Facts and law are vitally important. But the identity of the decision makers – judge and jury – are crucial too. While phenomenal verdicts may occur in conservative rural counties in great cases, and the plaintiff will likely recover nothing in a rotten case even in the most generous venue, in average cases the identify of judge and county are crucial. For example, in a fatal
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.
$1.4 million for lawyer whose client got $183,000????
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.
Senate Bill 3 amended 9-10-31 to bring back a “vanishing venue” rule as follows:
(d) If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper. If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.
However, this does not say that a verdict obtained in the first county is a nullity, or that the case must be retried. The plaintiff’s attorney may simply move to enter judgment on that verdict in the second county. Of course, the defendant who is a resident of the second county may move for a new trial or for judgment notwithstanding the verdict, and with defendants who are pillars of the community in smaller counties the potential for judicial “home cooking” by locally elected judges is obvious.…
The new Georgia tort reform legislation (SB 3) brings back the old rule of “vanishing venue” in which a case could go all the way through trial and then be sent back to the court of another county if no defendant residing in the forum county was held liable. The new law also adopts a rule of forum non conveniens. See the full text below.
In future posts we will explore the details, ambiguities, and possible consequences, intended or unintended.…