Atlanta Injury Lawyer Blog

As a plaintiff's personal injury attorney who handles a wide variety of car wreck cases in Atlanta and the surrounding Metro area, I am sometimes, though not that often, asked to represent people in hit and run incidents. I say not that often because I don't think many people know that their own car insurance may provide coverage to them when they are involved in a hit and run incident, especially when they are hit as a pedestrian. That may come as a surprise to you. It does to many people, including even other lawyers and judges. Unless you routinely handle car wreck cases as a lawyer, you may not be aware that your uninsured motorist coverage (UM) that you have purchased on your own vehicle also provides insurance coverage when you are hit while a pedestrian by a hit and run car.

But the insurance carriers know it, and once you try to make a claim on your car insurance policy for injuries sustained while a pedestrian, that's when the insurance carriers go into full press mode to trot out every excuse in the book to deny you coverage. It's wrong on many levels, especially when you were the one who paid the premiums exactly for that situation. It may even border on fraudulent, because they certainly don't explain that to you when you are paying them the premiums!

This unjust situation came to mind recently as I read a story about a young UGA student who was hit by a hit and run driver while she was a pedestrian in Athens. She was severely injured in the incident. It also came to mind because next month I will be arguing this issue to the Georgia Court of Appeals in which I represent a client who was also severely injured by a hit and run driver while he was walking across Peachtree Street in Midtown Atlanta. State Farm Insurance Company denied his claim on his own policy on the basis that he did not report the incident to State Farm immediately. Did you know your car insurance policy, regardless of the carrier, has a provision in it that you must report an incident to them immediately. Which begs the question: what if you don't know it's an incident that might be covered by the policy? What average person would think that their insurance policy that covers their car would provide insurance coverage to them when they are on foot? That doesn't even make sense, does it?

That will be the issue I will be arguing to the Georgia Court of Appeals next month, i.e., that no layperson could possibly be held to know that they have to report a injury they received while on foot to be able to get the coverage they have paid for under their own uninsured motorist coverage.

So I go back to the young woman in Athens who was critically injured by a hit and run driver. Do you think her parents, while they have been at the hospital 24 hours a day taking care of their daughter, would know to call their own car insurance carrier and tell them they intend to make a claim on their uninsured motorist coverage? Would you?

May 1st is traditionally known as "Law Day" in America, a day in which the rule of law is celebrated. It was officially designated "Law Day" by Congress in 1961. Law Day underscores how law and the legal profession contribute to the freedoms that all Americans share. Georgia lawyers have already been holding events around the State to celebrate Law Day 2013. The State Bar of Georgia recently hosted hundreds of school children at the State Bar Center to celebrate Law Day in a program called "Realizing the Dream: Equality for All!" Below are my remarks for this wonderful celebration.

Remarks of Robin Frazer Clark
Realizing the Dream: Equality for All!
State Bar of Georgia Center
April 22, 2013
On behalf of the State Bar of Georgia, welcome to the State Bar Center and to these very special Law Day activities. We appreciate your being here and know you have come with an open mind for honest reflection and open ears to listen to everyone’s point of view. You are in the Bar Center of the State Bar of Georgia which, we believe, acts in and of itself as a marble reminder of the constant struggle for justice by Georgia lawyers on behalf of their clients and the citizens of Georgia. We are very proud of this place. We are also very proud of the 44,000 Georgia lawyers who make up the State Bar of Georgia. This includes lawyers who practice in our courts, judges who preside over disputes, public defenders to represent accused persons, prosecutors who enforce our laws and a myriad of other lawyers who get up and go to work every single day to promote the cause of justice and who every day move the needle of equality, liberty and justice for all a hair closer to reality. IN fact, you are sitting here today because of the rule of law in preserving your freedoms that you use every day but probably rarely even think about.

We should use Law Day, May 1, as an opportunity to explore the movement for civil and human rights in America and the impact that it has had in promoting the idea of equality under the law. We should also reflect on the work that remains to be done in rectifying injustice, eliminating all forms of discrimination and putting an end to human trafficking and other violations of basic human rights. As Dr. King pointed out in his Letter from a Birmingham Jail, “Injustice anywhere is a threat to justice everywhere.”

I often wonder whether I would have had the same courage of the Dr. Martin Luther King, Jr., Congressman John Lewis, and other progressive Americans to stand up against racial inequality had I been an adult during the Civil Rights Movement. I like to think I would have been right there alongside the Freedom Riders, or walking across the William Pettus Bridge, but admittedly, it is daunting to consider risking one’s life for something you believe in. I like to think I would have done that. One of the most important social justice issues that presents itself to me now in my career is that of equality regardless of sexual orientation and I will continue to fight for social justice for all until that dream is realized.
Although we have made much progress, we have constant reminders that we have to do better. For example, during a school’s recent visit to the Journey of Justice, a Bar employee saw a young African –American child looking at the photographs of the Past Presidents on the wall of the 3rd floor with his father who was there on the tour. The employee heard the young child say “There isn’t anyone who looks like us, Dad.” That hurts. We have over 10,000 children walk through that 3rd floor hall every year, and they observe, they notice, and I don’t want anyone of them to go home thinking the State Bar of Georgia doesn’t have a photo of a leader who looks like them.
When the leadership of an organization is truly representative of the membership, the members more readily support the organization and are much more committed to it. I believe diversity in and of itself is a positive desired thing because it allows all points of view to be heard and considered. It makes one stop and reconsider the framework through which you view all issues and makes you actually take a minute and put yourself in someone else’s shoes before reaching any decision.

Have we made strides in the last 20 years? Yes, without question. Are we at a point where we can simply declare that our work is done? Undoubtedly, no. We still have work to do. And it is your generation that will close the gap. It is your generation that will say “Enough. Enough discrimination, enough hypocrisy, enough subjugation of one group by another, enough hatred…simply enough. It is your generation that will say “enough” of that and replace it with love. Love of your fellow man, love of the rule of law, love of equality, love of justice. But like all worthy things, you must work for it. Dr. King said: Human progress is neither automatic nor inevitable... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals. Today I hope you find that in yourself.

Dr. King said, “The Arc of the Moral Universe Is Long, but It Bends Toward Justice.”
This is comforting to keep in mind, but we must remain vigilant, especially when there are still “whites only” proms in Georgia and when some people still believe they have a monopoly on morality and the right to be married to the one they love merely because they were born heterosexual. The promise of equality under the law is what has made America a beacon to other nations. Fulfilling that promise – by promoting the cause of justice, upholding the rule of law and protecting the rights of all citizens – remains a work in progress. Thank you for your efforts today to help move us closer to the reality of liberty and justice for all.

God Bless you and God Bless the Great State of Georgia.
Robin Frazer Clark

You probably recall Robert Fulghum’s popular book, All I Really Need to Know I Learned in Kindergarten, which was first published in 1988. Its premise was that the world would be a better place if we simply adhered to the basic rules of kindergarten, such as sharing, being kind to one another, cleaning up after ourselves, etc.

If I had the opportunity to suggest a sequel specifically for lawyers, its title might be All I Really Need to Know about Professionalism I Learned on the Golf Course. As golf stands out from other sports as a “gentleman’s game,” the ideals of professionalism in the practice of law are aimed at ensuring our field remains a “high calling” and not “just a business like any other,” enlisted in the service not only of the clients, but of the public good as well.

The game of golf is governed jointly by the Royal and Ancient Golf Club (R&A) of St. Andrews, Scotland, and the United States Golf Association (USGA). But, as stated in the USGA’s “The Spirit of the Game” document, “Unlike many sports, golf is played, for the most part, without the supervision of a referee or umpire. The game relies on the integrity of the individual to show consideration for other players and to abide by the Rules. All players should conduct themselves in a disciplined manner, demonstrating courtesy and sportsmanship at all times, irrespective of how competitive they may be. This is the spirit of the game of golf.”

Likewise, the American justice system is governed by our courts, from the U.S. Supreme Court on down. But much of what lawyers do on a daily basis is not in the courtroom or under the direct supervision of a judge. As officers of the court, we each have a duty to self-regulate our daily practices to—as declared in the Mission Statement of the Chief Justice’s Commission on Professionalism—”exercise the highest levels of professional integrity in their relationships with [our] clients, other lawyers, the courts, and the public and to fulfill [our] obligations to improve the law and the legal system and to ensure access to that system.”

If you apply each component of “A Lawyer’s Creed,” developed by the Chief Justice’s Commission on Professionalism (the Commission), to the ideals of integrity in golf—and vice versa—the similarities between the game and the practice of law are even more striking.

To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust. Do you remember how hard law school was? Learning how to play golf can be equally difficult. Once you’ve learned the basics, improving your game and maintaining a standard high enough to enjoy playing can be even more challenging. Many times, you’ll feel like quitting. As in practicing law, golf takes a lifetime of hard work, concentration, training and patience to stay at the top of your game. In golf and in our law practices, we are always seeking to improve.

Everyone knows Tiger Woods, but do you know who Sean Foley is? Only avid golf fans are aware that Sean Foley happens to be the guy who (at present) teaches Tiger how to play golf. Yes, Tiger Woods, the world’s current No. 1 player, takes golf lessons. So does Rory McIlroy and Phil Mickelson. So did Jack Nicklaus and most every great golfer you’ve ever heard of.

Admittedly, the sessions Tiger has with his teacher might not look like the lessons a beginning golfer would take from the local club pro. In the ever-elusive pursuit of the perfect golf swing, Tiger and other professional golfers are in a constant state of fine-tuning the near-perfect.

In the golf grill at Torrey Pines, engraved in the slate above the fireplace, Geoffrey Chaucer is paraphrased: “The lyfe so short, the game so longe to lerne.” The point is that, no matter one’s experience and expertise, we never stop learning, whether in golf or in legal professionalism, we never stop learning. That is why we are required to take professionalism CLE credits on an annual basis. The Commission approves and oversees more than 500 professionalism CLE sessions per year and produces the curricula and materials for those sessions. The Commission expanded its focus to include judicial professionalism by assisting the Institute of Continuing Judicial Education in developing programs on professionalism for Georgia judges.

To the opposing parties and their counsel, I offer fairness, integrity and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one. Temper tantrums and other demonstrations of “unsportsmanlike conduct” have no place in the legal profession, or on the golf course.

The great Arnold Palmer tells this story: “In the final of the Western Pennsylvania Junior when I was 17, I let my putter fly over the gallery after missing a short putt. I won the match, but when I got in the car with my parents for the ride home, there were no congratulations, just dead silence. Eventually my father said, ‘If I ever see you throw a club again, you will never play in another golf tournament.’ That wake-up call stayed with me. I haven’t thrown a club since.”

“Throwing clubs, sulking and barking profanity make everyone uneasy. We all have our moments of frustration, but the trick is to vent in an inoffensive way. For example, I often follow a bad hole by hitting the next tee shot a little harder—for better or worse.”

At the end of a round of golf, the members of the foursome shake hands with one another, even if someone if your foursome soundly beat you in the round. It honors the game and your opponent. Likewise, following a trial, adversaries shake hands, regardless of the outcome. I have never had a problem shaking the hand of my able adversary when he or she has conducted himself or herself with integrity and professionalism throughout the litigation. It honors our justice system and your opponent. As Shakespeare wrote in “The Taming of the Shrew,” “do as adversaries do in law, strive mightily but eat and drink as friends.”

To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice. In other words, play by the rules at all times. The R&A states, “. . . we are reliant upon our own honest adherence to the Rules in order to enjoy the game. As a result we are all occasionally forced to call a penalty on ourselves for infringements which, often, will go unnoticed by everyone else.”

The top golfer of the first half of the 20th century was none other than Atlanta’s Bobby Jones. He won 13 major championships and, if not for his own integrity, would have won another. In the first round of the 1925 U.S. Open, Jones was about to hit a shot out of the rough on the 11th hole at Worcester Country Club near Boston. As he took his stance, the head of his club brushed against the grass and caused a slight movement of the ball. No one saw this except Jones.

After taking the shot, Jones informed his playing partner, Walter Hagen, and the USGA official accompanying their match that he was calling a penalty shot on himself. Hagen and the official tried to talk him out of it, but he insisted he had violated the rules and took the penalty stroke. In what other sport would a situation like this take place?

Had Jones carded a 76 in that first round instead of a 77, he would have ultimately won the championship by one stroke. The penalty forced him into a playoff, which he lost. Jones was praised by sports writers for his honesty, to which he was reported to have replied, “You may as well praise a man for not robbing a bank.”

To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship. In golf, proper etiquette is just as important as competency, and often more so. For example, you remain still and silent when your fellow competitors are taking their shot. And when on the green, you don’t walk in their putting line between the ball and the hole. You congratulate others’ good shots and refrain from laughing at their bad ones.

The R&A says, “All players should conduct themselves in a disciplined manner, demonstrating courtesy and sportsmanship at all times, irrespective of how competitive they may be. Etiquette is an integral and inextricable part of the game, which has come to define golf’s values worldwide.”

As in the practice of law, time is a valuable commodity in golf. Show up promptly for your tee time. Maintain an appropriate pace of play, and let faster players play through. In short, show consideration to others at all times—whether on the course, in your office or in the courtroom. When in doubt, refer to the Golden Rule.

To the profession, I offer assistance. I will strive to keep our business a profession and our profession a calling in the spirit of public service. In golf, this is called taking care of the course. In the fairway, replace your divots. On the green, repair your ball mark and one more that someone else failed to fix. After hitting from the sand, rake the bunker completely. You do these things not to help yourself but to leave the course in the same or better condition for the golfers behind you.

Attorneys are called into the profession of law to serve others. At the recent launch of the second annual Georgia Legal Food Frenzy to fight hunger, I used Supreme Court of Georgia Justice Robert Benham’s recollection that when he was a little child, each morning at the breakfast table, his father would first ask, “What are you going to do today?” His next question was always, “What are you going to do for someone else today?”

To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through the representation of my clients. The raging issue in golf these days is over the R&A and USGA’s decision to ban the use of the long putters that some players anchor against their bodies to steady their putting stroke, much to the chagrin of many successful players on the professional tour who use those long putters. But regardless of how that matter is resolved, protecting and improving the game is the ultimate responsibility of those who play the game. The same is true for the legal system. We are, after all, in this together.

When making the case for the unified State Bar in 1963, Georgia Bar Association President H. Holcombe Perry said, “It has been pointed out that in relation with the public the Bar has always been and always will be a unit. The actions and sayings of one lawyer reflect credit or discredit on the rest of his professional brethren in the eyes of the public. The interests of all lawyers are inextricably woven together. Through such an organization, with all lawyers participating, we will come to have a better appreciation of the fact that we are all members of a great and honorable profession of which we should be proud, a more adequate understanding of our mutual problems, a keener knowledge of our faults and our virtues, with a mutual determination to eliminate the former and preserve and enhance the latter; and finally we will have the opportunity of establishing among ourselves a sense of brotherhood, mutual respect and trust and through all of this to strive diligently to improve the administration of justice in our state.”

There is, of course, one huge difference between golf and legal professionalism. Golf is just a game. For most of us, a good day or a bad day on the course won’t be life-altering. That is not the case in our law practices. We are responsible for protecting the rights of our clients. Many times, the outcome of our work can have life-changing consequences. No one is perfect, and winners and losers in the legal system are often determined by circumstances we cannot control. But lawyers must always bring our “A” games, and when it comes to professionalism, we would do well to incorporate golf’s lessons of honesty, integrity and courtesy into our service to the public and the justice system.

A closing thought: Many of us whose favorite avocation is playing golf have no doubt fantasized about trading in our day jobs for a career of fame and fortune on the professional tour. But consider that the aforementioned Bobby Jones, the most accomplished golfer of his era who later co-founded the Augusta National Golf Club and the Masters Tournament, never turned professional.

In fact, Jones retired from competitive golf all together at the age of 28 in favor of his chosen profession: Georgia lawyer.

Robin Frazer Clark is the president of the State Bar of Georgia and can be reached at robinclark@gatriallawyers.net.

Here is my last weekly update of the 2013 Georgia General Assembly Session for the State Bar of Georgia, which was extremely successful for the State Bar with the passage of the Juvenile Justice Reform bill and the passage of an amendment making legal malpractice claims nonassignable to third parties. I am very proud of the Bar's Legislative efforts this year, our superb lobbying team, and our new grassroots program. Thank you, also, to all the legislators who gave of their time to represent the citizens of Georgia so selflessly. We appreciate your sacrifice.

Thursday, March 28, marked the last day of the 2013 legislative session, one of the most successful on record for the State Bar of Georgia. This session saw the passage of several major initiatives of the State Bar, highlighted by a comprehensive rewrite of the Juvenile Code.

The passage of Juvenile Justice Code was a major success for the State Bar and most importantly for Georgia’s justice system and for the citizens of our great state. This new approach, focusing away from the old system of youth detention, puts an increased focus on community based programs and counseling with the ultimate goal of returning these troubled youths to our neighborhoods as productive members of society. A major initiate of Gov. Nathan Deal’s Special Council on Criminal Justice Reform, passage of the Juvenile Code was truly a bipartisan effort from the outset and stands to help improve our state for years to come.

Another key initiative of the Bar was the passage of an amendment to OCGA 44-12-24 to prohibit the assignment of legal malpractice claims. The genesis of this issue dealt with the case of Villanueva v. First American Title in which the Supreme Court of Georgia found that malpractice claims are assignable. Despite the two Amicus briefs filed by the Bar arguing the exact opposite, the Court upheld its decision with just a few weeks left in session. With diligent work by our lobbying team and with the help of several key legislators, we were able to find a bill, HB 359, that we could attach an amendment to which would prohibit the assignment of legal malpractice claims. Ultimately, HB 359 received final passage in both chambers, and once signed by the governor, will be the law of the land.

In other Bar news, several key pieces of the State Bar’s 2013 legislative agenda received final passage, while others are being studied by committee and will be taken up in the 2014 legislative session. Below is a brief rundown of our 2013 legislative agenda:
•Funding request for victims of domestic violence and the Appellate Resource Center were included in the final version of the amended FY 2013 budget that passed the House and Senate.
•HB 242, the juvenile code, passed the House and Senate and is awaiting the governor’s signature.
•SB 185, the uniform commercial code article 9, passed both chambers and is awaiting the governor’s signature.
•HB 160, prohibition of transfer fee covenants, passed both chambers and is awaiting the governor’s signature.
•SB 204, the amendment of interlocutory appeal procedure in child custody cases, passed both chambers and is awaiting the governor’s signature.
•HB 161, updating the language used in the oath of bailiffs, passed both chambers and is awaiting the governor’s signature.
•SB 159, modification of the rules against perpetuities, is in the Senate Civil Judiciary Committee and will be considered in the 2014 session.
•HB 654, dealing with testamentary guardianships, is in the House Civil Judiciary Committee and will be considered in the 2014 session.
•HB 685, updating the Uniform Deployed Parents Custody and Visitation Act, is in the House Civil Judiciary Committee and will be considered in the 2014 session.

In other news under the Gold Dome, ethics reform received final passage from both chambers and in so doing revamped the ethical standards under which elected officials and lobbyists must operate. Perhaps the most high profile legislation of the 2013 session, the ethics reform legislation limits lobbyists’ gifts to individual lawmakers at $75 per expenditure. Another key provision was whether or not to make citizens register as a lobbyist should they visit the Capitol to advocate for a particular issue. In the end, lawmakers chose to require registration for paid lobbyists and activists who are reimbursed for more than $250 of expenses a year. Should Gov. Deal ultimately sign the legislation, the new measures will apply to state as well as local lawmakers. In addition, the bill will restore rule-making authority to the state's ethics commissions, an authority it lost several years ago.

In addition, SB 136 received final passage, which lowers the legal blood alcohol level from .10 to .08 while operating a boat. This major piece of Gov. Deal’s 2013 legislative agenda awaits his signature. The legislation was proposed after three high profile deaths of children last summer on Lake Lanier due to boaters driving under the influence.

In budget news, the FY 2014 budget passed on the final day of session in bipartisan fashion. The $19.8 billion spending bill, the only item the general assembly is constitutionally mandated to pass, made cuts to most state agencies for the 2014 fiscal year while increasing funding to Georgia’s Pre-K program and healthcare system.

Much of this year’s legislative success was due to the yeoman’s work put in by our State Bar of Georgia lobbying team. In addition, special thanks must be paid to our State Bar members who joined our grassroots network, spent time at the Capitol attending a Lobby Day and contacted their legislators to let their voices be heard.

A Rising Tide Lifts All Boats,
Robin Frazer Clark
President, State Bar of Georgia
robinclark@gatriallawyers.net

As President of the State Bar of Georgia, I recently had the distinct honor and high privilege of being the keynote speaker for the DeKalb Bar Association's Annual Bench & Bar Dinner at the Emory Conference Center. This year the DeKalb Bar honored Judge Clarence Seeliger, a trailblazer in Civil Rights in DeKalb County, Georgia, with its Pioneer Award. The honor was well deserved. Below are my remarks from the wonderful event.

Remarks at DeKalb County Bar Association Bench & Bar Dinner
March 7, 2013
Robin Frazer Clark ~President, State Bar of Georgia

Thank you, Denise, for that kind introduction and the very nice invitation of the DeKalb County Bar Association, of which I am a card-carrying member, to be with you here tonight. I have tried two cases in DeKalb County already this year and I want everyone to know there is no more friendly and courteous courthouse than Dekalb County and it is always a pleasure to be in court here. Also, DeKalb County enjoys the most diverse bench in the State of Georgia, with seven judges who speak five different languages, one of only two Asian judges in the state, and the only Hispanic. That kind of diversity is certainly something to be proud of. I see many judges here tonight, many long-time friends of mine. You are true public servants and on behalf of the State Bar of GA we greatly appreciate your service to the State of Georgia, to the citizens of GA and to our profession. We know that you take a much reduced pay to serve the State of GA compared to what you would make if you were practicing law in the private sector and we all owe you a debt of gratitude for their public service.
I understand that I am a stand-in for former Justice Leah Sears, who had another engagement that popped up and she couldn’t attend tonight. Justice Sears is a true trailblazer, whom I am going to talk about tonight, and has an incredible personal story. I know I have some big shoes to fill in her absence, which reminds me of a story of a woman who appeared on Oprah years ago. This woman had bought a pair of Oprah’s old shoes at some auction, even though they were the wrong size and way too big. But she bought the shoes because she admired Oprah so much and Oprah was her role model. This woman said that when things would look down for her, when she got really depressed because she didn’t have a job, when she’s wasn’t certain how to take the next step forward, she would go in her closet and stands in Oprah’s shoes, for inspiration. That was in 1997 and now she doesn’t stand in Oprah’s shoes as often because she’s standing on her own. That’s what I feel like I am doing tonight; standing in Justice Sears’ shoes and standing in the shoes of so many other women trailblazers who led cleared the path for me and for you.
Members of the Georgia Bar here tonight need to thank all those trailblazers who cleared the path for us so that we can practice law or work in our businesses with Freedom and enjoy the independence of being a professional. Our Trailblazers cleared the path for us to allow us to have it all, to experience equality in the profession and not to have to apologize for being ourselves. Tonight I want to share some thoughts with you about the extremely important issue of diversity. Let me share with you some amazing trailblazer stories, who have led the charge for racial and gender equality and diversity.

Justice Ruth Bader Ginsburg- She was 1st in her class at Columbia Law School in 1959 but Justice Felix Frankfurter refused to hire her as a clerk, as was the Supreme Court’s tradition, b/c she was a woman. She was a pioneer for gender equality at a time when most people had never even heard of that term. Ginsburg recalls, "My mother told me two things constantly. One was to be a lady, and the other was to be independent.” So she started working for the ACLU, the only place where she could get a job in the early 60’s practicing law and started taking cases in which she could advocate for gender equality.

Sandra Day O’Connor- Justice O'Connor only took two years, instead of the customary three, to complete law school. Along the way, she served on the Stanford Law Review and received membership in the Order of the Coif, a legal honor society. O'Connor graduated third out of a class of 102.
O'Connor faced a difficult job market after leaving Stanford. No law firm in California wanted to hire her and only one offered her a position, and that was as a legal secretary.
And we have our own trailblazers to thank right here in the GA Legal Community.
Judge Adelle Grubbs-Cobb County Superior Court-When she was still a practicing attorney, on Wednesday before Thanksgiving many years ago, she was arguing a divorce case before a Superior Court Judge. It got to be fairly late, near 6:00 p.m. and Judge Grubbs asked that Court adjourn for the day. The trial judge wasn’t going for it, until Judge Grubbs said: “Your honor, you get to go home and relax and wake up tomorrow and enjoy Thanksgiving dinner tomorrow with your family. I get to go home tonight and clean house and polish silverware and get up early tomorrow and cook a turkey and an entire Thanksgiving Dinner after having been in Court all day today.” After that, this particular judge simply quit holding court on the day before a Holiday to be respectful to women lawyers.
Chief Justice Carol Hunstein-1st woman Chief Justice of the GA. Supreme Court. Born into humble circumstances, Carol contracted polio when she was two, survived her first bout of bone cancer at age four, and lost her mother at age 11. Her adolescent years were marked by frequent hospitalizations for cancer. Carol’s father actually discouraged his six children from pursuing an education beyond high school. She married at 17, became a mother at 19, and was abandoned by her husband by age 22. That same year, Carol lost a leg to cancer and was told by doctors she had only a year to live.
Struggling to find work to support herself and her son, Carol soon realized the value of an education. She went to college on a state vocational rehabilitation scholarship and to law school on the Social Security benefits she received after her former husband died. There were times when Carol could not afford to eat. Remarrying before graduating from law school, Carol soon had two daughters.
She opened a private law practice in Decatur in 1977 and, spurred on by a trial judge who repeatedly called her “little lady” in open court, Carol decided to run for the bench. She defeated four men and in 1984 became the first woman elected to the DeKalb County Superior Court. She has served on the Georgia Supreme Court since 1992.
Judge Anne Workman: In a speech given to this august group in 2008 entitled “A Curmudgeon’s View from the Last Century Forward,” Judge Anne Workman wrote:
”The presence and acceptance of women in our profession today tends to make one overlook the lack of presence and the lack of acceptance of women in our profession thirty five years ago not only here but throughout the country. When I graduated from Emory Law School less than ten percent of the class of 1972 – one hundred in number – were women as were less than four per cent of all lawyers in the nation. The downtown law firms would come to the Emory campus for employment interviews with the male students, but they would not interview the women students at all. And Emory allowed that to occur, finally changing this practice a few years after my class graduated. The criminal law students at Emory had always been allowed to do a ‘ride-along’ with the DeKalb police as part of the course until my first year at Emory when we women students were told that we would not be allowed on the ‘ride-along’ ostensibly because the wives of the police officers did not want us in the patrol cars with their husbands for the eight hour shift. It was never made clear to us exactly what they thought we would or could be doing in a patrol car driving around on shift. It was just not suitable. I suppose that we put up with all these policies and others which were worse because we felt we had no other recourse. We were desperate to be there and to become attorneys; we were a only a handful in number; and so we just hunkered down and fought to graduate as high in the class as we could to demonstrate our worth and our commitment to the profession as well as our revenge served cold.”
Judge Workman’s first attempt to get a legal job after law school was fruitless, but she recounted it very humorously. She had always loved criminal law and wanted to be a prosecutor when she graduated from Emory. She approached the district attorney at the time about employment in his office. Judge Workman recalled: “He told me in a very matter of fact manner that there were some places a woman did not belong and that a courtroom was one of them. But that was alright because I could have a baby and he couldn’t. It was not the reasoning I had hoped to hear; but in one way it was helpful as it provided a considerable amount of focus and direction to me to prove him wrong. You take motivation where you find it. It took twelve years, but in 1985 when I was sworn in as a state court judge, I saw him and reminded him of our long-ago conversation. I remarked that I must belong in a courtroom now because it had my name on it.”
Judge Workman was a remarkable woman, lawyer and trailblazer and I consider myself fortunate to have become her friend during the years she served on the State Bar Board of Governors with me.
And it is not just women trailblazers out there to whom we owe a debt of gratitude. There are many progressive men who have helped make the road smooth for those coming behind them.
Justice Robert Benham- Justice Benham distinguished himself as the first African American to win statewide election in Georgia since Reconstruction. In 1989, Justice Benham was further distinguished as the first African American to serve on the Supreme Court of Georgia, following his appointment by Governor Harris.
He also made history both as the first African-American to establish a law practice in his hometown of Cartersville. In what can only be described as something straight out of a movie, when Justice Benham would walk down the street in Cartersville to go to the Bartow Co. Courthouse, many fellow African Americans would come out of their homes and out of their places of work to follow him down the street. The shouts of “Mr. Benham’s going to court, Mr. Benham’s going to court” could be heard as they followed their hero, then “Attorney Benham”, to the courthouse, because they knew Attorney Benham was going there to stand up for the little guy, the underdog.
Justice Benham’s first lesson of service to others probably came at the hands of his mother, who insisted that he shine shoes at the local barber shop.
His mother had this view that if you ever plan to lead people that you must be willing to serve them and there’s no more humbling experience than being down on your knees shining somebody’s shoes. And she says, “If you do that you won’t be full of yourself, you won’t be hording everything.” It reminds me of the lyrics in that U2 song that says “If you want to kiss the sky you better learn how to kneel.”
So Justice Benham as a little boy, with his brothers, shined shoes at Bob Cagle’s barber shop. As I have heard Justice Benham say, “The American Dream is that a black child from Cartersville who shined shoes in a barber shop can grow up and shine in the Halls of Justice.”
Sr. Judge Horace Ward- In 1979, Judge Horace Ward became the first African American federal judge in Georgia, having been nominated by President Jimmy Carter. He had previously served in the Georgia State Senate and as a State Court and Superior Court judge in Fulton County. Since 1993, Judge Ward has served the Northern District of Georgia in senior status. He is also well known in Georgia history from his efforts to gain admission to the then-segregated University of Georgia Law School in the 1950s. For years, the Board of Regents denied Judge Ward admission to the law school, stating that the fact that no black had ever been admitted to the university was merely coincidental. Meanwhile, the Board of Regents decided to "modify" the admissions criteria by requiring that candidates take an entrance exam and that they get two additional letters of recommendation—one from a UGA law school alumnus and the other from the superior court judge in the area where the applicant resided. Judge Ward filed suit against the Board of Regents to gain admission, which, after years of delay, was eventually dismissed on the basis that Judge Ward had “refused” to reapply under the new admissions guidelines (which Ward's attorneys had argued was yet another ploy to keep Ward out). Judge Ward decided not to appeal and attended law school at Northwestern University, from which he graduated in 1959. In what can only be described as poetic justice, Judge Ward was a member of the legal team representing Charlayne Hunter and Hamilton Holmes when they were admitted as the first African American students at UGA, thus ending 175 years of segregation at the university.
And tonight we honor another trailblazer, Judge Clarence Seeliger. Judge Seeliger, as you have heard, was a trailblazer for racial justice and equality. He hired the first African American employee of DeKalb County State Courts and courageously removed the Confederate flag from his courtroom at great personal risk. Judge Seeliger made it clear that no one, not even judges, was above the law. Judge Dr. Martin Luther King, Jr. said, “There comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must take it because conscience tells him it is right.” Seeliger’s life embodies that principle and I consider it a privilege and highlight of my year as State Bar President to be speaking tonight, a night in which we honor Judge Seeliger.
I often wonder whether I would have the same courage of Judge Seeliger and Judge Ward and other progressive Americans to stand up against racial inequality had I been an adult during the Civil Rights Movement. I like to think I would have been right there alongside the Freedom Riders, or walking across the William Pettus Bridge, but admittedly, it is daunting to consider risking one’s life for something you believe in. I like to think I would have done that. I suppose the social justice issue that presents itself to me now in my career is that of equality regardless of sexual orientation. I have delivered speeches on this issue, I have walked in the Pride Parade with my husband and two children, and I have even filed for a pardon of a United States Veteran who was court-martialed for being gay. I will continue to fight for social justice for all regardless of sexual orientation…but I’m not risking my life to do so, the way Judge Ward and Judge Seeliger and Justice Benham for racial justice.
Those trailblazers are pretty inspirational aren’t they? There is no question things are different now for many of us than what they were for Justice O’Connor, or Chief Justice Hunstein or even for me for that matter, not only in the legal profession but in all professions and corporate America. Yet, we have constant reminders that we have to do better. For example, during a school’s recent visit to the Journey of Justice, a Bar employee saw a young African –American child looking at the photographs of the Past Presidents on the wall of the 3rd floor with his father who was there on the tour. The employee heard the young child say “There isn’t anyone who looks like us, Dad.” That hurts. We have over 10,000 children walk through that 3rd floor hall every year, and they observe, they notice, and I don’t want anyone of them to go home thinking the State Bar of Georgia doesn’t have a photo of a leader who looks like them.

While our State Bar is comprised of 34 percent women, I am only the second woman President in its history, and I am the only President also to be a mother. In my opinion, diversity of leadership – with proportional representation reflecting the makeup of any organization – is a key to its ongoing health and strength. When the leadership of an organization is truly representative of the membership, the members more readily support the organization and are much more committed to it. I believe diversity in and of itself is a positive desired thing because it allows all points of view to be heard and considered. It makes one stop and reconsider the framework through which you view all issues and makes you actually take a minute and put yourself in someone else’s shoes before reaching any decision.

I just recently saw a new survey from the National Law Journal about women partners in large law firms. It’s not that encouraging. It showed that today about 18.8 % of all partners, equity and non-equity, are women. That is up only 2.8% over the last 10 years. If we just look at women equity partners, that number has been fixed at 15% for the last 20 years. This National Law Journal survey also proved that if a law firm has two tiers of partnership, an equity tier and a non-equity tier, women are more likely to be placed on the non-equity tier than men. The survey showed that women make up 17.6% of equity partners with only the one-tier track but throw in a non-equity tier and the women who are equity partners in firms with both tiers comprise only 14.7% of equity partners. Some say acceptance of women as equals in the legal profession is a matter of culture. That may be…but I feel like it has to be more intentional than that, with women, with minorities, to make our profession more inclusive.
As I told one woman attorney, I am raising the issue of diversity and inclusion now because in 20 years, when my daughter asks me why didn’t I do anything about this back in 2013 when I had the chance, I don’t want to have to answer her “I don’t know why I didn’t do anything.” That is not an acceptable response. Women need to support other women. I am reminded of what a friend of mine who was running a political campaign for a woman who was running for office: “there must be a special place in hell for women who don’t support women.”
As a mother of a 17 year old son and a 15 year old daughter, I am extremely cognizant of the example I set for them professionally and personally. You never know who you might influence. A Young woman at Athens UGA said she was definitely going to law school after hearing my speech to the State Court Judges. In a trial earlier this year in which I represented parents of a 23 year old young woman who had been killed in a car wreck, their other young daughter, in tears at the time, told me after the trial she had decided she wanted to go to law school.
There is simply inherent value in diversity in every endeavor. A diverse environment challenges us to explore ideas and arguments at a deeper level--to see issues from various sides, to rethink our own premises, to achieve the kind of understanding that comes only from testing our own hypotheses against those of people with other views. Such an environment also creates opportunities for people from different backgrounds, with different life experiences, to come to know one another as more than passing acquaintances, and to develop forms of tolerance and mutual respect on which the health of our profession and our justice system depends. Antoine de Saint-Exupery, author of The Little Prince and who was killed in World War II said: “He who is different from me does not impoverish me - he enriches me. Our unity is constituted in something higher than ourselves - in Man... For no man seeks to hear his own echo, or to find his reflection in the glass.”
There is no question we are making strides in Georgia. For example, the State Bar just recently hosted a reception honoring Judge Carla Wong McMillian’s appointment to the Georgia Court of Appeals. It was an historic appointment by Governor Deal in that Judge McMillian is the first Asian Pacific American state appellate judge ever in the Southeast and we congratulate not only Judge McMillian but also Governor Deal. In his wonderful remarks that evening, Judge Al Wong said we must remain vigilant and steadfast in the quest for diversity.
That is so true. But it’s really not enough simply to talk about it. Or complain about it. If you want to realize more diversity in our courts, in our Bar leadership, in our State leadership, you must get involved at the ground level. Last week I moderated a panel on Judicial Diversity at the University of Georgia Law School. Panel Members included Georgia Supreme Court Justice Harold Melton, state Court of Appeals Judge Anne Elizabeth Barnes, Athens-Clarke County Chief Magistrate Judge Patricia Barron. The subject matter was judicial diversity. Justice Melton made the point that for the bench to reflect more diversity, more minorities must get involved on the ground level with various organizations so that when an appointment becomes available, these individuals are already well known.
Justice Melton said:
"One thing we need to talk about is party diversity," said Melton. "I know there's a lot of conversation about that. One conversation is, 'What's the governor going to do?' We need to ask, What are ???we going to do?'"
"There's a lot of discouragement in the African-American community about working with Republicans. I saw that in the governor's office first-hand," Melton said. The only time the governor heard from African-American lawyers or bar associations was when a judgeship came open, he said; meanwhile, other lawyers and organizations had been working to make contacts and establish relationships with the administration.
"So others have been working diligently, and you're at a disadvantage if you take a hands-off approach."
"I'm not saying we should compromise our views," said Melton, "but we should be more involved."
Justice Melton was 100% right. I have told you I am only the second woman President of the State Bar of Georgia, but do you know how many women have run for that office since Linda Klein was the first female president? One. Me. Former Georgia Chief Justice Leah Ward Sears wrote for the Daily Report last year decrying the lack of diversity on the bench. Of 464 judgeships statewide, wrote Sears, about 100 were occupied by women, 53 by African-Americans, and—at that time—one was Asian and one Hispanic. But how many African-Americans and how many Hispanics and Asians put in an application with the JNC? How can we demand the JNC recommend a short list comprised of only minority nominees to the bench if those applicants are totally unknown to the Commission members because they have never been involved in any local bar association, or any political effort? Women and minorities must get involved in professional and political efforts to build those necessary relationships. Women and minorities must offer themselves for the bench and for leadership positions or we will never achieve the diversity we say we want.
Which brings me to my closing thought…and it is often my closing thought in every speech I give…and that is “A Rising Tide Lifts All Boats.” This is literally written on the wall of my office. I believe it and it is that philosophy of mutual good and shared connections that has directed my entire career and my work on behalf of the Georgia State Bar. We are all in this together, and we must encourage one another and cheer each other on. By doing this for others, we will lift up ourselves unknowingly in the process. The more you help someone else the more you help yourself. The less you think of yourself, the smaller your problems become. We must work together to remove barriers to inclusiveness. Each time a barrier is removed in the leadership of our courts, our Legislature, our profession, a door opens to a new generation of potential great trailblazers, which might include the next Horace Ward, the next Sandra Day O’Connor, the next Robert Benham, the next Leah Ward Sears or the next Clarence Seeliger. And that is something to be celebrated.
Thank you again for your support. I hope you will remember that the State Bar of Georgia stands as a beacon to promote the cause of justice, to respect the rule of law and to protect the rights of all citizens of the State of Georgia.
God Bless you and God Bless the Great State of Georgia.
Robin Frazer Clark

REMARKS OF PRESIDENT ROBIN FRAZER CLARK
14TH ANNUAL JUSTICE ROBERT BENHAM COMMUNITY SERVICE AWARDS
STATE BAR OF GEORGIA
FEBRUARY 26, 2013

It was with great pleasure and honor that I delivered remarks last night at the Fourteenth Annual Justice Robert Benham Community Service Awards. These awards honor Georgia Bar members who have selflessly given their time and commitment to make their individual communities better places. They were created and named after one of my heroes, the Honorable Justice Robert Benham. Below are my remarks.
It is my distinct and honor and privilege to welcome you to the 14th Annual Justice Robert Benham Awards for Community Service. This year’s worthy recipients, and countless other Georgia lawyers who volunteer their time and expertise in their communities, bring great honor to our profession. It is our privilege to honor them tonight.
These awards recognize the commitment of Georgia lawyers to volunteerism, encourage all lawyers to become involved in community service, improve the quality of life of those they help and even enrichen the lawyers’ own lives through the satisfaction they derive from helping others. Their work also raises the public image of lawyers.
Tonight is one of the highlights of my year as President of the State Bar, as I am sandwiched between Chief Justice Carol Hunstein, who, as she well knows, is one of my heros and Justice Robert Benham, who is another hero and legendary role model. Since these awards are given in the name of our dear Supreme Court Justice Robert Benham, it is only fitting that we take a moment to reflect on the example of service Justice Benham is for us through his extraordinary life. Justice Benham distinguished himself as the first African American to win statewide election in Georgia since Reconstruction. In 1989, Justice Benham was further distinguished as the first African American to serve on the Supreme Court of Georgia, following his appointment by Governor Harris.
He also made history both as the first African-American to establish a law practice in his hometown of Cartersville. In what can only be described as something straight out of a movie, when Justice Benham would walk down the street in Cartersville to go to the Bartow Co. Courthouse, many fellow African Americans would come out of their homes and out of their places of work to follow him down the street. The shouts of “Mr. Benham’s going to court, Mr. Benham’s going to court” could be heard as they followed their hero, then “Attorney Benham”, to the courthouse, because they knew Attorney Benham was going there to stand up for the little guy, the underdog.
Justice Benham’s first lesson of service to others probably came at the hands of his mother, who insisted that he shine shoes at the local barber shop.
His mother had this view that if you ever plan to lead people that you must be
willing to serve them and there’s no more humbling experience than being down on your knees shining somebody’s shoes. And she says, “If you do that you won’t be full of yourself, you won’t be hording everything.” It reminds me of the lyrics in that U2 song that say “If you want to kiss the sky you better learn how to kneel.”

So Justice Benham as a little boy, with his brothers, shined shoes at Bob Cagle’s barber shop. As I have heard Justice Benham say, “the American Dream is that a black child from Cartersville who shined shoes in a barber shop can grow up and shine in the Halls of Justice.”

In the Kennesaw State University Department of History and Philosophy Summer Hill Oral History Project, Justice Benham described his family’s origins for insistence on service for others. “Family meals were not optional, they were required. A blessing was said at every meal and the children, my two brothers and I were required to say a Bible verse. We could not say the same Bible verse anybody at the table said and we could not use the same Bible verse during that week, and that was required. There was no television on, and we were the only family in the neighborhood who had a television, but you did not watch TV while you were at the family meal and you engaged in discussion. Daddy would always ask, “Well, what are you going to do today?” And then we knew what was coming next, “What are you going to do for somebody else?” That was at every
breakfast.”

Quite a lesson that Justice Benham never forgot. Years later, Dr. Martin Luther King, Jr. would say that life’s most persistent question is “What are you doing for others.” Life’s most persistent question has been the hallmark of Justice Benham’s life. And tonight we honor these lawyers for their commitment to service to others. One of the hallmarks of the profession is law is a recognition that along with the privilege to practice law comes a duty to subordinate financial reward to social responsibility. Tonight’s award recipients have demonstrated their understanding of this and with their public service to their communities have embodied Justice Benham’s example of service. Through this work they are promoting the cause of justice, upholding the rule of law and protecting the rights of all citizens.
I am reminded of the movie “Friday Night Lights” about a Texas high school football team, and every time they broke huddle they yelled in unison “Clear eyes, full hearts, can’t lose!” “Clear eyes, full hearts, can’t lose!”
Congratulations to our award recipients tonight on behalf of the State Bar of Georgia. May God bless you and your families and may God Bless the Great State of Georgia.

Here is my op/ed piece that is appearing tomorrow in the Savannah Morning News and the Columbus Ledger Enquirer.

Clark: Reforming Georgia's juvenile justice system: It's time

Posted: February 24, 2013 - 12:27am

By ROBIN FRAZER CLARK

Crossover day, the 30th-day deadline for legislation to pass either the House of Representatives or the Senate in time to be considered by the other chamber, is fast approaching for the current session of the Georgia General Assembly.

Among the pending legislation is House Bill 242, a comprehensive revision of the state’s four-decade-old juvenile justice code. Sponsored by House Judiciary Committee Chairman Wendell Willard and supported by Gov. Nathan Deal, Chief Justice Carol W. Hunstein and the State Bar of Georgia, among others, this proposal is long overdue for action.

By implementing changes that emphasize mental health and substance abuse treatment, anger management programs, family counseling, education and employment programs and probation supervision over imprisonment for non-violent juvenile offenders, Georgia stands ready to reduce both the criminal recidivism rate and costs to the taxpayer.

As Chief Justice Hunstein told lawmakers in her recent State of the Judiciary address, “We know one thing for certain: Spending $91,000 a year to lock up a juvenile and getting 65 percent recidivism in return is not working.”

On Feb. 13, I had the opportunity to testify in favor of HB 242 in front of the House Judiciary Committee. I reported that the work on this legislation started nearly a decade ago, when the Juvenile Law Committee of the State Bar of Georgia’s Young Lawyers Division (YLD) set out to create a model juvenile code for our state, based in proven best practices and scientific research. The Georgia Bar Foundation funded the project for the YLD, and in 2005 the General Assembly passed a resolution calling for an overhaul of the current juvenile code.

The JUSTGeorgia statewide juvenile justice coalition was formed for the purpose of promoting changes to the juvenile code and the underlying social service systems to better serve Georgia’s children and promote safer communities. Two core needs were identified: To incorporate the latest findings in the child and adolescent brain development field and to cause policy changes that can prevent detention and sustain healthy behavior outside the juvenile justice system.

After a year of collecting substantive input from town hall meetings and hundreds of personal interviews around the state, the YLD released its proposed model code in 2008. The Juvenile Law Committee, the JUSTGeorgia partners and the Carl Vinson Institute of Government at the University of Georgia continued to gather stakeholder feedback before the legislation was introduced in 2009. The Senate Judiciary Committee held 10 hearings on the proposal, which resulted in further valuable public comment for future consideration.

The proposed juvenile code rewrite came very close to becoming law last year, passing the House of Representatives and the Senate Judiciary Committee unanimously but failing to reach the full Senate for a vote amid concerns over funding some of the bill’s provisions.

Since that time, Gov. Deal’s Criminal Justice Reform Council has shifted its focus to juvenile code reforms and helped bring the new proposal forward.

All who have had an interest to weigh in have done so or had ample opportunity to do so. No one got everything they wanted in the new proposed model code, which most likely means it is a fair and balanced bill.

HB 242 represents the best of all input from all stakeholders who use the juvenile code on a daily basis and who are, therefore, in the best position to know what the legislation should include. It has been vetted and re-vetted, iterated and reiterated and cussed and discussed.

Georgia needs a new juvenile code, and HB 242 is the best possible blend of all perspectives, one through which the state can continue to meet the objective of being tough on crime but also smart on crime. As the age-old saying goes, “it’s all over but the shoutin’.” We urge the General Assembly to act swiftly and decisively.

Robin Frazer Clark of Atlanta is president of the State Bar of Georgia.

Last night I had the great honor and distinct privilege, as President of the State Bar of Georgia, to recognize Judge Carla Wong McMillian, recently appointed by Governor Nathan Deal, as the first Asian Pacific American state appellate judge in the Southeast. This was an historic appointment by Governor Deal and the State Bar of Georgia salutes him, as well, in breaking this barrier for Asian Pacific Americans. I was proud to stand with the Honorable Al Wong, Judge, State Court of DeKalb County and the very first Asian Pacific American state court judge in Georgia, to recognize this nod to the need for vigilance and diversity.

Judge Wong McMillian's colleagues from the Georgia Court of Appeals joined us, as did many members of the Georgia Asian Pacific American Bar Association (GAPABA) who co-sponsored the reception. Thank you also to Thomas Worthy, Governor Deal's Deputy Executive Counsel, for joining us. My remarks from the evening are copied below. It was a wonderful night to celebrate diversity and take pride in the extraordinary appellate bench we have in Georgia. As I said last night, "each time a barrier is removed in the leadership of our courts, a door opens to a new generation of potential judges, which might include the next Thurgood Marshall, the next Sandra Day O’Connor, the next Robert Benham, the next Leah Ward Sears or the next Carla Wong McMillian. And that is something to be celebrated."

Robin Frazer Clark
President, State Bar of Georgia
Reception Honoring Judge Carla Wong McMillian
February 21, 2013

On behalf of the State Bar of Georgia, it is my pleasure to welcome you to the Bar Center this evening, and to thank the Georgia Asian Pacific American Bar Association for co-sponsoring this reception.

Judge Carla Wong McMillian is most deserving of her appointment by Governor Nathan Deal to serve on the Georgia Court of Appeals, considering her 14 years in the legal profession, including her exemplary service as a trial judge in the Fayette County State Court.

A native Georgian born and raised in Augusta, Judge McMillian was the valedictorian of her high school class and graduated with high honors from Duke University, earning degrees in both History and Economics.

She graduated third in her class from the University of Georgia Law School, where she was a Woodruff Scholar and served as president of the Christian Legal Society.

Judge McMillian began her legal career as a federal law clerk for Judge William C. O’Kelley of the U.S. District Court for the Northern District of Georgia.

She later joined Sutherland Asbill & Brennan LLP, where she became a partner in the litigation group. Her practice centered on complex business litigation, including a heavy emphasis on and experience in appellate matters.

Judge McMillian is a frequent speaker on professionalism in the Bar and a mentor for younger lawyers and law students on professionalism issues. She promotes the highest ideals of the legal profession to younger students as well by speaking at local school events, hosting student groups who visit the courthouse and serving as a mock trial competition judge.

We are not only congratulating Judge McMillian this evening. We also salute and thank Governor Deal for making this historic appointment of the first Asian Pacific American state appellate judge ever in the Southeast.

As I said when I took office as only the second female president of the State Bar of Georgia, diversity of leadership is, in my opinion, a key to the ongoing health and strength of any organization, the justice system included.

Diversity allows all points of view to be heard and considered. It makes one stop and reconsider the framework through which you view all issues and makes you actually take a minute and put yourself in someone else’s shoes before reaching any decision.
Diversity builds strength and stamina, which is a Darwinian concept but has proven true throughout all of nature. Nature favors diversity. As author James Ellison said, “The real death of America will come when everyone is alike.”

Each time a barrier is removed in the leadership of our courts, a door opens to a new generation of potential judges, which might include the next Thurgood Marshall, the next Sandra Day O’Connor, the next Robert Benham, the next Leah Ward Sears or the next Carla Wong McMillian. And that is something to be celebrated.

Accepting Governor Deal’s appointment to the Court of Appeals further confirms Judge McMillian’s status as a real trailblazer in Georgia’s justice system. She was the first minority woman elected countywide to any office in Fayette County’s history, as well as being the first Asian American female judge to be elected in Georgia.

It is no wonder, then, that she has received such honors as one of the nation’s “Best Lawyers under 40” by the National Asian Pacific American Bar Association in 2012 and as one of the “Most Powerful and Influential Women in Georgia” by the National Diversity Council in 2010.

Judge McMillian’s acceptance of this nomination is further proof of her status as a trailblazer in Georgia’s justice system. It also demonstrates her continued commitment to public service, which in turn serves to promote the cause of justice, uphold the rule of law and protect the rights of all citizens.

The State Bar of Georgia enjoys a great working relationship with the Court of Appeals, which we look forward to continuing with Judge McMillian for many years to come.

Please join me in congratulating our newest judge on the Georgia Court of Appeals, Judge Carla Wong McMillian.

Yesterday, as President of the State Bar of Georgia, I testified in front of the House Judiciary Committee in support of HB 242 which is a comprehensive Juvenile Justice Reform Act. It includes both Juvenile Criminal Justice reform and a rewrite of the Juvenile Code, which is Title 15 of the Official Code of Georgia. Below are my remarks to the House Judiciary Committee:

REMARKS OF ROBIN FRAZER CLARK TO THE JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES OF THE GEORGIA GENERAL ASSEMBLY

I am Robin Frazer Clark and am the President of the State Bar of Georgia, which is made up of nearly 44,000 lawyers, including judges, prosecutors, public defenders, private pratitioners and even Legislators. On behalf of the State Bar of Georgia, let me first thank you as members of the Georgia General Assembly for your dedication to the citizens of Georgia and your personal sacrifice I know each of you make to be here and make a difference. We appreciate you.

Eight years ago, the Juvenile Law Committee of the Young Lawyers Division undertook an ambitious project: to create a model juvenile code that could provide a framework, based in proven best practices and scientific research, for revising Georgia’s juvenile code. In 2004 the Georgia Bar Foundation funded the project for the YLD to create a model juvenile code. The following year, members of the General Assembly passed a resolution calling for an overhaul of the current juvenile code.

In 2006, JUSTGeorgia, a statewide juvenile justice coalition, was formed for the purpose of advocating for changes to the state’s Juvenile Code and the underlying social service systems to better serve Georgia’s children and promote safer communities. The coalition’s founding partners are Georgia Appleseed, the Barton Child Law and Policy Clinic of the Emory University School of Law and Voices for Georgia’s Children.

Two core needs were identified by JUSTGeorgia: to pass an updated Juvenile Code that reflects the best practices and the latest research and scientific findings in the child and adolescent brain development field and to cause policy changes in the social services system that can prevent detention and sustain healthy behaviors outside the juvenile justice system.

JUSTGeorgia began to collect stakeholder feedback in 2007 through a series of town hall meetings around the state and hundreds of personal interviews, the goal being to collect substantive input on how changes to the Juvenile Code could best meet Georgia’s needs. A year later, in 2008, the YLD released its Proposed Model Code. “JUSTGeorgia” began an intensive initiative to gather stakeholder feedback on our work. The Juvenile Law Committee then assisted JUSTGeorgia in incorporating this feedback into the PMC to create a legislative package that would comprehensively reform Georgia’s juvenile code.

The Proposed Model Code was the culmination of four years of best practice research and hard work by our code reporters Juvenile Law Committee member Soledad McGrath, the Honorable Juvenile Court Judge Velma Tilley of Bartow County, and Law Professor Lucy McGough of Louisiana State University. In developing the PMC, the reporters conducted fifty state surveys of juvenile laws and practices; studied scientific research on child development, adolescent brain development, rehabilitation of youthful offenders, and responses to child abuse and neglect; and reviewed recommendations made by experts, such as those at the National Council of Family and Juvenile Court Judges, the ABA Center on Children and the Law, and the National Association of Counsel for Children. This research included stakeholder feedback on Georgia’s current juvenile code through town hall meetings in each of Georgia’s judicial circuits and through personal interviews with hundreds of individual stakeholders conducted by pro bono volunteers from the state’s most prominent law firms. Since the PMC’s release, JUSTGeorgia has worked diligently to educate stakeholders and the community about its contents, and to seek their input on how it could best be adapted to meet Georgia’s needs. Here are just some of the ways in which input was gathered:
• From March – July 2008, JUSTGeorgia held a formal comment period on the PMC, and dozens of individuals and organizations submitted written comments.
• In May 2008, the Juvenile Law Committee hosted a CLE in partnership with ICLE, in which attendees learned about the content of the PMC and participated in discussion groups where they shared their reactions.
• The PMC reporters and the JUSTGeorgia partners have also made dozens of presentations to stakeholder groups including the Prosecuting Attorneys’ Council, the Council of Juvenile Court Judges, and many others.
• At the request of Senator Hamrick, the Carl Vinson Institute of Government at the University of Georgia conducted a series of focus groups with key stakeholder groups including the Department of Human Resources, the Department of Juvenile Justice, the Prosecuting Attorney’s Council, the Council of Juvenile Court Judges, and others.
• JUSTGeorgia held facilitated discussions with key stakeholder groups for issues on which comments from stakeholder groups were in direct conflict with each other in an attempt to reach compromise. These issues included representation of children, designated felonies, and automatic transfer of children to adult court.
The Juvenile Law Committee worked with the JUSTGeorgia partners to incorporate all of this stakeholder feedback into the PMC to create a legislative package that reflects both national best practices and the specific needs of Georgia’s children and the professionals who serve them.

The initiative first appeared before lawmakers in 2009 as Senate Bill 292. The legislation failed to get out of committee during the 2009-10 legislative session, but the Senate Judiciary Committee held about 10 hearings on the proposal, which resulted in valuable public comment and discussion for future consideration and drafting of new legislation.

As a result, the proposed Juvenile Code rewrite came very close to becoming law during the 2012 legislative session. House Bill 641, the Child Protection and Public Safety Act, was introduced by House Judiciary Committee Chairman Wendell Willard and handled in the Senate by then-Judiciary Committee Chairman (and now Superior Court Judge) Bill Hamrick.

HB 641 was approved in the House by a vote of 172-0 on Feb. 29, 2012. It also received unanimous approval by the Senate Judiciary Committee on March 22, 2012, but failed to reach the full Senate for a vote when it stalled in the Senate Rules Committee amid concerns about funding issues.

The Governor’s Criminal Justice Reform Council, which was formed in 2011 and recommended the changes to the adult prison system enacted earlier this year, focused this past year on reforms to Georgia’s juvenile law, which Judge Michael Boggs will describe more fully to you.

HB 242 now before this committee includes this proposed comprehensive update of the state’s 42-year-old Juvenile Justice Code, which includes all of Title 15 Chapter 11 of the Official Code of Georgia.

The State Bar of Georgia has conducted numerous open discussions and informational sessions to vet the Proposed Model Code thoroughly. It is the State Bar’s members who practice juvenile law and represent juveniles, who prosecute juvenile offenders, who are the judges of juvenile courts, who are the court-appointed guardians of juveniles, who will use this new Juvenile Code on a daily basis. These lawyers have vetted HB 242 fully and completely and all who have wished to weigh in have done so or had ample opportunity to do so. Not everyone got everything they wanted in the new proposed model code, which probably means it is a fair and balanced bill. HB 242 represents the best of all input from all stakeholders who use the Juvenile Code on a daily basis and who are, therefore, in the best position to know what the new Code should include. It has been vetted and revetted, iterated and reiterated and cussed and discussed. The State of Georgia needs a new Juvenile Code and HB 242 now before you is a perfect blend of the best of all perspectives. As Scripture says, “it’s all over but the shoutin’.” It just now needs to be passed. On behalf of the 44,000 members of the State Bar of Georgia, we urge favorable consideration by this Committee of HB 242. Thank you again for your efforts to promote the cause of justice, uphold the rule of law and protect the rights of all citizens.

I am in intense trial preparation this week for a medical malpractice trial I start on Tuesday in the DeKalb County State Court. As a plaintiff's personal injury lawyer, I take just about any sort of case, including cases like the one I will try next week, against a physician for a medical error he committed during surgery. This type of case is known as a "medical malpractice" case, but all "malpractice" really means is "negligence," and all "negligence" means is "carelessness." In preparing for this trial I filed a Motion in Limine, which is a particular type of motion that seeks to limit the type of evidence that a jury is allowed to hear at trial. Part of my Motion in Limine is to prohibit argument or the charging of the jury on what is known in Georgia Law as the "presumption of due care." It is a law that says doctors in Georgia are presumed to have used "due care" in their treatment of a patient, even though they are now being sued for it.

This strikes me as fundmentally unfair. No other Georgia citizen gets the benefit of a presumption by the jury that he or she exercised "due care." This is even more unfair given the fact that to file a lawsuit against a Georgia doctor you have to attach to the Complaint an Affidavit by another doctor that says the Georgia doctor did, in face, commit malpractice, i.e., did not exercise due care. Presumption rebutted! Already!

Here is a portion of my Motion in Limine on the unfair "presumption of due care."
Defense counsel may attempt to argue
or otherwise introduce before the jury reference to a “presumption of due
care” afforded to the medical profession. Such argument would be
improper, unduly prejudicial and highly confusing to the jury.
Unlike the presumption of innocence and other constitutional
presumptions, the presumption of due care that was once afforded to
medical practitioners, is nothing more than a rebuttable evidentiary
presumption that finds its roots in pre-Civil Practice Act case law. The
adoption of O.C.G.A. § 9-11-9.1 requiring an Affidavit to be filed with a
complaint alleging medical negligence rendered the presumption of due
care extinct because the presumption is rebutted from the outset of the
case. It would be misleading and incorrect for the jury to be told about a
presumption, which is essentially an evidentiary threshold, when the
presumption had already been rebutted.
The presumption of due care is an evidentiary threshold for
determination by the Court as to whether expert testimony is
present to allow the case to proceed to jury resolution and
verdict or whether non-suit or directed verdict is required based upon
the absence of expert testimony, thereby allowing the presumption to
remain in effect and requiring Plaintiffs’ case to be dismissed for failure
to raise an issue for the jury to determine.
Plaintiffs submits in support of her Motion the case of
Killingsworth v. Poon, 167 Ga. App. 653, 307 S.E.2d 123 (1983). In this
case, the Court addressed the presumption of due care and the
evidentiary proof needed to overcome and thereby render such
presumption no longer in force and effect.
In Killingsworth, the Court acknowledged that the presumption
was set as an evidentiary standard for submission of a case to the jury. In
that case, the plaintiff did not have expert testimony to overcome the
presumption. Nevertheless, the plaintiff was held to have overcome the
presumption because the facts of the case fit within an exception to the
requirement that expert opinion be presented to establish the
violation of the standard of care. Rather, the facts of some cases are
within the common knowledge of jurors and of such a nature as to allow
the jury to find negligence even in the absence of expert testimony.
In Killingsworth, the Court reversed the trial court’s grant of
summary judgment. In so doing, the Court rejected the defense
contention that the presumption of due care remained in force so that
summary judgment was required because of the absence of expert
testimony. The concurring opinion recognizes the effect of the majority
opinion but states the view that the presumption remains for jury
consideration. The majority, by allowing the jury to reach a verdict for
the plaintiff at trial, through its holding, rejected such a notion.
The Court should not allow references to such evidentiary rule,
especially in voir dire or opening statement, in that it gives the jury the erroneous view that the
Plaintiff must prove her case beyond a reasonable doubt and that the jurors are expected to view
the testimony presented in Plaintiff’s case-in-chief, including the Plaintiff’s expert testimony,
with a false and erroneous evidentiary burden higher than the
greater weight of the evidence, which is the proper and only burden of
proof. Any reference to the presumption of due care without mentioning that the presumption
has already been overcome by expert testimony is further misleading to the jury
and pre-judges Plaintiff’s presentation of evidence from the outset of trial.
The Court, not the jury, is given the responsibility to determine
whether the Plaintiff has made out the elements of the case to submit the case to the jury or direct
a verdict to the Defendants.
Either Plaintiff has overcome through expert testimony or otherwise
the presumption or has failed to do so. The sufficiency of the evidence
for directed verdict is a matter for the Court to decide, not the jury. The jury should not charged
on a presumption that Plaintiff has already rebutted.
Plaintiff also challenges and objects to the use of the presumption of due care
rule by the jury either by the jury charge of the Court or otherwise, in
that it is unconstitutional and violates the due process and equal
protection clauses of the United States Constitution and the Constitution
of the State of Georgia in that it favors and protects a class of people, namely, the
medical profession, without a compelling or rational basis in law or fact
and no other class of persons is afforded such special privilege.

It was a tragic story of unspeakable loss when we learned of four siblings' deaths in a Conyers, Georgia fire in a duplex on January 8, 2013. As a plaintiff's personal injury lawyer, I so often help families deal with unexplainable loss and sorrow. We have since learned that the fire was started by a six year old brother of the four siblings who died. Apparently, the young boy was playing with a cigarette lighter in the stairwell of a duplex the family rented. I say "started the fire" instead of "caused their deaths" because the real "proximate" cause of the deaths was the lack of any smoke detectors in the rented duplex. "Investigators... determined that the only smoke alarm in the duplex was downstairs and that it had no battery in it. Dwayne Garriss, state fire marshal, said it is state law that smoke detectors must be placed outside any sleeping area. However, he said the landlord will face no liability, because the law carries no penalties for a first offense. It provides a $25 fine for a second offense."

That's a crime in and of itself, isn't it? Certainly, failing to have the mandatory smoke detectors in place as required by law and then renting the duplex to a family with five small children is criminal. Under Georgia law (O.C.G.A. §25-2-40) an approved battery operated smoke detector is required in every apartment, house, condominium, and townhouse constructed prior to July 1, 1987. The smoke detector is to be located on the ceiling or wall at a point centrally located in the corridor or other area giving access to each group of rooms used for sleeping. Where the dwelling has more than one story, detectors are required on each story including cellars and basements, but not including uninhabitable attics. The detectors must be listed and meet the installation requirements of NFPA 72. The law is to be enforced by local building and fire code officials.

It seems that the landlord, at the very least, recklessly subjected the family to exactly this type of risk of death. Obviously, had there been smoke detectors, the alarms would have gone off and would have awakened the mother in time for her to save her childrens' lives. Instead, they are dead and she is left with horrible burns on most of her body.

Even if there is no criminal prosecution, the family certainly has a viable civil cause of action for money damages for the landlord's failure to keep the premises safe. The landlord's duty to keep the premises and approaches safe for his tenants is nondelegable and strict, under Georgia Code Section 51-3-1. There is no question under that Georgia statute the landlord who rented this duplex without smoke detectors is responsible under Georgia law for these four deaths. Hopefully, this will give this family some small sense of justice where the criminal justice system, apparently, offers them none. Sometimes a citizen of Georgia must turn to the Georgia Civil Justice System for justice instead of the Georgia Criminal Justice System. My prayers go out to the family for healing.

It is a rather morbid statistic that the Georgia State Patrol keeps but it is helpful to keep track of, and that is the number of deaths on Georgia Highways during a holiday. For the just completed Thanksgiving Holiday, that unfortunate number is 19. This is an increase in the number of highway deaths from last year's total at this same time of 13. There were also another 263 injuries from Georgia motor vehicle wrecks this year, down from 303 last year. Almost all of the fatal crashes involved either speed, alcohol, or the victim failing to use a seat belt.

The Governor's Office of Highway Safety (GOHS) hopes these statistics and their efforts "will encourage responsible driving practices, and create safer roadways throughout the communities. With this information it is our hope that individuals and organizations work to reduce the number of motor vehicle crashes that occur yearly on Georgia roads and highways." You can find more helpful information at http://www.gahighwaysafety.org/.

In my plaintiff's personal injury law practice, I deal with death of someone's loved one on a daily basis. I know that each of those 10 killed represents a loving family missing a beloved family member and I know that family is grieving over their loss. My heart goes out to each and every one that they may receive comfort and healing.