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.

 

LawyersClublogo (2)
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.

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.

scalesofjustice

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.