safetyfirst

One of my favorite holidays, the Fourth of July, celebrating our Nation’s Independence, has just passed. It’s the time to celebrate our nation’s formation and relax, wherever you might be, with family and friends over the long weekend. Unfortunately, it’s also one of the most dangerous weekends of the year due to an array of safety hazards. I hope it was a safe holiday for you and your family. Here are some things to keep in mind:

Driving: Independence Day weekend consistently results in the highest amount of fatal crashes in the U.S. Between 2008 and 2012, there was a calculated average of 127 fatal car accidents each year just on July 4th. Just about everyone is going to be on the road, and will likely be distracted and hurried. Distracted driving, as I’ve written about before, has become a major problem over the last decade due to cell phones. For your own safety and those around you, put them away while driving! Alcohol is also a significant factor in crashes, and accounted for 41% of deaths last year. So needless to say, DON’T drive drunk. The ride app Uber is a great new tool and when in doubt, call a cab. Also, DO remember to buckle up. The CDC reports that it can reduce injuries and deaths in a crash by 50%.

Fireworks: Because of the new laws put in to effect July 1st, it is now legal to set off fireworks in Georgia between certain times on holidays. This is great news for fireworks fanatics, because you won’t have to drive to Alabama anymore for your sparklers; however, it is very important to be cautious while using them. In 2013, there were eight deaths and 11,400 injuries in the US just due to fireworks. If you’re lighting them yourself, DO make sure you’re in a clear outdoor area with no surrounding trees or brush. Keep a safe distance from them as they go off, and always have a water source nearby, just in case. I also recently read about fireworks triggering PTSD for veterans, as the loud explosions can cause distress for those dealing with the disorder. If you know of veterans in your neighborhood and plan to set off fireworks this weekend, it may be courteous to let them know.

Swimming: We can all expect the pools to be crowded this summer, with those celebrating and trying to escape the summer heat. The majority of pool-related injuries are in the age group of 10-12, and are caused by diving into shallow water or hitting heads on the diving board, so keep an eye out for those who may be diving unsafely. I have a lot of information on pool safety in my previous blog post. For those visiting the beach this weekend, practice safe swimming as well! Rip tides are always something to look out for, and claim lives each year. If you get caught in one, swim or float parallel to the shore until you are out of it. They often originate near piers or jetties, so try to stay at least 100 feet away from them if possible. If you’re vacationing in the Carolinas this weekend, pay close attention to marine life. There have been 11 shark attacks in North and South Carolina this month. Thankfully none have been fatal, but they have caused serious injury in some cases.

I wish you all a safe and happy holiday weekend!

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.

 

poolcrowded

Georgia, unfortunately, often leads the nation in pool and spa deaths.  2015 appears as if it will be no exception. Already, in the month of May alone, three children have died in Georgia pools or spas.  Fortunately, there are numerous resources for learning about pool safety and I recommend you review them, regardless of whether you already think you have sufficient knowledge about pool safety.  The Georgia Department of Public Health has many recommendations and it is a good place to start.

Probably the first line of pool safety is to teach your child to swim. And I don’t mean dog-peddling, or holding on to the edge of the pool at all times, I mean actual swimming for a good distance on the child’s own power. Sometimes swim lessons can be expensive, and I realize that, but they are absolutely necessary. Your local YMCA has year-round swim lessons and I recommend you enroll your child in one now if he or she isn’t already able to swim completely and competently on his or her own. On June 18, 2015 the World’s Largest Swim Lesson (WLSL) will occur and you can find host pools here in your area. The National Drowning Prevention Alliance (NDPA) sponsors this important endeavor every year.

In the meantime, here are 5 things you can do right now to make sure the pool your child swims in is safe:

1.  Check to make sure the pool drain is properly guarded and  covered.  Federal Law, The Virginia Graeme Baker Pool and Spa Safety Act , mandates that all pools and spas have their drains covered adequately so that a child may not be sucked down onto the drain and locked on to it. This act also requires a safety button or value to be operable immediately adjacent to the pool so that if somehow someone does get sucked onto the drain, the safety switch can be accessed immediately to eliminate the powerful suction of the pool pump to release the suction power. Many children, prior to the enactment of this safety act, have been eviscerated by the suction power of a pool pump. Be vigilant and make sure your local pool is complying with this safety act.  A proper drain cover should look like this:

pooldraincover

2.  Make sure an Automatic External Defibrillator (AED) is present and it’s location well-marked.  Although there is no Federal requiring this yet, every pool should have immediately accessible an Automatic External Defibrillator.  A lay person needs no special training to operate one. If a swimmer is found unresponsive and no pulse, the AED, once placed on the simmer, can determine for itself whether it needs to initiate a shock to the swimmer’s heart.  AED’s have saved countless lives. It’s location should be well marked with a sign that looks like this:

AED sign

3.  Make sure the pool water is completely clear and you can see to the bottom of the pool. This may sound ridiculously silly and simple, but the number of deaths of swimmers who were found at the bottom of pools with no notice is alarming. Always maintain a direct line of sight with your child when he or she is in the water. Do not simply assume that if a lifeguard (even more than one) is present your child is completely safe. Murky water in a pool is often a contributory factor in inability to locate a missing swimmer or inability to recognize when a swimmer is having difficulty.

4.  Learn CPR.  The more people who are sitting around a pool who are trained to give CPR the better chance someone who may be drowning has to survive. The Red Cross is the easiest place for you to sign up for CPR Lessons.  It’s simple, and easy and inexpensive. The Red Cross also now has a neat emergency app that  gives you quizzes about pool safety that you can take and share with your family.  The life you save may be your son’ s or your daughter’s or even a complete stranger’s, but you won’t regret it.

5.  Avoid the “everyone is watching, no one is watching” scenario.  We have all heard of drownings at family events and pool  parties in which it is difficult to understand how someone drowned when so many people were “right there.”  Unfortunately, with lots of people present around the pool for a party, you might be lulled into that false sense of security that there are so many people present a child could not possibly drown in the pool because someone and see him or her and intervene before a drowning takes place. There is the “I thought you were watching” him mentality that sneaks into our psyche when there are alot of people present. But simply having alot of people present does NOT mean alot of people are watching your child for the purpose of preventing a drowning.  In fact, it may mean just the opposite. Those people are busy eating, drinking and conversing. They are not paying attention to whether a child is at the bottom of the pool or is having difficulty in the water. Please don’t be lulled into that false sense of security. You must keep your child in eyesight at all times.

It’s going to be a long, hot Georgia summer. Let’s enjoy it with safe swimming.

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.

 

 

 

 

In recent months, a series of serious automotive recalls has hit the headlines. Two major companies, Takata and General Motors, have begun issuing recalls of millions of cars due to defective safety features. For almost ten years, these companies have avoided these potential issues and as a result, many people have died. These companies must now publicly face the consequences of their actions and take responsibility for the deaths caused by these incidents.

In a recent article by Claims Journal, General Motors attorney Kenneth Feinberg stated that GM is now taking responsibility for at least 100 deaths caused by faulty ignition switches in some of their vehicles. This number is a sharp increase from the 13 documented deaths caused by the malfunctioning switches last year. Feinberg stated that each claim found to be legitimately caused by a faulty switch would begin with $1 million in compensation, and increase based on the specifics of the accident.

The exact issue with the switches is that they can sometimes slip from the “on” position to the “off” position, which causes the cars to stall and disables the air bag functioning. Obviously, this poses a huge safety risk in the case of a crash, and is something that General Motors should have thoroughly investigated when the claims began almost a decade ago. They believe the car models most affected by ignition recalls are Buick, Cadillac, Chevrolet, Oldsmobile, Pontiac and Saturn. In the interest of public safety GM has created a website dedicated to information regarding the recall. To check if your car is on the list, click here.

In a similar story, it was revealed last week that Takata, a major Japanese air bag production company, admitted amongst another decade of claims that their air bags are potentially defective in some vehicles. This has sparked the largest recall in American history, declaring over 33.8 million airbags malfunctioning. Specifically, they deploy too aggressively causing a metal inflation component to explode shrapnel. Currently, Takata is taking responsibility for 6 deaths and over 100 injuries caused by the air bags. However, it is too early to discern compensation. The main concern now is to address vehicles currently on the road with potentially malfunctioning air bags. To see if your vehicle is at risk, click here.

Understandably, the National Highway Traffic Safety Administration has taken a lot of heat after these claims have come forth to the public eye. Their actions have especially been criticized due to the fact that in both cases the of General Motors and Takata, NHTSA briefly opened investigations of their functioning, but quickly closed them due to “insufficient evidence”. It is their job to bridge the gap between consumer claims and corporate action, and clearly there is room for improvement. Hopefully these grave incidents can serve as a lesson and pave the way to safer roads.

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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Lawyers Club of Atlanta
 
 From the President

I share with you my recent tribute to a wonderful man and judge, Judge Herbert Phipps, Chief Judge of the Georgia Court of Appeals.  Judge Phipps will, at the end of this month, hand over the position of Chief Judge of the Court to Judge Sara Doyle, and so it is a proper moment to acknowledge his work and lifetime of public service and take stock in the sort of person we have had at the helm of the Court.  Enjoy.

Greetings, Friends!

          I have been extremely fortunate to have served in leadership positions in many bar organizations, and if there is one common theme to that experience, it is the intangible reward of getting the opportunity to get to know and work with some of Georgia’s greatest leaders in our beloved profession. People who, but for my work alongside them in some bar association, our paths might never have crossed. Once such person is Judge Herbert Phipps, a Past President of the Lawyers Club of Atlanta (and first African American President).  When I think of Judge Phipps¸ I do not first think of his shining public service as the current Chief Judge of the Georgia Court of Appeals (the busiest appellate court in the United States, as Judge Ellington will remind us), but rather of his humanity and the example his life offers to us.

Over the years, I have enjoyed talking with Judge Phipps about his life and his place in the world. Many of these conversations happened over a drink at Lawyers Club. I would listen intently to stories told as only Judge Phipps can tell them, and then would ask him to tell one more, because they were so enthralling. It is not hyperbole to say that some of the stories Judge Phipps has told me seemed so outrageous I thought they had to have been made up.  But they were all true. Running through all the stories is the common thread of Justice:  Justice for the minority, justice for the disenfranchised, justice for the “little guy.” And Justice is one subject Judge Phipps knows much about.  Judge Phipps was raised in Baker County, Georgia, a county so segregated that for years he didn’t realize that white children went to school, too. It was a place where racism was so open that lawyers would use a racial epithet to describe their own clients in court.  While in college, Judge Phipps was active with the Student Nonviolent Coordinating Committee and the Southern Christian Leadership Conference during the civil rights movement.  During this time he was working on voter registration in Albany, Georgia and was jailed for several days in a cell next to Dr. Martin Luther King.  Judge Phipps’ only crime was being in a phone booth at night.  He was never charged and was ultimately released.  Dr. King shared the meals, brought to him by church ladies, with Judge Phipps.   Injustice was all around him.  But he could see that if one had the power of the law behind him, he might be able to turn around some of that injustice and start spreading the sweet richness of Justice, instead. So he decided to go to law school.  As he so poignantly described in his address when he was named Chief Judge, “I decided that if I get ready, maybe my moment will come.”  And so he got ready by becoming a lawyer. The only lawyer even willing to speak to him about a job after law school was (now famous) civil rights lawyer C. B. King in Albany, Georgia.  Mr. King hired Judge Phipps and so began an historic career of service in the Georgia Bar.

          If I have not yet convinced you about what kind of human being Judge Phipps is, ponder these words from Judge Phipps’s 2013 Law Day speech:

“For generations, lawyers have been at the forefront of the fight for equal justice. Yet, there is still a gap between the theory and the practice of equality. Lawyers must continue to be in the vanguard of the struggle to close that gap. While we are grateful for the gains that have been made, and for those who helped to make them, the question before us on Law Day 2013 is: What are you and I doing to finish the work that remains to be done? As lawyers and judges, we have the special training to do more public good than does a member of any other profession. This profession entrusts us with awesome power, from which flows great responsibilities. Often we will find that justice in the most fundamental sense is being denied persons in our presence, in our community, and in our state. Yet many who have the power and influence to do the right thing, and to encourage others to do likewise, will look the other way, or not even care. A good lawyer is sensitive to the injustices of society, and accepts a reasonable share of responsibility for correcting them. Obviously, one lawyer cannot right every wrong. But do not underestimate what one committed person can do to make the Dream a reality – Equality for All.”

That’s the kind of person who has led Lawyers Club of Atlanta and who may be the person you sit next to at the bar while enjoying a libation expertly prepared by Kenny Smith.  Who else might you meet there?  Maybe the lawyer who, after having been refused admission into the University of Georgia law school, later represented the person who integrated the college? Maybe the first Jewish lawyer to serve as President of the Lawyers Club?  Maybe the first woman lawyer to win a state-wide race for a seat on the Georgia Court of Appeals?  Maybe the lawyer who, as a young student at Emory University, marched against white racists and hatred in Forsyth County in the ’80’s?  Maybe the lawyer who founded the Diversity Program of the State Bar of Georgia?  Maybe the lawyer (now Judge) who defeated a sitting judge who would make litigants kneel in court and pray to Jesus Christ prior to trial, regardless of the litigants’ faith?  Maybe the lawyer who shared a jail cell with Dr. Martin Luther King, Jr.?  Whoever you find yourself with, as my good friend and LCA member Judge John Ellington would do, ask them “What’s your story?”

A Rising Tide Lifts All Boats,

Robin Frazer Clark
President, Lawyers Club of Atlanta

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.

goodmanbentlywreck

Each state keeps the grim statistics of deaths and injuries from car wrecks on major holidays.  Georgia is no exception.  The final statistics for Georgia have not yet been released by the Governor’s Office of Highway Safety, but this year’s Memorial Day traffic was supposed to be the heaviest ever for this holiday, so you can bet the number of wrecks went up. This news couldn’t come at a worse time for Georgia as it has just recently been reported that Georgia traffic deaths are on the rise.

“With traffic related deaths up 25 percent, Georgia DOT is urging drivers to Drive Alert, Arrive Alive. Their new campaign prompting drivers to wear their seatbelts, stay off the phone and focus on driving.
Georgia isn’t the only state with an increase in roadway deaths. As of May 17, 327 people have died on South Carolina highways, this compared to 282 highway deaths during the same time period in 2014.
A spokesperson with the Georgia DOT says, the main causes of this dangerous trend are speeding, impaired driving, and not buckling up.
“They’re not driving alert, they’re on their cell phone, or they’re texting, or they’re writing down something,” Don Grantham with the Georgia DOT says.”

I’ll keep you posted on the numbers when they come out.  In the meantime, Stay safe, Georgia Drivers.

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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Lawyers Club of Atlanta
Newsletter – May 2015
 
From the President

The Bridge Builder

An old man going a lone highway

Came in the evening, cold and gray,

To a chasm vast, both deep and wide.

The old man crossed in the twilight dim;

The swollen stream was as naught to him;

But he stopped when safe on the farther side

And built a bridge to span the tide.

“Old man,” said a fellow pilgrim near,

“You are wasting your strength in labor here;

Your journey will end with the closing day,

You never again will pass this way.

You’ve crossed the chasm deep and wide

Why build you this bridge at eventide?”

The laborer lifted his old gray head,

“Good friend, in the path I have come,” he

said, “There followeth after me today

A youth whose feet must pass this way.

This chasm which has been naught to me

To that young man may a pitfall be.

He, too, must cross in the twilight dim.

Good friend, I am building this bridge for him.”

– Will Allen Dromgoole

 

Greetings, Friends!

When Past President Edward Krugman handed me the Lawyers Club of Atlanta gavel last May, I told you then I had some pretty big shoes to fill. And that is where I find my thoughts now as I pen my last President’s Message as your President…contemplating the shoes of others I have stood in during the last 27 years of practicing law.

I am here standing in the shoes of so many other lawyers who led and cleared the path for me and for you. As we gather in May to honor our 50-year members, which has always been one of my favorite meetings, it is appropriate that we consider those who blazed the trail before us, branch by branch, so that our path might be just a bit smoother. Here are just a few examples of Georgia Trailblazers, in whose shoes I have stood the last 27 years:

Chief Justice Carol Hunstein-1st woman Chief Justice of the Georgia Supreme Court. Justice Hunstein contracted polio when she was two, survived her first bout of bone cancer at age four, lost her mother at age 11, married at 17, became a mother at 19, and a single mother by age 22. That same year, Justice Hunstein lost a leg to cancer and was told by doctors she had only a year to live. But that didn’t stop her from getting her law degree. She opened a private law practice in Decatur in 1977 and, spurred on by a trial judge who repeatedly called her “little lady” in open court, Justice Hunstein decided to run for the bench. She defeated four men and in 1984 became the first woman elected to the DeKalb County Superior Court. She has served on the Georgia Supreme Court since 1992.

Judge Anne Workman: When she graduated from Emory Law School less than ten percent of the class of 1972 – one hundred in number – were women, as were less than four percent of all lawyers in the nation. The downtown law firms came to the Emory campus for employment interviews with the male students, but would not interview the women students at all. Judge Workman’s first attempt to get a legal job after law school was fruitless, but she recounted it very humorously. She had always loved criminal law and wanted to be a prosecutor when she graduated from Emory. She approached the district attorney at the time about employment in his office. Judge Workman recalled:   “He told me in a very matter of fact manner that there were some places a woman did not belong and that a courtroom was one of them. But that was alright because I could have a baby and he couldn’t. It was not the reasoning I had hoped to hear; but in one way it was helpful as it provided a considerable amount of focus and direction to me to prove him wrong. You take motivation where you find it. It took twelve years, but in 1985 when I was sworn in as a state court judge, I saw him and reminded him of our long-ago conversation. I remarked that I must belong in a courtroom now because it had my name on it.”

Sr. Judge Horace Ward– In 1979, Judge Horace Ward became the first African American federal judge in Georgia, having been nominated by President Jimmy Carter. He had previously served in the Georgia State Senate and as a State Court and Superior Court judge in Fulton County.   Since 1993, Judge Ward served the Northern District of Georgia in senior status. He is also well known in Georgia history from his efforts to gain admission to the then-segregated University of Georgia Law School in the 1950s. For years, the Board of Regents denied Judge Ward admission to the law school, stating that the fact that no black had ever been admitted to the university was merely coincidental. Meanwhile, the Board of Regents decided to “modify” the admissions criteria by requiring that candidates take an entrance exam and that they get two additional letters of recommendation-one from a UGA law school alumnus and the other from the superior court judge in the area where the applicant resided.   Judge Ward filed suit against the Board of Regents to gain admission, which, after years of delay, was eventually dismissed on the basis that Judge Ward had “refused” to reapply under the new admissions guidelines (which Ward’s attorneys had argued was yet another ploy to keep Ward out). Judge Ward decided not to appeal and attended law school at Northwestern University, from which he graduated in 1959. In what can only be described as a moment of poetic justice, Judge Ward was a member of the legal team representing Charlayne Hunter and Hamilton Holmes when they were admitted as the first African American students at UGA, thus ending 175 years of segregation at the university.

Judge Clarence Seeliger– Judge Seeliger was a trailblazer for racial justice and equality. He hired the first African American employee of DeKalb County State Courts and courageously removed the Confederate flag from his courtroom at great personal risk. Judge Seeliger made it clear that no one, not even judges, was above the law. Dr. Martin Luther King, Jr. said, “There comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must take it because conscience tells him it is right.” Seeliger’s life embodies that principle.

Each time a barrier is removed in the leadership of our courts, our Legislature, our profession, a door opens to a new generation of potential great trailblazers, which might include the next Horace Ward, the next Carol Hunstein, the next Clarence Seeliger or the next Anne Workman. Some very big shoes, indeed.

Please be sure to join us on Wednesday, May 20, as we honor our 50 year members who, also, have some pretty big shoes for us to fill. Come and celebrate 17 lives well lived and 17 legal paths blazed. Our 50-year members stand as beacons to promote the cause of justice, to respect the rule of law and to protect the rights of all citizens of the State of Georgia. In this example we should all take pride.

 

A Rising Tide Lifts All Boats,

Robin Frazer Clark,

President

2014-15

 

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.

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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.