Atlanta Injury Law Blog

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

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

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

The stated purposes of the State Bar of Georgia are: 

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

(b) to improve the administration of justice; and

(c) to advance the science of law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Such settlement mills prey upon uneducated and unsophisticated people.

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

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

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

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

As an Atlanta attorney focused on serious personal injury cases, and as an early adopter of internet technology, I have been fascinated by the growing interaction between law, technology and new media.

Robert Ambrogi at IMS Expert Services blog has posted 10 examples of bad things that can happen in court as a result of imprudent online activity.

• Prolific blogging when claiming an overuse injury due to excessive use of a keyboard at work.
• Texting between attorney and client under the table during a deposition which, upon revelation, leads to discovery of all those text messages.
• Judge twittering from the bench, which led to judge's resignation.
• Twittering juror led to motion for new trial. Judge in that case denied the motion, but another judge would grant it.
• Lawyer asking for continuance due to death in family, while at same time bragging on Facebook about partying.
• Facebook "friending" between attorney and judge hearing case led to impermissible ex parte communication, a problem for lawyer and judge alike.
• Lawyer on jury duty, without disclosing he was a lawyer, blogging about the trial. This led to new trial for defendant and bar suspension for the lawyer.
• Defendant doctor blogging about progress of his malpractice trial, including unflattering comments about jurors, etc. Plaintiff found the blog and used it on cross examination. The case settled before this went far.
• Myspace revelations about sex life contracting allegation in lawsuit claiming sexual abuse as a minor.
• Remember in the age of ubiquitous video cameras and Youtube, anything you say in public anywhere may wind up on the Internet, so be circumspect.

We had not dreamed of any of these technologies when I started practicing law in 1977, but the principles involved are far from new.

Lawyers who rely on traditional referrals and upon informed consumers researching experience and qualifications are at a distinct disadvantage these days. Too many potential clients simply go to firms that advertise on TV and billboards, without any disclosure of the experience or qualifications of who will actually handle the cases.

Recently I ran across an e-book which you can download -- The Smart Consumer's Guide to Hiring a Great Lawyer. The book lists some excellent criteria for selecting a lawyer, which I have shamelessly annotated with references to yours truly.

• The number of years the attorney has been practicing law.  I have practiced law for 32 years, since 1977. That includes a hitch as an Assistant District Attorney prosecuting the full range of state criminal cases, three years in small town general practice, and a decade in an insurance defense firm defending personal injury, wrongful death and insurance coverage lawsuits for insurance companies, corporations and government agencies throughout Georgia.  Since 1991, I have had a plaintiffs' personal injury and wrongful death practice.
• The attorney specializes in the area of law that pertains to your case. For 18 years, my practice has been almost entirely representation of plaintiffs in personal injury and wrongful death cases. For a decade before that I handled the defense side of such cases. About 75% of my practice now involves commercial truck and bus crashes.
• The lawyer has good trial experience -- actually takes cases to trial -- not just going to court for hearings.  I have tried about 125 cases to verdict before juries. I have had to document my trial experience for board certification with the National Board of Trial Advocacy in 1995, and for re-certification in 2000 and 2005.
  
• The attorney has a good track record and wins at trial. Recently, I have won jury verdicts for $2.3 million in a broken leg case in a conservative rural county in northwest Georgia, and $1.25 million for a cervical fusion despite strong evidence of assumption of the risk. Other cases during the same time period have settled favorably before or during trial because the other side knew we were prepared to take them to verdict.
• The lawyer has a good understanding of or experience with injury cases that are similar to yours. I have successfully handled cases involving wrongful death, spinal cord injury, brain injury, burns and back injuries, Competent handling of any of these cases requires a solid understanding of insurance law.
• The attorney has been recognized with awards and distinctions. Read my bio.  Among other things, I'm a Certified Civil Trial Advocate of the National Board of Trial Advocacy, rated as a "Super Lawyer" in Atlanta Magazine, listed among the "Legal Elite" in Georgia Trend Magazine, have an AV rating in Martindale-Hubbell Law Directory, and am in the Bar Register of Preeminent Lawyers.  Currently, I am the elected Treasurer of the 40,000 member State Bar of Georgia. ("He who tooteth not his own horn, getteth it not tooted.")
• Quality of the lawyer’s website content is high and is very informative. See atlantainjurylawyer.com, georgiatruckingaccidentattorney.com, georgiatruckaccidentattorneyblog.com and atlantainjurylawblog.com. I had the first law firm website in Georgia (1996) and the second lawyer blog in the state.
•  The attorney is the author of instructional books, articles, videos, etc.  In addition to the links above and numerous articles and seminar papers, I am nearing completion of a book, tentatively titled Georgia Personal Injury Practice, with publication by West anticipated in late 2009 or early 2010.
•  The lawyer is often called to speak to professional legal organizations and law schools.  In the past 16 years I have spoken at dozens of continuing legal education seminars. That has included chairing the Georgia Insurance Law Institute, Georgia Personal Injury Practice seminars for several years, and the Southeastern Motor Carrier Liability Institute. Currently, I am a trustee of the Institute for Continuing Legal Education in Georgia. Within the past three years I have spoken at seminars on trucking trial practice in Atlanta, Chicago, New Orleans, Nashville, St. Louis and Las Vegas. This month I am scheduled to speak on trucking litigation at seminars in San Francisco and at Amelia Island, Florida.
•  The law office offers real client case studies.   In the interest of client confidentiality, and to avoid giving opponents insights into litigation strategies,  we don't put much of that online. However, I can discuss relevant experience in past cases when we meet in person, though the identifies of client are always fully protected.  
• The firm or lawyer has excellent client references or testimonials.  A couple of years ago in the midst of a tough case, a client called me a "sheep dog."  (Read the explanation.) Also see references and testimonials at Kudzu.com and Avvo.com.
•  The attorney is knowledgeable and confident. See everything linked above.
•  The lawyer understands that your case is unique and listens to your needs.  Check.
• The law office staff (receptionist, legal assistants, and paralegals) is courteous and responsive. Check.

This Tuesday, I had a mostly pleasant interview with the Georgia Judicial Nominating Commission. Friends had submitted my name for a vacancy on the Supreme Court of Georgia, and duly flattered I went through the process.

However, I went into it expecting nothing, and was not disappointed when that's exactly what I got.

I now extend my heartfelt congratulations to the nine judges and lawyers who did make the short list, from which Governor Perdue will select one new member of the Supreme Court. I wish them all well. They are, in no particular order:

- David E. Nahmias – U.S. Attorney; Northern District of Georgia, who was on Harvard Law Review, clerked for Justice Scalia, practiced at Hogan & Hartson in Washington, and was US Deputy Attorney General responsible for counterterrorism and fraud prosecutions.

- Samuel D. Ozburn –Superior Court Judge; Alcovy Judicial Circuit

- William M. Ray II – Superior Court Judge; Gwinnett County

- Craig L. Schwall Sr. – Superior Court Judge; Fulton County

- Mary E. Staley – Superior Court Judge; Cobb County

- Benjamin W. Studdard III – State Court Chief Judge; Henry County

- Rocco E. Testani – Partner, Sutherland Asbill & Brennan; Atlanta, who has recently worked on litigation in which the Governor has been involved.

- Stephen Louis A. Dillard – Of Counsel, James, Bates, Pope & Spivey; Macon, and founder of the Macon chapter of the Federalist Society.

- James P. Kelly III – Managing partner of Kelly Law Firm; Atlanta, and  Director of International Affairs for the Federalist Society for Law and Public Policy Studies based in Washington, D.C.

After the brief distraction of a purely quixotic fantasy of joining the Supreme Court, I immediately returned to vigorously representing clients -- Wednesday in a mediation and later trial preparation, and Thursday poring through a roomful of DOT highway design and construction documents.

There is widespread sentiment that the ratings game -- whether it's college rankings in US News or our "Super Lawyer" rankings -- is a lot of hocum.  However, folks look at that stuff, so the game goes on.

I just got word that my law school alma mater, Emory, has moved up in the U.S. News rankings of law schools from number 22 in 2008 to a tie for number 20 in 2009.

At alumni breakfasts at bar conventions, I've heard for years (since the rank was in the high twenties) that Emory wanted to break into the top 20 because that would help with recruiting, fundraising, etc. Now they've done it.

Not that it will enhance the value of my diploma, but it's nice to know.

For whatever it's worth, the University of Georgia Law School  tied for number 32 in 2008 and tied for number 35 in 2009.  However, when you compare the current tuition cost, UGA or Georgia State is a much better deal for most anyone who intends to practice in Georgia. When I see new grads from Emory entering today's daunting job market with tuition debt that looks like a home mortgage, I honestly don't know how they are going to manage it.

Contingent fees, in which the attorney earns a fee based on a percentage of whatever is recovered for the client, are typical in personal injury cases both in Georgia and throughout the United States.

We often explain the advantages in terms of making representation attainable for average people and giving the lawyer an incentive to get the most favorable outcome for the client.

Now a study by professors at the University of Jerusalem, "Neither Saints Nor Devils:  A Behavioral Analysis of Attorneys' Contingent Fees," reaches a conclusion that is contrary to common economic wisdom. They conclude:

• Loss aversion (rather than risk aversion or incentivizing the lawyer to win the case) plays a major role in clients' preferences for contingent fees. 
• Facing a choice between a mixed gamble and a pure positive one, plaintiffs prefer contingent fees even if it yields an expected fee that is several times higher than a non-contingent one.
• Defendants, who face a choice between two pure negative gambles, are typically risk seeking and prefer fixed fees.
• Information problems and lack of alternatives are not big factors in clients' choice of fee arrangement.
• Counter-intuitively, people often judge contingent fee arrangements that yield a low effective hourly rate for the lawyer as more unfair than contingent fee arrangements that yield a high effective hourly rate.

After practicing law for 32 years, including a general practice representing individuals and small businesses, an insurance defense practice where nearly all our work was on hourly fee billings, and a plaintiffs' practice that is nearly all contingent fee based, I think this study makes sense in business and commercial cases as well as personal injury cases.

A study by professors at  the University of California, Berkeley, has concluded that the Law School Admission Test is "not particularly useful" in predicting an aspiring lawyer's effectiveness in the profession after law school. 

The study included a survey that produced a list of  26 effectiveness factors with 8 umbrella categories.  They are not yet to a point of winning widespread acceptance of a substitute for the LSAT, but it's a start.

And it would be good if they could recruit a generation of law professors who have more than a couple of years experience in real world law practice. Most law school professors have little experience outside academia other than having clerked for an appellate judge and perhaps having spent a couple of years writing briefs and toting someone else's briefcase at a huge law firm. 

The list of "effectiveness factors" listed by categories includes:

1 : Intellectual & Cognitive
· Analysis and Reasoning
· Creativity/Innovation
· Problem Solving
· Practical Judgment

2: Research & Information Gathering
· Researching the Law
· Fact Finding
· Questioning and Interviewing

3: Communications
· Influencing and Advocating
· Writing
· Speaking
· Listening

4: Planning and Organizing
· Strategic Planning
· Organizing and Managing One’s Own Work
· Organizing and Managing Others (Staff/Colleagues)

5: Conflict Resolution
· Negotiation Skills
· Able to See the World Through the Eyes of Others

We've all heard the "Philadelphia lawyer" stereotype.  Now Molly Peckman at the Legal Intelligencer in Philly has interviewed an array of "lawyers' lawyers" in the City of Brotherly Love to compile a list of traits that make a lawyer great.

• "Never take your knowledge base and experience for granted -- constantly enhance and refine each."
• "Never take your clients for granted -- constantly keep them top of mind, and focus on adding value as they, not you, define it."
• "Never take your colleagues for granted -- none of us can do this alone and it wouldn't be half as much fun if we could."
• "Great lawyers are people who know how to keep everything that is important about life in a proper balance."
• "Never forget, and always expand upon, the passions you had before you became a lawyer."
• "Be curious, always. Work wholeheartedly and with all of your energy on whatever it is that is in front of you because good things always will follow."
• "Take risks."
• "Listen well."
• "Lawyers need to "remember that your client is there for your advice and judgment."
• "Pay attention to every detail, and don't always rely on your initial analysis -- challenge yourself."
• "Act vigorously, but treat your adversary with civility."
• "The best lawyers recognize, and never forget, that their eyes and ears are much more important faculties than their mouth. Observe more, listen better, talk less."
• "To become a great lawyer you should surround yourself with great lawyers."
• "Identify a niche that you find interesting and become as knowledgeable and visible as possible. Affirmatively seek out partners and assignments in that particular area, and write articles and speak about it so you will get noticed and develop a book of business."
• "If a lawyer diligently applies him or herself to the client's legitimate interests and eschews intellectual arrogance -- i.e., never treats any matter routinely but, instead, gives each situation the total respect and fresh attention it deserves -- reputation and success will take care of themselves. Of course, a little luck wouldn't hurt."
• "Organize your time and prioritize your activities; prepare carefully and thoroughly for every appearance and meeting; adopt an attitude of cheerfulness, optimism, flexibility and confidence without arrogance.
• "A relentless dedication to the craft of lawyering is essential. There is a reason we call it the 'practice' of law."
• "The best lawyers I know work hard, show respect to their opponents, concede points that should be conceded, and do not take themselves too seriously," Reich wrote. He added, "While confidence is key, a healthy dose of modesty goes a long way to achieving the necessary balance for professional excellence."
• "You have to care enough to allow the case to take over your life.  And then, when that case ends, you have to allow the next one to do the same."
• "Listen with your ears, eyes and all of your senses, to the words said, to the speaker's body language, to what is not said, and to your inner self."
• "Think about what your senses heard and saw. Evaluate and analyze before you speak and formulate a seasoned and measured response. Don't just speak because you want to hear yourself or say what you think the listener wants to hear. Be true to yourself (and your audience) by relying on your education, experience, your common sense and your inner self. If you build a reputation for truth, reliability and credibility and act accordingly, you will be all that you can be."
• "I believe the best lawyers are those who truly have a passion for what they do. This is still a profession, and not merely a job. Enthusiasm, caring and true investment in what we do is reflected in the outcome of our cases, in the respect of our colleagues and in appreciation from our clients."

 And of course we have heard the cynical observation that "a good lawyer knows the law, a great lawyer knows the judge, and a really, really great lawyer has an extremely close personal relationship with someone on the judge's staff."  Sometimes I have felt like I was merely a good lawyer who had mastered the law and the facts, up against a "really, really great lawyer" with an "insider perspective."  Fortunately, I have encountered that extreme degree of "home cooking" very rarely in my career.  But when it happens, the facts, law, truth and ethics go out the window.

There has been a lot of discussion lately about the problem of lawyers -- most but not all of whom are fairly young -- who have been laid off from big law firms or whose job offers have been rescinded at such firms. It's an interesting whipsaw of fortune compared to the unsustainably high salaries new associates were being paid at those firms last year.

Bar associations are sponsoring programs for out of work lawyers.

Some legal aid agencies are  inviting jobless lawyers to do pro bono work.

But it's tough for agencies to house, supervise and effectively utilize a flood of big firm refugees.

There is of course a blog called unemployedlawyers.com.

The dilemma is aggravated by the fact that a great many of those young lawyers have staggering tuition debts that virtually require them to knock down high salaries that are no longer available. And those who aren't so young are likely to have staggering mortgage payments.

So what are some of the options for bright young lawyers who have always lived on the fast track as top achievers, but suddenly find themselves unemployed?  In no particular order, here are some random ideas.

• Keep yourself on a workday regimen. Get up, get dressed, get out. For heaven's sake, don't watch daytime TV.
• Work out a lot. Maybe train for a marathon or triathlon. Long runs outside are therapeutic, and endorphins are a great antidepressants.
• If you are relatively unemcumbered, consider taking off a few months to hike the Appalachian Trail, learn to surf, or backpack around Europe.  You aren't getting any younger, and it's not likely you will miss any great career opportunities between now and fall.
• Network a couple of hours daily, unless you're hiking the Appalachian Trail. If you spend more than a couple of hours a day, on average, networking and applying for jobs that don't exist, it may not be psychologically healthy.
• Avoid the temptations of alcohol, drugs, gambling, etc. Those will only take you deeper into the pit.
• Resist moral compromises that would diminish your character and your good name. It's OK to take a "bridge job" loading trucks or flipping burgers to stay alive. It's not OK to get on a slippery slope regarding professional conduct in a way that diminishes your professional character and your reputation for trustworthiness. Dirt from honest labor washes off easily; sleaze doesn't.
• Volunteer, even in a non-legal capacity. It may help you get outside your own problems and see that a lot of people are much worse off.
• Get another degree. An MBA program would be an obvious parking place for those who have spent most of their lives as excellent students. Or color outside the lines and get a masters in computer science, history, theology, or whatever may be your long-suppressed secret intellectual passion.
• Be creative. Develop the artistic side of your capabilities. Learn to play a musical instrument or write a novel.
• Consider hanging your shingle in a small town, bartering services for rent with an office landlord, attune yourself to the legal needs and financial capacity of grassroots families and small businesses.  The country song "Country Boys Will Survive" made a good point.  Even learn to barter your services for produce and firewood so you can eat and stay warm.  Maybe even big law folks can learn a few survival tips from Jay Foonberg.  I did it in an earlier recession. You can too.
• Think like an entrepreneur.  Look for the diamonds hidden in the economic mudslide.
• Take a look at Solo Practice University.
• Remember that this too shall pass . . . eventually.

The blogging gurus have told me not to write blog posts like legal briefs.

• Make posts short, with short sentences and bullet points, they say.
• But tonight, leaving a bar association dinner, a judge's law clerk read my name tag and had a flash of recognition.
• In researching a question on which there was no case authority in Georgia,  she searched Westlaw for hours without success, and then Googled the question.
• That led to a post on my blog that was, yes, written like a legal brief, complete with citations. 
• Of course it was, since I had copied and pasted from a brief I had filed in a case.
• She read the turgid prose in my post, looked up the cases I cited, decided my analysis was correct, and gave that work product to the judge in an order to sign.

So much for short, bullet pointed blog posts.  If I want to write a law review article and put in on my blog, complete with exhaustive legal citations, in order to share some creative legal thinking with lawyers, judges and judicial clerks out there, by golly I'll do it.

This morning I met with a family who suffered a tragic loss when a tractor trailer ran over the parents late in 2008.  The mother was killed and the father seriously injured. 

They got me involved a couple of weeks after the crash when one of the sons found me on the Internet and invited me to meet with the family.  We put our rapid response strategy to work and are now on the brink of settling the case for all available insurance policy limits. 

Because I agreed to reduce my contingent fee to 20% if we settled within the first 60 days after delivery of the demand package to the defendant and insurance company, it turns out to be a win-win situation for everyone, with quick closure on the most favorable possible terms for the family.

In our conversation today, they told me about being deluged with calls from "grief counselors" and "patient counselors" asking if they had a lawyer yet --  while dad was in still in the hospital trauma unit. These “counselors” were obviously sleazy "runners" seeking to solicit the case for legal vultures.

When they got home a few days later, even before mom's funeral, they had a package in the mail from a law firm out of state, soliciting the case.

Georgia Rule of Professional Conduct 7.3, regarding Direct Contact with Prospective Clients, provides in part:

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

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

(4) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.

(b) Written communications to a prospective client, other than a close friend, relative, former client or one whom the lawyer reasonably believes is a former client, for the purpose of obtaining professional employment shall be plainly marked "Advertisement" on the face of the envelope and on the top of each page of the written communication in type size no smaller than the largest type size used in the body of the letter.

(c) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by a client; except that the lawyer may pay for public communications permitted by Rule 7.1 and except  . . .  [the exceptions do not include use of "runners" to solicit injury and death cases.]

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

(e) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks to employ the lawyer does so as a result of conduct by any person or organization prohibited under Rules 7.3(c)(1), 7.3(c)(2) or 7.3(d): Direct Contact with Prospective Clients.

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

One of the weaknesses of the organized bar has been the lack of effective means of enforcing these rules against improper solicitation.  If no one files a grievance against the offenders, nothing can be done. A lot of this behavior is simply never reported and therefore never addressed.

I will take the information from these clients and prepare grievances against any attorneys we can identify who participated in improper solicitation.  If they are in other states and made such solicitations in Georgia, we will urge reciprocal discipline in their home states.

If you are solicited for a personal injury or wrongful death case by a phone call or other direct contact  from an "investigator," "grief counselor" or "patient counselor," there is a very high probability that it is an unethical and illegal solicitation on behalf of a lawyer or law firm who does not mind breaking the ethical rules. 

Do you really want to entrust your case to someone like that? 

If you are solicited about your injury or death case, you may consider doing the following:

• Immediately call the General Counsel of the State Bar and report the improper solicitation. The phone number of the General Counsel of the State Bar of Georgia is 404-527-8720.
• Offer to assist in investigation of this misconduct and to file a formal grievance against any lawyer who can be proven to be participating in improper solicitation.
• If you ask, and if the provable facts support it, I will assist without charge in drafting a formal grievance against any lawyer who solicits you in violation of the Rules, even if you do not hire me for your injury case. (I cannot intrude on the confidential Bar disciplinary process, but  I can assist in drafting your grievance.)
• If you need a lawyer for a personal injury or wrongful death case, make your selection on the basis of your own research about professional experience and qualifications, and recommendations by knowledgeable people whom you know and trust, rather than slick advertising or someone soliciting you directly.

Since it's a tough budget year in which even I can't advocate spending  money on a new web site, I'm working on ideas for a low-budget refreshing of the State Bar of Georgia web site.

I would appreciate any suggestions for things we can do to make it more interesting, up to date, streamlined, easy to navigate, and of high value to members and the public. And do it all with in-house resources and virtually no budget. Of course any ideas I may put together will then go through the appropriate committees and staff.

Seldom if ever do I plug a book in my blog. But I just finished one on legal writing that I recommend to my colleagues.

Making Your Case: The Art of Persuading Judges, by Supreme Court Justice Antonin Scalia and Bryan Garner, is an extremely practical guide for those of us who earn our keep through persuasive writing and speaking in courts.

If you are a lawyer, or aspire to become one, read it more than once.

The organized Bar across the country makes a big point of supporting judicial independence. We should make just as big a point of supporting judicial integrity.

An article by Ian Urbina in The New York Times tells the sad tale of how two Pennsylvania judges have pleaded guilty to fraud in federal court to accepting $2.6 million in kickbacks, and now have been named as defendants in a class action suit  for the scheme to  send juveniles to private detention facilities.

While judicial misconduct is rare, where it occurs it should be addressed forcefully in order to safeguard the integrity of the judicial system.and public confidence. In Georgia, I am increasingly concerned about the appearance of improper conduct in one of our courts involving a retired court staff member.  Probably only the U. S. Attorney has the tools to deal with this.

Here's an excellent post by Ron Fox at the Lawyer Satisfaction Blog about how poorly law schools prepare their students to actually practice law and run a law office and something called "Solo Practice University." 

Nothing in law school prepares one for the responsibility of running the business of a law practice.  Law schools traditionally have trained students to be judges' law clerks and junior associates in big firms, ignoring the reality that many will within a few years have their own practice.

In the State Bar of Georgia, we have a Transition to Practice Program that provides seasoned mentors for new lawyers in their first year of practice and a Law Practice Management Program to provide resources and training on practical realities of managing a law office.  Both are good programs that we should continue to cultivate and advance.

According to Ben Evans of Associated Press, President-elect Obama's appointments have notably excluded Southerners. It's hard to see where he's going to fill in that gap.  However, there is speculation that my friend from Atlanta, Teresa Wynn Roseborough, could be the next Solicitor General of the United States, representing the government at the Supreme Court. A former Supreme Court clerk, Deputy Assistant Attorney General and big firm lawyer, she is currently chief litigation counsel for MetLife in New York and commuting more or less weekly between there and Atlanta. Teresa is a brilliant lawyer. Both she and her husband Joseph, also an excellent lawyer, are gracious friends. Though she's probably more liberal about some issues than this redneck lawyer, she would be a fitting choice. I look for her to become a United States Supreme Court Justice someday.

Biographical profiles on lawyers on law firm web sites tend to be stuffy and boring. Mine included.

But someone recently called to my attention the refreshingly light-hearted bio of Martin D. Ginsberg, who if Of Counsel at Fried Frank in DC and a law professor at Georgetown University.  Here are a few excerpts:

•  "Professor Ginsburg attended Cornell University, stood very low in his class and played on the golf team.  He graduated magna cum laude from Harvard Law School which, in those years, did not field a golf team."
• "He withdrew from full-time practice when appointed the Beekman Professor of Law at Columbia Law School and moved to Georgetown University in 1980 when his wife obtained a good job in Washington."
• "From 1984 to 1987 he was a member of the ABA Tax Section Council, where he performed no useful service at all; celebrating that unique achievement, in 2006 the Tax Section gave Professor Ginsburg its lifetime Distinguished Service Award."
• "In 1986, someone who probably prefers never to be identified endowed a Chair in Taxation in his name at Georgetown; no one appears willing to occupy the Ginsburg Chair, and it remains vacant."
• " In 1993, the National Women's Political Caucus gave Professor Ginsburg its "Good Guy" award; history reveals no prior instance of a tax lawyer held to be a "Good Guy," or even a "Decent Sort."
• "Professor Ginsburg is a Fellow of the American College of Tax Counsel, a frequent speaker at tax seminars, mainly in warm climates, and the author of one exciting treatise (with J.S. Levin of Chicago) and a ghastly number of articles on corporate and partnership taxation, business acquisitions and other stimulating things."
• "Professor Ginsburg's spouse was a lawyer before she found better work.  Their older child was a lawyer before she became a schoolteacher.  The younger child, when he feels grumpy, threatens to become a lawyer."

I noted earlier that a pay raise for federal judges had been included in the bailout bill for the auto industry.  Now the judicial pay raise has bitten the dust, at least temporarily, because it was draining votes from the legislation.

Senator Claire McCaskill of Missouri announced on the Senate floor she would oppose the bill unless the judicial pay raise  provision was stripped from the auto bailout. Sen. McCaskill is quoted as saying:

Wrong time. Wrong place. We have the highest unemployment in this country that we have had in decades.... Federal judges get lifetime appointments, and they never take a dime's cut in pay.

I always enthusiastically support judges when they seek pay raises.  I strongly agree that they should be paid at a level that is competitive with what they would make in private practice. Ideally, they should be paid at least double their current salaries.

See this article about a speech by 11th Circuit Judge Peter Fay who points out that if judicial salaries had kept up with inflation since 1970, district court judges should  be making about $342,000, and that their counterparts in Great Britain are paid the equivalent of $318,168.

I agree with Judge Fay.

Of course, the idea of raising judicial salaries includes recognition of their own strong professional qualities and the probability that many of them could make more money if they left the bench to join a big law firm willing to pay for their experience, insights, prestige and possible influence with their former colleagues.  It may also include some consideration of the facts that they get paid every month, do not have wild fluctuations of income, have no entrepreneurial risk, and do not have to pay for office overhead or private health insurance with rapidly spiraling premium rates. And they are certainly not at risk of seeing all their hard-earned profits for a year or two suddenly evaporate because a   judge ignores the evidence and misconstrues the law in order to make an inscrutable ruling in favor of a former court staff member.

In good times, the disparity between private practice and judicial salaries is fairly obvious.  It is a more complex analysis in a recession when millions of Americans are out of work and/or facing foreclosure, even large law firms are laying off lawyers and staff, and many small firm and solo lawyers are struggling.

It is customary for members of Congress and federal judges to have the same salary.  Congress is set for a $5,000 raise on January 1, and the proposal was to give judges the same raise to maintain parity.

Perhaps in solidarity with the American people who are hurting now, Congress should give up its own pay raise for the duration of the recession, and then come back later  with a strong pay raise for both Congress and the judiciary.  At that point, it would be appropriate to increase the salaries of both well beyond a paltry $5,000 adjustment.

In today's Wall Street Journal, divorce lawyer Raoul Felder writes that in the current deep recession, bankruptcy and negligence lawyers should do OK, but divorce lawyers need a bailout. (Divorce Lawyers Could Use Subsidies Too, WSJ, 12/6/08)   A few excerpts:

Bankruptcy lawyers should be doing OK, since more people are going out of business, and the lawyers get their money before anybody else. Negligence lawyers should also be just fine, since people still are getting run over, not to mention the possibility of being struck by a stockbroker jumping out a window. But divorce lawyers are hard hit.

[While the economy is flat-lined, it is a period of great uncertainty and people put their lives -- and happiness -- in a holding pattern. Since divorce cases can take eight months to a year or more, undertaking one is a little like buying futures or selling short. It becomes an economic guessing game.

Some smart mathematician should utilize divorce statistics to develop a software program that will predict recessions.

Meanwhile, Congress might consider a bailout plan for lawyers. There are now some 1,162,124 attorneys in the U.S., and the law schools are spewing out graduates at a rate of 43,518 a year, all set adrift upon a public that increasingly doesn't have money to pay for their services. There is no other profession more dependent on discretionary spending, except perhaps the oldest one.

Somehow I doubt that Congress will rush to provide a bailout for the legal profession.  We have to sink or swim on our own.  However, we may need to put on some continuing legal education programs about how to survive economically in Depression 2.0.  Possible topics might include bartering legal services for bass boats and garden produce, how to slash overhead expense, and other topics unfamiliar to most younger lawyers.  However, having entered practice in the midst of another economic downturn, I have all too sharp memories of such expedients