Atlanta Injury Law Blog

Today Governor Perdue vetoed raises for Superior Court judges and District Attorneys. In a statement released with the veto, the Governor said, “I have consistently expressed concern with raising judicial officers' salaries without tackling the well above-market retirement benefits.” He also said that a study he commissioned showed that Georgia's judges' pay was competitive compared to judges in other states and compared to “various counsel.” That study also showed that the Georgia “judiciary's retirement benefits are far above market average.”

What he did not say is that the study he commissioned compared judicial salaries with base salaries of a narrow slice of in-house corporate counsel, excluding bonuses, stock options, etc.  Perhaps the Governor is too busy to recognize the methodological flaw in the study, and therefore is just seriously misinformed.

Judges with whom I have talked in recent months had expressed concern that there was little or no hope for raises as long as Governor Perdue is in office. Some have speculated that one example of a judge in the Governor's home circuit who retired due to apparently fatal cancer, but then went into remission and became very active as a Senior Judge, may have colored the Governor's thinking about the entire judiciary.

I have been concerned for some time about the crisis in judicial compensation.  Of course it is always possible to get a government lawyer to accept a Superior Court appointment, and it isn't too hard to get a small town general practice lawyer to do so, because the judicial pay is relatively attractive in that setting.  However in the large metro counties, it is rare  for lawyers in a successful private practice to even consider becoming judges.  Many -- though not all -- of those who do appear to have substantial assets, a spouse in a highly compensated field, or both.  That is the economic reality in light of the crisis in judicial compensation, whereby both state and federal judges are paid on par with a first or second year associate in a large law firm. The fact remains that new graduates straight out of law school are getting starting salaries at large law firms on par with Supeior Court judges with decades of experience making critically important decisions about the lives, property and families of Georgia citizens.

While there are examples of Assistant District Attorneys and Assistant Attorneys General becoming excellent judges, the judicial system loses the perspective of lawyers who have spent decades practicing law and litigating cases in the private sector. 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. While judicial salaries are attractive to government lawyers and less successful private practitioners with political connections, and do not deter those who are independently wealthy, reasonably successful middle class lawyers in private practice, and with families to support, simply cannot afford the pay cut. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.

Even  when a seasoned private practice lawyer with an excellent professional reputation does go through the nomination process, the tendency of Governors of both parties has been to pick government lawyers and political figures over seasoned private practice litigators, so the reaction of many who could afford the pay cut is, "why bother?"  I have seen friends who would have been stellar judges passed over in favor of young government lawyers who are fine, but have negligible private practice experience.

Today Governor Perdue vetoed raises for Superior Court judges and District Attorneys. In a statement released with the veto, the Governor said, “I have consistently expressed concern with raising judicial officers' salaries without tackling the well above-market retirement benefits.” He also said that a study he commissioned showed that Georgia's judges' pay was competitive compared to judges in other states and compared to “various counsel.” That study also showed that the Georgia “judiciary's retirement benefits are far above market average.”

What he did not say is that the study he commissioned compared judicial salaries with base salaries of a narrow slice of in-house corporate counsel, excluding bonuses, stock options, etc.  Perhaps the Governor is too busy to recognize the methodological flaw in the study, and therefore is just seriously misinformed.

Judges with whom I have talked in recent months had expressed concern that there was little or no hope for raises as long as Governor Perdue is in office. Some have speculated that one example of a judge in the Governor's home circuit who retired due to apparently fatal cancer, but then went into remission and became very active as a Senior Judge, may have colored the Governor's thinking about the entire judiciary.

I have been concerned for some time about the crisis in judicial compensation.  Of course it is always possible to get a government lawyer to accept a Superior Court appointment, and it isn't too hard to get a small town general practice lawyer to do so, because the judicial pay is relatively attractive in that setting.  However in the large metro counties, it is rare  for lawyers in a successful private practice to even consider becoming judges.  Many -- though not all -- of those who do appear to have substantial assets, a spouse in a highly compensated field, or both.  That is the economic reality in light of the crisis in judicial compensation, whereby both state and federal judges are paid on par with a first or second year associate in a large law firm. The fact remains that new graduates straight out of law school are getting starting salaries at large law firms on par with Supeior Court judges with decades of experience making critically important decisions about the lives, property and families of Georgia citizens.

While there are excellent examples of Assistant District Attorneys and Assistant Attorneys General becoming excellent judges, the judicial system loses is the perspective of lawyers who have spent decades practicing law and litigating cases in the private sector. 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. While judicial salaries are attractive to government lawyers and less successful private practitioners with political connections, and do not deter those who are independently wealthy, reasonably successful middle class lawyers in private practice, and with families to support, simply cannot afford the pay cut. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.

Even  when a seasoned private practice lawyer with an excellent professional reputation does go through the nomination process, the tendency of Governors of both parties has been to pick government lawyers and political figures over seasoned private practice litigators, so the reaction of many who could afford the pay cut is, "why bother?"  I have seen friends who would have been stellar judges passed over in favor of young government lawyers who are fine, but have negligible private practice experience.

Georgia law now provides for a single Advance Directive document as a hybrid of the living will and durable power of attorney for health care,  eliminating potential conflicts between the two documents.  Click here to download the form. 

I have written several times this year about proposals for toll lanes for trucks on metro Atlanta interstate highways.  An article this week shows another reason why this may become a necessity.

The Georgia Department of Transportation expects to spend $160 billion on road construction projects between 2005 and 2035. But revenues from the motor fuel tax that funds road improvement are projected to bring in only $86 billion during the same period. That leaves a $74 billion funding gap.  In addition, federal funding for highway construction has declined sharply in real terms because the federal motor fuel tax is set at 18.4 cents per gallon and is not indexed to inflation, Studstill told the more than 300-hundred attendees at the event. “This shortfall could result in a complete drawdown of the Federal Highway Trust Fund in 2009,” Studstill said. If this occurred, federal highway funds would be exhausted in three years. That leaves a $74 billion funding gap for Georgia roads.

At the same time, increasing road construction costs, population growth and more truck traffic through the state and from the booming port of Savannah increasing pressure on Georgia’s roads.

Three fiscal solutions have been proposed.  One is project-specific Special Purpose Local Option Sales Tax, or SPLOST, on a statewide or regional basis. Another is a statewide 1% sales tax  to replace the fuel tax.  The official estimate is that this would generate $1.5 billion per year, compared with $850 million from the fuel tax.

The third approach would involve public-private partnerships such as toll roads. Georgia law allows GDOT to partner with private or corporate businesses to help finance, design, construct, operate and/or maintain transportation projects. Four are under now consideration in Georgia.

There is also the possibility of rail or other transit relieving commuter pressure on metro Atlanta expressways, while we add another 2 million or more people in the next 25 years. Transit makes good sense in densely populated areas, and the area inside I-285 is rapidly becoming a much more densely packed urban environment.

As with moth things, there are no easy answers.  The tough choices are seldom if ever between good and bad, but between good and good, and between bad and bad.  My hunch is that the federal, state and local government officials will incrementally cobble together some imperfect combination of all these approaches, but we will stay perpetually behind the growth curve until something -- either good (e.g., fantastic new energy technology, etc. spurring stronger economic growth)  or bad (environmental, demographic and/or economic collapse)  -- causes a dramatic discontinuity in our current patterns.

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.

Two new Texas laws, backed by Mothers Against Drunk Driving (MADD) may deserve consideration in Georgia.

One new Texas law requires that if a driver is convicted of drunk driving with a blood alcohol level over .15, an ignition interlock device must be installed in their car. The convicted drunk driver will have to breathe in a breathalyzer tube before attempting to start the vehicle. If there is a measurable amount of blood alcohol, the car won't start. According to Mothers Against Drunk Driving (MADD), ignition interlock devices reduce repeat DWI offenses by between 50 and 90 percent while the devices are in place.

Another alcohol-related bill will create a six-month driver's license suspension for anyone convicted of providing alcohol to a minor, and doubles to a year for a second conviction.

The Fulton County Daily Report (subscription required, $) published an article on 4/20/05, reporting that the tort reform lobby isn't finished in Georgia. According to the article, there are plans to come back in 2006 with proposals to limit contingent attorney fees with some sort of sliding scale, and to make "collateral sources" (payments that the plaintiff received from her own insurance company) admissible in evidence.

Arbitrary limits on contingent attorney fees sound consumer-friendly to the uninformed at first blush. However, the intent is to make it economically impossible for attorneys to handle big, complex injury cases, and thereby deprive injury victims of competent representation. Lawyers representing plaintiffs in complex tort cases -- especially products liability and medical malpractice cases -- generally have to devote hundreds of hours of their time with substantial risk of never getting paid, and spend $50,000 to $100,000 or more of their own money on expenses with no chance of repayment if they lose. That is a significant entrepreneurial risk that cannot be taken without the hope of a corresponding significant profit if the case is successful. If contingent attorney fees are capped at a level that makes that investment of time and money prohibitive, trial lawyers will not take those cases, but will migrate to other kinds of legal work, and injury victims will go unrepresented. But of course that is the goal of those who promote such ideas.

The tort reformers claim that the "collateral source rule" under which payments to or on behalf of the injury victim by her own insurer or other sources promote a "double recovery." The basis of the rule is the highly prejudicial effect on a jury of learning that the plaintiff has already received some money, or that bills have already been paid. Proponents of changing the rule disregard the fact that the victim has generally exercised the prudence to purchase insurance, the benefits of which flow from contract rights.

A big problem with both of these proposals is that they are almost certainly unconstitutional. Unfortunately, some of those who call most loudly for "tort reform" worry about the constitution only when their own rights are impacted.

- Contingent fee caps. Section 10 of the U. S. Constitution provides: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ." This is simply a matter of imposing wage and price controls in order to arbitrarily deny injury victims the right of competent legal representation by fixing unreasonably low fees for services rendered by attorneys. Moreover, to limit the fees to which a plaintiff can contract in order to obtain competent, vigorous representation, without also placing a low cap on the fees a manufacturer or insurance company can agree to pay its law firms, would be a violation of Equal Protection under both state and federal constitutions.

- Collateral Source Rule. In 1987, the legislature passed a "tort reform" bill that included admissibility of collateral sources in evidence. The Supreme Court held it unconstitutional. In the case of Denton v. Con-Way Southern Exp., Inc., 261 Ga. 41, 402 S.E.2d 269 (1991), the Supreme Court of Georgia held that provision unconstitutional under the Equal Protection provision of the Georgia Constitution. It is a violation of Equal Protection to inform the jury of the plaintiff's medical or disability insurance without also informing the jury of the defendant's liability insurance. What's sauce for the goose is sauce for the gander.

Conservative. strict construction adherence to the Constitution would bar both of these "tort reform" proposals.

According to an article in the New York Times on 3/6/05, lawyers in states with caps on noneconomic damages have been largely successful in recasting damages to fit the available categories. The article is titled "Go Ahead. Test a Lawyer's Ingenuity. Try to Limit Damages." It cites a new study by Catherine M. Sharkey, a law professor at Columbia, to be published in the New York University Law Review in May. Prof. Sharkey analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider cases settled out of court. It found that the median compensatory award in states with caps on damages was $324,000, compared with $387,000 elsewhere - figures that Professor Sharkey found were roughly equivalent after the data was adjusted for variables like the kind and number of plaintiffs and defendants, the percentages of local doctors and lawyers, and jurors' wealth and ages.