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Every day as I travel down Edgewood Avenue in Downtown Atlanta in the middle of Georgia State University, some pedestrian, without fail, decides to take a risk and walk out in front of either my car or another car as I watch. The only time this doesn’t happen is when Georgia State is on Spring Break. It is a stressful trip, knowing that in addition to the numerous cars all around me that I have to be aware of, I have to be ready to slam my breaks in a nanosecond to avoid hitting a pedestrian walking out in front of my car when I have the right-of-way. I am aware of the plentiful crosswalks available for pedestrian use, but they are mostly ignored.  I am talking about students who ignore the crossing signals and walk across a street either not in a crosswalk at all, or in a crosswalk but cross when the signal is telling them to stop.  This typical daily occurrence with pedestrians has me thinking about just exactly what are the laws in Georgia pertaining to pedestrians? Is it just me or are the pedestrian signals getting more complicated?  What do they actually mean?  When does a pedestrian have the right-of-way to cross the street? Can a driver of a vehicle just mow down a pedestrian if the pedestrian is not in the crosswalk?  How about if the pedestrian is in the crosswalk but the flashing hand has started with a stopwatch ticking down, telling the pedstrian how many seconds he or she has to cross the street before the signal turns?  Is a pedestrian required to know how fast they can walk and how many seconds they typically take to cross a street?  Does it depend on how many lanes the street is?  And whether there is a headwind or tailwind? My drive today has me thinking about all of this.  Hmmm….

First, we can easily find the Georgia Rules of the Road as they pertain to pedestrians on the Georgia Highway Safety website. The Official Code of Georgia provides:  § 40-6-91. Right of Way in Crosswalks: 

(a) The driver of a vehicle shall stop and remain stopped to allow a pedestrian to cross the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching and is within one lane of the half of the roadway on which the vehicle is traveling or onto which it is turning. For the purposes of this subsection, “half of the roadway” means all traffic lanes carrying traffic in one direction of travel.

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It seems to be in vogue with some trial judges currently to allow jurors to ask questions of witnesses after both sides of the litigation are finished asking their questions. This is currently a hot topic due to the Tex McIver trial, currently being tried in the Fulton County Superior Court in front of Judge Robert McBurney. Judge McBurney, rather famously, permits jurors to ask questions of witnesses after questioning by the prosecution and the defense counsel.  Presumably, Judge McBurney allows this practice in civil cases as well as criminal cases, although Superior Court doesn’t see as many civil cases as criminal.  All felonies in Georgia must be tried in Superior Court.  The practice of Judge McBurney allowing witnesses to ask their own questions was discussed extensively before the trial in a podcast produced by the AJC called Breakdown. It is hosted by veteran legal affairs journalist Bill Rankin and I highly recommend it.  In that podcast, defense counsel Bruce Harvey gives his opinion on why it is not only a bad practice to allow jurors to ask questions, but, also, why it is probably unconstitutional.  For example, we all know that the 5th Amendment of the Constitution gives a criminal defendant the right to remain silent, even throughout the trial, so that the government must prove guilt beyond a reasonable doubt without any assistance from the defendant. Harvey, rightfully, preposes the hypothetical of a juror asking “Why didn’t the defendant take the stand to tell us what happened?”  Of course, the judge is not going to permit that question to be answered, but the jurors (or at least the one juror who asked that question) will know the judge didn’t approve it and wouldn’t permit it to be answered, and the bias that answers “why” is naturally because the defendant must be guilty. So simply by denying that juror’s question, the 5th amendment constitutional right is implicated and violated because it was allowed even to be raised in court.

There has lately been alot of discussion in social media about this among lawyers, too.  You can find some of this discussion on Twitter at #texmciver and in the comments on Facebook where WSBTV is livestreaming the trial.  If I were to take a poll, I think the vast majority of trial lawyers is against the practice for the reasons stated above. Also, other websites are livestreaming the same WSBTV feed, like wildabouttrial and lawandcrime.   Both of these websites have a comments section where viewers can post their comments about the trial. It is pretty fascinating, especially for court enthusiasts like me.  On Facebook, there have been some thought-provoking comments about allowing jurors to ask questions of witnesses.  Below are just some of the comments I have seen:

“I think there are two questions that judges should ask themselves before considering this. 1). Why would I allow jurors to ask questions? Whatever the answer is (to help the jurors clarify any issues that the holder of the burden of proof has not clarified, etc). 2). If I am am being a neutral, unbiased referee, should that matter to me?”

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Yesterday I was in the Chicago O’Hare airport after taking the deposition of a defense expert anesthesiologist at the University of Chicago and sat down for lunch next to a nice couple from the Boston area.  We started talking and I, of course, told them I am a plaintiff’s personal injury trial lawyer from Atlanta in Chicago for the purpose of taking an adverse expert witness’s deposition. They were mesmerized. We talked a bit about the case which led, predictably, to their telling me about their personal experiences with both the Criminal and Civil Justice Systems.

The husband of the nice couple told me about  his experience in serving on a criminal jury as the foreperson. Like most folks facing jury duty, at first he was upset about missing work, resented being herded around the courtroom like cattle and being kept in the dark about what was happening, and was overall just unhappy about being forced to take part in the entire process.  Yet, as the testimony came in and the trial moved on,things, including his attitude, changed.  The case was about a man, the defendant, who allegedly had abused his three year old son.  The man had taken his son away from the child’s mother’s home but the mother wasn’t even aware of it. The evidence against the father was, apparently, overwhelming.  My new buddy, who was telling me about his experience, was picked to be the foreperson of the jury. He immediately felt an enormous weight on his shoulders to do the right thing. Not all of the jurors at first wanted to convict, even though he felt the evidence to do so was overwhelming.  Some of the jurors wanted to hear some of the testimony again, some of them wanted to see pieces of evidence again. They wanted to be sure.  In the end, the jury voted unanimously to convict. My new friend said that when he read the verdict out loud in the courtroom, he felt an enormous sense of duty and pride. He felt moved to tears. The jurors, to a person, took their duty very seriously and followed the court’s instructions unwaveringly.  He felt like he was the little boy’s hero.  Now, looking back, he hopes he’ll get the chance to serve on a jury again.  Both he and his wife said that if they were ever the parties in a trial, they would want people like themselves serving on their jury.

Fascinating story, but I’m not surprised. This is often the story I hear from people who have served on juries, criminal or civil.   The sense of duty is extremely strong. By serving on a jury, you are breathing life into the United States Constitution and doing your part as a citizen to make our judicial system work. Without jurors, the system would collapse and we would cease to be a democratic nation.  Jurors ensure that a person’s constitutional rights to a fair trial by a jury of his or her peers is protected.  That is not overstating things. And something about being in the formal courtroom, where lives are at stake, where injured plaintiffs seek to have the harms done to them balanced by damages from the wrongdoer, makes that sense of honor and duty to your nation come alive. Jurors are the heroes of victims of crime and of those citizens who are personally injured through no fault of their own. The courtroom is the great Equalizer, where the son of the richest man in America is the equal of a homeless person, and where the smartest graduate of Harvard University is the equal of a high-school drop-out. All persons are treated equally in a court of law.

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Let’s say you have been injured in a car wreck, or in a fall at a store, and the insurance adjuster for the insurance company of the at-fault driver or of the store owner calls you after your injury. They often want to take a recorded statement (which you should NOT give unless you have your lawyer present) about what happened, how you were injured and what your injuries are. Then they might reassure you that they “are there for you,”  and will be looking forward to resolving your claim with you, “don’t worry, everything will be okay,”  or “we’ll take care of you, just let us know when you have finished your medical treatment.”  Makes you feel better, right? So comforting and reassuring. You might even be thinking you can settle your personal injury claim without even having to hire a trial lawyer.  After all,  a trial lawyer will have to be paid for her work and if you can just handle this on your own with this very nice, concerned insurance adjuster, that’s more money for you, right?

WRONG.

One thing that is patently clear that I have come to understand in practicing personal injury law for 30 years in Georgia:  insurance adjusters are not your friends. They are trying to prevent you from being successful on a personal injury claim. They may even resort to trickery, subterfuge, and downright lies.

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The news from the Georgia Department of Public Safety was not good;  deaths on Georgia highways during the Holiday period rose again in 2017.   For just the Holiday period alone, there were 11 reported traffic fatalities. In 2016 there were 8 fatalities in the Holiday period.  The Department of Public Safety is reporting, thus far, 1499 traffic fatalities for the entire year, down from 1561 in 2016. Perhaps the Georgia Department of Transportation’s safety program “Drive Alert Arrive Alive” is working.  The PSA campaigns on television and social media that warn against drunken or distracted driving may be playing a positive role, too.  The National Highway Traffic Safety Administration’s “Drive Sober or Get Pulled Over” is not only catchy, but is seen in every state.  Throw in the ride services now readily available, like Uber and Lyft, and you simply have fewer folks on the road, which, necessarily, will mean fewer deaths.  Actual studies of whether these ride services are making a difference in traffic deaths show the jury’s still out on whether they really make a difference.

Georgia can be proud.  Nationwide, traffic fatalities continue to climb.  But not in Georgia. And that’s a good thing. Stay safe out there, Friends.

 

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 29 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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Some recent headlines about trial judges behaving badly and a recent bad experience I personally experienced at trial last week have me thinking about this:  what should you expect from a trial judge?  Competency?  Fairness?  Mercy?  Understanding? Knowledge of the rules of evidence? Impartiality? Experience? Ability to stay awake during the trial? Maybe all of the above?

I only half-jokingly included in the desired traits list above the ability to stay awake on the bench.  Just this week an Illinois appellate court ruled that the fact that the trial judge slept through some of a murder trial did not automatically result in a reversal of the conviction or warrant a new trial.  That sleeping jurist claimed he had not actually fallen asleep but was simply resting his eyes. “If I was not looking at the video, that does not mean that I was not listening and hearing everything that was being said,” said O’Connor, who called the motion “disgusting,” according to a transcript cited in the appellate ruling.  So Justice may be blind but it doesn’t have to be awake?

The question of what should we expect in a trial judge also has been hotly debated this week when the Senate Judiciary Committee approved a judicial appointee of POTUS for a Federal trial bench opening in Alabama. The reason for the outrage among lawyers about the judicial nominee is the fact that he is only 36 years old, has never tried a case and has practiced law for only 3 years. Many have called him “clearly unqualified” to take the trial bench and that his appointment is “laughable”. He has literally never tried a case!  Can’t we all agree that to be able to preside competently over a trial by jury, make life-changing decisions of what evidence gets in and what evidence doesn’t, decide whether a litigant receives a constitutionally protected fair trial, that the trial judge should at least have tried a case before?

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Stop, Look, Listen!  We often hear that in regard to what you should do when you approach a train track in your vehicle. Stop, look and listen for a train before driving over the tracks. I can remember when I was little and rode the school bus home, the bus driver even opened the door to the bus at train tracks so he could see better and hear any potential approaching train more clearly. But shouldn’t the same rules apply for pedestrians before they cross a busy city street?  Should pedestrians also stop, look and listen for their own safety? Are they even required to do so?

I drive down Edgewood Avenue in Downtown Atlanta to get from my house to my office every day. Edgewood is a busy city street that goes through the heart of Georgia State University.  At any given time of the day, there are hundreds of college students crossing Edgewood Avenue to get to their next class to to their dorm room or maybe even to the library.l  The three photos above demonstrate a typical day with GSU students crossing Edgewood Avenue.  These photos show students crossing at the light, but students often cross Edgewood in the middle of the block, not at an intersection and without any traffic signal. Invariably, these young men and women are texting while walking, talking on their cell phones in deep conversations while walking, or even listening to something on their phones with earphones on while they cross one of the busiest streets in Downtown Atlanta.  Many pedestrians attempt to cross while vehicle traffic has a green light.  One of the photos above shows pedestrians crossing the street diagonally, which is certainly against the rules. Watching this sort of nonchalance and devil-may-care attitude regarding oncoming cars while they strut right out into the street had me wondering:  who would be at fault if a pedestrian crossing illegally where struck by a car that had a green light?  Does  a person who texts while they cross a street value his or her life? Or does the lack of taking any safety precautions for their own person, e.g., not texting while walking, forfeit the right to blame someone else when they are struck by a vehicle?

There is no question that texting while walking, especially while crossing a street, is a bad idea.   Research has found that, mile for mile, distracted walking results in more injuries than distracted driving, and makes pedestrians 60 percent more likely to veer off course. At least one city has taken the step to protect people from themselves.   Starting Wednesday, texting while walking across a street in Honolulu is illegal, thanks to a new law that allows police to fine pedestrians up to $35 for checking their phone, while crossing an intersection in the Hawaiian city and surrounding county.  Honolulu is, apparently, the first city in the U.S. and perhaps the world to ban texting while walking (TWW).  “This is really milestone legislation that sets the bar high for safety,” said Brandon Elefante, a City Council member who proposed the bill, in an interview with the New York Times.

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You probably by now have heard the shocking news that Equifax has been hacked by cyber terrorists which has resulted in the exposure of the personal data and identity of approximately 143 Million people. Now, in an obvious attempt at emergency public relations, Equifax has set up a website where those affected by the security breach, allegedly offering free credit monitoring. But here is the catch (you KNEW there had to be one): If you sign up for the free credit monitoring on the site Equifax has set up to supposedly help customers identify whether their information was stolen as part of the hack, you will (most likely unknowingly) have also signed a forced arbitration clause aimed at keeping consumers out of court, and shielding Equifax from lawsuits.
This comes after we learn that the higher-ups at Equifax, rather than trying to help you,  the potential victims of this massive data breach, sold many of their shares of stock, to the tunes of millions of dollars, knowing that the stock would surely drop after news of the hack became public.  A Federal class action has already been filed, alleging Equifax Chief Financial Officer John Gamble sold Equifax shares worth $946,3874; Joseph Loughran, president of Equifax’s U.S. information solutions, exercised options to sell stock worth $584,099; and Rodolfo Ploder, president of the company’s workforce solutions, sold $250,458 worth of stock.
We have corporate misbehavior of the worst order,  and a terrible data breach that may expose secret information of 143 million people.  All on a day when Equifax’s Chamber allies and trade association had several House Republicans holding a hearing pushing Rep. Loudermilk’s bill to gut the FCRA.   Then, to top it off, Equifax urges customers to sign up for a product that supposedly will help protect them, but that product has a fine print forced arbitration clause aimed at killing data breach cases.

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In continuing the series of blogs on distracted driving, I saw a heartbreaking story on the news last week that unfortunately fits right in with the other blogs on Texting While Driving and Snapchatting While Driving. An 18 year old girl was driving her 14 year old sister while operating a Livestream video feature of the Instagram app. Her car drifted into the other lane, and when she overcorrected, the car flipped. Her 14 year old sister was ejected from the car and died. The older sister — while driving — captured the whole thing on video.

The older sister was arrested on-site for suspicion of DUI and gross vehicular manslaughter. Even if the family does not file a civil complaint — for the wrongful death of one daughter caused by another — the driver faces 13 years in prison if convicted on all 6 felony counts.  (Keep in mind that there may be family immunity laws that would even prevent such a lawsuit).

In a recent case involving an accident while using the Snapchat app, the plaintiff sued Snapchat, Inc. for having the “speed overlay” filter, which has incentives for a driver to use the app while the car is in motion at high speeds. This differs from the Instagram Live function, which seemingly has no “incentives” or benefits for using the function except keeping friends up to date with your every move. Were this motor vehicle accident to be filed as a civil complaint, it would be interesting to see if Instagram could be held liable for the resulting death, as the “incentives” from the Snapchat app were the main argument behind the plaintiff’s claim.

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What is the price of a life lost? Could you put a price tag on your own life or that of a family member, killed at the hands of a negligent defendant? How much would you want people to say your life would have been worth?

These are the questions that juries must face when evaluating “damages” to award in wrongful death cases. Plaintiffs’ attorneys must ask the jurors to award money to a family who has lost its loved one due to the negligence of someone else. It’s tough to ask and even tougher to answer, but when parents have lost their child because of someone’s negligence, there must be some sort of monetary justice for the family.

So how much is a life worth? The Georgia Code provides: “The amount of the recovery shall be the full value of the life of the decedent.” O.C.G.A. § 51-4-5. But what determines that full value of life? The judge may instruct the jury: “You should consider the gross sum that the deceased would have earned to the end of life had the deceased not been killed… in determining the amount of the full value of the life of the deceased. The full value of the life of the deceased is not limited to the amount of money that could have or would have been earned had the deceased not been killed.”