Atlanta Injury Lawyer Blog

It is with great sadness that I report that we have lost an amazing jurist on the Georgia Appellate Bench, Judge Debra Bernes. Judge Debra Bernes was truly an incredible woman and wonderful judge. Gone too soon. I will miss her and the citizens of the State of Georgia will miss her, because we have lost a compassionate heart and voice on the Georgia Court of Appeals with her passing. My heartfelt thoughts and prayers go out to her husband and family. God Bless You.

Appeals court judge Debra Bernes dies of cancer
ShareThisPrint E-mail By Bill Rankin and Ty Tagami

The Atlanta Journal-Constitution

Georgia Court of Appeals Judge Debra Bernes, a former Cobb County prosecutor who won one of the most unusual elections in state history, died Tuesday after a long bout with cancer.

Georgia Court of Appeals Judge Debra Bernes has died after a battle with cancer.

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Bernes, 54, was first elected to the appellate bench in 2004 and was running unopposed for re-election this fall. Her funeral will be held at 10 a.m. Thursday at Ahavath Achim Synagogue in Atlanta, with her internment to follow at Arlington Memorial Park in Sandy Springs.

Two years ago, Bernes was diagnosed with renal cancer that metastasized throughout her body, family member Bill Hendrick said. She had been hospitalized and given only hours to live over the weekend.

Nancy Ingram Jordan, who worked with Bernes in the Cobb County District Attorney's Office and later as a law partner, called Bernes a remarkable woman.

"She loved her family, loved the rule of law and she is going to be missed terribly," Jordan said.

Bernes had a sharp legal mind and was compassionate about the less fortunate, said Georgia Supreme Court Justice Robert Benham, who first met Bernes almost three decades ago when she was a Cobb prosecutor.

"She was really the kind of citizen we all hope to be; she had strong principles and strong values," Benham said. "She was completely fair-minded."

Bernes won election to the appeals court in a race that generated startling amounts of campaign cash and looked like it would never end.

She ultimately won the crowded race after a recount and then another ordered election because a candidate's name, Howard Mead, had been incorrectly listed as "Thomas Mead" on 481 ballots in Laurens County. She won a runoff against Mead, who raised a record $3.3 million for his unsuccessful campaign, most of it through personal loans.

Bernes, a past president of Cobb's bar association, once chaired the Cobb Chamber of Commerce public safety committee and was a board member for the Jewish Educational Fund and the William Brennen Jewish Home.

Bernes served as a trial prosecutor in the Cobb County District Attorney’s office and later specialized in appeals. She left the DA's office in 2000 and became a private attorney.

Bernes, who earned her undergraduate and law degrees from the University of Florida, was from Atlanta, a 1973 graduate of Grady High School.

She is survived by husband, Gary Lee Bernes, and two adult children, Lane and Matt.

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Posted In: State Bar of Georgia

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There is a very interesting article in today's Marietta Daily Journal Online that has many Georgia citizens calling the Georgia Department of Transportation's lack of road maintenance, including the right of ways next to state roads, a disgrace. Many may not even realize the impact on driver safety the DOT's failure to meet their duty of road maintenance may have.

Budget crunch forces GDOT to cut back on road maintenance
by Kathryn Dobies
kdobies@mdjonline.com
July 19, 2010 12:00 AM | 956 views | 6 | 5 | |

Weeds stand tall beside Macland Road in West Cobb on Sunday. The budget crunch has forced the Georgia Department of Transportation to cut back on their highway cleanup efforts.
slideshow COBB - Budget cuts have reduced the fight against what one Cobb resident calls an epidemic of debris - trash and weeds along many state routes and highways throughout Cobb.

D.F. Lane, 73, has lived in Powder Springs for six years and thinks the abundance of litter and overgrown grass along the highways in Cobb has become an embarrassment to the county. He is leading a charge in his retirement community of MacLand Square to get the Georgia Department of Transportation to address the problem.

"We need to get some immediate action on a very embarrassing problem," Lane said. "We're talking about weeds on the middle of some major highways ... I think it's a prelude to a larger issue."

In a letter to the Journal dated July 9, Lane explained further: "Viewing these scenes, would you invest in a new business in this setting of weeds and littered highways? ... I still believe a vast majority of the citizens are willing to pay a half-penny or more for highway maintenance."

Lane took pictures of weeds at the intersection of State Routes 360 at 176 in Powder Springs, SR 360 at Highway 120 in Marietta, and along SR 5 near Barrett Parkway, and sent them to Georgia DOT in mid-June.

Georgia DOT spokesman Mark McKinnon said Friday that crews used to clean up the state highways four times a year, but with budget cuts beginning last year the DOT has lost both manpower and money, and now mows the highways once a fiscal year, which begins July 1. Most of Cobb's highways, McKinnon explained, haven't been mowed or cleaned since last spring.

Lane said GDOT engineer Thomas Mims told him funds and equipment to clean up the roads are limited and that the highways in Cobb are on a list to be cleaned up this summer.

McKinnon said crews have already started working on Cobb's highways, an effort that takes about three to four months to complete. He said the highways should be finished by the end of August, although he could not provide a specific date, because he said crews are given a list of roads to clean and simply work their way down the list.

Lane acknowledged Friday that a lot of weeds had been cut at select intersections, but he believes that a quick cleanup effort is not enough to turn around the streets of Cobb. Instead, Lane thinks more citizens need to take action and contact GDOT to urge them to take better care of the streets. He said the state transportation department has training for residents interested in helping to clean up the highways, something he has also done.

"We need someone to say that problem is petty, it's embarrassing and it shouldn't exist," Lane said.

McKinnon said weeds are a never-ending problem, but littering is preventable. He said litter pickup costs the state DOT $14 million each year. The department uses its own manpower to clean up the litter, but generally contracts out for mowing.

"That's really money that shouldn't have to be spent," he said. "If people wouldn't throw things out of their vehicles and just find a trash can for them, then we wouldn't have to spend that money, because it is taxpayer money. That's an expense that's preventable."

Read more: The Marietta Daily Journal - Budget crunch forces GDOT to cut back on road maintenance

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Posted In: Motor Vehicle Accidents

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Just when I thought it was safe to go into the water, it is reported this morning that a young woman has died in a boating incident on Lake Lanier and police authorities have charged the man who was driving the boat at the time with BUI, Boating Under the Influence. This comes right on the heels of my last blog entry in which I reported the good news that the Georgia Department of Resources had indicated the Fourth of July Holiday was safer than expected in Georgia, with BUI's on Georgia waters as being down this year from last year. My heart goes out to the family who has lost a loved one in this preventable incident.

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Looks like Georgia highways this Fourth of July Holiday weekend were actually safer than the Georgia State Patrol had predicted, which is great news. Ten people died in car wrecks over the holiday weekend and the Georgia State Patrol had predicted, in one of the most morbid official acts it, apparently, must do, eighteen people would die. There were 2,648 car crashes with 699 injuries.

While we are all enjoying our time this holiday weekend with our families, we must remember that there are ten Georgia families grieving over the loss of a loved one today. As a personal injury attorney here in Atlanta, I often have to talk with people at one of the darkest times in their lives, after they have lost a loved one in a car wreck. My heart goes out to them.

The Georgia Department of Natural Resources also reported yesterday that boating accidents and BUI's, or Boating Under the Influence, arrests were also down. There were eight boating accidents on Georgia waters this weekend, compared to 18 last year. Department of Natural Resources officers arrested 16 people for boating under the influence, compared to 31 last year.

This is good news to know that fewer Georgia lives were lost this year on the road and on the water than last year, but there are still Georgia families grieving today.

Posted by Robin Frazer Clark | Permalink | Email This Post

Posted In: Motor Vehicle Accidents

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I came across a pretty neat idea in the Blackberry App World today, an app for your Blackberry Smartphone called "Drive Safely" that reads your incoming texts out loud to you while you are driving so you don't look down at your phone and become distracted while reading that all-too-tempting text. It's a free app (although you may buy a souped-up version, too) and here's what it offers:
Features include:

-It is free to use DriveSafe.ly
-Automatically plays incoming text SMS and email messages
-Play messages on demand through menu
-No complicated software to install easy to use
-Small footprint lightweight app does not slow down your phone
-Customizable auto-response and timeout duration
-Human sounding text to speech powered by iSpeech.org

Just a thought while TWD (Texting While Driving) is on my mind. Let me know if you try it.

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Posted In: Motor Vehicle Accidents

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Many of you know that my practice here in Atlanta, Georgia is dedicated to representing the victims of other people's negligence in personal injury lawsuits. Many of my clients have been injured in serious car wrecks, some of which were caused by a distracted driver who was using a cell phone or texting while driving (TWD). Many of you know I have often written about the dangers of distracted driving and that I supported the Georgia Legislature's efforts to ban TWD. The Georgia Legislature did just that this session, the Governor signed the bill and it will go into effect this Thursday, July 1, 2010. Many other states also have new laws prohibiting TWD going into force on July 1, also, including Iowa and Michigan. These other states are facing the same questions regarding enforcement of the law as Georgia police officers and state troopers are. One Michigan sheriff said "I want to make sure our officers aren't arbitrarily pulling somebody over just because they have a phone in their hands."

So many of you may have the question of how this law will be enforced? Many police departments are saying police officers will actually have to see with their own two eyes a driver texting before they can arrest that driver. Interestingly, an adult driver may punch in (really can't use "dial" anymore, can we?) a telephone number while driving but simply cannot text or read a text. How will a police officer tell this difference? Bottom line: he won't. He will fine you for TWD and then it will be up to you to try to convince the traffic court judge he was wrong and you were really just calling someone on your cellphone, not texting. Plan to bring your cell phone records with you to traffic court!

I am convinced this new law will save lives. Just get the desire to text while driving out of your system now. You may text while driving freely without fear of reprisal up to midnight this Thursday; after that, drivers beware! In a nod to American entrepreneurship, companies that can help you with your texting while driving addiction are popping up. One example is PhonEnforcer, which automatically turns off your cellphone while you are driving if you lack even a modicum of discipline to do it yourself. Of course, if you have teenagers driving, this might be a lifesaver...literally.

In the meantime, there remain all sorts of things that drivers do that distract them that aren't illegal, including changing the song on their IPOD, putting on makeup, talking, eating, and even reading (yes, I have personally observed many Atlanta drivers with newspapers and books in their hands as they inch through rush hour traffic). But the TWD law is a start and a good one. I, as the mom of a soon-to-be-driving-teenager, appreciate the efforts of the Georgia General Assembly.

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Posted In: Motor Vehicle Accidents

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FOR IMMEDIATE RELEASE CONTACT: Sarah I. Coole
June 21, 2010 Director of Communications
404-527-8700; 800-334-6865

Robin Frazer Clark of Atlanta Installed as State Bar of Georgia Secretary

Atlanta – Robin Frazer Clark of Atlanta was installed as secretary of the 41,000-member State Bar of Georgia on June 19 during the organization’s annual meeting at Amelia Island, Fla.
Clark is a graduate of Vanderbilt University and the Emory University School of Law and was admitted to the Bar in 1988. A past president of the Georgia Trial Lawyers Association, she moves into her new role with the State Bar having served on the Board of Governors and the Executive Committee.
###
The State Bar of Georgia, with offices in Atlanta, Savannah and Tifton, was established in 1964 by Georgia’s Supreme Court as the successor to the voluntary Georgia Bar Association, founded in 1884. All lawyers licensed to practice in Georgia belong to the State Bar. Its more than 41,000 members work together to strengthen the constitutional promise of justice for all, promote principles of duty and public service among Georgia’s lawyers, and administer a strict code of legal ethics.

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Friends: I couldn't resist bringing this article to you as an example of how, apparently, nothing is beneath State Farm to try to make a buck. How low will it go? This shows how low State Farm is willing to stoop to make a profit. Unbelievable! Take it from an Atlanta trial lawyer, don't trust State Farm.

Family asked to pay for car damage after dog run over
May 27 03:40 PM US/Eastern

State Farm Insurance has asked a Canadian family to pay for repairing a bro...

A car insurer has asked a Canadian family to pay for repairing a broken bumper after their dog was struck by the vehicle and died, local media said Thursday.
The traffic accident occurred in March while Jake, a 12-year-old yellow Labrador, was out for his daily stroll around a quiet neighborhood in Aurora, Ontario, north of Toronto.

Kim Flemming had let the dog out when she arrived home from work. Moments later, a man knocked on the door to say a car had run over Jake.

"I got to the road and he was dying," Flemming told the Toronto Star. "He died in my arms."

Two months later, the family received a bill in the mail for 1,732.80 Canadian dollars (1,648.95 US) from State Farm Insurance.

The letter said Flemming had been found responsible for damage to the vehicle. "As such, we are looking to you for reimbursement," it reportedly stated.

State Farm spokesman John Bordignon told the Star: "They could have made sure their dog wasn't free on the roadway."

A local bylaw requires pets to be on a leash when off the owner's property, but the Flemmings said Jake had become accustomed to roaming outside the family's home.

State Farm was not immediately available for further comment.

"We've lost a member of our family but we're supposed to pay for the damage to her bumper? That's just wrong," daughter Katherine Flemming said.

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Congress is considering a total ban on the manufacture and sell of drop-side cribs. The fact that Congress is even discussing this indicates how truly dangerous they must be, because, as we all know, the United States Congress moves at a glacial pace (read "slow as cold molasses as we say in Kentucky) and the fact that Congress is even now addressing the issue indicates how serious the hazard of drop-side cribs must really be.

Those of us who are parents of older children most certainly raised our children using drop-side cribs. They saved us from an untold number of backaches. No doubt none of us would have used them had we only known what a terrible danger they posed to the safety of our babies, the most precious things on Earth to us. When my children were infants, I was aware of a potential danger of having too much space between the mattress and the crib railings. We were told by our physicians that an infant could scoot between the mattress and the side of the crib and become wedged there and suffocate. The test was to make sure you could get nothing more than your fingers between the mattress and the side of the crib. The current danger being investigated is similar, but occurs when a piece of hardware from the crib is missing or the drop-side is installed incorrectly, which can easily occur.

Representative Kirsten Gillibrand from New York is leading the charge in Congress. "There's a great urgency here. We have to make sure that no parent is unaware that drop-side cribs could kill their children," Sen. Kirsten Gillibrand, D-N.Y., said in an Associated Press interview. There have already been recalls of hundreds of thousands of cribs recalled. At least 32 young children have strangled or suffocated in the past nine years due to defects and other problems of drop-side cribs. Even one death is too many. Although drop-side cribs may soon be obselete, they will still be found at yard sales, which may pose a problem for unknowing parents. Before buying any such product, I recommend you check the Consumer Product Safety Commission's website to verify the product you intend to buy has not been recalled and doesn't pose a safety risk for your child.

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Posted In: Products Safety

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The Consumer Product Safety Commission, along with the Family Dollar Store, has recalled the "Auto Fire Toy Dart Gun." The manufacturer of the toy, Henry Gordy International, Inc., of Plainfield, NJ, has refused to recall the toy on its own, even though at least two children have died from swallowing parts of the darts. The toy dart guns were manufactured in China, which raises the issue of how safe are toys or other products manufactured in that country? Remember, this is the same country that manufactured children's toys that had lethal levels of lead in the paint on the toys. And the same country that sold infant's formula laced with melamine.

All very scary stuff. It is extremely difficult to advise the average consumer on what is safe and what is potentially lethal. For now, I would simply recommend continuing to check the Consumer Product Safety Commission's website on a regular basis to see what is on their radar screen to help make your family more safe.

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Posted In: Products Safety

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Friday, May 14, 2010
Incumbent unseated in State Bar election
It was the first time in memory that an office holder was challenged
By Janet L. Conley, Associate Editor

In an unprecedented move for a State Bar of Georgia election, Robin Frazer Clark has unseated incumbent C. Wilson DuBose for the job of secretary.

The bar, which released election results this week, reported that Clark, a personal injury lawyer who runs her own firm, garnered 3,552 votes to DuBose's 3,015. DuBose is a litigator focusing primarily on business and construction law with DuBose, Massey, Bair & Evans in Madison, Ga.

Clifton A. Brashier Jr., the bar's executive director, said this is the first challenge to an incumbent officer he can recall in the bar's history. Incumbents are not identified as such on the ballot members use to vote.

Brashier also said that Clark is only the second woman, not including those in the Younger Lawyers Division, to become a bar officer. The first was Linda A. Klein, now with Baker, Donelson, Bearman, Caldwell & Berkowitz, who served as bar president in 1998.

A contested race for the open treasurer's post went to Charles L. "Buck" Ruffin of Baker Donelson in Macon, with 3,536 votes. His opponent, Nancy J. Whaley of Sandy Springs, a standing Chapter 13 trustee, garnered 3,120 votes.

A hotly contested Board of Governors seat for the Atlanta Circuit, Post 16—which had 13 contenders—went to Dawn M. Jones of King & Spalding.

Kenneth L. Shigley of Chambers, Aholt & Rickard was elected president-elect without opposition. The current president-elect, S. Lester Tate III of Akin & Tate in Cartersville, and the rest of the officers and Board of Governors members will move into their new posts at the bar's annual meeting June 18 and 19 at Amelia Island, Fla.

For full election results, visit http://www.gabar.org/news/election_results_2010_state_bar_of_georgia_election/.

In running against an incumbent, Clark not only made bar history, she also sped up the usual process by which lawyers rise to an officer's post. Typically, lawyers serve on the bar's Board of Governors for a number of years before moving to the Executive Committee for several years and then to an officer's post. Clark has served on the Board of Governors, but spent only a year on the Executive Committee prior to running for office. The secretary's post is viewed as being a feeder position for bar presidency.

As DuBose put it, "All these officer positions are simply training positions for people who have a desire to become state bar president. Very few people go out for these positions simply to have these positions be the final destination."

DuBose said he was disappointed at losing the secretary's post, and that he was unsure why he lost.

"Georgia Trial Lawyers Association members probably came out in big numbers," he said. "They always do a good job getting out the vote."

Clark is a past president of GTLA. Her husband, Bill Clark, is political director for the Georgia Trial Lawyers Association and lobbies for the group.

Robin Clark said she believes she won because she traveled the state, campaigning for the post. "I shook literally thousands of lawyers' hands, and people appreciate that, even in a state bar race."

Clark said she took the unusual move of challenging an incumbent because "I felt like we needed to improve relations with the Georgia Legislature immediately. We couldn't wait around for that and I feel like I can deliver that for the state bar. … I have great relationships with a lot of legislators. I have their respect and the state bar needs that."

Clark said she wasn't sure what caused the bar's less-than-ideal relationship with the Legislature.

"The two things that are typically cited by legislators are the … Public Defender Standards Council and the way some folks have gone about trying to promote that or push that, and then the second thing that's typically cited … is the advisory opinion… that basically said if there's a conflict in a public defender's office—which happens all the time—then two public defenders from the same circuit cannot represent the co-defendants in the same case."

That opinion has generated controversy because of concerns over the cost of hiring outside conflict defenders. (An amendment to the Georgia code addressing this problem passed both the House and Senate and is awaiting Gov. Sonny Perdue's signature; see At Issue, page 4, for an opinion piece on this subject.)

DuBose chaired the Public Defender Standards Council from 2007 until

2009, and had previously served as its

vice chairman and as a member of the Supreme Court Commission on Indigent Defense.

"There are many in the bar who believe that its work on indigent defense—which has actually been the work of a few dedicated people like Wilson DuBose—has hurt its relationship with the Legislature," Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, said in an e-mail message. "Wilson ... learned a great deal about indigent defense and realized that Georgia was falling far short of its constitutional obligation to provide counsel to poor people accused of crimes. ... Now he has been rewarded for his selfless work for a fairer, better criminal justice system by being voted out of office so that the bar can distance itself from indigent defense. This is immensely disappointing."

Clark said she did not see her win as a signal that bar members want the bar to change its approach to indigent defense. "Many members voted for me simply because I got out there and hustled," she said, adding that others chose her because she is a woman, and many know about her relationship with state legislators, honed through her work with GTLA.

The bar needs a good relationship with the Legislature in part to encourage more lawyers to become legislators—there are only 37 now, she said. Incentives such as provisions to ensure that lawyer-legislators can't be called to trial if they're serving at committee meetings, which occur year-round, would be helpful, she said.

Associate Editor Janet L. Conley can be reached at jconley@alm.com

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Posted In: State Bar of Georgia

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I am honored and humbled to have won the election and to be the next Secretary of the State Bar of Georgia. Thank you to all of you for your support and encouragement. I couldn't have done it without you. I am looking forward to serving you and to moving the State Bar forward.

Thanks for your votes, thanks for your asking your colleagues for their votes, thanks for your continued encouragement and and thanks for your moral support throughout what was a time and energy intensive statewide campaign. As Secretary I will work to protect the interests of the Everyday Georgian, keep the judiciary independent and preserve the Georgia Civil Justice System. I look forward to serving you this upcoming Bar year and please do not hestitate to call me or email me to share any ideas, suggestions or concerns you have about the Bar.

Thanks again. And take it from a trial lawyer: A rising tide lifts all boats!

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Posted In: State Bar of Georgia

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