State Procedure

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Occasionally we see claims that an accident and injury was caused, in whole or in part, by negligence in the design of a road, intersection or signage. In Georgia, there can be a claim against Georgia DOT if the road design did not conform to design standards when it was built. There may also be claims against an engineering firm for negligent design of a state, county or municipal roadway.

Now the Georgia Court of Appeals has clarified that a statute setting an 8 year time limit to sue after completion of construction to sue applies to road projects just…

Georgia law allows a plaintiff in a civil lawsuit one chance to dismiss without prejudice and refile. The renewal statute, OCGA § 9–2–61, allows a plaintiff who voluntarily dismisses a timely filed suit to file suit within six months, regardless of whether the statute of limitations has run.

However, a case decided by the Georgia Court of Appeals on May 26, 2012 reveals a trap door for the unwary in the exercise of this right. Cox v. Progressive Bayside Ins. Co., __ Ga. App. __, __ S.E.2d __, 2012 WL 1860704 (Ga.App., 2012).

In that case, Cox filed suit…

In the past 10 days this plaintiffs’ trial lawyer, in the capacity of State Bar of Georgia president, has co-presided over a joint meeting of the State Bar Executive Committee and the Georgia Supreme Court, had a joint press conference with the Attorney General of Georgia and spoke at a lunch meeting that included general counsels of some of Georgia’s leading corporations. In 75 days, I will complete my term as State Bar president and get back to practicing law full-time.

I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a…

My law practice is focused on personal injury, wrongful death and commercial trucking law practice. As president of the State Bar of Georgia, I have many occasions to speak to groups, both in and out of my practice area. The following is excerpted from my presentation — “Trial Preparation: 30 tips in 30 Minutes” – at the Georgia Law of Torts seminar at Mercer University Law School in Macon on September 23, 2011.

11. Propose a stipulation that attorneys issue deposition subpoenas.

While federal law authorizes attorneys as officers of the court to issue subpoenas on standard forms, current Georgia…

The Court of Appeals last week restricted the use of medical narrative reports in injury cases, holding it was reversible error to admit a neurologist’s unedited notes from the patient’s medical visits. The notes did not comply with O.C.G.A. § 24-3-18’s requirements for medical narratives, because they contained unexplained medical terms and test results and were not organized or structured to make them more readily understandable to the jury.

This decision is both good and bad for injury victims.  The statute was passed to make it less expensive to introduce medical evidence at trial.  When medical reports are written in clear prose, narrative reports help establish the plaintiff’s case.  We generally use only the ones that are reasonably understandable reports to fill in gaps between medical depositions.  Some lawyers like to use them as the entire medical proof in a smaller case.  On the other hand, defense lawyers like to dig up old medical reports and introduce office notes as medical narratives. So this decision cuts both ways.

Frankly, if I have to pay a doctor to write a narrative, I’d just as soon pay a few hundred dollars more and take the doctor’s deposition on video for use at trial, with the doctor explaining everything with some visual aids.


Fri., 3/9/07, Calhoun, GA. 

In a scene reminiscent of the 1982 Paul Newman movie, "The Verdict," the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client’s permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don’t drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant’s insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a "runaway jury."  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the “Super Lawyers” listings violate professional responsibility rules against ads that compare lawyers’ services or create an “unjustified expectation about results.”  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the “Super Lawyers” issue of Atlanta Magazine, “Legal Elite” issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that “compares the lawyer’s services with other lawyers’ services.” Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison “can be factually substantiated.”

The “Super Lawyers,” “Legal Elite,” and “Preeminent Lawyers” lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

One advantage of serving on the State Bar Board of Governors is early access to proposed rules changes. The latest is the proposed new Georgia Rules of Evidence, prepared over the past few years by the State Bar’s Evidence Study Committee. It is generally based on the Federal Rules of Evidence. Numerous other sections are are carried forward from current Georgia law. Some the more poorly conceived details regarding the Daubert standards for admission of expert testmony contained in the 2005 tort reform legislation are omitted. I have not yet completed a detailed review of the entire document, but on first impression it looks like an improvement on both Georgia and Federal evidence law. It appears to be on track for passage in the 2006 session of the General Assembly. More later.

Under state and federal RICO (Racketeer Influenced & Criminal Organizations), civil liability is based upon proof of criminal predicate acts, and provides for an award of treble damages for a person injured thereby. Georgia’s RICO statute defines the predicate as an “interrelated pattern of criminal activity motivated by or the effect of which is pecuniary gain or economic or physical threat or injury.” I won’t go into the complexities of what criminal offenses qualify as predicate acts. However, the criminal predicate acts need not have been prosecuted as crimes. Of course, the burden of proof in a criminal case is “beyond a reasonable doubt.”
Now — in a notable win for my good friend Bill Stone of Baxley — the Georgia Supreme Court has clarified that in a civil RICO case, the burden of proof is “preponderance of evidence” (greater weight of the evidence) rather than the higher standard of “clear and convincing evidence,” the standard for award of punitive damages in Georgia, which the Court of Appeals had applied. See the court’s opinion below.