New York courts have amended lawyer advertising rules to allow attorneys to tout their "bona fide professional ratings" — another example that New Jersey could be out of step if it adopts a proposed ban on services like "Super Lawyers."  Florida, Arizona and Philadelphia have said Super Lawyers or Best Lawyers ads are ethical.  Such listings are permitted in Georgia under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, which provides the rule against comparisons does not apply if the comparison "can be factually substantiated."  I include such designations in my CV, but frankly it’s a little like being a member of Mensa, the "high IQ" club.  Once you’re accepted you don’t care much about it any more.

When the Georgia General Assembly rushed two years ago to pass Senate Bill 3,  the sponsors could not be bothered with the tedious and time consuming committee work of careful legislative drafting, reflection, discussion and revision.  The result is the legislation is being picked apart piece by piece. The Court of Appeals has dissected a contradiction in the new rule on who may testify as an expert in medical malpractice cases.  

See discussion below.

A recent confidential survey of commercial truck drivers reports that 77 percent admitted to deliberately violating the hours of service regulations in the past, and that 55 percent said they were still breaking the rules.  Drivers report that the most common violation is logging time as off-duty when actually on-duty (78 percent). Other common violations included using more than one logbook (21 percent), logging violations correctly in hopes that they will not be noticed (17 percent), and indicating that a team driver is operating the vehicle when they really are not (11 percent). Respondents report an average of six days per month of intentional violations and five days per month of unintentional violations.Nearly 17 percent of the respondents felt it necessary to violate the HOS rules in order to earn a reasonable income, while 38 percent strongly disagreed with that assumption. Thirty-eight percent said that their company expects them to violate the regulations as part of their job. Some 68 percent thought that law enforcement officers do not know how to relate to commercial motor vehicle drivers. Among the reporting drivers, 11.2 hours was the average estimate given for the reduction in driving hours over seven days if logbooks couldn’t be "adjusted."

The survey does not report, however, the extent to which these violations are due to pressure from trucking companies and shippers who insist that drivers fulfill legally impossible delivery schedules.  I have talked with many hard working truck drivers who have told me stories of trucking companies letting them know that if they didn’t make deliveries on an impossible schedule, the company would find a driver who would. They have told of shippers releasing loads many hours late, but insisting that the drivers get to destinations at times that could not be done without grossly violating the hours of service and fatigue regulations. I think most truck drivers are just working guys struggling to make a living in a tough business while under tremendous pressure to do the legally and physically impossible.

Of course, when the inevitable happens, the trucking company claims it had no idea a "rogue driver" was driving twice the number of hours legally permitted, even though the company could clearly see the trips for which the driver was dispatched and the time required to complete those trips.  Often trucking companies are willfully and deliberately blind to the effect of the orders they give the drivers until a tragedy occurs, and then they blame the driver who was following orders. And, if a truck driver, tries to blow the whistle on such practices, he may be blackballed in the trucking industry.

Fortunately no one was injured when the driver of an 18-wheeler mail truck fell asleep on I-75 near Macon at 3:30 AM, over-corrected when he woke with a start, and went over an embankment.  However, two of three northbound lanes were closed several hours and the GA DOT will have to replace a guard rail.  All too often we see such incidents result in serious injuries including fatalities. 

 49 C.F.R § 392.3 provides:

No driver shall operate a motor vehicle, and a commercial motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.

49 C.F.R. § 390.13 requires that " No person shall aid, abet, encourage, or require a motor carrier or  its employees to violate the rules of this chapter."

49 C.F.R. § 395.3 spells out the hours of services rules, which I won’t repeat here.

However, we also see retired FMCSA officials, who have gone through the "revolving door" to serve as shills for the businesses they used to regulate,  coming in to testify as expert witnesses for the defense, claiming that the fatigue and hours of service regulations don’t mean what they say and that the official Regulatory Guidance published by the FMCSA has no significance.  I spent an afternoon recently deposing one of those guys in another state.  It’s amazing what former regulators will say in order to profit from their former government positions.  But even a greased pig can be caught in time.

George Washington said that "eternal vigilance is the price of liberty."  Eternal vigilance is also required in litigation to avoid being blindsided by late hits.

Since late last night I have learned that service through the Lexis File & Serve system in Fulton State Court may be delayed as much as a day and a half.  That is not significant in most contexts, but if there is a short fuse it matters.  On 1/8/07 at 12:54 PM opposing counsel filed on-line an amended notice of the deposition of my client to add videotaping.  It did not hit my email box until sometime after I left the office after 7 PM on 1/9/07, and I did not see it until I checked my email again shortly after 10 PM.  I know the delivery was this late because I got through a web access that delivered only email that arrived after I exited my office computer shortly after 7 PM.

This was of course several hours after completion of my session preparing my client for a non-video deposition.  If I had known it was a video depo, I would have prepared him as for trial.

There was in this instance a delay of email service through Lexis File & Serve of roughly 32 to 35 hours.  This delay is not consistent, but I now know it can happen.  This appears to be a significant difference from the federal on-line filing system in which service appears to be almost instantaneous.

O.C.G.A. § 9-11-30 requires that "A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, the means by which the testimony shall be recorded, and the name and address of each person to be examined . . . .

The amount of time deemed necessary for “reasonable notice” for depositions generally receives a variety of interpretations.  See., e.g., Sims v. Metropolitan Life Ins. Co., Slip Copy, 2006 WL 3826716 (N.D.Cal.,2006)(4 days insufficient; 10 days minimum “reasonable time,” citing Federal Civil Procedure Before Trial, 11-164; issue moot by time of order);  Simpson v. Kuchipudi, Slip Copy, 2006 WL 2796278 (Ohio App. 3 Dist.,2006) (five days notice to re-depose expert not reasonable); Herrera-Mendoza v. Byrne, Slip Copy, 2006 WL 2838952 (D.Conn.,2006)(one day notice of rescheduling deposition not reasonable).

Videotaping of depositions generally was a step forward in civil procedure.  When I was chairman of the Tort & Insurance Practice Section of the State Bar of Georgia in 1994-95, adoption of the rule authorizing videotaping by notice was one of my top priorities.  It took a couple of years to overcome opposition from the insurance industry lobby.  In the corridor outside the Senate Judiciary Committee hearing room, after killing the bill for the 1995 session, the insurance industry lobbyist told me that he was opposed to it because he did not want certain categories of defendants coming across like arrogant [expletive deleted] on video.

A quick Westlaw search reveals no published decisions defining what is reasonable notice of videotaping of a deposition of a party.  However, our general practice is to include in all deposition notices a provision that recording of the deposition may include video as well as stenographic means.  We are then covered in all events, and can later drop the video recording if we decide it is unnecessary.  The best practice would be to let the other side know a few days in advance is the deposition will not be videotaped after all.

It is well recognized in the profession that preparation for a video deposition is different from deposition for a deposition that is not to be videotaped.

A witness appearing for video deposition must be as prepared as he would be for trial. A trial quality performance is important because even things like the witnesses tone of voice and facial movements may be examined at trial. Also, this technology will focus lawyers on questions like, who must be on camera and when, what kind of camera angle, lighting etc. is used, to assure that the witness is not unfairly depicted and makes a reasonable appearance on the screen. Stephen T. Maher, “Lawfutures, or, Will You Still Need Me, Will You Still Feed Me, When I’m Sixty Four?,” 1 RICH. J.L. & TECH. 6 (1995).

In addition to preparing yourself, it is important to adequately prepare your client if he or she is to be videotaped. Preparing a witness for video deposition requires attention to such additional considerations as the witness’ dress and appearance, the manner of delivery of testimony, the way in which he or she will utilize exhibits, and how injuries or limitations will be demonstrated by the witness if requested by counsel. James Reed, “Sex, Lies and Videotape,” 68-OCT N.Y. St. B.J. 53 (Sept.-Oct. 1996).  

See also, Terrell, “Preparing Your Client for a Video Deposition,” Res Gestae (Dec. 2004); Fred I. Heller, “The Televised Witness: Preparing Videotaped Depositions,” Trial (Sept. 1992, at 50).

Lack of reasonable notice of videotaping of a deposition precludes such appropriate preparation of a witness for videotaping.   Analogous tactics are appropriate in aerial dogfights and elsewhere in warfare where the objective is to kill an enemy. See, e.g., Robert Coram, Boyd, The Fighter Pilot Who Changed the Art of War (2005); David Fadok, John Boyd and John Warden: Air Power’s Quest for Strategic Paralysis (1995);William S. Lind, Maneuver Warfare Handbook (1985). However, this is not appropriate for deposition notices under either the Georgia Civil Practice Act or the Federal Rules of Civil Procedure.
                                   
So, I stayed up like a college kid cramming for an exam, prepared and filed a motion for protective order first thing in the morning, called opposing counsel from home to reschedule the depositions, took a nap, and went in late to the office. 

In the future in courts using the Lexis File & Serve system, I may propose a consent order and stipulation for other forms of service of anything requiring any action or notice in less than ten days.

Representative Mary Margaret Oliver of Decatur has introduced in the General Assembly HB 5 regarding use of wireless communication devices while driving.  It would amend OCGA 40-6-241 to include the following:

(a) For purposes of this Code section, the term:

(1) ‘Device’ means a cellular, hands-free, or mobile telephone, wireless communication device, personal digital assistant, radio, or citizens band radio; and
(2) ‘Engaged in a call’ means talking or listening via a device and shall include holding such device to activate, deactivate, or initiate a function of such device.
(b) A driver shall exercise due care in operating a motor vehicle on the highways, roadways, and streets of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle
(c)(1) Except as provided in subsection (d) of this Code section, any driver who shall knowingly:
(A) Operate a motor vehicle which is involved in an accident resulting in death or bodily injury of any person or in property damage; and
(B) Be engaged in a call at the time of the accident shall be guilty of driving while distracted.
(2) The inference that the driver of such motor vehicle was driving while distracted may be rebutted by evidence tending to show that engaging in a call at the time of the accident did not contribute to the accident.
(d) Subsection (c) of this Code section shall not apply to:
(1) Engaging in a call for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, physician?s office, or health clinic; an ambulance company or corps; a fire department; or a police department; and
(2) Any of the following persons while in the performance of their official duties: a law enforcement officer; a member of a fire department; or the operator of an emergency vehicle designated as such under Code Section 40-8-92.
(e)(1) Any person convicted of a violation of subsection (b) of this Code section shall be guilty of a misdemeanor punishable as provided in Code Section 40-6-1.
(2) Any person convicted of a violation of subsection (c) of this Code section shall be guilty of a misdemeanor punishable by a fine not to exceed $500.00 and assessment of points pursuant to Code Section 40-5-57.

All you folks who check and send email while you drive down the expressway at 80 mph, take note.  However, this bill looks overly broad. It creates a rebuttable presumption of distraction if a person just has the radio on listening to NPR (some folks in the legislature would probably support a rule of negligence per se for anyone who listens to NPR), there is no such presumption created when a driver is putting on makeup, eating a sloppy burrito, reading the newspaper, changing clothes, etc.  I respect Rep. Oliver, but this proposal needs more work.

In the case of Zeier v. Zimmer, Inc.,  2006 Ok. 98 (12/19/06), the Oklahoma Supreme Court has held that a medical malpractice affidavit pleading requirement similar to the one adopted in Georgia violates a "special law" provision of the Oklahoma constitution similar to a provision of the Georgia constitution. The Oklahoma case is summarized by John Day in his great blog.

the Oklahoma Constitution that provides that ""The Legislature shall not except as otherwise provided in this Constitution, pass any local or special law … Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts."  Similarly, the Georgia Constitution, Art. 3, § 6, ¶ IV, provides in part as follows: " Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, . . . No special law relating to the rights or status of private persons shall be enacted."

Recent articles in the New York Times and Chicago Tribune critique the causes of safety problems in the current trucking industry.  Much of the focus of the Chicago Tribune article is on the Bush Administration’s decision to increase the permissible driving hours and working hours for truck drivers.  The New York Times article digs a little deeper, going back to the deregulation of the trucking industry in the 1980’s.  Most truckers are now paid by the mile or the trip so that the time they spend waiting to be loaded or unloaded or doing maintenance unpaid. Counting all their time on the job, some earn as little as $8 an hour., often with no medical insurance or pension plan. 

According to John Siebert, an official with the Owner-Operator Independent Drivers Association, his review of members’ obituaries revealed their average age at death was 55 and a high rate of suicide.  Surveys of truck drivers reveal 90% are overweight and nearly two-thirds expect to rely solely upon Social Security when they retire. Under extreme scheduling pressure from shippers and trucking companies as well as financial stress, they sacrifice physical needs including sleep in order to work 100 to 120 hours per week. 

According to Mike Belzer, a one-time Chicago trucker and now a Wayne State University professor and trucking industry expert, ever since deregulation it has been a "race to the bottom" in the trucking industry.  Truckers’ income, adjusted for inflation, has dropped steadily as the market has been flooded with new companies, new drivers, and pressures from shippers and manufacturers to keep freight costs down.  The number of interstate trucking companies went from 20,000 to 564,000, with nearly 90% operating six trucks or less, a highly fragmented industry with thin profit margins.  

For more, see the Confined Space blog.

All this is consistent with my own observations, both in investigations and depositions of truck drivers whose fatigue contributed to tragic incidents, and in interviews with truck driver clients and witnesses. I’ve heard truck  drivers describe  incidents of  being required to complete trips by a deadline even though the shippers loaded the trailers several hours late, under circumstances where they could not possibly get the legally required rest and still deliver by their deadlines. I’ve seen too many instances of truckers napping an hour in a cab between nation-crossing trips that result in them driving 20 out of 24 hours.  The risks to their health and to public safety are all too obvious.

                                                                                        – Ken Shigley