Federal Procedure

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We have observed that a lot of Georgia lawyers are having trouble getting up to speed on electronic filing. See article. Fortunately, I have a good paralegal who keeps me straight on these things.
Here are links to court rules and attorney registration web sites regarding electronic filing:
Northern District (Atlanta, Rome, Gainesville, Newnan) — rule — registration
Middle District (Macon, Columbus, Albany, Valdosta, Athens, Thomasville) — CM/ECF access
Southern District — not applicable

A federal court win for the home team was just published at Giddens v.The Equitable Life Assurance Society of the United States, 356 F.Supp.2d 1313(N.D.Ga.,2004) [Westlaw $$$].
We represented a dentist / real estate developer on a disability insurance claim after he had liver failure requiring a liver transplant at the Mayo Clinic. The insurance company took the position that during a long period of inability to work due to undiagnosed illness prior to diagnosis of liver failure, he abandoned both of his occupations, and therefore no longer had an occupation from which to become disabled. We won summary judgment before the Honorable Richard Story, U.S. District Judge in Atlanta.
The case is significant because it established Georgia precedent on (1) admissibility of disability opinions of treating physicians under Daubert despite lack of definitive tests and specialization in disability evaluation, with any deficiency going to weight rather than admissibility; and (2) rejection of insurer’s “occupation defense” that insured who was unable to work for extended time due to illness had abandoned occupation and therefore had no occupation from which to become disabled.
The insurer has filed an appeal pending in 11th Circuit Court of Appeals. We hope the appeal produces a published decision affirming Judge Story’s order, which other policyholders may use as precedent against The Equitable throughout the United States.
See the published order below:

Abuse of injured immigrants is an old story. I once knew an insurance claims manager who was very proud of his tactics in dealing with Hispanic immigrants who had injury claims. First, he told them, “No English, no dinero.” Second, he would schedule meetings with claimants and get someone from INS to show up, check their papers, and if possible deport them so that he could get by without paying for their injury. (Yes, he worked for AIG, the company whose recently deposed CEO sent out a memo as Hurricane Andrew approached Miami several years ago, talking about what a great opportunity the hurricane would give the company to raise premiums.)
That claims manager and his soulmates would be disappointed that the U.S. Supreme Court has recently let stand a lower court decision that a plaintiff’s immigration status is not discoverable because the “chilling effect of such discovery . . . unacceptably burdens the public interest.” Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004). Rivera provides precedent for attorneys bringing claims on behalf of immigrants whose immigration status might be in question. New immigrants are disproportionately employed in highly hazardous occupations and suffer injury and death at rates markedly higher than other workers. Too often, immigrant workers forgoe legitimate claims when their rights are violated. Immigrant workers frequently fear that seeking legal advice may adversely effect their immigration status or that their undocumented status might be exposed. By forgoing legitimate claims, injured immigrants are marginalized further when they are unable to obtain and pay for proper medical care and unable to obtain and pay for vocational training which would allow them to reenter the workforce. As a result, the party responsible for their injuries escapes accountability and the cycle of illegal conduct repeats itself. See article at Safety Lex.
Rivera is a labor case rather than a tort case, it is not binding authority in Georgia or in the 11th Circuit, and Georgia courts tend to give little weight to the “commie” Ninth Circuit Court of Appeals. But courts here may consider the reasoning as some persuasive authority in preventing some forms of abuse of injured immigrants in injury litigation.

Critics of Daubert see science as a contentious process, rather than a a set of universal facts deduced by logic, and argue that courts are now demanding more of individual scientists and engineers than is expected of them in their own research and practice. A synthesis of the two views of science can be achieved by recognizing that subjective assumptions and inferences can never be completely eliminated from expert testimony. As a result, expert testimony always amounts, in effect, to conditional statements. An expert’s statements can be considered “reasonable” — or likely, or beyond a reasonable doubt — if, and only if, the assumptions and inferences made by the expert are considered reasonable, or likely.
In Scientific Misconceptions Among Daubert Gatekeepers: The Need for Reform of Expert Review Procedures, published in the Journal of Law & Contemporary Problems, Jan Beyea and Daniel Berger contend that narrow-minded interpretations of Daubert are based on a fundamental misunderstanding of science as seamless objective logic based ondefining “scientific method” as a logical pursuit exhibits the common misconception that scientists “prove” something. Absolute proof is the province of mathematicians, not scientists, and even mathematicians start from unprovable assumptions. . . .

As Georgia lawyers and judges wander into the quagmire of the Daubert Trilogy, we must look behind the curtain of the Wizard of Oz and begin to learn something of the epistomology of science. Insofar as the Daubert decision is based largely upon the Justice Brennan’s summary of the Karl Popper’s premise of theory-testing through falsification, we would do well to consider ideas of those philosophers of science who disagree with Popper.
In The Structure of Scientific Revolutions, Thomas Kuhn took issue with Popper’s premise of theory-testing through falsification. According to Kuhn, it is the incompleteness and imperfection of the existing data-theory fit that define the puzzles that characterize normal science. If, as Popper suggested, failure to fit were grounds for theory rejection, all theories would be rejected at all times.

The United States District Court for the Northern District of Georgia is moving to mandatory electronic filing. Lawyers practicing in that court had to apply for logins and passwords by 1/1/05, and electronic filing will be require as of 7/15/05. Lawyers practicing in federal court — and their key support personnel — must become familiar with the rules governing electronic filing. A Standing Order provides for protection of confidential information in documents filed online and available online.
While federal courts can be a tremendous bureaucratic nightmare for lawyers, particularly those of us in small firm settings accustomed to state court practice, we love electronic filing.
We have been doing electronic filing in our federal cases for several months, and after some period of adjustment have been delighted with it. Electronic filing spares us the stress and expense of sending couriers dashing to the federal courthouse in afternoon traffic, desperately trying to beat a deadline. When we file a brief electronically, opposing counsel is automatically served via email through the court’s system. We have taken every opportunity to tell state trial and appellate judges of the advantages of electronic filing, hoping that they will follow the federal court’s example in this one regard.