Wrongful death claims in Georgia

Wrongful death claims in Georgia are necessarily emotional. When a family member is killed by someone else’s negligence, grieving survivors often have mixed feelings about filing a wrongful death lawsuit for that death. Certainly no amount of money can bring the departed loved one back. However, a monetary award is the only way that civil law has to recognize the value of the life, compensate for the death, and penalize the party at fault.

Skillful legal advocacy in a wrongful death case can generate funds to care for the family’s real needs and with which the family may appropriately memorialize the life of the departed. Within the requirements of allocation of damages to the spouse and children, survivors can choose to put a monetary award for wrongful death to any good use, whether to support a family deprived of the breadwinner, to educate children, or to fund a charity in the memory of the deceased.

Georgia’s wrongful death law was first enacted before the Civil War. It is one of the most humane wrongful death statutes and body of case law in the United States. Georgia law on wrongful death differs significantly from the wrongful death laws of all neighboring states. In most ways the Georgia law is better, but not always. If the facts provide a choice among different states, we weigh all the options as to where a case should be filed. Under multijurisdictional practice rules, we can handle all matters prior to filing suit in court in all but two states. When necessary to file suit in a state other than Georgia, we associate local counsel and obtain admission to practice pro hac vice in the other state.

In Georgia there are two separate claims that can be made for a death.

“Wrongful death” claim for full value of the life.

First is a wrongful death claim for the full value of life which belongs to survivors designated by statute: spouse, children, parent, or heirs at law depending on the circumstances. It defines the “full value of the life”   of the person who died to include both economic and intangible aspects. Georgia law does not mandate any rigid formula or arbitrary on the damages awarded in a wrongful death case, but rather the “full value of the life” is determined by the enlightened conscience of an impartial jury. Unlike some states, however, the subjective grief of the survivors is not part of the calculation of damages.

The economic aspects of “full value of the life” include the projected lifetime income and benefits and the value of their uncompensated services to family and community, reduced to present value.

In determining the intangible aspect of “full value of the life”  fair and impartial jurors are guided by their “enlightened conscience” in assessing the quality of life, relationships, activities, passions and pursuits, and determine what the experience of living was worth to that person who died. The intangible value of life is not reduced to present value.

“Survival action” for the estate of the deceased.

Second is what courts call a “survival action” because the rights of the decedent survive the death and belong to the estate of the deceased. That claim may be pursued by the executor or administer seeking compensation for the pain and suffering  before death plus the medical and funeral expense. Separate from the wrongful death claim on behalf of designated beneficiaries, the administrator or executor of the decedent’s estate has a claim for the decedent’s medical and funeral expenses, and for conscious pain and suffering before death.

Punitive damages may be awarded in connection with such a survival action on behalf of the estate but not for the wrongful death claim. Experienced legal counsel can weigh the factors in deciding whether to include a punitive damages claim.

Where the decedent died almost immediately after impact but could see what was about to happen, a claim for the mental pain of recognizing impending death may have great value. In appropriate cases, an accident reconstruction can help establish how much time the person had to recognize impending doom before being killed.

The decedent’s family members may choose to pursue both claims or only one of them depending on what makes the most sense under the circumstances. It is entirely appropriate in Georgia for the family, with experienced legal counsel, to pursue both claims, or to choose to file one claim and abandon the other.

Effect of liens.

Medical liens are often a factor in deciding what claims to include in a lawsuit. Liens for medical bills and other debts of the decedent apply to an estate’s claim but not to the wrongful death claim of survivors designated by statute. If there is limited insurance coverage and medical liens, survivors may decide to pursue only the wrongful death claim which is not subject to such liens, or to allocate all but a token amount of a settlement to the wrongful death claim. If liability insurance is ample and liens are light, however, it may be worthwhile to include the estate’s claims.

Valuation.

Because valuation of a wrongful death claim is affected by many factors, including disputed issues of liability, contributory negligence, comparative negligence, assumption of risk, proximate causation and insurance coverage considerations, it is important not to confuse the value of a case with the true value of the departed loved one’s life. We have handled wrongful death cases in which the recovery was $8,000,000 and others in which the recovery was $250,000 or less, all dependent upon the interplay of facts, insurance, and legal issues.

Who has the right to sue for wrongful death?

We often receive inquiries from family members whose rights to recover for wrongful death of a deceased family member are severed by operation of law. Sometimes we can work around these challenges, but sometimes not. It is important to get all close relatives of the deceased on the same page, but if the family is splintered and dysfunctional that can be virtually impossible.

A wrongful death claim in Georgia belongs to survivors who are identified by statute:

– A surviving spouse has the right to sue for wrongful death in Georgia, but must share the recovery equally with surviving children of the decedent. Where the surviving spouse is required to share a wrongful death recovery with the decedent’s minor child, the child’s share up to $15,000 may be held by the child’s natural guardian without posting a bond. If a minor child’s share of the recovery is $15,000 or more, a guardian of the child’s property must be qualified in probate court, and a bond posted. The bond requirement may be avoided if the probate court approves a structured settlement with annuity payments going to the child after attaining age 18, with the cash held by the child’s natural guardian remaining less than $15,000.

– If there is no surviving spouse, the right goes to surviving children. If the surviving spouse is missing, a court may permit the children to pursue the death claim alone.

– If there is neither a spouse nor child surviving, then the decedent’s parents have the right to sue under Georgia law. If the parents of a deceased child are divorced or living apart, the trial court has full discretion to allocate the wrongful death recovery between them, considering any pertinent factors. There have been cases of an uninvolved absentee father being limited to as little as one half of one percent of the total recovery for the wrongful death of a child.

– In the absence of a surviving spouse, child or parent, the administrator of the decedent’s estate can sue on behalf of the next of kin. Even if the next of kin is a minor, e.g., a sibling, an anomaly in current Georgia law requires that an administrator file suit on behalf of the minor beneficiary within two years from the date of death rather than tolling that time limit due to the child’s age.

Call us today at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.


Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower, father of two adult children, and an elder in his church. When time permits, he enjoys travel, backpacking and scuba diving.

 

Civil immunity for Covered Countermeasures in fight against COVID-19

COVID-19 has thrust us into a global crisis unprecedented in the century since the Spanish Flu epidemic of 1918-19. It is not merely disruptive in our daily routines. It involves life, death and enormous hardship in massive scale, probably for a prolonged time.  In this new reality, some of the routines dealing with individual injury cases may be eclipsed by a near term future we did not anticipate just a few weeks ago.

The “new normal” after the end of this pandemic is impossible to discern. Some pundits have emphasized hope that after the entire population passes this crucible of shared hardship and existential threat, we might emerge a kinder, more empathetic, more cooperative and public spirited nation, less torn by toxic partisanship. This will be the central formative experience for the generation forced home from school. Despite some examples of irresponsible spring break conduct, some guess that this may lead to a “Greatest Generation 2.0” in response to shared crisis. Others fearfully predict a dystopian future reminiscent of a Mad Max movie. Reality may be somewhere between those two visions.

One thing is certain. As with every cataclysmic event, legal controversies will flow from this crisis.

Already there is a declaration from the Secretary of Health and Human Services providing immunity from liability for certain individuals and entities against covered claims of loss relating to the manufacture, distribution, administration, or use of medical countermeasures (“Covered Countermeasures”), except for claims involving “willful misconduct.” This was done under the authority of the Public Readiness and Emergency Preparedness Act of 2005 (“PREP Act”), codified at 42 U.S.C. §247d-6d, and is retroactively effective beginning February 4, 2020.  Tthere precedent supporting this immunity. See, e.g., Parker v. St. Lawrence County Pub. Health Dept., 102 A.D.3d 140 (3rd Dep’t 2012) (finding federal preemption over Plaintiff’s state law claim based on the unconsented vaccination of a minor during the H1N1 epidemic).

This immunity from liability applies to manufacturers, distributors, program managers, “qualified persons” (any person authorized to prescribe, administer, deliver, distribute or dispense the Covered Countermeasures), and their officials, agents, and employees authorized to prescribe, administer, deliver, distribute or dispense any antiviral, drug, biologic, or vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19, the transmission of SARS-CoV-2, or a virus mutating therefrom, or “any device used in the administration of any such product, and all components and constituent materials of any such product.”

Activities covered by this immunity from liability include manufacturing, testing, development, distribution, administration, and use of the Covered Countermeasures.

The COVID-19 Declaration is effective as of February 4, 2020 through October 2024, unless extended.

The purpose of the COVID-19 Declaration  is to permit the special use of drugs and other medical products during the COVID-19 pandemic that either have not yet been approved/cleared by the FDA or may be used off-label without the risk of liability in the event of a covered injury or loss. Under the PREP Act, if there are injuries as a result of Covered Countermeasures relating to a public health emergency, the relief available can be found via the Countermeasures Injury Compensation Program (“CICP”), which is charged with establishing a fund for such injuries.

“Covered Countermeasures” include anything used against the pandemic or against adverse events from these products, including antivirals, drugs, biologics, diagnostics, devices, vaccines used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials. These must be a qualified pandemic or epidemic product authorized for investigation or emergency use as defined in the PREP Act, the Food and Drug Cosmetic Act (“FDCA”), and the Public Health Service Act (“PHSA”).

The scope of immunity is not all-encompassing or absolute. Key limitations/qualifications on immunity protection are:

  1. Some form of premarket approval is required. The Covered Countermeasure must be approved or cleared by the FDA under the FDCA; licensed under the PHSA; or authorized for emergency use by the FDA under applicable provisions of the FDCA.
  2. Must be qualified pandemic or epidemic products, security countermeasures, or drugs, biologics, or devices authorized for emergency or investigational use.
  3. Only for “recommended activities” involving Covered Countermeasures related to present or future federal contracts or other federal transactions or agreements, or activities authorized by authorities with jurisdiction to prescribe, administer, deliver, distribute, or dispense Covered Countermeasures following an emergency declaration.
  4. Does not apply to death or serious physical injury caused by willful misconduct.
  5. Not available for foreign claims.
  6. Claim must arise from conduct that is directly related to the development/distribution of a Covered Countermeasure.

We may reasonably anticipate that bad things will happen, and sneaky people will claim immunity to which they are not legitimately entitled.  Those issues will be fought out in court.

——————

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Recently he moved his  law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862.

How does the COVID-19 pandemic emergency declaration affect truck crash cases?

History is replete with episodes of epidemics  that devastated cities, nations, and civilizations. Bubonic plague, cholera, smallpox and influenza have killed untold hundreds of millions in waves of devastation over the millennia. Now we see the approach of a Category 5 hurricane of a pandemic called COVID-19, praying that it will not be as bad as predicted.

The worst effect will the many deaths and serious but not fatal illnesses. Prediction vary wildly of how many Americans will be infected, how many of those will become ill, and how many will die. But it is becoming clear that for at least a couple of months, and perhaps much longer, our lives will be radically altered through “social distancing,” school closings, working from home, devastating losses to retail stores, restaurants and other business, etc.

To keep hospitals supplied, grocery stores stocked, fuel tanks filled, mail and online purchases delivered, trucks must keep running. As any trucker will tell you, if a truck doesn’t deliver it, you don’t get it. We should appreciate the work good truckers do.

The frequency of truck crashes may decrease during the period of pandemic emergency simply because overall traffic is reduced. If many people are working at home and travel is almost eliminated, there will be fewer cars that could be hit by tired truckers.

But there will trucking accidents anyway. Understanding of how trucking rules are changed due to the state of emergency is important when we are called upon to represent victims in those crashes.

Under President Trump’s Emergency Declaration, rules governing motor carriers and drivers are temporarily changed in several significant ways if they are providing direct assistance in support of relief efforts. Direct assistance includes deliveries needed for immediate restoration of essential services, such as medical care, or essential supplies such as food, related to COVID-19 outbreaks during the emergency.

This Emergency Declaration provides regulatory relief for commercial motor vehicle operations that are providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for:

(1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;

(2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants;

(3) food for emergency restocking of stores;

(4) equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;

(5) persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and

(6) persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

Direct assistance does not include routine commercial deliveries, or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks.

Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of emergency relief efforts related to the COVID-19 outbreaks or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. 49 CFR 390.23(b).

Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, the motor carrier and driver are subject to the regular safety rules limiting work hours to mitigate fatigue, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location.

However, if the driver informs the motor carrier that he or she needs immediate rest, the driver must be permitted at least 10 consecutive hours off duty before the driver is required to return to the motor carrier’s terminal or the driver’s normal reporting location.

Once the driver has returned to the terminal or other location, the driver must be relieved of all duty and responsibilities and must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers.

Nothing contained in the Emergency Declaration can be construed as an exemption from the controlled substances and alcohol use and testing requirements, the commercial driver’s license requirements, the financial responsibility (insurance) requirements, the hazardous material regulations, size and weight requirements, or any other portion of the regulations not specifically exempted under to 49 CFR § 390.23.

Motor carriers or drivers already subject to an out-of-service order are not eligible for the relief granted by this declaration until they have met the applicable conditions for its rescission and the order has been rescinded by FMCSA.

When catastrophic truck crashes do happen during the pandemic emergency, many of the rule violations that we use to establish accountability will not be applicable. However, we will know where to focus. A few preliminary thoughts about how to proceed when we are hired by the victims (and their survivors) of catastrophic truck crashes in the time of pandemic:

  1. While maintaining social distancing to prevent spread of the virus, interview clients and witnesses through videoconferencing technology, e.g., Facetime, Skype, Zoom, Facebook Messenger video chat.
  2. Download police crash reports through BuyCrash.
  3. Send records retention letters, by email when possible, tweaked to recognize the changed circumstances. The usual “spoliation” letters will be altered to focus on what freight was being transported to determine whether the emergency exemptions to normal rules may apply. Anticipate that insurance companies may seek to portray every delivery as an emergency delivery, even if it is not, so be prepared to pierce through any misrepresentations.
  4. If a temporary restraining order (TRO) is needed to preserve evidence, e-file it and contact the presiding judge of superior court in the subject county by phone and email. Draft the TRO to allow more time than usual and protocols to preserve social distancing. I would argue that the Declaration of Judicial Emergency by Georgia’s Chief Justice Melton implicitly supports extending the usual time limits in TRO’s. At the same time, anticipate the argument that in time of emergency the trucking company may need to get its equipment back into service to make emergency relief deliveries.
  5. Stretch out timelines for litigation, e-filing lawsuits in a manner to allow ample time for extending deadlines.
  6. When filing suit, e-file early and allow plenty of time to complete service of process. Consider use of requests for waiver of service delivered by email using delivery and read receipts, and perhaps with longer than the usual minimum 30 days time allowed for response and stating an extended time filing an answer in court.
  7. Until the pandemic ends, prepare to use video conferencing for any conferences, depositions and hearings.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Effective January 2, 2020, he moved his existing law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862. 

 

A calling to transform lives

Transformation of  lives of clients and their families is part of my calling in law practice. While money is the quantitative measure of success, whenever possible I also try to guide outcomes in a way that will redirect the trajectory of life for clients and their families. A recent case is a good example.

Recently we handled a case for a 30-year-old single mom from a less than privileged background. She had struggled to put herself through a Certified Nursing Assistant (CNA) program. When injured, she was working as a CNA and living paycheck-to-paycheck with her daughter in a modest apartment. Then,  in a catastrophic crash she lost a leg at the knee. After three years of litigation, our team recovered roughly $6.5 million for her.

Many lawyers would just cut a check for the net proceeds after deduction of fees, expenses and liens, and say, “good luck.”  Too often we hear stories of people who come into a large amount of money and in a couple of years are broke. That is not our approach.

When people come into an unaccustomed amount of money, friends, relatives and new lovers often appear on the scene with “great ideas” for use of the money. Without careful management, the funds that were intended to take care of a victim for life soon evaporate.

This young woman’s settlement is illustrative of what we try to do when possible. The bulk of her money was placed in a trust to protect her from  creditors and predators.

A portion of the funds were used to buy this “forever home” which will be held in her trust. It is a lovely house in a safe neighborhood, built in 1937 but completely updated. Renovations include an open floor plan, handicapped accessibility, and new plumbing, electric, HVAC, roof, siding, windows and floors. It is a good place to raise her child.

She will also use a portion of her recovery to return to school with a goal of becoming a Registered Nurse (R.N.). I expect that with a great heart and her life experience with catastrophic injury, she will be a blessing in the lives of many of her future patients.

Her increased financial capacity will also, I expect, improve the life prospects of her daughter.

I hope that she finds love again. If so, the trust will be a buffer against the temptation to let a future love to mismanage and erode her funds.

We have had many cases over the years in which lives were transformed for the better. Examples include:

  • A  bright 13-year-old girl had a case for the death of her father. She was about to enter eighth grade at an inner city school. With her mother, she chose a structured settlement that would fund her education first at an elite prep school, and then through college and graduate school. After completing her education she would also get a lump sum sufficient for a down payment on her own home. That set a new trajectory at a critical point in her life.
  • When the oldest child in a family with several children was killed in a tractor trailer crash, we recovered for the parents the funds to pay for college of the younger children.
  • When another single mom who worked all day at a keyboard had an injury that made that impracticable, we got enough money to fund the business she had always dreamed of starting.

We don’t always get this satisfying an outcome. Some financially unsophisticated clients resist efforts to help in ways other than purely monetary. Some of them run through their money and are broke again within a few years. If that happens, at least we warned them in writing about that potential and tried to counsel them.

There are other clients who clearly have enough experience and sophistication that I don’t worry about their ability to handle money.  Examples include:

  • A small business owner who has demonstrated ability to manage his business and finances. He used his injury settlement to expand his going business.
  • A couple who were already working with a financial adviser. They used their confidential settlement to advance their retirement by a couple of years and become more active in charitable work in their community.
  • An 18-year-old who took the initiative before settlement of his case to set up a meeting with a wealth management officer at a financial institution. He authorized the broker to send me copies of monthly statements until he finished college, then began his  own career in the financial services industry.

This is not just a job. It is a calling to transform lives.


Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Effective January 2, 2020, he moved his existing law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862. 

 

Ethylene oxide emissions from Sterigenics plants in Smyrna & Covington linked to cancer

Image result for ethylene oxide

Ethylene oxide

Sterigenics plants in Smyrna and Covington, Georgia, have long used ethylene oxide in sterilization of medical equipment. The Environmental Protection Agency air assessment from last year found several census tracts around those plants had significantly increased cancer risks due to ethylene oxide. The EPA recently concluded that the gas is dangerous at lower levels than previously believed.

Ethylene oxide is an organic compound with the formula C2H4O. A colorless and flammable gas with a faintly sweet odor, it has many uses in industry but is not safe for household use. At room temperature it is a flammable, carcinogenicmutagenic, irritating, and anaesthetic gas.

There is evidence from both human and animal studies that inhalation exposure to ethylene oxide can result in a wide range of carcinogenic effects. The International Agency for Research on Cancer classifies ethylene oxide into group 1, meaning it is a proven carcinogenEthylene oxide is classified as a class 2 carcinogen by the German MAK commission and as a class A2 carcinogen by the ACGIH. A 2003 study of  women exposed to the chemical while working in commercial sterilization facilities suggests ethylene oxide is associated with breast cancer incidence.

In 2015, Sterigenics reported emissions ethylene oxide from its Smyrna plant of  3,574 pounds. After federal regulators definitively linked ethylene oxide to cancer in humans in 2016, the company’s self-reported emissions of the chemical dropped to 226 pounds.

Due to past emissions data submitted by Sterigenics, t the federal Environmental Protection Agency to project an elevated risk of cancer in surrounding neighborhoods. Similar cancer clusters were reported near a Sterigenics plant in the Chicago area.

All cases involving cancer allegedly caused by chemical exposures are highly complex and involved an enormous amount of scientific analysis and expert witness testimony. These are not intersection collision cases.

We have begun to sign up Sterigenics cancer cases as victims and their survivors from the neighborhoods surrounding these plants have contacted us. As with any case involving complex science, we work with an experienced team to properly analyze and develop the scientific and medical evidence.


Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

New blood test may aid rapid diagnosis of traumatic brain injury

For decades I have  represented people with so-called “mild” traumatic brain injuries. A “mild” traumatic brain injury  (TBI) may be defined as one affecting someone else’s family, not your own.

These typically involve a concussion, with or without a loss of consciousness. Emergency medical personnel and emergency department physicians often focus primarily on more obvious physical injuries. If there are visible and immediately life threatening injuries, broken bones or internal bleeding, that is the focus.

Subtle but life altering brain injuries are easily overlooked. Unless there is a gross brain bleed readily visible on a CT scan of the brain, it may be missed. Microscopic level changes to the brain such as diffuse axonal shearing may not be visible for years, often not until autopsy after death. The dangers of post-concussion syndrome have gained great public attention through the class action for former professional football players whose concussions year ago led to complications such as cognitive impairments, depression, and increased vulnerability to subsequent concussions.

Until now, if there was no gross anatomical injury or brain bleed visible on a brain CT scan, the diagnosis of concussion was often subtle, subjective and easily missed. The standard diagnostic protocol has involved physical examination, a series of screening questions for cognitive and neurological symptoms, e.g., “who is the President,”  and often a CT scan to diagnose TBI.

But while CT scans are currently the  standard of care in checking for acute bleeding or swelling in the brain, nearly 30% of patients with a normal CT scan showed signs of TBI when when doctors follow up with an MRI scan. However, MRI is more expensive, slower to produce reports, and not available everywhere. Missing a diagnosis or waiting days for one could have significant consequences.

However, according to a study published this week in Lancet Neurology, many concussions may be detected quickly with a blood test. The study reports that many patients whose concussions are not detected on CT but are detected on MRI have an elevated level of the brain-specific protein glial fibrillary acidic (GFAP). Thus, elevated GFAP may be used as a biomarker to help physicians detect TBIs.

The study used i-STAT™ Alinity™ device from Abbott Laboratories. This is a handheld, portable blood analyzer that produces test results in minutes by measuring the patient’s GFAP protein level.  Such rapid diagnosis might be able to fill a significant gap in emergency departments, sport fields and battle fields.

The i-STAT Alinity device is available outside of the U.S. and is not yet commercially available in the U.S. If it works out as hoped, and is approved by the FDA, this new test could speed diagnosis and treatment of traumatic brain injuries, reducing the critically important time required for diagnosis and treatment of TBI.


 

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

 

 

 

Ken Shigley earns third national board certification – in Truck Accident Law

Ken Shigley of Shigley Law LLC, based in Atlanta, Georgia, recently earned his third national board certification, in Truck Accident Law, from the National Board of Trial Advocacy. Certification is based upon exhaustive testing, documentation of extensive experience in the field of trucking accident litigation, writing samples, and professional recommendations from lawyers and attorneys familiar with the applicant’s work.

The National Board of Trial Advocacy operates under authority of the American Bar Association.   “There is no dispute about the bona fides and the relevance of NBTA certification…. Disclosure of information . . .  both serves the public interest and encourages the development and utilization of meritorious certification programs for attorneys.” U.S. Supreme Court Justice Stevens in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 110 S.Ct. 2281 (1990). Mr. Shigley previously attained NBTA board certification in Civil Trial Law (1995) and Civil Practice Law (2012).

Why hire a board certified attorney? 

 

Truck Accident Law deals with the procedural, substantive and practical issues unique to collision cases involving commercial tractor trailers, buses and other commercial motor vehicles and all of the people and entities in the transportation cycle.

The trucking industry is comprised of 3.5 million professional drivers. The size and weight of commercial motor vehicles and trucks in an accident cause significant damage to drivers, passengers and property. The US Department of Transportation reports that there are around 500,000 trucking accidents each year. According to the National Highway Traffic Administration approximately 4,000 people die and 104,000 are injured annually. One out of every eight traffic fatalities involves a truck collision. Trucking is regulated by the Federal Motor Carrier Safety Administration, a division of the US Department of Transportation.

Shigley is a member of the Board of Regents of the Academy of Truck Accident Attorneys.  ATAA recognizes attorneys who have documentable knowledge, real experience and proven results in handling truck crash cases so that victims can choose lawyers with confidence. It provides lawyers who handle truck crash cases for victims with the very best cutting edge education and resources available to both improve their knowledge and skillset.  Lawyers can claim to be anything in TV ads, on the Internet or in promotional material, but every ATAA Board Certified member has been thoroughly vetted and tested.

The National Board of Trial Advocacy provides board certification for attorneys who have demonstrated skill and expertise in a particular field and have proven it through rigorous examination and testing by the NBTA. The NBTA is one of the organizations accredited by the American Bar Association to demonstrate that lawyers certified have an enhanced level of expertise and substantial involvement in the specialty area of certification. The standards are designed to enable the NBTA to evaluate thoroughly the objectives, standards and procedures of attorneys and to facilitate public access to appropriate legal services.

Similar to the medical profession in which the body of knowledge is so large that it’s impossible for one doctor to remain current in all specialty areas, the body of law has grown so large and complex that attorneys can no longer be all things to all people. Unlike the medical profession, which has embraced specialization and specialty certification, the legal arena has been slow to acknowledge publicly what it has known for years: nearly all lawyers specialize but do so without substantiation beyond “reputation” or simply saying it is so.

Mr. Shigley’s two prior NBTA board certifications are Civil Trial Law (1995) and Civil Practice Law (2012). 

Civil Trial Law may include civil litigation, personal injury litigation, and any other type of litigation that is not criminal in nature, such as property disputes, construction or insurance claims and a wide array of other civil controversies. Second, usually money damages are at stake in civil litigation.

Despite what is seen on television dramas, cases do not always have to go to trial. However, it is impossible to know in advance which cases will settle and which will go to trial, and because settlement amounts reflect predictions about the most likely result if the case is tried, it is wise for people to hire well qualified trial attorneys to handle their claims or defense of claims whether they think the case will be tried or settled out of court. It is important to understand

Trial attorneys must have knowledge,experience, great communications skills and a thorough understanding of group decision making dynamics and persuasion. In trial practice a misstep can end a case, so having a trial attorney who is making his trial debut may be dangerous, especially in a case involving substantial damages.

Civil Practice Law certification involves preparing and resolving cases before trial, including litigation proceedings from inception of litigation through discovery, pretrial motions and hearings, and alternative dispute resolution procedures in all areas of substantive law before state courts, federal courts, administrative agencies, and arbitrators.

 

 


Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley has earned three national board certifications from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Confidential Settlements – bad secrecy or good privacy?

Though common in litigation, confidential settlements can be controversial.

While confidentiality agreements had help expedite settlement, there are concerns that secret settlements can work against public safety by covering up health and safety hazards. As with much in life, the hardest choices are not between good and bad, but between good and good, and between bad and bad.

Under a confidential settlement agreement or order, some or all terms of a settlement are kept secret. Defense lawyers routinely include a confidentiality clause in a proposed release when there is a large settlement. Sometimes it is a throwaway item in a boilerplate document. In other cases they hang tough on confidentiality.

For defendants and their insurers, there are several obvious reasons to seek confidentiality of settlements. Especially in cases in which multiple future claims are likely, such as allegedly defective manufactured products or allegedly widespread conduct, they may seek confidentiality of settlements so as not to encourage additional claims or impair business reputation.

Public safety advocates criticize secret settlements that hinder the ability to identify threats to public health and safety and hold wrongdoers accountable. As Justice Brandeis noted, “[s]unlight is the best of disinfectants.” Where a case involves the potential for widespread public hazards due to product defects or systemic misconduct, there is good reason for plaintiffs to resist secrecy. In the discovery context, there are many factors to consider that are beyond the scope of this discussion of settlements.

Regarding settlement, plaintiffs’ lawyers should: (1) discuss secrecy concerns for public interest in advance with clients; (2) remember that a settlement agreement filed with the court is itself a public record; (3) insist that the settlement comply with states laws, court rules and ethics rules; (4) insist on plaintiff’s ability to disclose settlement to government agencies, accountants, bankers, and financial advisors. See Leslie A. Bailey & Amy Radon, “Confronting Court Secrecy Issues from Discovery through Settlement: Measures to Protect Both Your Client and the Public Interest.”

Defendants may also desire confidentiality of settlements when plaintiffs’ lawyers have figured out a legal strategy that, if widely known in the legal community, could disrupt a multi-billion dollar business model. We have been involved in that repeatedly over the past thirty years but can’t talk about it.

Public safety concerns about confidentiality tend to be less when the cases arises from a single highway collision that, if reported in the media, could impact a defendants’ business but would not leave members of the public exposed to greater danger.
Plaintiffs often just go along with a confidentiality clause in settlement just to get their money sooner. However, it is not always just a matter of convenience. Plaintiffs recovering large amounts of money may desire confidentiality as much as the defense.
If a large settlement is publicized, it can affect relationships with friends, relatives and neighbors who might resent what they see as a financial windfall. Relatives and friends may suddenly come out of the woodworks as soon as they smell money. Investment advisors and charities may besiege the plaintiffs who have come into big money. It is common to agree to confidentiality of a settlement where client quietly lived in a small town and did not want their sudden wealth to distort relationships with friends and neighbors.

We once had a simple, uneducated, unsophisticated client from a rural county who had enough folk wisdom to recognize his vulnerability to such entreaties. In addition to confidentiality of the settlement, he opened a bank account two counties away from home, with a bank that did not have a branch in his home county. Both his initial cash disbursement and monthly settlement annuity payments were automatically deposited in that account. Disconnected from the community where he and all his relatives lived, there was virtually no risk of anyone he knew learning about his vastly improved financial status. He remained in the 150-year-old log cabin that been his family’s home since pioneer days, though considerably upgrading it inside. He worked a while longer to qualify for a state pension, then with a nephew started a “you pick ‘em” berry farm on the family land. With his confidentiality protected, he was able to live unobtrusively and undisturbed by greedy people for the remaining 25 years of his life.

Another client whose son died due to an obscure brake design defect was an immigrant from a Third World country that was emerging from a brutal civil war when we settled his case. As he came from a politically prominent family in his home country, he had an opportunity to take a cabinet position in the new government of his nation. The brutality of the losing side of the civil war was legendary so there were serious concerns for personal safety if anyone back home knew that he was a millionaire. The defendant auto manufacturer also wanted confidentiality of our settlement for all the usual reasons. After determining that ours was the only known incident in the country arising from that brake defect, and that the defect was corrected in all subsequent model years, we determined that the risk to public safety was remote. Thus, we and the manufacturer’s attorneys made a joint motion for a confidentiality order and to seal the court file. The client then returned to his home country to explore his options for public service. However, he determined that due to endemic corruption he preferred to return to Georgia and buy a business.
The terms of a confidentiality clause are negotiable. For example, in one recent case that was settled for $8,000,000, in which both sides wanted confidentiality for different reasons, we included the following language:

In consideration of $100 of the total amount set forth in Paragraph 2.0 of this Agreement, the undersigned agree and acknowledge that the terms and provisions of this Agreement, with respect to the actual amount paid, shall be kept in strict confidence, from inception of the agreement, moving forward. The undersigned further acknowledge and agree that the settlement amount may be revealed only with the written permission of Defendants and Insurer. The only exceptions to this promise of confidentiality are that a party may, without securing the prior written permission of the opposing parties, provide information about this Agreement and the settlement it memorializes as follows:
a. to the Internal Revenue Service or the Georgia Department of Revenue upon request; b. to the court in any proceeding to approve or enforce the terms of this Settlement Agreement so long as the Settlement Agreement is filed under seal;
c. to a health insurance company, health care professional, or others asserting a claim for subrogation or reimbursement for medical expenses paid;
d. as required by any governmental agency or by process of law, so long as the party(s) provides opposing parties with written notice via certified or statutory overnight mail of such governmental agency requirement or process of law and grants the opposing parties an opportunity to contest such governmental agency requirement or process of law in advance of any disclosure by the party(s) and, further, so long as any entity receiving that information is informed of this confidentiality agreement prior to the disclosure of information protected by it; and
e. to a party(s)’s attorneys, professional accountants, and financial advisors, spouse or professional tax consultants with whom that party(s) have a confidential relationship.
f. Counsel for Plaintiff may report the fact and amount of this settlement to any verdict database and in firm marketing materials, though without revealing the names of the parties, defense counsel, Insurer, county of venue, or the date or location of the subject incident.
If the undersigned is asked about any claim described in the recitals or released in Section I of this agreement, the undersigned may respond that “The case has been resolved” or words to that effect.

Blatant violations of confidentiality agreements and orders are relatively rare, in part because the consequences of violation are a deterrent. Remedies available for breaching a confidentiality clause are generally the same as those awarded for other contractual breaches. Nominal or compensatory damages may be awarded in appropriate cases.

Because proof of damages for breach of confidentiality is difficult, such contracts often include a provision for liquidated damages in amount sufficient to deter violations. Most courts have refused to award punitive damages.

Lawyers drafting confidentiality agreements may specify remedies including monetary liquidated damages, injunctive relief, costs, or attorneys’ fees. Liquidated damages amounts should not be so high as to be deemed punitive and thus potentially void.

If it is a confidentiality clause of a contract, that is governed by the same legal rules that govern other types of contracts. That is why settlement agreement often include a consent confidentiality order. But if the confidential settlement becomes an order of the court, the order itself ordinarily becomes a public record. One method to assist in keeping the terms confidential is to have the official record sealed. We have agreed to that where the plaintiff had strong reasons to desire confidentiality. In such cases, the court should independently weigh the need for privacy against the public’s interest in having access to public records.

When parties to subsequent cases seek discovery of prior settlements, confidentiality of settlements is challenged. Some courts allow discovery of confidential settlement agreements only where there is a particularized showing of a likelihood that admissible evidence be generated by the discovery of the terms of the settlement agreement. Other courts have allowed discovery of confidential settlement agreements, provided the party seeking discovery demonstrates that the information is relevant.


Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

 

Tradition of Excellence Award: “The Calling to Become a Virtuous Lawyer”

On June 7, 2019, Ken Shigley was presented the Tradition of Excellence Award by the State Bar of Georgia General Practice and Trial Section. It is a lifetime achievement award given annually to four lawyers and judges with long experience. Many  prior recipients of the award were more illustrious and deserving. Mr. Shigley’s acceptance remarks follow:


The Calling to Become a Virtuous Lawyer

Good morning and thank you. Those of us receiving this award may have one thing in common. We have outlived our severest critics as well as many dear friends and loved ones.

Forty-two years ago yesterday, Judge Robert Noland swore me in as member of the Bar at the 1956 Douglas County courthouse that is now a “midcentury modern” museum. I wish he and his dear Betty could be here today.

The person I most wish could be here is my bride, Sally, who was my best friend and cheerleader for 35 years, and beat me on the race to the Father’s house two years ago after a 29-year sojourn with recurring brain tumors. She is with me in spirit. Our good son, Ken Jr., and his bride, Jessica, are here. Our amazing daughter, Anne, and her husband, Steve, could not make it from New Hampshire. That’s a long trip for breakfast.

Since these remarks will be published, and some younger lawyer starting out might read them, I will resist the temptation to just tell jokes and war stories.

We can make a good living in law, sometimes a very good living. But we should never forget that law is much more than a way to make money. It is not just a job or a business, but a calling. Viewed with the right perspective, the law can offer among the best opportunities to help people who are hurting and to temper and resolve human conflict.

However imperfectly, as we pursue our calling we should strive to incorporate into personal and professional life the classical virtues. You won’t always get it right – I surely haven’t – but we should keep these as our aspirational goals.

1. PRUDENCE (PRACTICAL WISDOM). The prudent lawyer can recognize that the perfect is often the enemy of the good, and that the hardest choices are not between good and bad but between good and good and between bad and bad.

In my first year as a lawyer, an old attorney told me three rules for the practice of law.

  • Always get to office early on Monday because people who have been stewing about their problem all weekend will hire the first lawyer they can find Monday morning. The 2019 version of that might be a 24/7 case intake system to promptly capture prospects.
  • Never let the sun set on your client’s money. When you get it in, get it out to the client. In 2019, that must include proactive dealing with liens so the client has her money free and clear when you disburse. I have a paralegal preparing for her bar exam who knows more about minimizing liens than anyone here. Above all, never even consider borrowing even five cents from your trust account. That is the road to hell.
  • Always go to the bathroom before  the courtroom. Some things never change.

To those three old kernels of practical wisdom I would add these:

  • Continue learning and growing. I once knew a lawyer who was very proud that he had not read a book after graduating from Harvard Law School and took no continuing legal education courses beyond the bare minimum required. Don’t be that guy. Read widely both within and outside your practice niche. The minimum CLE requirement is 12 hours per year; aim for 80 or more. Get the best CLE in your practice area you can find. ICLE has a lot of great offerings. There is a lot of good material in online CLE programs you can listen to in the car or in the gym. The best CLE in your niche may be in a distant state. If so, Delta is ready when you are.
  • Master your law office accounting system so that you are not overly dependent on staff, and develop a close relationship with a good CPA.
  • Hire slow and fire fast. Invest in good staff. When you get a good staff person, pay more than the competition and invest in training.
  • If you’re not 15 minutes early, you’re late.

2. FORTITUDE (COURAGE) involves the toughness required to stand resolute for a cause or client and work against all odds to see that justice is done, even at great personal, financial and occasionally even physical risk.

3. TEMPERANCE (MODERATION) is reasonable, common sense, healthy moderation of habits, and maintenance of a healthy balance in professional, personal and family life.

4. JUSTICE embodies a sense of fairness and morality. Though we cannot ignore economic reality, we should not be so totally focused on money that we fail to serve the cause of objective fairness.

5. FAITH motivates us to persevere and to serve even when reason tells us all is lost.

6. HOPE that out of the messy conflicts with which we must labor in the law, something good and worthwhile may somehow emerge.

7. LOVE is that unselfish concern on some level for the welfare of even the most annoying and unlovable clients, witnesses, staff, colleagues, judges, court staff and even adversaries. It should become radically unselfish and gracious, beyond mere feeling, attraction, affection or compassion. Without love, justice turns to cruelty. To manifest love for the unlovable, we need to develop both a kind of dangerous unselfishness and a capacity to exercise “tough love,” urging folks to cut out their foolishness.

Someday all our beautifully framed diplomas and certificates will wind up in a bin at an estate sale. Someone may pay fifty cents for the frames, or they may go in the dumpster. When a neighbor died a few years ago in his nineties, his Wharton MBA was found on the basement floor at the end of the estate sale. When I had an estate sale at my house recently, to downsize two years after my wife passed, some of the professionally framed certificates that I hung proudly on my office wall forty years ago went to the landfill.

Compared to the infinite scale and complexity of the universe, our lives are infinitesimally small and finite. But in this snippet of time and space we occupy, we are called to interpret the moral order of Creation into pragmatic legal solutions for the messy problems presented to us, and to use our skills to temper the chaos to which human nature gives rise.

Being able to recognize this calling and our peace-making and problem-solving abilities may allow us to regain, and live with, a degree of passion and purpose in the face of difficult circumstances and never-ending temptations to ethical compromise.

I know better than anyone that I am not truly worthy of that calling or deserving of this award, but thank you.

Why it is important to immediately hire a real trucking trial attorney after a catastrophic truck crash

When a family member is killed or seriously injured in a crash with a tractor trailer, a normal human instinct is to wait a decent interval before consulting an attorney. Then one may be inclined to take one’s time talking with a hometown lawyer who handles an occasional car wreck case along with divorces, criminal cases and real estate closings.  Meanwhile, trucking companies and their insurance companies are busy burying incriminating evidence.

A recent case in our office illustrates the importance of striking hard and fast to preserve evidence. While a truck crash victim was in ICU at the local hospital for three days, lingering in a coma on the front porch of eternity, a relative reached out to one of my colleagues who immediately brought me into the case.

While the undamaged truck  was still in police impound, we immediately filed a petition in the Superior Court of the county where the crash occurred for temporary restraining order to lock down a long list of physical and electronic evidence for expert inspection. We recovered telematic data that proved the truck was going 10 MPH over the speed limit, still accelerating, until it crashed into a line of cars stopped at a red light.

We also recovered from the truck dashcam and driver view video. It dramatically showed in split screen the truck speeding into the line of stopped cars without slowing or braking while the truck driver idly gazed around with bleary eyes. That video concluded with our victim’s car exploding into the truck’s windshield.

If we had not acted quickly to obtain a court order to preserve evidence, much of that critically important data would have been “lost” and we never would have seen it.

I really wanted to try that case before a jury. Our focus groups felt the case was worth an impressive amount in “high eight figures.” But the clients chose to accept a confidential settlement in the “high seven figures” rather than go through the emotional ordeal of trial. I cannot argue with the family’s choice for quiet closure.

Standard operating procedure for trucking companies and insurers is to send a rapid response team to the crash scene before the vehicles are removed, sometimes before an ambulance can remove a victim. The rapid response team generally includes a defense lawyer, investigator and accident reconstruction expert. They work under the cloak of trial preparation under the supervision of legal counsel in an effort to keep their work secret.

When a victim’s traumatized family is in a hospital vigil or planning a funeral, the trucking company’s insurer has a rapid response team combing over the evidence. They may persuade police investigators to see the defense point of view and quietly delete telematics and video data that would be damning.

By the time the victim’s family hires a lawyer who knows anything about litigation of serious truck accident cases, the most important evidence may have disappeared. We have had cases where truck driver logs and other critical evidence was “lost” while State Troopers were focused on directing traffic and removing debris from the highway and a rapid response team combed over the truck.

Another mistake that families of victims often make is to choose a lawyer who does not litigate serious truck crash cases. That may a good hometown lawyer who handles regular car wreck cases but does not have expertise in trucking. Or it may be a “personal injury settlement mill” that advertises heavily but just tries to flip cases fast to get the easy money without of serious work.

That includes law firms that run expensive television ads and billboards with pictures of big trucks. They may claim to have legions of trucking lawyers, but are not involved in any of the national organizations of trucking law experts and do not do the serious work involved in such cases. If those firms can’t settle easily, they may associate a trucking specialist, but by then evidence is likely lost.

Too often families of crash victims, not knowing any better, hire a lawyer who solicits them directly or through an agent or “runner” in the days after the crash. Such solicitation of victims is an ethical violation punishable by disbarment in Georgia. If you want to hire a lawyer who is willing to commit a major ethical violation in order to get the case, remember that when you lie down with dogs you get up with fleas.

The Academy of Truck Accident Attorneys is a great place to find a real trucking attorney.

If a family member is the victim of a catastrophic truck crash  in the Southeast, call us at (404)253-7863.


Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.