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I have been thinking a lot about “justice” lately.  I have just finished a week long medical malpractice trial in DeKalb County in which I did not think justice was served for the family who lost their loved one (more on that in a minute) although I don’t criticize the jury in any way. That alone is probably a difficult concept for lay persons to accept, but it is the truth for trial lawyers.  I also can’t remember a time when the word “justice” has been thrown out more in the media, in social media, in sermons and in everyday conversations than it has in the last few weeks due to the events in Ferguson, MO.  That is extraordinary for the United States, a nation founded upon the very principles of justice. Try Googling “was justice served” and you’ll get a myriad (actually 1,920,000 ) of opinions regarding the Ferguson shooting, with about half of the articles responding in the affirmative and about half responding in the negative.  Maybe this rough split of 50/50 is proof in and of itself that the justice system usually gets it right.

 

I was also skimming through a book titled “Justice” recently which noted that most Americans don’t take any oath to support and uphold the Constitution or even the laws of the state in which they reside.  I find that interesting because I have done so several times, first when I was sworn in to practice law in the state courts of Georgia, then when I was sworn in the Georgia Court of Appeals, then when I was sworn in the Georgia Supreme Court,  then when I was sworn in in the United States District Court for the Northern District of Georgia, then when I was sworn in to the United States Supreme Court, and then as an officer of the State Bar of Georgia and then, most recently, when I took the office of President of the State Bar of Georgia. That’s a lot of swearing!!  But each time (at least 7, maybe more) I swore I would protect and defend the Constitution of the United States, the Constitution of the State of Georgia and the laws of the State of Georgia, “so help me God.”  I take that oath as seriously as any single person has ever taken it. Part of that sacred oath is to protect and defend our justice system, criminal and civil.  You will never hear me criticizing our justice system. There may be some things wrong with it, but it is still the greatest system ever devised by man for self-government.  As Winston Churchill said about Democracy:  “Democracy is the worst form of government except for all those others that have been tried.”

I say all of the above because after 27 years of practicing law in Georgia, I am on the verge of concluding that a victim of medical malpractice in this state cannot obtain justice.  Jurors here in Georgia will look for the smallest shred of doubt, will do almost anything, not to hold a physician liable for his negligence.   I can’t pinpoint one cause…there are probably many.  TV advertisers must shoulder a lot of the blame.  I am not a TV advertiser.  I am an actual trial lawyer.  When I stand in front of a jury to begin jury selection, those jurors are already suspicious of me because they know only of personal injury lawyers who advertise on TV with silly slogans or theme music, or has-been actors touting the lawyer’s legal acumen.  Although I have never advertised on TV or anywhere for that matter, I am lumped in with those who do because I am a personal injury lawyer. I am guilty by association.

Another cause?  Defense attribution.  This is a neuroscience concept that says essentially:  “This (whatever injury has befallen the plaintiff) would never happen to me because I am smarter, or more careful, or more persistent,” or more whatever would have solved the issue to prevent the physician’s malpractice from actually resulting in harm to his patient. Although defense attribution is a very real psychological heuristic, or shortcut, which human beings do subconsciously, trial lawyers are expressly forbidden from asking the jury even to consider for a moment if the event being tried had happened to them?  Georgia law prohibits me from asking the jury to consider: “What if this were me instead of the plaintiff?” It’s a ridiculous law and one most states don’t have.  There are other causes, namely the law the judge gives the jury to frame the evidence they have just heard. Many of those jury instructions tilt the scales in favor of the doctor, so much so that there is often no way for a plaintiff, regardless of the compelling evidence presented, to overcome it.  I’ll write another blog on those charges that really need to be changed. They are simply unfair.

In the case I tried last week, the defense attorney, a well known attorney here in Atlanta who has been practicing for 40 years or so, had the audacity to make a motion to prohibit me from using the word “Justice” in the courtroom during the trial! Can you imagine. I told the judge that if this sacred courtroom and our civil justice system wasn’t about justice, then I don’t know what I have been devoting my life to the last 30 years.  Of course, the trial judge didn’t grant the defense attorney’s frivolous, ridiculous motion, but the mere fact that a defense attorney, who has sworn to uphold the Constitution and the laws of the State of Georgia as I have, had the temerity to suggest the word “Justice” shouldn’t be uttered in a Court of Law is an indictment on what has happened to our Justice System.  It is certainly an indictment on that particular attorney, too.  One’s true colors show in times of stress and he certainly showed his utter lack of respect for the Court, the judge, for the Justice System, for the Constitution and for the Jury.

Last week I tried a medical malpractice wrongful death case.  The jury decided the case in favor of the defendant doctor and against the family who had lost their loved one.  The case involved the failure by the doctor to refer the deceased to a neurosurgeon once the doctor, an orthopedic, incidentally discovered  his patient had a 2.9 cm aneurysm in her brain.  It was a ticking time-bomb in her head.  The doctor was made aware of the time-bomb in his patient’s head, told her about it, and told her he would make sure she got into the hands of a neurosurgeon at Emory who could treat it.   Guess what?  He didn’t do that. She never even got to see the neurosurgeon.  The aneurysm ruptured and she died.  Interestingly, brain aneurysm are very treatable with a high (over 95%) success rate if treated prior to rupture. There was no question she would still be with us on earth had the orthopedic (who she was seeing for a shoulder injury) had simply picked up the phone and called the neurosurgeon and said something like:”  Dr. ______, I have a patient with a 2.9 cm aneurysm in her brain. I think she needs to be seen by you right away. Can you please make sure you see her today or tomorrow?”  But this physician never even bothered to pick up the phone. His testimony at trial was that it wouldn’t be the best use of his time to call another physician and that was for his staff to do. Just unbelievable.  The jury refused to hold this physician accountable.  After the jury announced its verdict for the doctor, the doctor and his lawyers jumped up and down in open celebration in the courtroom, having no respect for my client’s family.  And no class.

Another recent medical malpractice case tried in Fulton County (that I was not involved in) also ended in a seemingly unjust verdict for the physician.  In that case, a 53 year old man died after the Defendant Doctor performed a discectomy and fusion on two cervical vertebrae  in April 2004 to relieve herniated discs.  The patient’s neck began to swell and the physician was alleged not to have ordered diagnostic tests or any additional treatment quickly enough to save the man’s life.   The jury was not allowed to hear managed evidence that the physician’s  hospital privileges were suspended less than two years after the death of 53-year-old and that the defendant doctor had been subject to eight other malpractice suits in Georgia and Nebraska before and after the incident, according to attorneys on both sides of the case.  Where is the justice in that verdict?  This verdict, the same week of the verdict in the case I tried, has pushed me over the edge of concluding juries in Georgia can not deliver justice for a family who lost a loved one due to a physician’s negligence.  They just refuse to do it.

These jurors must now live with themselves.  I hope they thought about the missing family members in these two cases at the Thanksgiving gathering at their household.  They have to look themselves in the mirror every day and think “I let that doctor get away with that.”  I wouldn’t want that burden on my shoulders.

So you may understand why I am having trouble with the concept of justice right  now. I am sure at some point I’ll come around.  In the meantime, I will continue to fight the good fight, though, and hope justice doesn’t continue to get the short shrift in our state and country.

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I have written before about my case against the Georgia Department of Transportation and the City of Atlanta about  a defective median installed in the middle of the City of Atlanta’s busiest street, Peachtree Street, in the heart of Buckhead at the intersection of Peachtree Street and Piedmont Road. This intersection may well be one of the busiest intersections in Buckhead, the city’s premiere retail, hotel and financial district. This median was installed in October 2007 and was opened for the motoring public without sufficient warning signage and without sufficient lighting. My clients’ daughter was killed in 2008  in a single car accident when the driver of her car hit the median, because it was not readily visible and was not appropriately marked. We filed suit in back in 2010 and are still fighting four years later. Various appeals have lengthened the litigation. We continue to fight. On November 12, 2014, we received a wonderful opinion from the Georgia Court of Appeals that will allow us to proceed with a jury trial against the City of Atlanta. Below if the opinion. We had already received a similar opinion regarding our claims of negligence against the Georgia Department of Transportation.  This puts us one more step toward justice for the family.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

 

 

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I am working on a products liability case today that I have pending in Cobb County, Georgia in which my client was severely burned by a sulfuric acid drain opener (SADO). “Burn” may not be the accurate term…it is more like she had her skin dissolved by the sulfuric acid drain opener. She has been treated in three burn units and has undergone nine surgeries, including numerous skin grafts and fractional laser procedures. Yet she still has permanent scars over much of her body.

Do you know what’s in the drain opener you have under your sink right now?  Have you ever used a Sulfuric Acid Drain Opener?  My guess is you have no idea whether you have ever used a sulfuric acid drain opener.  SADO’s, as they are known in the chemical industry, are arguably too hazardous to sell to the public for use by the average consumer. And the average consumer has no idea just how ultra hazardous they are. SADO’s are often pure sulfuric acid, which nothing much added to them except water. They are typically “professional strength” and really should only be sold to professionals. Some manufacturers of SADO’s don’t even employ chemists to create their formula nor was their chemical formula originally created by an actual chemist. This makes the product extraordinarily dangerous to consumers as no professional chemist has even verified what is in the formula so the manufacturer really has no idea of exactly what they are selling.

In many cases, the label on SADO’s are not adequate to warn a lay user sufficiently about the type of chemical burns they can cause if they come in contact with a person’s skin or body. Keep in mind that in many third world countries SADO’s are used as a weapon, often in domestic violence incidents in which men throw sulfuric acid onto women’s faces to disfigure them permanently.  This is the same strength sulfuric acid that is being sold to consumers as a SADO.  For many years a group of concerned chemists have tried to get the sale of sulfuric acid drain openers banned in the United States.  These concerned chemists have petitioned the Consumer Product Safety Commission numerous times to try to get the Commission to take action to ban SADO’s because they are simply too hazardous for use by the average homeowner. But, apparently, politics always seems to get in the way and nothing happens.  Manufacturers keep making money and uninformed consumers keep getting harmed.

These ultrahazardous SADO’s are sold  not only in Home Depot’s and plumbing supply companies, but are currently even sold in grocery stores, like Publix, right along side the wholesome food sold there. The average consumer who shops at Publix would have no earthly idea that the product she is buying to unclog a drain can also dissolve her skin. And the label doesn’t tell her that, either. These labels have very generic warnings on them that don’t adequately convey the true nature of the hazard.  One such label on a SADO simply says to flush your eyes with water for 15 minutes if you get the sulfuric acid in your eyes and one label says to wash your skin with water should you get in on your body.  But folks, if you get sulfuric acid in your eye you will be blinded.  No flushing with water will stop that.  Sulfuric acid will dissolve your eyeball.  Remember, sulfuric acid is what Walter White in Breaking Bad used to dissolve dead bodies. I believe that if good grocery stores like Publix actually knew the devastation that SADO’s can cause, they would never sell them in their stores.  Publix is in the same boat as the consumer, not being adequately warned or informed about how super dangerous SADO’s are to consumers.  If the labels on SADO’s accurately warned consumers about the true nature of the hazard, no ordinary consumer would ever buy it.  Manufacturers know and understand this, so they have absolutely no incentive to make their warning labels helpful and realistic.  The labels are largely misleading and give the consumer a false sense of safety.

The other option to SADO’s is a sodium hydroxide drain opener. They are not as caustic as SADO’s and won’t dissolve skin as sulfuric acid will.  Sodium hydroxide drain openers are typically found in homes, and are not typically used by professional plumbers.  But SADO’s should only be used by professional plumbers.  The Consumer Product Safety Commission can and should act and ban SADO’s from being sold to lay consumers and allow their use only by licensed plumbers.  As long as SADO manufacturers continue to make money off the backs of unknowing consumers, people will continue to be harmed by their product.  My client and I are doing our part in trying to change corporate behavior.  The good news is that my client has refused to let her scars from this terrible product define her life and she has become a beautiful young woman.

I have handled hundreds and hundreds of car wreck cases in Georgia.  Very often I hear this common theme from prospective clients:  “I Could Have Been Killed!”  And it is often very true…they could have been killed, but thankfully, they weren’t.  So do you have a case when you could have been killed but you weren’t?  Or better put, do you have a case when you could have been killed but you weren’t physically harmed at all?

I thought of this because this morning while perusing the headlines I came upon this story about a JetBlue plane that experienced a blown engine and made an emergency landing.  Smoke filled the cabin, oxygen masks magically came down, and flight attendants yelled “Brace!  Brace!  Brace!” as they landed, which fortunately, they did so safely without injury.  Watch the video and you will see that many people on board thought they were about to die.  And, in fact, they had a long time to think that as the plane, which was over water, had to turn around and go back to California to land. They all could have been killed, but they weren’t.

Therein lies the conundrum.

Georgia has long recognized the tort, or cause of action, of Intentional Infliction of Emotion Distress (IIED).   With the emphasis on “intentional, however, that doesn’t exactly fit into our scenario of accidental fright…fear caused by what appears to be an impending disaster, but which disaster is, ultimately, avoided. Also, for the tort of IIED to work, Georgia Courts have typically held there must also be an accompanying physical injury.  This is known as the physical injury impact rule as is codified in statute at § 51-12-6. Damages for injury to peace, happiness, or feelings.  This physical injury standard would, it is argued,  tend to cut down on or eliminate potential fraudulent claims where a claimant simply alleges “Yeah, I was really scared!’  Where the conduct of the defendant is particularly invasive and outrageous, however, such as using video surveillance to watch women employees in the bathroom, Georgia courts have found no such physical injury necessary.  Johnson v. Allen, 272 Ga. App. 861 (2005).

Georgia law has also recognized the separate claim of “pre-impact fright,” which occurs, for example, when you are in a car and see another car crossing the double yellow line and heading straight for you head-on.  You know that in seconds you are about to be in a horrific crash.  Those seconds following that realization are deemed “pre-impact fright.”  This is sort of like what all those Jet Blue passengers experienced while breathing oxygen out of masks with a smoke-filled cabin thinking those awful, long minutes back to the airport that “this is it.”

 

Under Georgia law, the rule is laid  out like this:

For pre-impact pain and suffering to be awarded, the jury must have some evidence that the deceased at some point in time was conscious of her imminent death; the jury may infer such consciousness from evidence immediately prior to impact or following her injury. Monk v. Dial, 212 Ga.App. 362, 441 S.E.2d 857 (1994).
Nonetheless, from evidence that the [van] veered shortly before the [car struck the decedent], the jury could infer that [the] decedent was aware of the impending [impact], and from these circumstances could extrapolate the probable mental state of [the] decedent in [the] last moment of consciousness. The fright, shock, and mental suffering experienced by an individual due to wrongful acts of negligence will authorize a recovery where attended with physical injury. Contrary to defendant[‘s] assertion, we find no requirement that the physical injury precede the mental pain and suffering.
(Citations omitted.) Id. at 362(1), 441 S.E.2d 857.
Dep’t of Transp. v. Dupree, 256 Ga. App. 668, 680, 570 S.E.2d 1, 11 (2002).
The same rule applies in workers’ compensation cases, too.  In Abernathy v. City of Albany, 269 Ga. 88, 495 S.E.2d 13 ( 1998), the Georgia Supreme Court held that the where the city employee alleged he suffered a psychic injury from seeing corpses rise out of their graves due to severe flooding, and his job was to recover the dead bodies from the flood waters.  In scathing dissent, Justice Thompson noted the horrific facts of the case and disagreed that the claimant’s psychological injury should not be recoverable.  Justice Thompson recited the facts:    Abernathy has been a park maintenance supervisor for the City of Albany since the mid 1980’s.  His job primarily involves the planting and maintenance of grass, shrubbery, and trees for properties including the Flint River Cemetery.  In early July 1994, torrential rain caused the Flint River to flood and flood waters lifted several hundred caskets from the cemetery ground, tore some of the caskets asunder, and carried caskets and corpses away from the cemetery.  Because of vacationing superiors, Abernathy found himself in co-command of his department during the flood.  Abernathy responded to this crisis situation by taking his personal boat to the cemetery and, over a five-day period, going after the floating caskets and tying them to trees and other objects to prevent them from floating down the flooded river.  The ALJ found that Abernathy toiled 22 hours without a rest the first day, nearly that many hours on each of the following two days, and 14 to 16 hours the fourth and fifth days.  He and three other employees were able to recover some 400 caskets and 18 corpses, 12 of which Abernathy personally retrieved.  The bodies had to be manually lifted into the boats and some of the corpses came apart during the recovery efforts so that Abernathy had to retrieve them in pieces.  The ALJ found that in one instance the head of a corpse broke away and landed in Abernathy’s lap and in another instance, Abernathy’s hands sank into the decayed flesh of one of the bodies he recovered.
If there ever was a psychological injury, that was it.
So where does that leave us?  As with most things, it depends on the facts.  But with the advancement in the science of psychological injuries, it seems like Courts are now less reluctant to dismiss a claim for purely emotional or psychological injuries.  Surely we can all agree that if you are on a plane and you think it is about to crash and you think you are in your last moments of life, that should be a compensable injury.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

 

 

 

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Let’s say you have been injured in a car wreck because of negligent maintenance of a right of way owned by the County.  Can you sue the County for your injuries?

Of course, I have tried to teach my readers the short answer is always yes, you can sue anybody for anything. The real question then is if you sue the County, will your lawsuit be successful? The answer there, unfortunately, is probably not.

Counties in Georgia enjoy wide immunity from being held accountable through lawsuits. This is called “‘sovereign immunity,” which simply means you can’t sue the King. Were your car wreck to have occurred on a State-owned right-of-way, maintained by the State of Georgia, you would have a viable lawsuit against the State of Georgia under a statute known as “The Georgia Tort Claims Act,”  O.C.G.A. Section 50-21-20 through -37.   The State of Georgia, in passing “The Georgia Tort Claims Act,” recognized the inequity of a situation that would allow a Georgia citizen to be able to sue and recover from a private individual or corporation if they were negligent but not from the State of Georgia if it, acting through its employees, were negligent.  The trade-off agreed in the statute for doing away with sovereign immunity for the State is an individual employee may not be personally sued (so it protects State of Georgia employees from litigation) and recovery is capped (regardless of injury) at $1 Million.  This seems like an inherently reasonable trade-off…good for all citizens of the State of Georgia.

Unfortunately, whether a citizen of Georgia can obtain one dime of  justice for injuries suffered as a result of a government entity’s negligence depends on whether the State owns the property at issue or whether the County owns the property. Does this seem fair?  Not in my book. Stay tuned.

 

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

Today I read a funny article about a jury trial in Florida in which the jury sent the trial judge a note asking for a whiteboard and markers and a “big bottle of wine.”   I thought that was pretty cute.

Going to trial is a big decision. Although I have tried many, many trials in many counties in Georgia, most of my clients have never been involved in any trial and the trial  of their personal injury case will be the one and only time they will ever step foot in a courtroom and the one and only time the case will be about them. You can imagine this might produce some anxiety.jurycourtroomdrawing

One of the questions often asked is, if we go to trial, who will decide my case? The answer to that question for all of the cases I try is the jury. I try only jury trials.  If a  judge decides your case, which can happen in Georgia if no one requests a jury trial (very rare in personal injury cases ) or if both parties consent, it is called a Bench Trial. You may be familiar with the trial of Oscar Pistorius going on right now in South Africa.  Mr. Pistorius is being tried for murder in the death of his girlfriend.   In South Africa, such a trial will be decided by the very judge who is presiding over the case. Just recently it was announced that the judge will render a verdict in that case on September 11, 2014.

In personal injury trials in Georgia, you may often hear the phrase “jury of my peers,” as if that is who will decide your case if it goes to trial… your “peers.”  “Peers” often means one’s “equals.”  But, as I often have to explain this to my clients, the truth is that a jury deciding their case will not be their “equals” in really any sense of that word. To be “equal” would necessarily imply that these jurors would have experienced the same things my clients have, have the same type education and same type job, and perhaps even have suffered a similar injury to the one being litigated. In the real world, however, nothing could be further from the truth. The process of striking a jury is the DEselection of a jury, not the selection of a jury.  You do not get to pick jurors who you think will be favorable to your side because they know something about the incident, or they know something about the instrumentality involved or they have experienced the same injury that we are now asking them to value.  Any such person, who might be considered an “equal” of the plaintiff will be either struck for cause by the trial judge or struck by the defense attorney using a peremptory strike. Peremptory challenge in law refers to a right in jury selection for the attorneys to reject a certain number of potential jurors without stating a reason. Other potential jurors may be challenged for cause, i.e., by giving a good reason why they might be unable to reach a fair verdict, but the challenge will be considered by the presiding judge and may be denied.

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Jury duty is hard.  We find time after time that people who are summoned to jury duty really just don’t want to do it.  It’s so impractical and so intrusive into their normal schedules. They have jobs, too, after all, and families to take care of and dinners to cook.  But we often find that once jury service is completed, those jurors did everything in their power to understand the case and reach a just conclusion.  To do the “right thing.”

So the practical truth is that only people who are completely different from the parties in the case, only people who know nothing about what is involved in the case and only the people who have never experienced anything remotely similar to what the case is about will be the one who decide your case. Does that seem odd to you?  The simple truth is that this process results in a jury who, by all indications, can be fair and impartial and give both parties a level playing field on which to try the case.  We really can’t ask more than that, can we?

 

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

juryboxdrawing Can a jury believe what it sees? That may seem like a stupid question, but a new study confirms it’s not.  G. Daniel Lassiter, Ph.D., of Ohio University,  recently conducted a series of experiments using focus groups and videotapes of criminal interrogations. Mock juries were shown exactly the same interrogation, but some saw only the defendant, while others had a wider-angle view that included the interrogator. When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

Professor Lassiter and other psychologists have consistently shown this “camera perspective bias” across a substantial series of experiments, finding in one study that even professionals like judges and police interrogators are not immune.

Along the same lines we are definitely aware that people confess to crimes they did not commit. This has been proven scientifically time after time. But why?

Dr. Lassiter is a member of Ohio University’s Social Judgment and Decision Making Section of the Department of Psychology.  “The members of the social judgment and decision making section, therefore, are interested in how judgments are formed as well as how they are translated into choices and actions. Among the topics we investigate are legal, organizational, and medical decision making, the influence of personal values and preferences on judgments of others, the ways in which characteristics of perceivers (e.g., their mood) and the people perceived (e.g., their race) influence the way ongoing behavior is organized, the process by which people achieve and maintain several goals in dynamic and complex environments, as well as more basic judgment and decision making processes such as numerical estimation, probabilistic judgment, and the formation and expression of preferences and choices.”

In the last ten years or so, as part of my personal injury trial practice, I have devoted a significant amount of time to researching and understanding how juries come to their decisions and  what tools I can use to influence their decisions beyond just witness testimony and documentary evidence. I mean, come on…if there is something out there you could use to influence juries without their even being aware of it, wouldn’t you use it, too?  Professor Daniel Ariely is a leading scientist in the field of behavioral economics and his book “Predictably Irrational:  The Hidden Forces That Shape Our Decisions” questions whether an individual really has free will at all, or is that just an illusion? Professor Ariely’s  groundbreaking experiments are not only entertaining, but reveal a world of subliminal persuasion many of us are totally unaware of.

In the last ten or so trials of mine I have applied many of Professor Ariely’s findings, trying to use what we know of how people reach decisions to help them reach a favorable decision to my client.  I have yet to see behavioral scientists do this, i.e., apply their techniques and their findings to a jury trial. I am doing just that now in every case I try. And it is paying off. Of course, a good trial lawyer is beyond adequately prepared with witnesses’ testimony and necessary documents to admit into evidence and the case law they may need to support their arguments made to the trial judge throughout the trial. But I go a step further and use these behavioral economics or judgment in decision making lessons to enhance my ability to persuade with what I already have.  Wouldn’t you want your lawyer to do that?

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

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Do I have a case against my insurance agent?  I feel like my insurance adjuster cared more for the insurance company than for me, her client.  Who does my insurance agent really work for?  Me or the insurance Company?

Good question! No doubt many of us think our insurance agent, with whom we have worked with, confided in and trusted, is our friend and our agent, not the insurance company. But as I often say in these blogs:  Not so fast!  Although the term “agent” is loosely thrown around in all sorts of scenarios, the actual word “agent” is loaded with ambiguity. Natch, if I have purchased my car and homeowners insurance through my “agent” I would assume that person works for me and would always have my best interests in mind. But, unfortunately, especially under Georgia Law, it doesn’t always operate so smoothly.

For example, if an insurance “agent” is independent and sells policies for multiple insurance companies, chances are he or she would be considered an “agent” of the insured who must favor the insured’s interests over the company’s. If, however, the insurance “agent” is an employee of the insurance company and not independent, then chances are this type of insurance “agent” is actually an agent of the company, not of you, and that type of “agent”/employee would put the interests of the insurance carrier over your own.

This is on my mind as I prepare for a mediation with State Farm in a long-running case that has already made one appearance in the Georgia Court of Appeals and turned out in my client’s favor. One of the issues in this case involved whether State Farm received timely notice of my client’s being run over by a John Doe driver as my client crossed Piedmont Road here in Atlanta on foot. We presented sworn testimony that my client’s mother informed the State Farm agent over the telephone about her son’s being hit by a John Doe driver while he was crossing the street.  This is the same State Farm agent who had been the agent for my clients for the last 30 years or so. Upon learning that one of her insured’s sons had been hit by a John Doe driver while he was a pedestrian, however, this agent never informed the parents that they would need to put that notice in writing for State Farm for State Farm ever even to consider it valid notice so as to comply with the notice requirements of the State Farm Car Policy.  Two years later, when a claim was brought for personal injury, one of the first defenses asserted by State Farm was (you guessed it!) that my clients failed to give State Farm notice of the incident in writing, even though the State Farm agent never bothered to mention this policy provision to my client’s mother while they were discussing the son’s injuries from this terrifying incident.

Now, wouldn’t you, as a consumer, expect that while you are discussing the wreck, the agent would tell you the telephone call to her was not good enough, that if you wanted coverage to be available later you needed to put the notice of the wreck in writing now?  Like a “good neighbor?”  And, as a consumer, wouldn’t you expect your lifelong insurance agent to explain to you that because your son was hit by a hit-and-run vehicle while your son was on foot,  that your car insurance policy provides coverage for his personal injuries under the uninsured motorist section of the car policy?  Assuming, of course, the agent even knew that little tidbit, which is doubtful.  Keep in mind, too, that the words “pedestrian” and “on foot” are not used in the uninsured motorist section of the policy.  Genius, right?

Unfortunately, Georgia Law is not that favorable to the average everyday consumers like us.  The Georgia Court of Appeals held on this issue:  “In State Farm’s brief in support of its motion for summary judgment, the carrier conceded that “State Farm may have had some knowledge of the accident because a few months after the accident [Eells’] mother told the State Farm insurance agent about the accident in passing.” However, this Court has repeatedly determined that even if the insurer receives oral or other notice that does not comply with the policy’s written notice requirement, that notice is insufficient. For example, in a similar instance, where the insured’s policy required written notice within 30 days of an accident as a condition precedent to coverage and the insured testified that he gave oral notice within the applicable time frame, this Court found the notice insufficient as a matter of law. Corbin v. Gulf Ins. Co., 125 Ga. App. 281, 284 (187 SE2d 312) (1972). Accord Gurley v. Ford Motor Credit Co., 163 Ga. App. 875, 876 (1) (296 SE2d 171) (1982); Moss, supra at 165. Compare Southern Mutual Ins. Co. v. Mason, 213 Ga. App. 584, 587 (3) (445 SE2d 569) (1994) (no indication whether or not notice requirement was a condition precedent to coverage).”

Perhaps the only thing that may change the behavior of insurance companies, who, after all, only communicate in the language of currency, may be to bring a suit against it and its “agent,”  or YOUR “agent,” for breach of duty to inform you of the available coverages under the policy and the necessary steps you must take (including telling them about an accident in writing) to meet all of the policy’s ridiculous conditions. So far I have won this case for my client so it won’t happen in this case. It will take a case in which the insured does not win to secure the necessary insurance coverage under his or her own car policy to be able to bring that action. Maybe then insurance companies’ behavior might change.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

 

old law books

 

Do I have a case?  I am asked this countless times…at church, over cocktails, in the gym…anywhere where someone who knows I am a trial lawyer who represents injured individuals finds me and grabs me to ask. Do I have a case?  Four little words, but so very complex.

In the world of personal injury law practice, I am a generalist. I take all variety of personal injury cases. The only limitation for me is whether I think I can prove the case and whether the damages justify my representation. So “Do I have a case” depends on many things, but first is can we prove one?  The plaintiff in a personal injury lawsuit has the burden of proof, meaning the plaintiff must prove the case and the defendant really has no burden. The plaintiff must prove, by a preponderance of the evidence, four things:  1)duty; and 2) breach of duty; and 3) causation and 4) damages.  “Preponderance of the evidence”  is a cute little phrase that means nothing more than it is more likely than not.  “Preponderance” is used in law school and should never be used again anywhere else, but especially not in a courtroom to a jury.  The burden of proof simply means that a jury agrees it is more likely than not that this thing happened.  And the plaintiff must prove all four necessary elements;  three out of four is not good enough.

Sometimes determining whether someone owed you a duty not to injure you is simple. Like in a car wreck case in which you have been rear-ended.  Every driver on our Georgia roads owes every other driver on our roads a duty not to follow too closely and not to rear-end the car in front of them. So if you have been rear-ended in a car wreck, you can easily prove #1 and #2, duty and breach. In our car wreck case example, it is #3 and #4 that get a little harder.  Damages means you have an injury to which you attribute to the car wreck. Damages are simple enough usually…if you suffered a broken leg in a car wreck, a leg which was perfectly fine before the car wreck, you have both damages and causation, meaning you can prove the broken leg was caused by the wreck and not from something else, not from some other force. If however, you believe you have injured your back or neck in a rear-end car wreck but no broken bones, the task of proving causation, that the force of the car wreck caused the neck or back injury and nothing else, gets a bit harder. Factors involved here on whether you can prove causation include your past medical history and whether you had ever been treated for neck or back problems before the wreck.  For example, let’s say you were involved in our rear-end car wreck on the way to the hospital for back surgery for a chronic back problem.  It would be pretty difficult to prove the car wreck caused you to have a back injury that now needs surgical treatment.  You were already on your way to get that surgical treatment before the wreck ever occurred!  See how this works? Those are the tougher cases and they often come down to expert testimony from your treating physicians about what they believe caused your back injury.

These are the typical questions I will be asking you when you come to retain me to represent you in a car wreck personal injury case. I’ll need to know your prior medical history and how that may fit in with our burden of proof.  Do you have a case?  The short answer is “It depends.”  But I will quickly be able to tell you my thoughts once you ask.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the Past President of the State Bar of Georgia and the Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.

georgiacountymap

I am asked this question a lot:  “Can I sue ______?”  The short answer is always yes, you can sue anybody.   The real question is “If I sue _____, will I win?”  Because although you can file a lawsuit against anybody for practically anything, what matters is whether you would win the case, whether that type of cause of action is viable under Georgia Law, or whether that type of case would be thrown out long before you ever saw a jury.   As a plaintiff’s personal injury trial lawyer, I must take and pursue cases for clients that only have a very high chance of success.  My fee is entirely contingency based, meaning I don’t get paid, regardless of how much time and effort (blood, sweat and tears) I put into your case unless I win the case. Period. So when I hear these ridiculous claims that trial lawyers file “frivolous” lawsuits I get furious, because  good trial lawyer could not possibly afford to file “frivolous” lawsuits.  A lawyer who files “frivolous” lawsuits won’t be in business very long.

So today I am addressing the pretty often-asked question of whether I can sue the County.  Let’s say the County, or a County employee, has harmed or physically injured you in some way and you want to sue them for money damages. Piece of cake, right?  Not… so… fast!

Unlike the State and unlike most cities (municipalities) in Georgia, a Georgia County enjoys wide sovereign immunity. The State of Georgia has waived its sovereign immunity for personal injury claims by creating the Georgia Tort Claims Act. There are a million hoops you must go through under the GTCA first to be able to sue the state, but if you know how to go through those hoops and go through them all just the right way, you may have a successful personal injury claim against the State of Georgia. The same is true for cities in Georgia, although they fall under a different state statute that allows them to be sued for negligence.  But no so for the counties.  Which begs the question:  Why are counties so unique?

The answer to that question probably lies somewhere in Feudalism and how the State of Georgia was originally split up when first created. Much power was invested in the County.  Georgia has the second most counties of any state in the U.S. And each Georgia county wields a lot of power.  But there has never been a statute that address county liability for negligence and injury to a person that would permit suit in negligence against the county.

The very recent case of Marshall v. McIntosh County, decided by the Georgia Court of Appeals on May 30, 2014, reminded me of this rather inequitable situation.  Sandra S. Marshall, the surviving spouse and administratrix of the estate of her late husband, sued McIntosh County and the director of its 911 emergency telephone system, Sheila K. Deverger, in her official and individual capacities, alleging that the defendants were liable for refusing to respond to a 911 emergency telephone call.  The trial judge, Judge Jay Stewart, McIntosh Superior Court, dismissed the case before it ever got to a jury on the basis of sovereign immunity.  The Georgia Court of Appeals agreed and affirmed.  The facts of the case were egregious:  The Plaintiff’s late husband, John K. Marshall, began experiencing chest pain while on Blackbeard Island in McIntosh County, Georgia, leading him to call 911 and advise the operator that he was having a heart attack. Marshall’s request for aid was communicated to Deverger, who was the director of the McIntosh County 911 emergency telephone system. According to the complaint, Deverger refused to send aid to Marshall and directed McIntosh County emergency medical technicians (“EMTs”) not to respond to Marshall’s request for medical service. Marshall never received medical aid from McIntosh County, and he died on Blackbeard Island later that same day.

So where a 911 operator refused to send medical help, which ends up killing someone, there is no case against the County. Egregious facts, sure. But, unfortunately, egregious facts don’t really have any impact on a sovereign immunity analysis. The bottom line was that McIntosh County had not waived its immunity and, therefore, the wife could not bring a successful claim for the unwarranted, wrongful death of her husband. Awful.  I’ll note that the claim against the 911 operator in her individual capacity survived under a different analysis, but that is a very hollow victory.

The Georgia Court of Appeals noted:

“Under our Constitution, Georgia counties enjoy sovereign immunity, and can be sued only if they have waived their immunity.” (Citations omitted.) Strength v. Lovett, 311 Ga. App. 35, 38 (1) (714 SE2d 723) (2011). See Ga. Const. of 1983, Art.

I, Sec. II, Par. IX (e); OCGA § 36-1-4. Sovereign immunity “can only be waived

pursuant to a legislative act which specifically provides that sovereign immunity is

waived and describes the extent of such waiver.” (Citation and punctuation omitted.)

Bd. of Commrs. of Glynn County v. Johnson, 311 Ga. App. 867, 870 (1) (b) (717

SE2d 272) (2011). See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); Woodard v.

Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995); Gilbert v. Richardson,

264 Ga. 744, 748 (3) (452 SE2d 476) (1994). A waiver of sovereign immunity “must

be established by the party seeking to benefit from the waiver.” (Citation and

punctuation omitted.) Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 788

(1) (456 SE2d 97) (1995).

I believe the Marshall opinion and all the others that have allowed counties to get away with killing its citizens through negligence are a resounding call for a legislative fix, along the same lines that allows injured Georgia citizens to sue the State. It would be far easier and far fairer for all concerned if the Georgia Legislature would include all Georgia Counties in the Georgia Tort Claims Act as it does the State.  There is a fair quid pro quo in the GTCA:  a harmed citizen may sue the state but damages are capped at $1 Million, regardless of the injury and regardless of what the jury may return for the plaintiff in  a verdict.  If, for example, the jury returns a verdict for a plaintiff against the State for $3 Million, the trial court would simply write off the excess $2 Million and the plaintiff would receive $1 Million, the maximum allowed under the statute. That is a fair compromise.  The injured citizen gets some redress and feels like she has received some justice, and yet the State coffers will never be hit with any so-called “runaway” verdict.

The time has come to eliminate this ancient “get out of jail free card” for Georgia Counties. Here’s hoping the Georgia General Assembly will act in 2015.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the Past President of the State Bar of Georgia and the Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.