COVID-19 Update: How We are Serving and Protecting Our Clients.

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I am struck today by the decision of the Wisconsin Supreme Court yesterday to rule that the Governor and the head of its Public Health Department did not have the authority to issue stay-at-home mandates during the Covid-19 pandemic. As the Governor of Wisconsin said, Wisconsin is now the “wild, wild west.” Chaos has already ensued in the less than 24 hours since the ruling, as predicted by Governor Tony Evers. Bars were packed last night in Wisconsin, with absolutely no social distancing (from the photos it looks like no distancing at all) and no masks being worn. World-leading scientists and epidemiologists predict this will necessarily cause a spike in Covid-19 cases and unnecessary suffering and deaths.

The first thing to note of this decision is that the case was brought by Republican Wisconsin Legislators against the Governor, so that essentially the Legislators were suing saying a bill they had passed was unconstitutional. Wait. What? How is that possible? They passed it. Surely, they can’t now file suit claiming the very thing they wrote, voted on and passed was actually unconstitutional from the get go. This turns the legislative process on its head.

The second thing to note is that this was a decision that ran along party lines in a very politicized state supreme court. The Wisconsin Supreme Court’s conservative-backed majority split in the 4-3 decision, with Chief Justice Patience Roggensack, Justice Daniel Kelly, who recently lost his bid for election, Justice Annette Ziegler, and Justice Rebecca Bradley voting to overturn Palm’s order. Conservative-backed Justice Brian Hagedorn joined the court’s two liberal-backed members, Justice Ann Walsh Bradley and Justice Rebecca Dallet, in dissent.  You may remember that Justice Kelly, a Republican, recently ran for reelection as a Republican and even had the President of the United States come to Wisconsin and campaign for him in a unabashed political statement. Justice Kelly lost to a Democrat, Jill Karofsky but, alas, that Democrat hasn’t taken her seat on the bench yet. Otherwise, there is no question this decision would have come out the other way given the fact that even one Conservative justice sided with the dissenters. This recent election, you may recall, was another politicized decision by the Wisconsin Supreme Court as it ruled that the election in April, during the height of the Coronvirus crisis, had to proceed as originally scheduled and that Wisconsin citizens had to vote in person. Undoubtedly, the Republican members of the Supreme Court thought this would hold voting down as surely folks wouldn’t want to risk their lives voting, of all things But surprise! It didn’t work, and the Liberal Democratic candidate beat the Republican candidate who POTUS personally endorsed. Karofsky credited her win to voters rising up and rejecting Republican efforts to suppress turnout. “People were willing to do that because they wanted their voices to be heard in this election,” she said. “A lot of times on election day we’re wringing our hands because we’re so upset about voter apathy. That wasn’t the problem on Tuesday. People wanted their voices heard.”

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Friends:

To say we are experiencing unprecedented times with the global pandemic of Coronavirus-COVID-19 would be a massive understatement. I hope you and your family are well, staying safe and healthy and weathering this storm. I am continuing working on all of my cases to the maximum extent I can at my home. With remote work capability, super high-speed internet and my case management system “in the Cloud,” I can work on any case from any location. I want to let you know how our Georgia Civil and Criminal Justice Systems are adapting to this season we find ourselves in and keep you up to date on all things legal in Georgia right now.

First, the Chief Justice of the Georgia Supreme Court Harold Melton has issued a Statewide Judicial Emergency Order through 11:59 a.m April 13, 2020.  I believe Chief Justice Melton has shown great leadership with the issuance of this Order and through it, is doing the Court’s part in not spreading the virus in our courtrooms and alleviating much anxiety among litigants and lawyers.

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Today marked the last day on the job for Justice Robert Benham. That “job” being no less than serving on the state’s highest court, the Supreme Court of Georgia. A true pioneer, he was the second African-American graduate of UGA law school and the first to serve on the Georgia Supreme Court. He is retiring after 36 years on the appellate Courts (5 on Georgia Court of Appeals and 31 on Supreme Court). Appointed by Gov. Joe Frank Harris in December 1989, he was the first African-American ever appointed to the Supreme Court in its more than 140 years.  He  served in the United States Army Reserve attaining the rank of captain, and served as a trial attorney with Atlanta Legal Aid among many other professional accomplishments.  A lifelong resident of Georgia, Justice Benham was born to Jesse Knox Benham and Clarence Benham in Cartersville, Georgia. He obtained a B.S. in Political Science from Tuskegee University in 1967 and also attended Harvard University. In 1970 he obtained his Juris Doctor from the University of Georgia, Lumpkin School of Law. He obtained Master of Laws degree from the University of Virginia in 1989.

As a tribute to Justice Benham, I am sharing my remarks from the 2013 Justice Robert Benham Community Service Awards.  Prompted by concerns about the decreasing number of lawyers in leadership positions in public and community service, then Chief Justice Robert Benham in 1996 created a Community Service Task Force under the auspices of the Commission on Professionalism.  Composed of leaders of the bench and bar in Georgia, the Task Force determined to encourage, support, and recognize within the profession the tradition that all lawyers perform community service and measure their success in ways other than just financial gain.  To accomplish its purpose, the Task Force created the Justice Robert Benham Annual Awards for Community Service in partnership with the State Bar to honor lawyers and judges from the ten judicial districts of Georgia who have made outstanding contributions in the area of community service.  Since 1998, the Commission has coordinated the selection and presentation of these Awards.

Justice Benham, to say you will be missed on the bench is an understatement. I will always think of you with great love and admiration.  You are the ultimate role model for any lawyer.  The hallmarks of your career and life are integrity, kindness, compassion for others and  wisdom. You deserve only the best in your retirement. Godspeed!

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I was struck this week with an opinion of the Georgia Court of Appeals in what is probably a very rare scenario:  where the defendant has already served his entire sentence but the Court exercises jurisdiction to hear the appeal anyway. I would be curious to know how often that happens. My guess is almost never. So the scenario grabbed my attention since it is probably so rare.  And you might be asking “What’s the point?” if the defendant is already out of prison anyway. Well, the Court answers “what’s the point” succinctly by saying Justice is the point. Justice is the point.

The case I am talking about is Denson v. State, A19A2307, 2020 WL 255433 (Ga. Ct. App. Jan. 17, 2020), authored by Judge Yvette Miller and concurred by Judge Rickman and Judge Reese.  I commend it to your reading. It is a doozy.  In this criminal appeal, the trial court did not hear the convicted defendant’s motion for new trial (that had ben timely filed in 2007) until 9 years after it had been filed, and the Georgia Court of Appeals did not resolve the defendant’s direct appeal until 13 years after the original conviction of defendant and after the defendant had served his entire sentence.  Wait. What?

That’s right. And the Georgia Court of Appeals made it clear it would ignore the mootness of the their review, since the Defendant had already served his unjustly imposed sentence, to issue a warning to Georgia trial courts of the grave injusctice they may be doing to otherwise innocent criminal defendants.  Whew.  Like I said, it’s a doozy.

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There have been some stories on the news lately about a student who was burned during a chemistry experiment performed during class. Back in August of last year, a teacher in a DeKalb County School performed a demonstration of lighting a dollar bill on fire using ethanol and water. She apparently had performed the same demonstration using just alcohol with little success. When the teacher tried the demonstration using ethanol, the dollar bill, in a glass, caught on fire, broke the glass and traveled across a table onto the student, who had his head down on the table. It severely burned the student.  The student hired counsel who has sued the teacher and the school. They are now reports in the news that the school system won’t pay for his reconstructive surgery.

This really is neither surprising or shocking. The DeKalb School system enjoys the benefit of “sovereign immunity,” which means it is immune from suit. County school systems, county agencies, county departments, really anything to do with counties, cannot be sued successfully for most causes of action.  Sure, you can file suit against them, but 9.9 times out of 10 it will be dismissed on summary judgment based on sovereign immunity.

There are a few exceptions. One example would be a lawsuit for violation of the Americans with Disabilities Act (ADA).  Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subject to discrimination by an such entity.”  A disabled person who falls within the class of persons protected by the ADA may successfully sue a county for violation of the ADA, for things such as failure to maintain a sidewalk in the county that inhibits that person’s ability to move on the sidewalk.  For example, if a person is confined to a wheelchair, she must be able to use the sidewalk as any capable-bodied person, so the sidewalk must have proper curb cuts to allow the wheelchair to gain access to the sidewalk and there must not be any holes in the sidewalk that would prevent the wheelchair from easily moving over the sidewalk.  Sovereign immunity does not protect a county when it has violated the ADA and it grants the disabled citizen a private cause of action to enforce it.  It is important for private citizens to be able to hold Georgia counties accountable for ADA violations as the number of people in the United States who are disabled in some form continues to rise. For example, it is estimated that one in 4 U.S. adults – 61 million Americans – have a disability that impacts major life activities, according to a report in CDC’s Morbidity and Mortality Weekly Report.  Of those disabled citizens, 13.7% have a mobility disability and an estimated 4.6% have a vision impairment. So you can why it is important that even counties not be immune for failure to comply with the ADA.  Disability affects us all.

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Does anyone else out there hate scooters?  For those folks still in denial about the risk/cost benefit analysis in riding scooters, you should know that scooter injuries  continue to climb.  A new report by the University of California San Francisco revealed Electric scooter-related injuries resulting in hospitalization more than tripled over five years nationwide.  The results showed nearly 40,000 injuries in the past five years, increasing from 6 per 100,000 people in 2014 to 19 per 100,000 in 2018. The number of hospital admissions — meaning injuries severe enough to require further medical attention — soared by 365% to nearly 3,300, the study found.

I’m not surprised. Are you?

Scooter injuries and even deaths have been in the news here in Atlanta nearly daily.  Mayor Keisha Lance Bottoms even outlawed use of scooters at night in the city due to four scooter-related deaths.  On any given day on my way to my office, which is in Downtown Atlanta, I see 2 or 3 near-catastrophic collisions with scooter-riders and cars or immovable objects. Surely, you have, too. Add a little alcohol consumed by tourists who think “it will be fun” to ride a scooter for the first time after having a few drinks, it is downright mayhem on our city streets.  I have seen two or even three people riding one scooter at a time. I have seen a scooter rider texting while scooting. I have seen a scooter rider with a back-pack on, drink in one hand and cell phone in the other. Anything goes.  It’s totally lawless!  Part of the cause of many scooter-rider injuries must be due to lack of skill and practice riding a scooter. “E-scooters have a narrow platform, can travel up to 15 to 20 miles per hour and require a level of coordination and skill that is often not native to many users,” said Aiza Ashraf, M.D., diagnostic radiology resident at the Indiana University School of Medicine in Indianapolis. “Whereas physical effort is required to get a bicycle up to speed, e-scooters are self-powering.”

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Recently, there have been a couple of criminal cases heard by the Georgia Supreme Court which have involved the trial judge’s inherent duty to be the final arbiter of fairness and justice in the courtroom. Sometime this is referred to as the “13th Juror,” because the trial judge sometimes must base her or his ultimate decision on the facts, testimony and documentary evidence presented at trial…things an appellate court would not be in a position to know.  A recent  discussion about the notion of the trial judge as 13th juror came in an appeal of a criminal case, State v. Hamilton, 832 S.E.2d 836  (Ga. Sup. Ct. September 3, 2019) in which the Georgia Supreme Court heard oral argument on the issue of whether the trial judge was authorized to  toss out three counts of assault when that the jury had convicted the defendant on, in the judge’s opinion, there was no way factually or legally for those three counts to be proven beyond a reasonable doubt.  The Court affirmed the trial court’s granting of a new trial.  “Having reviewed the entire record, and considering that the trial court was authorized, as the thirteenth juror, to discount Taylor’s and Hewatt’s testimony and to credit Hamilton’s story, and bearing in mind the standard of review set forth in OCGA § 5-5-50, we cannot say that the trial court’s conclusion was an abuse of its substantial discretion to grant Hamilton a new trial. See Hamilton, 299 Ga. at 670-671, 791 S.E.2d 51 (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).”

In another case recently argued before the Georgia Supreme Court, the Court told the Fulton County D.A., who was appealing a trial judge’s granting of a new trial, that the D.A. was “wasting the Court’s time” with such an appeal when the trial judge clearly has the power, right and, arguably, the duty, to grant a new trial. In that case, State v. Beard, NO. S19A0535 (Ga. Sup. Ct. October 31, 2019) quoted below, the Supreme Court’s opinion called the D.A.’s position “bizarre.”  “Contrary to the State’s bizarre argument, the jury’s verdict was not demanded by the “great physical laws of the universe.” (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).’

State v. Beard, S19A0535, 2019 WL 5656338, at 4 (Ga. Oct. 31, 2019). Since then, the Fulton County D.A.  dismissed its appeal and has vowed to take his argument to the Georgia Legislature in an attempt to get legislation passed that will eliminate this inherent duty and power of the trial judge.

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I have been recovering from hip replacement surgery (my second) these last two weeks and have watched a lot of daytime television while keeping my leg elevated and ice on my hip.  Although I have enjoyed the short sabbatical, I hate that it came only through the necessity of having a new hip implanted. But I am doing very well and expect to be back in my office next week!

One thing that I won’t miss  is watching so many lawyer ads on TV. I do not believe they improve our image as plaintiff’s personal injury lawyers and for lawyers like me who actually try jury trials, it is perfectly clear that our jurors hate these ads. I just recently tried a medical malpractice trial in DeKalb County (which resulted in a $2.35 Million verdict for my client) and many of the perspective jurors during jury selection talked about how they didn’t trust lawyers because of the ads they see on TV and generally, because of these lawyer ads, they were suspicious of our bringing a personal injury case to trial. I had to do a lot of work in jury selection to make sure those potential jurors understood I didn’t advertise and that my case they were about to sit on was a legitimate case in which my client’s mother had died due to medical malpractice. I hate that right out of the gate I had to deal with some other lawyer’s advertisement on TV, like the person in an ad who claims her lawyer got her $900,000.00 and she doesn’t even look injured!

One of the things I have noticed while being forced to watch these TV lawyer ads, is that most of them proudly promote that they don’t get paid unless you get paid, as if they are the only lawyers in the State of Georgia who will boldly make that promise.  Although their statement is true, they are not the only personal injury lawyers who don’t charge a client for their time unless and until they win or settle a case for the client. In fact, as far as I know, ALL plaintiff’s personal injury attorneys, in Georgia and the entire United States for that matter, make the same deal as these TV advertising lawyers who act like they have the monopoly on this arrangement. It’s called a contingency fee agreement and all personal injury lawyers use one to be retained to work for a client on a personal injury case. Please understand that the statement made by TV advertisers about this says absolutely nothing about their skills, ability and experience as a trial lawyer.  We all work under this arrangement.

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A neat thing happened last week in DeKalb County State Court as I was striking a jury. I’m not sure if anyone else noticed it or appreciated it, but I certainly did. The judge had called in 60 potential jurors to go through “voir dire,” or jury selection, in my case. DeKalb jurors are some of the most diverse citizens of any county in Georgia, and that wonderful diversity was in full display during jury selection. What really caught my attention was there was an interpreter for one of the jurors. This juror could not speak English, at least not fluently enough to be able to understand detailed questions about her thoughts and feelings about money damages in civil cases, medical malpractice cases in particular.

It was apparently arranged in advance, because by this woman’s side was an interpreter. The trial court judge needed to swear in the interpreter first, before swearing in the actual juror. The oath an interpreter must take states that she will truthfully and accurately translate from English to whatever language that juror spoke and back again. The trial court, before swearing in the interpreter, asked “It is Amharic? Is that correct?” The answer was yes. And so the judge swore in the interpreter with the oath that she would truly and accurately translate English into Amharic and Amharic into English. That being accomplished, the interpreter then translated not only the juror’s oath to the woman, but also every question asked of the panel.

I was fascinated by the fact that the subject language was Amharic, with which I was not at all familiar.  It is spoken principally in the central highlands of the country. Amharic is an Afro-Asiatic language of the Southwest Semitic group and is related to Geʿez, or Ethiopic, the liturgical language of the Ethiopian Orthodox church; it also has affinities with Tigré, Tigrinya, and the South Arabic dialects.  This doesn’t surprise me at all, as DeKalb County is Georgia’s most diverse county. DeKalb is primarily a suburban county, and is the second-most-affluent county with an African-American majority in the United States, behind Prince George’s County, Maryland, in suburban Washington, D.C.  As of the 2010 United States Census, there were 691,893 people, 271,809 households, and 161,453 families residing in the county. The population density was 2,585.7 inhabitants per square mile (998.3/km2). There were 304,968 housing units at an average density of 1,139.7 per square mile (440.0/km2).The racial makeup of the county was 54.3% black or African American, 33.26% white, 5.12% Asian, 0.4% American Indian, 4.5% from other races, and 2.39% from two or more races. Those of Hispanic or Latino origin made up 9.8% of the population. In terms of ancestry, 5.9% were English, 5.2% were German, and 3.5% were American.

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