There is an old saying that no one’s life or property is safe while the Georgia legislature is in session. As a trucking safety trial attorney in Atlanta, I have often reflected on the truth of that quip.

This week, we have seen some remarkable developments under the Gold Dome, which have been surprisingly benign.

  • The "frivolous litigation / loser pays" bill (SB 108) sought to impose attorney fees against anyone whose case was kicked out of court on a motion to dismiss and an indefinite stay of discovery whenever a motion to dismiss was filed.  First the bill was stripped of the incomprehensible definition of"substantial merit"  which was difficult to distinguish from "without substantial justification" in OCGA § 9-15-14 and § 51-7-80(7). Then the "loser pays" attorney fees provision was withdrawn because it was largely duplicative of "loser pays" rules in OCGA §§ 9-15-14, 9-11-68, 13-6-11, and 51-7-80, et seq.  Finally, it was conformed to a committee substitute of HB 414, which provides a stay of discovery for up to 120 days after a motion to dismiss is filed, except that discovery is allowed on the basis of the motion to dismiss.

There is considerable potential for abuse. Some lawyers will initially file a lot of frivolous motions to dismiss just for purposes of delay.  Evidence that had been requested in initial discovery requests will be "lost" through "routine document retention policies" while the automatic stay is in effect.

However, this may turn out to be much ado about nothing.    Once it becomes law, I expect a rash of frivolous motions to dismiss as a stalling tactic.  Good plaintiff lawyers will promptly respond with aggressive discovery on the basis of the motions,  demands under OCGA §§ 9-15-14 and  51-7-80 to withdraw the frivolous motions to dismiss, and will get judges to set prompt hearings on the motions.  After a brief flurry of activity, I expect it will become a rarely utilized curiosity. 

Two years from now, the main effect may be that lawyers who advertise heavily on TV and run plaintiff mills will unilaterally use the specter of this law to browbeat their unsuspecting and ill-served clients into taking cheap settlements before suit is filed even when it is not used by the defense.

  • The seatbelt bill (HB 200) would have made evidence of failure to wear a seatbelt admissible as evidence of negligence of the injured party. It was eventually amended to allow such evidence only in mitigation of damages and only if the defendant introduced evidence of the extent to which the failure to wear a seatbelt made the injury worse. It would also require seatbelt use in pickup trucks, which is excluded from evidence now. Then yesterday, the compromise bill went to a vote on the floor of the House of Representatives and was rejected by a vote of 148-15.  Some legislators saying they didn’t want to further victimize people injured in accidents and others opposed requiring use of seatbelts in pickup trucks.
  • The FDA immunity bill (SB 101) would have granted immunity from civil liability for any pharmaceutical or medical device manufacturer with 200 or more employees in manufacturing or R&D in Georgia, with regard to any product that had been approved by the federal Food & Drug Administration.  Some very conservative legislators argued vehemently against it, pointing out systemic failures of the FDA to screen out drugs that turned out to have catastrophic impacts. Some folks pointed out that it probably would have been held unconstitutional under the Commerce Clause of the U.S. Constitution in that it discriminated between in-state and out-of-state companies. This bill died, at least for now, in the Senate Economic Development Committee.

As I’ve spent some time at the Capitol this week, I have marveled at the sacrifices required to serve in the legislature. It’s amazing that anyone can do that and run a business or professional practice at the same time.  It was probably a good thing that I narrowly lost when I ran for the House of Representatives on year out of law school. I was 27 and looked about 17.