The last two Fridays I have spent speaking at Continuing Legal Education Seminars sponsored by the Institute of Continuing Education. My topic:  Ethics and Professionalism.  In preparing for both presentations, I couldn’t help but think about a dear departed friend who was the embodiment of Ethics and Professionalism, Judge Ed Carriere.  I recall as one of the highest honors of my year serving as President of the State Bar of Georgia the day I accompanied Chief Justice Carol Hunstein to Judge Carriere’s home and with his wife, Jane, present, Chief Justice Hunstein published the resolution below. It gave me goose bumps then and it does now in the remembering of it. I wish everyone could have known Judge Carriere. Certainly, everyone who did was changed for the better. I share with you the Joint Resolution honoring Judge Carriere. Georgia Seal The Supreme Court of Georgia

Whereas: The Honorable Edward E. Carriere, Jr. has rendered more than four decades of service to the justice system and the legal profession in the State of Georgia; and

Whereas: Judge Carriere earned his law degree at Loyola University in California and was admitted to the State Bar of Georgia in 1971; and

Whereas: Judge Carriere served as Assistant District Attorney in the Stone Mountain Judicial Circuit and as Associate Judge in the DeKalb County Recorder’s Court and since 1988, has served as a Municipal Judge for the City of Decatur; and

Whereas: In 1998, Judge Carriere was  appointed by Governor Zell Miller as Judge of the DeKalb County State Court, was later elected and served in that capacity, including as Chief Judge, until his retirement in 2010, serving since then as a Senior Judge; and

Whereas: Judge Carriere also demonstrated his commitment to serving the legal profession as a devoted member of the Board of Governors, the policy-making body of the State Bar of Georgia, from 1992 through 2012, and as a member of the Executive Committee from 1997 through 2000; and

Whereas: Judge Carriere served on the Investigative Panel of the State Disciplinary Board from 1994 through 1997, serving as Chair in 1997; chaired the Disciplinary Rules and Procedures Committee for several years, shepherding the process of drafting and adopting rules based on the American Bar Association Rules of Professional Conduct; continues to serve on the Formal Advisory Board; and through his superior knowledge of the Rules of Professional Conduct has been a tremendous asset to the Office of General Counsel and the State Bar with his work in the disciplinary and ethics areas; and

Whereas: In addition to his service to the justice system and the legal profession, Judge Carriere has served his community in many ways, including through the establishment in 2007 of the Carriere Family Scholarship for Teachers through a generous gift from Judge Carriere and his wife, Jan, to the Decatur Education Foundation; and

Whereas: The justice system, the legal profession and the citizens of Decatur, DeKalb County and the great State of Georgia have benefited from Judge Carriere’s exemplary service, his devotion to the law and his passion for justice.

Now therefore be it resolved: That the Supreme Court of Georgia and the State Bar of Georgia do hereby express their profound appreciation to the Honorable Edward E. Carriere, Jr. for his lifetime of contributions, which will have a lasting, positive impact on the legal profession and the justice system.

 

Chief Justice Carol W. Hunstein                           Robin Frazer Clark, President

Supreme Court of Georgia                                                        State Bar of Georgia  

 

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

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The concept of an “Open Court” has been back in the news lately with the efforts of numerous groups to try to convince the United States Supreme Court to broadcast live the oral arguments on the marriage equality case coming up in April. I am a proponent of that. In this day and age of online streaming and immediate tweeting there is simply no good, legitimate reason not to allow all Americans live access to what is going on in the Country’s highest Court as it is happening. But the Justices on the U.S. Supreme Court, apparently, disagree. I understand that one objection to live broadcasting of arguments from Justice Kagen and Justice Sotomayor is they are afraid broadcasting arguments live might induce counsel before them to engage in theatrics and shenanigans. Folks, that is ridiculous. Utterly ridiculous.  The Georgia Supreme Court has been broadcasting oral arguments before it for years without even a hint of theatrics from the counsel who appear before them. Members of the State Bar of Georgia are required to use the utmost deference before any judge, but particularly the Supreme Court. All members of the Bar know the proper etiquette to employ before the Court. The Court doesn’t have to worry about anything unseemly happening.  And should there be any doubt about this whatsoever the Court is constantly manned by Georgia State Patrol Troopers. No one is going to do anything they shouldn’t do. This would be the same for the United States Supreme Court.  The Georgia Court of Appeals, unfortunately, does not, at the moment, permit cameras in their courtroom.  There is no explanation why other than perhaps a budgetary one. It is my understanding that when a new Judicial Building is built, in the footprint of the current Georgia Archives building, the Georgia Court of Appeals will then be equipped to allow live broadcast of oral arguments.  I hope that is sooner rather than later.

The United States Supreme Court may be feeling the heat. It typically makes audio recordings of oral hearings before it available at the end of the week. In the marriage equality case, the Court announced it would make the audio recording available the day after the hearing. In its most recent announcement on the subject, the Court has even moved that up and has indicated it will now make the audio recording of the argument available to the public that afternoon, the same day as the oral argument.  If this is true, ask yourself:  what is the difference between that and simply allowing all Americans to hear the argument in real time, in the privacy of their homes or at their work desks?  I can imagine “oral argument parties” where citizens host viewing parties complete with coffee and Krispy Kreme doughnuts (make mine a Java Chip, please), or maybe Mimosas and Bloody Marys, so that they may enjoy the arguments in the company of their friends who are of like mind.  After all, most things have richer meaning when they are shared experiences.

The push for transparency of the United States Supreme Court is nothing new…it has been going on for years.  Here is why it is so important.  Our nation was founded on the concept of self-government, that “We The People” decide how our government will behave and “We The People” will decide how to govern ourselves according to the Rule of the Law and the sacred Constitution, which men fought and died for so we could be a Free Nation. The United States Supreme Court is the final arbiter of the Law. It is the only body in our Nation that decides with finality whether something does not violate the U. S. Constitution.  Do men and women not respect something and hold onto its principles more when they have been involved in its making?  When they can see for themselves the fairness and equality used in its creation?  Lack of information breeds suspicion.  Secrecy creates mistrust.  With suspicion and mistrust comes their ugly cousin, contempt. Why would the United States Supreme Court wish to risk such a side effect of their rulings?  Why wouldn’t the Supreme Court want their opinions to be embraced by “We The People,” such that their opinions would have the stamp of  authority with the public they rightfully should? It could easily be accomplished simply by livestreaming their oral arguments.

Increased transparency promotes public participation, open government, access to information, efficiency, higher quality decision- making, and accountability. Further, transparency  reduces the opportunity for corruption.

If the United States Supreme Court were to livestream their oral arguments, I can assure them nothing untoward would happen, just as nothing untoward has happened in oral arguments before the Georgia Supreme Court and all other 49 Supreme Courts in the Nation.  The only thing that would happen is the American People, We The People, would take greater confidence in the fairness, impartiality and integrity of the judicial process.  And that would be a good thing, right?

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

 

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What exactly is an “activist judge” and why should I care?  I often get this question at cocktail parties. In legal circles, the answer to the question “What is an activist judge” is usually answered “Any judge who rules against you.”  But the term is being heard frequently in the news these days, perhaps because of several rulings coming from the United States Supreme Court and perhaps because of the piecemeal change in marriage equality being played out in various’ states’ Probate Courts on a seemingly daily basis.

An “activist judge” is actually a judge who is seen as attempting to legislate from the bench, a judge who, through her or his judicial rulings, is reading into the law something that is not actually there, or who is trying to create law as she or he thinks it should be even if the statute at issue doesn’t actually say or permit such a ruling. It is a  judge or justice who makes rulings based on personal political views or considerations rather than on the law, or who issues rulings intended to have political effects.  The label of “activist judge” has become pejorative, usually said with a roll of the eye, or a slight snicker of disdain, as if such a judge has no credibility or they are inherently bad.  No judge, ostensibly, wants to be labeled an “activist judge.”  For example, in Wisconsin the election for the State Supreme Court is around the corner and a challenger to an incumbent justice claims the incumbent is “activist” and, therefore, should be summarily disposed of.  The name-calling also usually only applies to judges in appellate courts, who either correct error in the trial courts below or interpret the current law, whether statutory or common (case made) law, to determine how a case should turn out given its unique set of facts.  Whether you deem a judge to be an “activist” sometimes appears to be no more than a political question and sometimes seems to come down to your political beliefs. If the judge ruled in opposition to your political beliefs, you may tend to label that judge “activist.”  For example, the Conservative ThinkTank The Heritage Foundation, whose self-proclaimed mission “is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense,” has an entire page on its website devoted to calling out what it contends are rulings by activist judges or activist courts.  Last month, prompted largely by recent court rulings on gay marriage, an Idaho House committee voted Monday to introduce a resolution calling for the impeachment of federal judges who don’t follow the original intent of the U.S. Constitution.

“Judicial Restraint” is often considered the opposite of “Judicial Activism.”  “Judicial Restraint” is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some debate.  In deciding questions of constitutional law, judicially restrained jurists go to great lengths to defer to the legislature. Judicially restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges.

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Determining whether a judge is that dreaded “activist judge” has become even more of a pastime lately given the state of affairs in Alabama on the issue of marriage equality. Depending on the day, same sex couples may, or may not, be able to obtain a marriage license in Alabama.  Whether a county Probate Clerk in Alabama will issue a same sex marriage license in Alabama seems to change on a daily basis. This uncertainty stems from a decision issued by Judge Callie V.S. “Ginny” Granade , a United States Ditrict Court (meaning Federal life-time appointed trial judge) finding the Alabama ban on same sex marriage to be unconstitutional.  Before being confirmed for the U. S Bench by Congress, Judge Granade was a federal prosecutor, extremely conservative by all accounts, as most  Assistant U.S. Attorneys are.  Her former boss, U.S. Attorney J. Don Foster, said this about her: “I always thought of her as being conservative. I don’t know of anything that would paint her as anything but a conservative except maybe this decision,” he said, referring to the marriage ruling. “I don’t know her personal beliefs on that subject, but I know she was doing what she thought was right under the law.” Now that she has declared the Alabama ban on same sex marriage to be unconstitutional, many Conservatives who before sang her praises, now derisively call Judge Granade an “activist judge.”  Other court watchers might call the Alabama Supreme Court Chief Justice the activist judge on this issue, as Chief Justice Moore has been urging officials, including state court judges, to flout Judge Granade’s federal court order holding unconstitutional a provision of the Alabama constitution that bans the recognition of same-sex marriages. Moore has denounced the ruling of U.S. District Judge Callie V.S. “Ginny” Granade as an example of “judicial tyranny” and promises that he “will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.”

Who in Alabama is exercising “judicial activism” and who is exercising “judicial restraint?”  I doubt there will ever be agreement on the answer to that question. But what we do know is this:  the Final Word goes to the United States Supreme Court, which will hear oral argument on the same sex marriage issue next month. And what the United States Supreme Court says about the constitutionality of a law is the Supreme Law of the Land.    It doesn’t really matter whether we agree or disagree with the U.S. Supreme Court’s ruling, it will be the final say on the subject. Stay tuned.

 

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

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Did you know there is underway right now an effort in the Georgia Senate to eliminate your Seventh Amendment right to a jury trial in medical malpractice cases?  That’s right.  A bill has been introduced (again), SB 86, that seeks to eliminate jury trials in medical malpractice claims.  This bill was introduced by Senator Brandon Beach from Alpharetta, and this is, at least, the second time around for the bill. Last year the same bill was introduced and a coalition made up of odd bedfellows, the Georgia Trial Lawyers Association (GTLA) and the  Medical Association of Georgia (MAG), opposed it and it died a slow death. Like Lazarus, it has now been resurrected.

Supporters of the bill make the wild claim that this bill would reduce so-called “defensive medicine” where doctors  supposedly order unnecessary medical tests.  I find such a claim outrageous and offensive.  Doctors should, likewise, be offended by this strategy.  I have talked with many doctors and taken many depositions of doctors.  I have never found them to order what they know are unnecessary medical tests.  For a doctor to order what he or she knows to be an unnecessary test (and get paid for it, by the way) would be fraudulent and would violate every ethical oath the physician has ever taken.  So that cannot be the real issue with this piece of legislation.

Who is behind it?  Not the doctors themselves, as evidenced by the opposition of MAG, the doctors’ professional association.  Not the citizens of Georgia.  There has been no rallying cry that doctors shouldn’t be held accountable as every other citizen may be with he or she commits negligence that results in injury to someone.  There have been no “runaway” verdicts in Georgia, either.  Statistics show that doctors and hospitals win almost 85%-90% of all medical malpractice trials in Georgia.

“Replacing the time-tested civil jury system with a taxpayer-funded bureaucratic government agency would be an egregious infringement on Georgia citizens’ constitutional rights,” Georgia Trial Lawyers Association President Linley Jones said in a statement. “Senate Bill 86 eliminates all current procedural safeguards, legitimate accountability mechanisms and meaningful appeals processes … and I urge our lawmakers to reject this unconstitutional proposal outright.”

Do you think the Georgia Legislature should be working to eliminate any of your constitutional rights?  If they can decide it’s perfectly alright to eliminate your Seventh Amendment right, then what’s next?  Elimination of your Second Amendment right to own a gun?  Is that really what you what your state representative or state senator to be focusing on?  How can we take away our constituents’ constitutional rights?

As a member of the State Bar of Georgia, I took a solemn oath to protect and defend the Constitution of the State of Georgia and the Constitution of the United States.   Our Legislators took a similar oath.  This bill that would eliminate one of your constitutional rights does not abide by that oath.  I am hopeful that the Georgia General Assembly continues to ignore such an outrageous bill, as it has every time it has been introduced in the past. In the meantime, though, Fellow Georgians, be aware.

 

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

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What is apportionment?  How does it affect my case?  What does it mean?  Can I ever get justice in my case with it?

These are typical questions I often get from my clients in personal injury cases.  The issue of apportionment comes up now in just about every case filed. Apportionment is the premise of Georgia law that says a jury may (but is not required to) apportion other people or entities, who are not even being sued in the lawsuit, a percentage of fault should the jury so choose.  In a lawsuit, a defendant may claim some other person or company is to blame also and may ask the jury to consider assessing some percentage of fault or blame to that other person or company who is not named as a defendant in the lawsuit. This is known as “apportionment,” i.e., the jury apportions fault or blame to whoever they think is at fault.  Apportionment came into Georgia jurisprudence in 2005 through the wisdom of Georgia Legislature, part of sweeping reforms then known as “tort reform.”  Interestingly, nearly all of these so-called reforms have now been elimimated as unconstitutional by our appellate state courts, e.g., a cap on non-economic damages.  That cap lasted only as long as it took for a case with a verdict higher than the Legislature-imposed cap to make its way to the Georgia Supreme Court, where the Court promptly held the cap on damages to violate the Georgia Constitution. That case is Atlanta Oculoplastic Surgery, P.C. v.   Nestlehutt, 286 Ga. 731 (2010).  Notice the Nestlehutt case was decided in 2010, so there were five years between the creation of that unconstitutional law and the undoing  of it.  There is no telling how many Georgia citizens were victims of malpractice during those intervening five years who didn’t receive justice.

When the law of apportionment first reared its ugly head, many practitioners and prognosticators, including mediators, declared certain types of cases “dead.”  I can remember many of these folks pronounced the premature death of negligent security cases because the defendant apartment complex or defendant business would simply be able to blame the criminal defendant who perpetrated the crime and get off Scot free.  Well, in the words of Coach Lee Corso, “Not so fast!”  Fairly quickly after the implementation of apportionment, and after every defendant tried to blame everyone else in the world for their negligence, including a criminal, known or unknown, that myth was disproven.  For example, in the Martin v. Six Flags Over Georgia case, in which a young man was severely beaten by a gang at Six Flags, for no reason other than the gang (some of whom were Six Flags employees) wanted to beat someone up, the jury returned a verdict of $35 Million.  The Cobb County jury attributed to the gang members   a total of 8% of that $35 million verdict, and split between the four of them, it came out to 2% per gang member/roughly $750,000 each. This means that Six Flags had to pay the remaining 92% totaling roughly $32 million dollars in damages.

Another good example of this phenomenon happened in December 2014 in a trial in San Antonio, Texas.  The case, Crisp v. McDonald’s Corp., involved the attack of two McDonald’s customers by a mob of 15-20 men on the premises.  The jury allocated 97% of fault to McDonald’s, and much like the Six Flags case in Georgia, apportioned only 2% of fault to one known attacker and the remaining 1% to John Doe attackers who were never identified.  The jury’s verdict was for $27 Million and McDonald’s had to pay 97% of $27 Million.

Then, just this week in Fulton County State Court, a jury apportioned 0% fault to the criminal perpetrator and found a medical practice 100% at fault and liable for the plaintiff’s injuries.  The  Fulton County jury decided that a dental clinic must pay $3.7 million to a young woman who was sexually molested and sodomized by a nurse anesthetist at the clinic in 2009.  The nurse is serving life in prison and was not a defendant in the suit. The jury did not apportion any blame to him, instead holding the dental practice 100 percent liable for the assault.  In a last ditch effort to avoid 100% of the liability bill, defense counsel, in what has to be described as a “Hail Mary,” argued to the Court there had to be some blame cast on the criminal perpetrator.  But this begs the question:  just because a jury can apportion does it mean it has to?  And if the jury decides not to apportion fault, as it did in the Fulton County case this week, what happens?  There is no apportionment unless and until a jury says there is. So just because a defendant tries to blame anyone and everyone else for their own negligent conduct doesn’t mean a jury will always buy it.

 

Sounds like the apportionment law didn’t quite work out the way the Georgia Legislature had hoped. I am sure that has never happened before with Legislation. So what are the unintended consequences of apportionment? More on that later, but until then, keep the following consequences in mind:

1.  Enlarging the litigation with more businesses sued.  Necessarily having to sue anyone and everyone who the  at fault defendant could possibly blame for the plaintiff’s injuries;

2. Untold thousands of dollars, mainly insurance policy dollars, being spent to litigate the issue and the creation of an entire new body of case law trying to determine what the Georgia Legislature actually meant when it passed “apportionment;”

3.  Protracted litigation with no end in sight.  Defendants are trying to blame anyone but themselves, and if a court won’t allow it, they appeal the trial court’s ruling, making longer an already laborious litigation process;

4.  Disfavoring of settlements.  If a plaintiff settles with one defendant, the remaining defendant(s) can insist the settling defendant’s name be placed on the verdict form for the jury to apportion fault.  Why would a plaintiff ever agree to settle with one defendant now before trial when that defendant’s name is still going to be on the verdict form?  Better to let the jury decide how much they should pay.

Regarding apportionment, we’ve only just begun, Folks. Stay tuned.

 

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I recently had jury duty in DeKalb County, Georgia, where I have been a resident for 15 years. In 15 years, I have received a summons for jury duty two times.  I have never served on an actual trial jury.  This is the ironic curse of being a trial lawyer.  Most likely, I will never serve on a trial jury although my job involves persuading trial juries to see a case my client’s way.  I have been in many, many courts throughout the State of Georgia and I am proud to say as a DeKalb County resident there is no better court experience than DeKalb County, from the deputies who check you through the metal detector, to the jury clerks who handle hundreds of jurors every day, to the courtroom staff of the trial judges, to the judges themselves.  It is an extremely pleasant experience and trust me, I have been in many Georgia courthouses where that simply cannot be said.

I believe jury duty is the Heart of American Government.  A trial jury is the smallest form of self-government ever conceived.  Government by the People for the People, right?  Trial by jury was so important to our nation’s Forefathers they enshrined it in the Seventh Amendment to the U.S. Constitution.  Said President John Adams about trial by jury: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”  So with that attitude, I proudly stepped into the DeKalb County Courthouse, with jury summons in hand, not in my usual role as trial lawyer, but in the very important role as potential juror. Awesome!  I can’t wait!

I went through the process of jury selection, called Voir Dire in law school and never called that again by me.  It sounds too pretentious, doesn’t it?  And jury “selection” is a misnomer…it is actually jury “deselection.”  Trial Lawyers don’t get to look at the jury venire (another pretentious word for the jurors from whom the trial jury will be struck) and pick who looks best to them. It is the opposite of that. Trial lawyers get (usually) six peremptory strikes to take off the jurors who seem like they would be horrible jurors for their side of the case, for one reason or another.  Each side of the trial strikes six jurors and whoever is left is your trial jury who will decide the case. Again, ironically, the jurors who end up deciding the case are usually the jurors you know the least about. They have often never even responded to any of your questions in “jury selection” so there were no red flags in their personal history to make you concerned about how they would see your case given their preconceived notions or their obvious leanings toward one side or the other. There are also strikes the Court (i.e., the trial judge) exercises called “strikes for cause” where it has been demonstrated that a juror could not possibly be impartial because of something that has happened in their lives perhaps so similar to the case to be tried that they have already made up their minds how the case should come out. Or maybe they have such deep religious beliefs that they are forbidden by their particular Faith to judge another human being and so would be incompetent to sit in judgment of another person.   I was thinking about jury selection this morning as I was reading about the trial that begins to today in the Boston Marathon bombing.  Jury selection in that Federal trial is estimated to take months and the jury venire from which a trial jury of twelve will be struck will  consist of 1,200 jurors!  Where in the courtroom do they put 1,200 jurors?

I give you a little background on jury selection (or deselection) to put my own recent experience in perspective. The case that was to be heard that day was a DUI case, a criminal case that was a misdemeanor trial, which told me no one had been injured in the DUI incident. I don’t handle any criminal cases, so I thought I might actually be left on this jury. Fantastic!  It was probably a one day trial, being tried in front of perhaps one of the most efficient (read fast)  trial judges in DeKalb and so maybe, if I get lucky, I’ll get to learn what goes on in the sanctity of a jury deliberation room and it will cost only one day.  This trial judge has also been a friend of mine for twenty years or so, so I knew it would be a good experience being in his courtroom  Perfect! 

Not so fast.

Of course, the fact that I am a plaintiff’s personal injury lawyer came out (strike against me by both sides…no one can trust a lawyer on a jury). The fact that I know a little bit about breathalyzers and how they must be calibrated to be considered reliable came out (strike against me for the prosecution…breathalyzers are notoriously unreliable).  The fact that I often represent victims of DUI drivers in personal injury lawsuits came out (strike against me for the defense).  The fact that I personally had had a bad experience with a City of Atlanta police officer came out (strike against me for the prosecution).  But, as I tend to be optimistic by nature, I still thought those two last strikes would cancel each other out and I would be, by default, left on the jury. Voila! (Another pretentious French word used solely for literary flare here).

Finally, the selection (deselection, remember) was over and the court clerk instructed us:  “If your name is called please remain seated in the jury box.”  So exciting!  Was I the only person in the room who wanted to remain in the jury box?  Clearly so,  as names were announced there was a smattering of muttering that may have included expletives and other generally disparaging remarks about jury duty. Sadly, my name was not announced.  What?!  There must be some mistake. I would be the perfect juror for a DUI case.  Would it be too obvious if I asked the court clerk to check her list again for Robin Frazer Clark?  Did she accidentally skip over it?  Nope. No mistake. I was free to leave the courthouse and go home. Bummer.

It was clear as I gathered with the other juror outcasts waiting for the elevator that these folks all felt relieved not to be in the courtroom still and to be going home. You may often hear the lengths folks will go to to avoid jury duty. It is a common occurrence, unfortunately, in America.  It is an American Jury, however, who breathes life into our Constitution.  It is an American Jury that keeps us from “being ridden like horses, fleeced like sheep, worked like cattle” as President Adams put it. It is an American Jury that makes our form of self-government the envy of all the World.  Maybe one day I will get to be part of one.

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

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

 

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

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

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

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

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

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

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

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

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

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

 

 

corrosive pictogram

 

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

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

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

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

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

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

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

Therein lies the conundrum.

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

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

 

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

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

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