Isn’t it ironic? Tort reform campaign fizzles in rash of higher verdicts in conservative counties.
As a personal injury attorney in Atlanta, I was initially one of those who feared the worst when the Georgia legislature passed it omnibus tort reform legislation, Senate Bill 3, in 2005. It was as if the political power structure had done everything it possibly could to kill victims of negligence — and the lawyers who represent them. Some thought it was the death knell for personal injury tort litgation in our state.
However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.
Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.
The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.
Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven’t heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.
A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.
Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County.. There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.
The "loser pays" provision of S.B. 3 — an "offer of setlement" feature in OCGA 9-11-68 which can require a party to pay the other side’s attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer — was designed to intimidate and oppress plaintiffs. However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.
There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.
Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature? Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.
Another hypothesis is that tort reform has forced plaintiffs’ lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.
When that enhanced preparation encounters the most democratic of all institutions in American society — a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case — serious cases can get serious verdicts.
Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck. Today, however, it’s a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases arising from motor carrier accidents statewide in Georgia. Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.