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For the first time in Georgia, a trial judge has allowed web video conference trial testimony from an out of state witness via Skype.

Douglas County Superior Court Judge David Emerson allowed Skype testimony of a defense witness in the criminal prosecution of a tractor trailer driver from Texas who was caught in Douglas County with 95 kilos of cocaine concealed in a secret compartment of his truck. The image of the witness was projected on a nearly life size flat screen in the courtroom.

Despite the testimony of the defense witness, Juan Salazar was convicted of cocaine trafficking. Emerson sentenced Salazar, 35, to serve 30 years of a 33-year sentence.

Judge Emerson has been an early adopter of new technologies in court since he was elected to Douglas County Superior Court in 1992. He  will become the president-elect of the Georgia Council of Superior Court Judges on May 1, and I will become president of the State Bar of Georgia on June 4. I’ve known Judge Emerson since we were "baby lawyers" in Douglasville in the mid-1970s. We have been brainstorming in recent weeks about how to advance uses of technology in Georgia courts in years to come. 

This morning I had the privilege of speaking to the mass swearing in of new lawyers in Atlanta. Here’s a link to the video and, slightly different, what I had planned to say:

 

Bar Admission Ceremony

Fulton County Courthouse

December 3, 2010

Good morning. I’m Ken Shigley, president-elect of the State Bar of Georgia.

On behalf of 42,000 members of the Georgia Bar, welcome to the profession you have invested so much time, effort, student loans and parents’ money to enter during this Great Recession.

All Georgia lawyers are members of the State Bar, through which our profession governs itself. I urge you to take advantage of the networking and growth opportunities in the Younger Lawyers Division and 43 practice area sections.

Of immediate interest, you get free computerized legal research as a member benefit, now Casemaker, switching to Fastcase next month.

I want to make 3 points.

1. See your profession as a high calling.

2. View admission to the bar as the beginning of a lifetime of learning.

3. Keep balance in your life.

First, calling.

Few careers offer as much potential for meaningful service as law. Most of us started law school with a spark of idealism and optimism. That is tempered by experience, but rather than sinking into cynicism, cultivate a mature sense of high calling. That may lead you in amazing paths you cannot now imagine.

The Rules of Professional Conduct and professionalism standards are necessary guides, but no substitute for character. Build upon the moral lessons from your families, scoutmasters and clergy.

Remember that our biggest mistakes are mathematical. We miscalculate the brevity of life and the length of eternity. Explore how your own faith tradition relates to your role as a lawyer.

Embrace your opportunities to work with hurting people, and to be a problem solver rather than just a gladiator.

Explore the classic virtues: prudence, fortitude, justice, temperance, faith, hope & love.

Second, lifelong learning.

Law schools teach law as an academic discipline but don’t teach you how to practice law.

Admission to the bar is just a starting point for that.

You will make mistakes. We all do. Don’t be afraid to recognize your daily mistakes and learn from them.

Many of the best minds in the profession are at your disposal, so seek out good mentors and be aggressive about continuing education. The Bar’s Transition to Practice mentoring program and mandatory CLE are minimums for licensing. You must go far beyond that to excel.

You are entering the legal profession at an extraordinary time. Technology, economic stress, and global market forces will produce more change in our profession in the next decade than in the past century. You will see new business models for law practice, international outsourcing of legal work, and billing structures that create incentives for efficiency. The billable hour will cease to be the norm for law firms.

You need core competencies that law schools do not teach – in communication, strategy, quantitative skills, cross-cultural work, project management and leadership.

You must continually master new knowledge – including science and technology –in the subject matter of your legal work.

If you are able to surf the wave of change, you can do very well, developing innovations I can’t foresee. If you do not continue learning, you will be toast.


Third, balance.

In a study of clinical depression in 104 occupational groups, lawyers were #1. 13% of lawyers consume 6 or more alcoholic drinks per day. Mental health and substance abuse issues are present in most lawyer discipline cases.


The State Bar has a Lawyers Assistance Program for lawyers who get on that slippery slope, but prevention is better than treatment.


Be your brother’s and sister’s keeper. If you have a colleague who has a substance abuse problem, contact the Lawyers Assistance Program to arrange an intervention. I wish I had done that for one of my buddies from high school days, whose drinking impaired his judgment. He plead guilty to a felony and was disbarred.


So put the daily grind of work and the economic distress in a larger context, cultivate that sense of calling.

At the risk of sounding like your mom, eat right and get enough sleep and exercise to maintain physical and mental health. If you neglect that over time, the long hours and stress of law practice can be deadly.

Maintain healthy interests outside the law. A weekend camping in wilderness lowers my blood pressure about 20 points.

Keep room in your life for the people you love. No success at work is worth failure at home. At the end of this earthly sojourn, you won’t regret time spent with your family rather than at the office.

So, view law as a calling, keep learning, and keep a healthy balance in your life.

And if you know someone who is run over by a tractor trailer, call me. With two kids in college, I need to make a living too. We can both do well.

God bless you all.

A great trial lawyer passed from the scene last week after a valiant battle with cancer. Fred Orr has served as president of the Georgia Trial Lawyers Association just last year. He was a trial lawyer for 46 years and practiced the last 35 years in the same building near the courthouse in Decatur.

Fred was a passionate advocate for his clients and his political candidates. He had many wins, and like any trial lawyer, also came in second enough to keep him humble.

His greatest win was a public interest case. In the Presidential Parkway case a generation ago, Fred led the legal battle against construction of in which the an eight-lane freeway through much of the historic Druid Hills community. The highway would have destroyed numerous parks, churches, the Fernbank Science Center, a virgin forest. and hundreds of historic homes in DeKalb County. Fred was a David going up against Goliath, but won at trial and on appeal.


Fred, old friend, you will be sorely missed. I will even miss all the emails seeking contributions for your candidates!

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.

 

"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.