I’ve been in St. Louis for the past couple of days serving on the faculty of the first national continuing legal education program sponsored by the new Association of Interstate Trucking Lawyers of America.  As usual, I’ve learned more than I’ve taught.  After all, if I can give everyone one new idea, but 20 other speakers give me one new idea each, it’s well worth the trip. This new organization of trial lawyers from coast to coast specializing in trucking litigation is an immeasurably valuable resource.

As a personal injury attorney in Atlanta, I was initially one of those who feared the worst when the Georgia legislature passed it omnibus tort reform legislation, Senate Bill 3, in 2005.   It was as if the political power structure had done everything it possibly could to kill victims of negligence — and the lawyers who represent them.  Some thought it was the death knell for personal injury tort litgation in our state.

However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.

Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.

The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.

Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven’t heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.

A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.

Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County..  There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.

The "loser pays" provision of S.B. 3 — an "offer of setlement" feature in OCGA 9-11-68 which can require a party to pay the other side’s attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer — was designed to intimidate and oppress plaintiffs.  However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.

There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.

Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature?  Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.

Another hypothesis is that tort reform has forced plaintiffs’ lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.

When that enhanced preparation encounters the most democratic of all institutions in American society — a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case — serious cases can get serious verdicts.

Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck.  Today, however, it’s a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.

While my trucking litigation law practice is in Atlanta, Georgia, I know that long haul trucking safety is not just an American issue.  With the long distances between populations centers in Australia, all the challenges facing American truckers are big deals there too.  Driver fatigue, for example, is every bit as big a problem for Aussie "truckies" as for American truckers.

At the Australian Trucking Convention this week in Canberra, which includes the ATA Safety SummitFleetSafe is exhibiting a range of trucking safety technologies, including:

  •  video based event recorders
  • in-vehicle black box monitoring systems
  • trailer reversing cameras
  • wireless CCTV systems
  • electronic tire inspection tools
  • RFID tire tracking and fuel management systems.

A FleetSafe spokesman said, “Safety is great for business. Safe working conditions mean reduced costs associated with accidents and down time which ultimately increases efficiency and profit. In the transport industry safety means more than simply compliance. It is about creating a culture of safety that saves the lives of drivers and other people on the roads. These are issues that affect us all.”

In my law practice in Georgia, I occasionally get calls about tractor trailers that hit someone and do not stop. Identifying and apprehending the hit and run trucker is always a big challenge.

State laws in most states  require drivers to change lanes or slow down for emergency vehicles stopped on the side of the road. Early Tuesday morning, northbound  on I-81 in Virginia, a tractor trailer driver broke that rule, struck a Virginia State Police car on the shoulder of the road, and injured a trooper who had appeared in a TV spot publicizing that law.

According to a rep rot by Marvin Anderson on Roanoke.com, the trooper had stopped another tractor trailer for speeding. According to state police, the trooper’s front and rear emergency lights were activated.  The trooper, who was seated in his patrol car, was transported to a hospital in Roanoke, treated and released. The driver of the truck that he  had stopped also was sitting in the patrol car at the time of the crash but was not hurt.

Virginia State Police were  analyzing footage from the trooper’s dashboard camera  searching for the driver of the truck, a dark-colored Freightliner Classic tractor with an extended front.  It has either a white or light gray box trailer and likely has significant damage to the right rear of the trailer. The trailer also may have maroon paint on the side where it hit the cruiser, and it may have broken lights and a cut or gash along the trailer.

Given the early morning hours and inattentiveness of the truck driver, one could speculate about the possibility that the trucker was fatigued and operating well beyond his legal hours of service. However, that’s just my "SWAG."

The Virginia police have an unusual advantage in that they at least have dashboard video of the tractor trailer. Perhaps detailed analysis in their state crime lab can tease out of a grainy video a portion of a company name, tag number, or a DOT or motor carrier number.  If not, perhaps a bulletin to law enforcement agencies and truck stops across the country can generate leads. I hope they don’t limit the search to truck stops along I-81.  By now it could be halfway across the country.

Last Friday,  an Atlanta jury returned a verdict of $54.4 million in a truck wreck case involving the death of a a Jamaican immigrant. It was a great verdict resulting from great trial advocacy.

Of the $54.4 million in the verdict, $44.4 million was punitive damages. In my post about the verdict, I wondered how the plaintiff could avoid reduction of the punitive award to $250,000 under the tort reform law that has been on the books since 1987.

Well, on Monday, the judge did judge that, cutting the punitive award from $44.4 million to $250,000, and the total verdict from $54.4 million to $10,250,000.

Meanwhile, we are waiting on a Court of Appeals ruling in a case case year where we got a $2.3 million judgment in a trucking case involving a broken leg. No issue of punitive damages went to the jury, but we did include a claim for attorney fees and expenses of litigation based on "bad faith" conduct in violation of mandatory safety rules, specificially the Federal Motor Carrier Safety Regulations.  The jury was able to use that to add one-third of compensatory damages for attorney fees, plus all of our expenses of litigation. The Court of Appeals has until the end of July to rule in the case. 

Meanwhile, in another case a trial judge in Macon reviewing the same legal authorities, said he thought it would be reversible error not to include the "bad faith" attorneys fee claim in jury instructions.

If the plaintiff in the trial last week had emphasized the claim for bad faith attorney fees based on violation of Federal Motor Carrier Safety Regulations, a claim  which is not subject to a statutory cap, in addition to the claim for  punitive damages which is capped, the net result would be a judgment for about $13,583,333 plus expenses, rather than $10,250,000.  In effect, $3,333,333 may have been left on the table.  In such a case, the claim for attorney fees and expenses under Georgia law is potentially worth a great deal more than the "sexier" claim for punitive damages.

This is one of the points I am prepared to cover in a seminar presentation in St. Louis later this month for the Association of Interstate Trucking Lawyers of America, an organization for which I am on the National Advisory Board.

This morning I got a call from a man in ICU at one of our local hospitals. He said he has hit by a tractor trailer yesterday, and that he had two fractured femurs, a ruptured spleen, ruptured discs, crushed vertebra, etc., and asked if I could meet him at the hospital.  I agreed to see him this afternoon at the hospital, which is near my home.

When I arrived a little early at ICU, I found another lawyer at the nurses’ station. Apparently he ran a little late and I ran a little early, so me bumped into each other. He had noticed that when the guy shifted his hospital gown, there were no bruises to correlate with the types of injuries he was describing. The nurse told us that this man had no traumatic injuries, but does have colon cancer.

The lawyer who was at the nurse’s station said he had heard of someone with a similar story trying to get a $5,000 advance from another lawyer, who refused the request.
  Apparently the guy was trying to shake down lawyers for "advances" on his great case.

Later I posted a warning on a couple of lawyer listservs and received responses from several other attorneys who had been hit with the same scam.  One admitted he had signed up the case before he figured out it was a scam.  None acknowledged having made any advances, which would be highly improper.

One of my more paranoid friends has suggested that this could be a trap set by the various “anti-lawyer” groups attempting to film the meetings clandestinely and then use the video for a TV documentary or commercials to argue for tort reform. I am more inclined to believe he was just a scam artist playing his own little independent game.

I must say that 99.9% of all potential clients with whom I have met in person over the past 30 years have been pretty sincere folks who honestly believed they had a case. While I decline most proposed cases because I see less legal or economic merit than they perceive, most are pretty decent folks. Often when I don’t accept a case, I try to make an appropriate referral or give some free advice.

However, when a lawyer finds himself or herself in an interview with a potential client and "smells a rat," one should:

  1. Politely but firmly decline any request for an advance of funds against a future recovery. See Rule of Professional Conduct 1.8 (e), which provides: "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or
    (2) a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client."
  2. Be prepared to give a polite, respectful but firm lecture on your ethical duties as an attorney. See, e.g., Rules of Professional Conduct 1.16 (Declining or Terminating Representation) , Rule 3.1 (Meritorious Claims and Contentions), and Rule 4.1 (Truthfulness in Statements to Others).   In the unlikely event that you’re on "Sixty Minutes," make it a speech that would make both your mother and your legal ethics professor proud.

Remember the example of South Dakota Republican Senator Larry Presler who, when being secretly taped in the Abscam sting investigation, responded, "Wait a minute, what you are suggesting may be illegal," and reported the incident to the FBI.