Georgia roadway deaths on the rise, but why?

 

I saw in this morning’s AJC an article on the front page about distracted driving. Unfortunately, the article reports that distracted driving has gone up, that roadway deaths on Georgia roads have increased by a third and that distracted driving may very well be to blame for that increase.  Online today I also read of the tragic death of a Roswell High School student from a car wreck with another teenager Saturday night.  We do not yet know what caused this tragic accident.

As the mother of a 20 year old college student and a 17 year old senior in high school, both of whom drive on a regular basis, this is the sort of news that leads to a lot of sleepless nights. I know you parents out there can sympathize. The question is what can we do to reduce the number of such highway deaths? Has distracted driving made a difference?

Most of us may think of “distracted driving” being solely texting while driving (something I labeled “TWD” years ago).  Texting While Driving is now illegal in Georgia (and has been since 2010) and in 45 states total.  14 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands prohibit all drivers from using hand-held cell phones while driving.  That means simply making telephone calls on your mobile phone while driving is illegal, much less texting while driving. But what is the distinction between texting while driving and calling while driving?  Is there one?  Can’t punching in someone’s cell phone number while driving be just as distracting as texting a message while driving? The National Highway Traffic Safety Administration reported that in 2012 driver distraction was the cause of 18 percent of all fatal crashes – with 3,328 people killed – and crashes resulting in an injury – with 421,000 people wounded. 

In Georgia, the number of teens killed in 2012 went down to 23 in 2012 from 37 in 2011. This is half the number of teen drivers killed ten years earlier when more than 45 teen drivers were killed on Georgia roadways.

What about other distractions in the car?  Eating?  Drinking (even just water)?  This year in Cobb Co. a driver was arrested for distracted driving for eating a hamburger while driving. That case has since been dismissed.  Distracted is distracted. I’m not sure there is a huge difference between being distracted from driving while talking on the cell phone versus texting while driving. Some studies suggest, however, that texting is inherently more dangerous than talking on a cell phone because with talking you (theoretically) keep your eyes on the road all the time. Other studies seem to suggest there is not a material difference in the device used to distract a driver; the outcome is the same.

It is obvious we must remain vigilant.  Don’t allow a driver of a car in which you are a passenger ever to text while driving. And if the driver won’t listen to you, ask to be let out of the car and call a cab or Uber.  Sure, your friend may get mad at you but better to have a mad friend than be killed from distracted driving. Discuss the subject with your family. In my family, we have all agreed not to text while driving. We have also agreed that if we know  a family member is behind the wheel not to text that person. It can wait. My daughter has suggested that we all text “X” to the rest of the family when we start to drive a car to let everyone know “Hey, I am going to be driving for the next little while so don’t send me a text.”  So far that suggestion is a work in progress.  I simply cannot always remember to do it before I begin to drive.   Communication is critical.  It may save your child’s life.  And it may save your child from taking another person’s life.

LCA logo

 

 

Lawyers Club of Atlanta
Newsletter – February 2015
 
 From the President

Friends:

           I sat down at the bar at Lawyers Club the other night with my good friend and Past President Hal Daniel, the sole endeavor in mind being to enjoy a cup of cheer together following a long day at the office. After we ordered our “usuals” and eagerly awaited Kenny’s expert renditions, instead of the usual “How are you doing?, Hal asked me the following question: “What have you done today to make someone else’s life better?” Intriguing. What followed was a genuine reflection of my day and Hal’s to see if we could honestly lay claim to such a noble endeavor as making someone’s life better rather than just barely making it through a hard workday unscathed and still standing and breathing.

            The question brought to mind one of my favorite stories about one of my heroes, Justice Robert Benham. My service as President of the State Bar fortunately provided me many opportunities to spend time with Justice Benham and hear many wonderful stories about his life growing up in Bartow County. Before I share this wonderful story with you, let me give you a little background on the Honorable Robert Benham as a reminder and to set the stage.

            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 County 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 “Attorney 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, which they, undoubtedly, felt they also were. Attorney Benham became for many African Americans the embodiment of justice, and although he was walking to court to represent one specific accused person, dozens of other citizens felt he was also representing them.

            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 first and there’s no more humbling experience than being down on your knees shining somebody’s shoes. As she said, “If you do that you won’t be full of yourself.”

          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.”

            Which brings me to the story that Hal’s question to me that night at Lawyers Club brought to mind. 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 to 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 today for somebody else?” That was at every breakfast.”

            “What are you going to do today for somebody else?” 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.

            One of the hallmarks of the profession of law is a recognition that along with the privilege to practice law comes a duty to subordinate financial reward to social responsibility. We will celebrate many of our fellow lawyers who have done just that by offering themselves to public service through service on the bench at our cocktail meeting this month on Wednesday, February 18. Please come and thank our honored judiciary for their service. You won’t want to miss it.

           Hal’s question was a good one to ponder and so I ask it of you, my fellow Lawyers Club of Atlanta members: What have you done today to make someone else’s life better?’

            Let’s have a drink together soon at the club to discuss.

                                    Cheers,

                                    Robin Frazer Clark

Robin Frazer Clark 

President 2014-15  

policecar

The recent news about a young veteran who had mental health problems and was found running naked in his apartment complex, who the police shot, has the attention of many Georgia residents, especially me.  You probably have read or seen the story on the news.  Anthony Hill was a 27 year old U.S. Veteran who had known mental health problems, including bipolar disorder. He was found running naked around his apartment complex knocking on doors.  He had done no harm to anyone. He was obviously unarmed as he was naked!  Witnesses indicate Mr. Hill was about 180 feet away from the DeKalb County police officer who ultimately shot him when the officer first encountered Mr. Hill.  The DeKalb County police officer, like every other police officer, was armed with a taser.  For unknown reasons, the officer pulled his gun instead and shot Mr. Hill. Mr. Hill died.

As far as I have seen in news reports, Mr. Hill had violated no law (except maybe public decency?), had harmed no one, had not touched the police officer, had not resisted arrest…in short had done absolutely nothing to justify being killed at the hands of a DeKalb County police officer. Is this excessive force?  Absolutely!  Is it a crime?  Yes, I think it is. This conduct, shooting a totally innocent, obviously unarmed man rises to the level of a crime, manslaughter perhaps, and the DeKalb County District Attorney’s Office should seek an indictment. And if you don’t think for a minute that Mr. Hill could have been you or your loved one, you need to think again.

What is going on with police forces lately?  There seems to have been a rash of unjustified shootings of innocent, unarmed people. Some of these shootings are race-related, for sure.  But there doesn’t seem (at least right now) to be a racial issue involved with the shooting of Mr. Hill.  What was involved was the patently obvious lack of appropriate training of police officers on how to deal with a person who is exhibiting signs of a psychotic break or mental instability.

Just exactly what is “excessive force” anyway?  And when do police officers violate the law against “excessive force”?  This has become such a hot topic lately in the United States that news outlets are doing stories trying to define it for their viewers. The legal answer is that what seems to be common sense “excessive force” may not amount to legally “excessive force” in the courts. And that is a shame.

You shouldn’t be killed by the police because of your mental health issue. (Can we all agree on that?).  Police officers should be the very ones to offer help to you.  But bringing successful lawsuits against police departments and individuals officers are notoriously difficult.  Most such suits must be brought under a Federal statute, 42 U.S.C. Section 1983 which is entitled “Civil Action for Deprivation of Rights.”   It provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress….”

42 U.S.C.A. § 1983.
Simple enough, right? Well, in the words of Coach Lee Corso, “Not so fast!”
In every such case, the police department and the officers will assert the defenses of sovereign immunity and qualified official immunity.  And they usually work. These defenses can be absolute defenses, meaning if the trial court judge agrees they apply to the facts of the case, the defendants are granted judgment as a matter of law and the case is over. The Supreme Court has held that, under 42 U.S.C. § 1983, “local governments can be held liable [only] for constitutional torts caused by official policies.” Carter v. City of Melbourne, Fla., 731 F.3d 1161, 1166 (11th Cir.2013) (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). And yet failure to train police officers properly is rarely actionable. “To be sure, a plaintiff’s entitlement to relief under 42 U.S.C. § 1983 is “most tenuous where a claim turns on a failure to train.” Connick, 131 S.Ct. at 1359. This is because courts place an “intentionally onerous” burden on plaintiffs seeking relief against municipalities pursuant to a failure-to-train theory of liability as any “lesser standard of fault would result in de facto respondeat superior liability on municipalities.” Gold v. City of Miami, 151 F.3d 1346, 1351 n. 10 (11th Cir.1998) (emphasis omitted) (quoting Harris, 489 U.S. at 391–92) (internal quotation marks omitted).”

A prime example of how hard these types of lawsuits for deprivation of civil rights are is Hope v. Pelzer,  536 U.S. 730 (2002). Mr. Hope was represented by my friend and fellow Georgia trial lawyer Craig Jones.   Mr. Hope, then an Alabama prison inmate, was twice handcuffed to a hitching post for disruptive conduct. During a 2–hour period in May, he was offered drinking water and a bathroom break every 15 minutes, and his responses were recorded on an activity log. He was handcuffed above shoulder height, and when he tried moving his arms to improve circulation, the handcuffs cut into his wrists, causing pain and discomfort. After an altercation with a guard at his chain gang’s worksite in June, Hope was subdued, handcuffed, placed in leg irons, and transported back to the prison, where he was ordered to take off his shirt, thus exposing himself to the sun, and spent seven hours on the hitching post. While there, he was given one or two water breaks but no bathroom breaks, and a guard taunted him about his thirst. Hope filed a 42 U.S.C. § 1983 suit against three guards.  The trial court and the Eleventh Circuit Court of Appeals held against Mr. Hope ruling that Mr. Hope had been subjected to cruel and unusual punishment when prison guards twice handcuffed him to a hitching post to sanction him for disruptive conduct, but because the officers might not have necessarily known what they were doing would violate a citizen’s constitutional rights, the court held that the officers  were entitled to qualified immunity and dismissed the case.
The United States Supreme Court reversed those courts, however, and held the obvious inherent cruelty and indignity of being hitched to a post like an animal may, in fact, have violated Mr. Hope’s civil rights and revived the case to be decided by a jury at trial.  So, although the case came out correctly in the end, it took a review by the United States Supreme Court to get it right.  The United States Supreme Court elects to review less than 10% of all cases that seek its review and to get there took years and years of work. The fact that Mr. Hope ever saw any justice at all is a miracle.
The facts of Hope v. Pelzer are so startling and seem so outrageous from a layperson’s viewpoint that it seems beyond belief that Mr. Hope didn’t receive any relief from the start at the trial court level.  That should show you how difficult these cases are to bring and to win.
I hope Mr. Hill’s family sees justice for his unwarranted death.

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.

ussupremecourtfacade

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.

 

Georgiajudicialbldg

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.

TrialByJury-Jefferson-Quote

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.

old law books

 

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.