidated damages if the buyer failed to cease all use of the old store name within six months. An employee programmed the old name in the header generated by a fax machine which continued sending out faxes bearing the old name beyond the six months. When this was called to its attention, the new owner changed the header. However, the seller sued for breach of contract and sought liquidated damages totally unrelated to the scope of the alleged breach.

The Court of Appeals flushed this frivolous case, but was polite enough not to use the phrase that a federal judge employed to describe an insurance company's defense in a disability insurance case: "pure poppycock."

A liquidated damages provision for the misuse of the seller's brand name in a sales agreement for an existing pharmacy was an unenforceable penalty, since the seller never adequately explained how the damages amount was calculated. See the opinion below.

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Affirming a ruling by the late Judge Rowland Barnes, who was murdered in his courtroom a few weeks ago, the Court of Appeals has held that the Metropolitan Atlanta Rapid Transit Authority (MARTA) is not subject to punitive damages. Ironically, the case arose from a brutal assault at the Lindbergh MARTA station, for which the victim sued for MARTA's allegedly inadequate security on the premises. See text below.

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In Albany Bone & Joint Clinic PC v. Philip D. Hajek MD, the Georgia Court of Appeals ruled on 3/11/05 that a medical clinic's bylaws, which entitled all departing shareholders to the book value of their stock, did not constitute a financial "penalty" on shareholders who left the clinic to work for a competitor. The corporate bylaws of the clinic did not constitute a non-competition covenant of the sort often seen in employment contracts. See the court's opinion below.

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A federal court win for the home team was just published at Giddens v.The Equitable Life Assurance Society of the United States, 356 F.Supp.2d 1313(N.D.Ga.,2004) [Westlaw $$$].

We represented a dentist / real estate developer on a disability insurance claim after he had liver failure requiring a liver transplant at the Mayo Clinic. The insurance company took the position that during a long period of inability to work due to undiagnosed illness prior to diagnosis of liver failure, he abandoned both of his occupations, and therefore no longer had an occupation from which to become disabled. We won summary judgment before the Honorable Richard Story, U.S. District Judge in Atlanta.

The case is significant because it established Georgia precedent on (1) admissibility of disability opinions of treating physicians under Daubert despite lack of definitive tests and specialization in disability evaluation, with any deficiency going to weight rather than admissibility; and (2) rejection of insurer's "occupation defense" that insured who was unable to work for extended time due to illness had abandoned occupation and therefore had no occupation from which to become disabled.

The insurer has filed an appeal pending in 11th Circuit Court of Appeals. We hope the appeal produces a published decision affirming Judge Story's order, which other policyholders may use as precedent against The Equitable throughout the United States.

See the published order below:

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Abuse of injured immigrants is an old story. I once knew an insurance claims manager who was very proud of his tactics in dealing with Hispanic immigrants who had injury claims. First, he told them, "No English, no dinero." Second, he would schedule meetings with claimants and get someone from INS to show up, check their papers, and if possible deport them so that he could get by without paying for their injury. (Yes, he worked for AIG, the company whose recently deposed CEO sent out a memo as Hurricane Andrew approached Miami several years ago, talking about what a great opportunity the hurricane would give the company to raise premiums.)

That claims manager and his soulmates would be disappointed that the U.S. Supreme Court has recently let stand a lower court decision that a plaintiff's immigration status is not discoverable because the "chilling effect of such discovery . . . unacceptably burdens the public interest." Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004). Rivera provides precedent for attorneys bringing claims on behalf of immigrants whose immigration status might be in question. New immigrants are disproportionately employed in highly hazardous occupations and suffer injury and death at rates markedly higher than other workers. Too often, immigrant workers forgoe legitimate claims when their rights are violated. Immigrant workers frequently fear that seeking legal advice may adversely effect their immigration status or that their undocumented status might be exposed. By forgoing legitimate claims, injured immigrants are marginalized further when they are unable to obtain and pay for proper medical care and unable to obtain and pay for vocational training which would allow them to reenter the workforce. As a result, the party responsible for their injuries escapes accountability and the cycle of illegal conduct repeats itself. See article at Safety Lex.

Rivera is a labor case rather than a tort case, it is not binding authority in Georgia or in the 11th Circuit, and Georgia courts tend to give little weight to the "commie" Ninth Circuit Court of Appeals. But courts here may consider the reasoning as some persuasive authority in preventing some forms of abuse of injured immigrants in injury litigation.

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The McKesson - HBOC merger led to a legal morass due to allegations of accounting irregularies at HBOC. A few months later, McKesson discovered that, due to accounting fraud, HBOC's common stock had been overvalued and that, consequently, McKesson had paid too much for it. McKesson hired a law firm and accounting firm to investigate HBOC accounting practices, and voluntarily provided the audit documents to the SEC and the United States Attorney's Office, both of which were conducting their own investigations of HBOC and McKesson. After a sharp decline in value of McKesson stock, many of McKesson's shareholders, including plaintiffs in this case, who were former shareholders of HBOC, sued McKesson alleging that they had incurred stock losses as a result of the accounting fraud. McKesson filed a counterclaim seeking damages for unjust enrichment on the ground that the HBOC shareholders received more shares of McKesson stock than they were entitled to receive due to the accounting fraud. The trial court granted a motion to compel the production of the audit documents; it denied a motion to dismiss McKesson's unjust enrichment counterclaim.

The Georgia Supreme Court held: (1) the burden of proving a waiver of work-product protection lies on the party asserting the waiver; (2) the evidence supports the conclusion that McKesson waived work-product protection when it provided the audit documents to the SEC, as their confidentiality agreement was not airtight; (3) the former HBOC shareholders were not liable for unjust enrichment, as they were not accountable for the fraudulent acts of HBOC, and McKesson failed to allege that these shareholders controlled HBOC or used the corporate form to defraud McKesson. The mere fact that the shareholders may have received a windfall, in the form of additional shares of McKesson stock, at the time of the merger does not make them liable to McKesson. As the Ninth Circuit Court of Appeals said when it affirmed the dismissal of McKesson's unjust enrichment claim in a related case, "[t]he sanctity of the corporate entity, as well as the policies militating against subjecting individual shareholders of a public company to liability for a merger gone bad, defeat McKesson's effort to turn corporate law inside out." McKesson HBOC v. New York State &c. Fund , 339 F3d 1087, 1093 (9th Cir. 2003). See full text (Fulton County Daily Report, subscription required.), and below:

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Company A entered two intellectual property licensing agreements with Company B, but a year later was $3 million behind on payments and unable to pay the debt. Company B agreed to forgive the debt in exchange for software developed by Company A, with a provision that Company B would pay Company A net profits from resale of the software. The contract included a 7-year non-competition and non-solication covenant, but no express provision requiring Company B to market the software. Company B failed to sell the software or generate any royalties, and Company A sued Company B for breach of contract and common law fraud, alleging failure to undertake a good faith effort to market the software. After a long analysis of the law and facts, the Court of Appeals held there was no violation of an implied obligation to market the software, no failure of consideration, and no breach of an implied duty of good faith and fair dealing. See WirelessMD Inc. v. Healthcare.com Corp (Fulton County Daily Report, subscription required). See text of decision below.

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Chancellor Bismark in Germany said that those who love laws and sausages should not see how either are made. Anyone who has watched a legislative body in action can well understand what he meant. However, we lawyers have to work with the statutes legislators pass, and try to make some sense out of those sausages. For that purpose rules of statutory construction have evolved in the courts. Following is a working memo briefly summarizing some of the principles of statutory construction that have been applied in Georgia and elsewhere, though it is not exhuastive in the citation of case authorities.

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Legal jargon is convenient shorthand for discussion among lawyers and judges, but is is often befuddling to even intelligent, well-educated lay jurors. "Preponderance," rarely if ever used by non-lawyers in everyday speech, is such a term.

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Two cases decided in November 2004 help to clarify the often befuddling concept legal doctrine of "proximate cause" in Georgia jury instructions. In John Crane Inc. v. Jones, 278 Ga. 747, 604 S.E.2d 822 (2004), the Supreme Court of Georgia held that it is error to charge that each of multiple defendants must have been a "substantial contributing factor" in causation, as any contributing factor is sufficient. Similarly, in Thompson v. Thompson, 278 Ga. 752, 605 S.E.2d 30 (2004), the court held that it was reversible error to use the "dominant cause" phrase to explain proximate cause.

These decisions are significant both in simplifying the often confusing issue of proximate cause for jurors, and perhaps in leading to clarification of jury instructions generally.

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Nineteen years ago, the Georgia Supreme Court decided the case of Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), holding that any party who brings or defends an action, or any part thereof, that lacks substantial justification or is imposed for delay or harassment, could be liable for a common law tort of abusive litigation to the opposing party who suffers damage thereby, as a counterlaim in the same civil action.

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