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 experiment 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.

 

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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.

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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.

 

 

 

 

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The recent jury verdict in the Coach Jim Donnan trial surprised me.  I thought the jury would find him guilty. That’s because, unlike the jury, I never heard all of the evidence admitted in court. All I heard was the media’s spin on things, which led me, without a doubt in my mind, to believe the jury would convict him.

Not so fast.

Remember innocent until proven guilty?  Well, the State of Georgia just never made it that far in this trial.  The jury foreman said:

“The government didn’t have enough evidence to support the charges,” said Ricks, who stopped to talk to reporters afterward.  “I never did see that smoking gun that proved guilt,” added Ricks, 55, who works in the meat department of a Hartwell grocery store. “I just kept thinking day after day the government was going to produce a smoking gun, but I never saw one.”

That was in the first newspaper article after the acquittal.  The media accounts before and during the trial would have led you to believe the State could phone this one in…that the trial was just a technicality to obtain a conviction, that Coach Donnan was all but already convicted in the Court of Public Opinion.  After all, they “had him” on 41 counts!  Remember the Queen in “Alice in Wonderland who shrieked “Sentence first, verdict afterward!”  Evidence, however, comes either from documents admitted into evidence by the judge at trial or from testimony of live witnesses, real walking around people, sitting in the witness stand before the jury. Evidence does not come from a reporter with a deadline to meet, or a blogger/pontificater who thinks he knows what a jury will do (even though he, of course, hasn’t spent the first minute in the courtroom) or from a talking head on Headline News who must fill a 60 minute TV show every night, come hell or highwater.

Coach Donnan had passed on the State’s offer of a plea bargain, which would have required that he serve some time in prison. Talk about high stakes! Coach Donnan’s refusal to accept the plea bargain shows his complete confidence in our criminal justice system, in the power of the American jury to hear and weigh the evidence at trial thoughtfully and carefully, the desire of the jury to get it right and hold the State to it’s high burden of proving guilt beyond a shadow of a doubt and simply faith in the system that justice would be done. Bravo!  Many commentators have called the acquittal Donnan’s biggest victory ever in Athens.  Scott Michaux of the Augusta Chronicle eloquently said  “no game-winning kick, Hail Mary pass or other climactic moment on a football field compared listening to the judge say the words “not guilty” with his freedom in the balance.”

But the biggest lesson learned from the Donnan trial is that we have an independent judiciary and an independent jury, who, through their collective experience, wisdom and conscience, determines whether a man’s liberty should be taken away from him based on whether the Government has done its job. The Donnan jury obviously thought the Government had not.

Hats off to the American Jury!  It is the greatest form of small self-government ever created.

 

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.

 

 

 

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The easy answer to the question I pose above is an emphatic “Yes!”  Right?  For any homeowner to have his or her home wrongfully foreclosed upon and scheduled to be sold at auction on the Courthouse steps, as we still do here in Georgia through nonjudicial forclosures ( a topic which deserves it’s own blog), would create enormous, undue emotional stress.   Your home is, more than likely, the largest purchase you have ever made and has the highest financial investment value of anything you have ever personally invested in. We call our home our “castle.”  So when a corporation wrongfully forecloses on your castle, your home, trying to sell the house right out from under your homeowning feet, don’t you think this would just naturally cause you some undue stress?  Worrying whether you would lose your house?  Lose your biggest investment?  Lose the roof over your and your family’s heads?  Should whoever did so wrongfully foreclose on your house have to face justice in the form of a jury?

One would thing so, but when it comes to our ever-increasing conservative Eleventh Circuit Court of Appeals, the answer, unfortunately, seems to be “not so fast.” In a recent 11th Circuit opinion, the Court held although a person in such a position of being wrongfully foreclosed upon may very well have a claim of intentional infliction of emotional distress, the amount of proof one must offer just to get past the judge and get to a jury may be impossible to meet, thus ending the homeowner’s ability to seek redress for the wrong. In Lodge v. Kondaur Capital Corp., et. al, issued on May 8, 2014, the Eleventh Circuit (of which Georgia is a part) held that the plaintiffs, the Lodges, had not offered enough “proof” of emotional distress suffered by them at the thought of their home being wrongfully foreclosed upon.  The Lodges, at the time, were in bankruptcy.  Federal bankruptcy laws forbid foreclosure upon a home that is in bankruptcy. The Defendants in Lodge willfully violated this law, known as the “Bankruptcy stay” and moved to foreclose upon the Lodges home, even though that was the very reason the Lodges had filed for bankruptcy.

The Court found against the Lodges, denying them the right to have a jury decide their case.  The Court said the Lodges hadn’t offered the Court enough proof of emotional distress. But whether there is sufficient proof of a claim should be a question to be decided by a jury, not three appellate judges. As the attorney for the Lodges, Ralph Goldberg, noted in response to this narrow opinion, “I don’t understand why anybody would not think that…hearing that your house is about to be foreclosed upon is significant emotion distress.  It seems to me they’re out of touch with how normal people lead their lives.”

Exactly, Mr. Goldberg.  It should have been a jury of twelve “normal people” deciding whether the Lodges suffered emotional distress worrying whether they would lose their  home, not three appellate judges who have probably never faced such  a threat. And yet a jury will now never hear their case.

This is a sad reality in many civil justice systems, not only in Georgia but across the nation. The number of civil jury trials is shrinking, which means the number of American citizens who are able to obtain justice for their damages, is also declining. When that happens, Americans begin to lose confidence in the entire judicial system, which is something we simply can’t afford. The American Board of Trial Advocates (ABOTA), of which I am an elected member, has recently issued a white paper on this very subject, Preserving a Fair, Impartial and Independent Judiciary.  ABOTA’s mission is this:

“The American Board of Trial Advocates is a national association of experienced trial lawyers and judges dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution. First and foremost, ABOTA works to uphold the jury system by educating the American public about the history and value of the right to trial by jury.”  Preservation of the right to trial by jury is at this mission’s very core. I am proud to be a member of ABOTA.

It is discouraging when the question to be decided is clearly one to be decided by a jury of one’s peers, and yet a Court refuses ever to allow that to happen. When the question of a case is “What is reasonable?” a jury should decide that. Regardless of how the jury decides that issue, citizens are much more likely to feel like they have received a fair shake in the judicial system than if a Court, either one trial judge or a panel of appellate judges, decides that issue on their own.  We have a constitutional right to a trial by jury, even in civil cases in which money damages are at stake, not someone’s liberty. The Lodge opinion casts all that into doubt.

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.

 

 

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As a plaintiff’s personal injury trial lawyer in Atlanta, Georgia, I often check Georgia statistics regarding the number of car wrecks, bicyclists wrecks and pedestrian accidents, including fatalities. I noticed that Richmond County, Georgia has initiated a new program that targets jaywalking pedestrians or pedestrians caught not using crosswalks to educate them about the rules of the road for pedestrians and why they are so important to follow. So far this year, the Richmond County Sheriff’s Office has reported nine traffic fatalities. Four of the incidents involved pedestrian-versus-vehicle collisions. In 2013, police responded to 26 fatal traffic accidents, eight of which involved pedestrians.

Earlier this month, three teens and an Augusta man were struck by vehicles on Richmond County roads. The man and two of the teens died as a result of their injuries. The third teen remains hospitalized.

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Unfortunately, Georgia and South Carolina, rank among the worst in the country for pedestrian and cycling fatality rates. And many of these incidents are hit-and-run crashes, where the at-fault driver hits a pedestrian and can easily make a quick get-away as his victim lies helpless and injured on the pavement. I have such a case pending right now in which the current issue is the filing of an uninsured motorist claim against the plaintiff’s own insurance carrier, State Farm Insurance Company, as they have denied coverage in every way possible under the sun. I blogged about this case awhile back and about the fact that when you are on foot and hit by a car as a pedestrian, you have an uninsured motorist claim against your own car insurance. Few people know this and most policies do everything they can to hide the fact that you have such a claim.

The Georgia Law is that cars must stop for pedestrians in a cross walk and must stay stopped. Cars may not drive around the pedestrians or try to squeeze by them. If the pedestrian is approaching and is within one lane of the car the car must stop. My own observations lead me to believe very few Georgia drivers know this rule. I live near Emory University where hundreds of people walk to and from campus and class and to and from Emory Village. As a cautious driver I must always be on the lookout for pedestrians. With so many car drivers constantly checking their cellphones now or texting while driving, the problem of hitting pedestrians has increased in Georgia. Absent-minded car drivers mean more pedestrian injuries. The Georgia Department of Driver Services has a helpful handbook online entitled “What Georgia Drivers Must Know about Pedestrians” to refresh your recollection about the Rules of the Road in Georgia as they relate to pedestrians.

Of course, we must acknowledge that sometimes there may be some contributory negligence on the part of the pedestrian that either causes or contributes to the pedestrian being hit by a car. There is no question that many Atlanta pedestrians walk out into a street completely oblivious to car traffic, because the pedestrian himself is texting while walking, or deeply engaged in a telephone call or zoning out to the music in his ears that he is listening to using earphones that cancel out other noise, such as a car’s horn beeping a warning. Pedestrians do need to be more aware as they walk on sidewalks or use crosswalks. Pedestrians have to exercise reasonable care for their own safety.

But in the end, I think it comes down to the driver of the car who needs to pay more attention and be more alert. Studies consistently show Georgia drivers to be some of our country’s worst. n the study completed by CarInsuranceComparison.com, the Peach State landed its ranking in the bottom-third of the nation based on statistics such as fatality rates, failure to obey traffic signals and seat belt laws, drunk driving, tickets and incidents of careless driving provided by the National Highway Traffic Safety Administration, National Motorists Association and Mothers Against Drunk Driving. Both car drivers and pedestrians need to do their fair share in keeping Georgia Roads safe.

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As a plaintiff’s personal injury trial lawyer who handles premises safety cases on a regular basis, I have been reading with interest an article about a wrongful death lawsuit recently filed in Illinois against a condominium owner regarding the death of a resident killed by black swans on the property. The dead man actually cared for the black swans for the condo and the condo kept them on the property to keep away geese and limit geese droppings on the grounds. You may recall this incident when it first happened, as it was on national news, certainly made news here in Atlanta, and was a shocking event with a rather bizarre manner of death. On the morning of April 14, 2012, one of the swans attacked the man, Anthony Hensley, causing his kayak to topple, according to witnesses at the time. The bird continued to lunge at him as he struggled to make it to shore before he disappeared under water, authorities said after the attack. He was pronounced dead at a hospital after dive crews scoured the 50-foot-deep pond to find him, authorities added.

The lawsuit claims that the defendants “knew or should have known that mute swans are strongly territorial with a dangerous propensity to attack.” Amy Hensley’s attorney, Kenneth Apicella, pointed to Illinois’ Animal Control Act, which says that the owner of an animal that attacks a person in certain circumstances can be held liable for damages.

This case will be an interesting one to follow, but it begs the question: would such a case here in Georgia “fly” (sorry for the pun). My answer is probably not. The Georgia Supreme Court in 2012 decided a very similar case that involved the death of a woman by alligator. The case, The Landings Club v. Williams, 291 Ga. 397, 728 S.E.2d 577 (Ga. 2012) was watched with great interest in the Georgia legal community, as it could have meant enormous liability for landowners in Georgia, which our law have heavily favored since Oglethorpe first founded our beautiful state. In The Landings case, a woman who was visiting her family at a planned residential/golf club community that had several lagoons on the property, which was on Skidaway Island off the Georgia coast. No person had ever been attacked until the night of October 5, 2007, when Williams, who was 83 at the time, went for a walk near one of the lagoons near her daughter’s home some time after 6:00 p.m. The following morning, Williams’ body was found floating in the lagoon. Williams’ right foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the same lagoon, and, after the alligator was killed, parts of Williams’ body were found in its stomach.

No question this was a gruesome death; but was The Landings Club responsible? The majority of the Georgia Supreme Court said no and largely blamed the death on the decedent herself for walking outside at night when she knew or should have known there were likely alligators living in the lagoons. The Landings Club won the case on Summary Judgment, meaning there never was even a jury trial in the case.

Three Georgia Supreme Court Justices dissented, meaning they didn’t agree with the majority (the other four Justices). In an eloquent dissent that reinforced the American Jury, Justice Robert Benham wrote:
“Based on the facts presented at the time of summary judgment in this case, reasonable minds could differ as to the essential elements of appellees’ premises liability claim. Indeed, there are very specific questions in this case that must go to a jury: whether decedent knew that large and aggressive alligators were living on the premises and in the lagoon in which her body was discovered; 2 and whether appellants exercised reasonable care in inspecting and keeping the premises safe from alligators—in particular, alligators that were over seven feet long and alligators that were aggressive toward humans and pets as per appellants’ removal policy. Rather than allowing this evidence to be reviewed by a fact-finder, the majority opinion bars appellees’ premises liability claim simply because the decedent once observed an alligator standing on the roadside. Such a result disregards all the other factual circumstances in the case and is not in keeping with our jurisprudence. (“all the circumstances at the time and place of the incident” must be considered). Accordingly, I would affirm the judgment of the Court of Appeals and allow the premises liability claim to be tried before a jury.” Benham, J., dissenting.

So, the Chicago Black Swan case made me think of the Georgia Alligator Case, which made me conclude that, under Georgia law, at least, the Black Swan case wouldn’t have a flying chance. But, Illinois Law will apply in the Black Swan case, so we will just have to stay tuned for now. Will be interesting to follow.

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I read with horror the article in today’s Fulton County Daily Report, our legal news organ, about a lawyer who received a summons for jury duty in DeKalb County and who then promptly and arrogantly emailed the judge informing the judge, Hon. Dax Lopex, DeKalb County State Court, that if selected for the jury she would blame the plaintiff and automatically find for the defendant. I find this offensive on so many levels it is hard to know where to start. As the 50th President of the State Bar of Georgia, as the Past President of Georgia Trial Lawyers Association, as an Officer of the Court who swore to uphold the Constitutions of the United States and the State of Georgia, and mainly, just as a plain old Georgia citizen, I find this behavior by this Georgia lawyer to be outrageous.

The jury system is the Hallmark of the American Justice System, both criminal and civil. As a plaintiff’s personal injury trial lawyer handling only civil money damages cases for injured people, the ability of my client to seek redress and justice for injury depends on Georgia citizens performing their civic duty in the form of jury duty. Everyone knows it is difficult to reorganize one’s week to attend jury duty and knows it is never convenient for someone to have to serve on a jury. But if you have read many of my blogs, you will already know that once someone has served on a jury (or even gone through the jury selection process) they become even more proud of the American Justice System and are proud for having performed their all-important role in it. For the vast majority of people, serving on a jury turns out to be one of the most meaningful things they have ever done for their community and their State. Very few citizens leave jury duty disgruntled at the process.

Thomas Jefferson said about juries: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Anyone who loves our great country would have to agree with that. Even though the jury system is not perfect, it is, without question, the best legal system in the world. Many countries have copied our judicial system. This conduct by anyone of denigrating our jury system would be reprehensible, but it is even more so for a lawyer, an officer of the court who has sworn to uphold the constitution, to do so. It is, frankly, unfathomable. Judge Lopez (rightfully) sentenced her to a night in jail for contempt of court. You would think a night in the DeKalb County jail would get someone’s attention, wouldn’t you? I guess we shall see, because Judge Lopez also referred the matter to the State Bar of Georgia’s Office of General Counsel for potential disciplinary proceedings against her.

This lawyer has, in my opinion, already demonstrated her contempt for the very constitution she swore to protect and defend.

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I have been watching with great interest news reports on the Oscar Pistorius trial that is going on right now in South Africa. Oscar is known as the “Blade Runner” as he runs on prosthetic legs and was the first person with prosthetics to run in the Olympics, not the Para-Olympics. He is, unquestionably, a celebrity in South Africa and hero there. He is widely loved by the citizens there. The Pistorius trial has proven to be South Africa’s “O.J. Simpson” trial, although we don’t know yet if it will have a similar outcome. The Proscecution alleges Pistorius intentionally shot his girlfriend, Reeva Steenkamp, through a closed bathroom door in his home during the middle of the night, killing her. There is no doubt that Oscar killed her; the question is, what was his intent? The issue of a criminal trial is often not who did it, but rather what was going on in the mind of the defendant at the time he did it?

It is an intriguing case. One of the things that interests me is that in South Africa, this case is being tried and will be decided by the judge, not a jury. The case has really put the legal system of South Africa in the spotlight. South Africa abolished jury trials in 1969, while the country was under apartheid, due to fears of racial prejudice by white jurors. Pistorius will be tried in a high court in Pretoria by Thokozile Matilda Masipa — the second black woman appointed to the bench since apartheid ended. This would almost certainly never occur in the United States. A criminal defendant can certainly consent to having a judge decide his fate, known as “bench trial,” but that is extremely rare, given that conventional wisdom says a criminal defendant has a better chance with a jury than a judge.

Likewise, for civil plaintiffs in cases asking for money damages for personal injuries, the kind of case I try, the conventional wisdom is to have the case decided by a jury, not a judge. Again, the parties could, by mutual consent, agree to have the case bench tried by a judge, but that would be highly unusual. One of the biggest risks of a bench trial is having the judge, that one person who decides your entire case, is against you? You lose! It sometimes takes four or five years for a civil case to reach a trial, and in one instant, based on who your judge is, you have lost because it was all or nothing…you had to convince one person and you couldn’t do it.

In Georgia trials, both civil and criminal, a jury’s verdict must be unanimous. All twelve jurors must agree to the verdict. This prevents any one person taking over your case and deciding it, as a loner, against you. It is a bit of hedging your bets. If one juror our or 12 disagrees with your case, or just doesn’t like your client, for whatever reason, you have 11 other jurors who hopefully, will prevent you from losing the entire thing. Often, where a jury is divided 11-1 on the outcome, the other 11 jurors can persuade the lone holdout to compromise on the verdict, and so often such a jury will return a verdict everyone can live with. Trial ends and everyone goes home, including the jury. If you have that one holdout who will not agree to compromise, he can decide to wait forever, or at least until the judge says “enough,” and then we have what is called a “hung jury” and the case must be retried with a completely new jury. This retrial occurs at enormous expense and additional time.

So what is better? Judge or jury? Our right to a jury trial is enshrined in the United States Constitution in the Seventh Amendment and the Georgia Constitution. The Georgia Constitution calls the right to a jury trial “inviolate,” meaning nothing can take it away. This was the basis of the Georgia Supreme Court’s decision in Atlanta Occuplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), the landmark case that ruled the cap on damages created by our Georgia Legislature in 2005 violated the Constitution. As a plaintiff’s personal injury trial lawyer for 25 years, I have never allowed my client’s case to be decided by a judge, and I don’t anticipate ever changing that outlook, so, obviously, in my opinion, a jury is always better.

I can certainly understand why the justice system of South Africa turned to non-jury trials. This was done to protect blacks from all white juries during Apartheid. Keep in mind that in America blacks were not allowed to serve on juries until the 19th century. Before the Civil War, African Americans were excluded from jury service. As a result, the fate of black litigants was routinely left to exclusively white juries in both civil and criminal jury trials. Not until 1860 were the first African Americans seated on a Massachusetts jury. In fact, not many blacks served until the next major step forward in our racial history: the civil rights movement. Likewise, women could not serve on juries until after they won the right to vote in 1920 with the passage of the 19th Amendment to the Constitution. Women were rarely seen on juries until the women’s movement in the 1960s applied pressure to an unrepresentative system.

So although the United States now recognizes a citizen’s constitutional right to serve on a jury, regardless of race, gender or sexual orientation, we don’t have the pristine moral history on this issue we wish we had. So I get South Africa’s decision to change their legal system. But, in the end, give me a good ole’ jury to decide my client’s fate. I can usually live with their decision, as most juries simply want to get it right.