Civil Litigation

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In the past few years, half the work and hassle in representing individuals in personal injury claims is the endless hassle with medical lien claims.

Medicare, which asserts claims under the Medicare Secondary Payer Act, is often the hardest to deal with because the Center for Medicare and Medicaid Services (CMS) bureaucracy is infamously slow and difficult to deal with, and will never tell us the amount they demand before we settle a case with the other side.

I had one case in my office in which it took 18 months after the case settled, writing to them about every…

Most bright middle school students probably have a working knowledge of the concept of hearsay, simply as gossip.  “He said she said” does not mean the statement is true.

Hearsay as a legal rather than merely social concept is part of the law of evidence. The Georgia rule on hearsay will change on January 1st, when the new Evidence Code becomes law.

The new Georgia Evidence Code, based more or less on the Federal Rules of Evidence, will go into effect on January 1, 2013. The new Evidence Code was a long-time project of the State Bar. Sponsored…

Georgia law on the trial of personal injury cases has for most of my career provided for exclusion of evidence of settlements of claims arising from prior injuries. Now the Court of Appeals has cracked open the door to evidence that in the past has been excluded.

In the case of Goforth v. Wigley, 178 Ga. App. 558, 560 (2), 343 SE2d 788 (1986), the court ruled that “evidence as to the amount of a settlement or compromise in [an] earlier case is generally irrelevant and prejudicial and therefore inadmissible.”  Thus, the court in Goforth held that the trial…

Georgia State Capitol 1904

The Georgia Chamber of Commerce held a forum on tort reform last week. According to today’s Daily Report, Rep. Rich Golick, chair of the House Non-Civil Judiciary Committee who is a corporate attorney for Allstate Insurance Company in his “day job,” told the attendees:

“Go talk to the plaintiffs bar. … See if consensus can be struck,” he said. “I beseech you — it’s the middle of August and there is a run-off and a general election — now is a great time for quiet conversation in quiet rooms where consensus

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Do advocates of more “loser pays” rules offer a solution in search of a problem?

Are people unaware of the “loser pays” sanctions that are already part of Georgia law?

As discussed in previous posts, Georgia already has five statutory “loser pays” rules, four of which passed in tort reform legislation during the time I have been practicing law, and one we have had since the Civil War. Georgia needs a sixth “loser pays” about as much as it needs a sixth law school at a time when graduates of the existing law schools have a really hard time finding…

Brig. Gen. Thomas R. R. Cobb, father of Georgia’s first “loser pays” statute”

The oldest of the five “loser pays” rules in existing Georgia law has been in effect for nearly 150 years, having first appeared in the Code of 1863.

That Code was largely the work product of Thomas R. R. Cobb, son-in-law of Chief Justice Lumpkin and a foremost Georgia legal scholar of his day. He was a Confederate brigadier general who died at the Battle of  Fredericksburg only a couple of weeks before the Code for which he was largely responsible went into…

tort of abusive litgation for frivolous lawsuitsBefore rushing into legislation to create yet another “loser pays” rule in Georgia law, it is useful to examine the five forms of “loser pays” rules we already have. I wrote earlier about OCGA 9-11-68 (offer of judgment / offer of settlement rule and frivolous claims and defenses rule) and OCGA 9-11-14 (no justiciable issue, delay, harassment).

The 1989 wave of tort reform legislation included O.C.G.A. §§ 51-7-80 et seq., which created a statutory tort of abusive litigation giving rise to liability against “any person who takes an active part in the initiation, continuation, or procurement of civil…

“Loser pays” is a popular theme among advocates of “tort reform,” many of whom may not understand what the popular political calls for “loser pays” or “tort reform” really mean in any detail. Perhaps some people who say they are for it do not understand that Georgia already has five “loser pays” rules that have been enacted in legislation over the years.

Yesterday I posted a summary of one of our “loser pays” rules, the offer of judgment under OCGA 9-11-68, which applies when a party rejects an offer of judgment or settlement and does not do at least 25%…

We hear talk of another round of “tort reform” legislation including a “loser pays” rule. But some of the folks talking about it may not realize that Georgia already has five different “loser pays” rules.

One of the five forms of “loser pays” rules in Georgia is in O.C.G.A. § 9-11-68. Passed as part of the 2005 tort reform legislation, it provides for an award of attorney fees and expenses against a party that refuses to accept a settlement  offer and at trial does not improve upon the rejected offer by at least 25%. See Smith v. Baptiste, 287…

Bankruptcy bad for personal injury plaintiffsPeople who have suffered a serious personal injury, and families that have lost the breadwinner due to wrongful death, may be  tempted to file for protection of a Bankruptcy Court. However, we  warn clients that it is generally a very bad idea. Why is that?

Upon filing of a petition for bankruptcy, control of the personal injury action passes to the bankruptcy trustee for benefit of creditors of the injury victim. 11 U.S.C.A. § 541(a)(1).

Failure to list an injury claim as an asset in a bankruptcy may result in the injury claim being barred under the equitable doctrine of…