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

Articles Posted in Judiciary

SupCtBench-240x300               SupCtfrontdoor-225x300
You have probably heard by now that the Georgia Supreme Court on Wednesday reversed the conviction of Ross Harris for murder for the death of his young child, Cooper Harris, who Ross Harris left in the back seat of a hot car for hours.  I think the Court got it exactly right.  Many people have some very strong opinions on both sides of this case. All you have to do is check the hashtag #RossHarris to see how polarized the public is on the case.  The reversal was certainly big news not only in Georgia, but Nationwide. This was a closely watched case.

This may be Justice Nahmias’s final opinion on the Georgia Supreme Court, and he is going out with a bang.  I never thought Mr. Harris should have been prosecuted for murder in the first place.  We know through neuroscience that it takes very little time or effort to distract our brains.  Just the slightest deviation in our typical routine can make you forget where you intended to go or that a baby is in the car with you. Season 2 of AJC’s podcast Breakdown makes this clear with even an example of an Arkansas judge, Judge Wade Naramore, who left his 19-month-old child in his car while he was in court, resulting in the child’s death. The judge’s 911 call is one of the most horrific calls you will ever hear. You’ll also hear about an elementary school principal who left her home early one morning with her baby in her car seat in the back seat. It was too early for her to drop the baby off at day care, so the school principal deviated from her typical, normal route to go pick up doughnuts. Then she drove to school. Hours later a teacher saw the baby in the back seat. They rushed to get her out but she was dead. That simple deviation to the doughnut shop made the elementary school principal forget her child was in the back in her carseat.  I urge you to listen to the AJC’s podcast. Season Two is called “Death in a Hot Car.”

Today, there are many tools a parent can use to help you remember your child is in the back seat, e.g., Baby in Car Seat Alarms, that sound an alarm and flash lights in your car if you forget your child in his car seat. There are phone apps, e.g., Kars 4 Kids Safety, or Backseat App, that alert you to check for you child in the backseat. Even the GPS app WAZE has added a Child Alert to remind you to check on your child before getting out of your car. This shows that anyone can make this mistake and now there are tools to help you not make it.  The National Safety Council has tracked children left in hot cars for over 20 years. It reported that in 2018, 52 children died being left in hot cars. Since 1998 over 800 kids were lost from vehicular heatstroke. Of these deaths, 24% occurred in employee parking lots, just like Cooper Harris.  This is telling.  For those who are adamant that “this would never happen to me,” we know through neuroscience that that belief is simply one created through a heuristic called “defense attribution.” “Defense Attribution” is defined as “bias or error in attributing cause for some event such that a perceived threat to oneself is minimized. For example, people might blame an automobile accident on the other driver’s mistake because this attribution lessens their perception that they themselves are responsible for the accident.” Our minds do this to us when there is something so horrific you can not imagine it ever happening to you.  We also know that the worse the event, the stronger the human mind insists it would never happen to me.  This is something personal injury attorneys often face with jurors in cases in which the injuries to the plaintiff are horrible.

RobininfrontSupCt-225x300 SupCtBench-240x300SupCtrotunda2-225x300SupCtfrontdoor-225x300SupCtinside-1-240x300SupCtcupula-225x300SupCtrotunda1-225x300SupCt175-225x300
Oyez, Oyez! Oyez!  All persons having business before the Honorable, the Supreme Court of Georgia, are admonished to draw near and give their attention, for the Court is now sitting. God Bless the State of Georgia and this Honorable Court.  May it please the Court.

Yesterday, I was honored to speak in the Georgia Supreme Court as part of the Court’s 175th Anniversary Celebration. The Celebration began Wednesday evening with a lovely dinner at The Commerce Club.  Thursday was a full day of seminar on the history of the Supreme Court and biographies of various former Justices. I spoke about the creation of the State Bar of Georgia in 1964, which was approved by the Georgia Supreme Court and five years later held to be Constitutional in two separate cases. It was one of the highest honors of my career. I am sharing with you below my presentation.

We are very fortunate to have the Georgia Supreme Court and the State Bar of Georgia, which, together, protect your rights to live in a Just society, grounded in the Rule of Law, so that all may reap the benefits and rewards that our system of Justice provides.

jurybox-300x169
“Isn’t that a jury question?”  As a trial lawyer who has tried 75 jury trials in Georgia, that is my default position, i.e., a jury should decide each issue of fact. Not a trial judge and certainly not an appellate court. Juries perform this task of finding facts every day, in every courtroom in the United States. It’s what juries do…and it’s the very foundation our system of Justice is built upon.

Yet, too often, we see trial judges, and then even appellate judges, invade the province of the jury and decide the case for herself/himself. This, plain and simply, is not allowed. The Standard of Review of a denial of a motion for summary judgment, for example, requires [an appellate] Court to “view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. And at the summary-judgment stage, we do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution.” Orr v. SSC Atlanta Operating Co., 860 S.E.2d 217, 222 (Ga. Ct. App. 2021), reconsideration denied (July 14, 2021). It really can’t be any plainer than that.

The United States Supreme Court, the highest appellate Court in the country, rarely, if ever, even discusses issues of fact, much less decides them. You can imagine my surprise, then, when in today’s oral argument in United States v. Tsarnaev I heard Justice Sotomayor ask exactly that question:  “Isn’t that for a jury to decide?”   Whoa! Wait a minute! What just happened?!  A Supreme Court Justice never asks a question like that, does she? And yet I heard it with my own two ears! Interesting.

insung-yoon-w2JtIQQXoRU-unsplash-300x200Just when everyone thought the worst of the COVID-19 pandemic was behind us, the Delta variant swept through the country and became the dominant strain in a matter of weeks. Plaintiffs in personal injury cases who thought they would finally get their proper day in court are now facing the prospects of more delays. 

Our team knows that nobody is more frustrated than personal injury victims and their families. Justice delayed, as it is often said, is justice denied. When you choose Attorney Robin Clark and the team to take your personal injury case to trial, we will fight for you until the end. 

Zoom Mediations—a Worthy Alternative?

trialcourtjury          jurycourtroomdrawing-e1538434219610
I hope many of you read my last blog post “Whoever Wants To Serve on a Civil Jury Trial During a Pandemic Raise Your Hand.”    I received some wonderful comments about it, which led me to want to add a bit more to my thoughts on the subject and, hence, this is Part Two of that blog post.  I want to add to the list of why it would not be a good thing to start back up civil jury trials right now when only a small percentage of the Georgia population has been vaccinated. That reason is that Covid-19, without dispute, has disproportionately affected African Americans and people of color (BIPOC) than other citizens. Even the CDC admits this.  The CDC states:

“There is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19. [2], [3], [4], [5], [6] Inequities in the social determinants of health, such as poverty and healthcare access, affecting these groups are interrelated and influence a wide range of health and quality-of-life outcomes and risks.[1] To achieve health equity, barriers must be removed so that everyone has a fair opportunity to be as healthy as possible.”

And yesterday (February 16, 2021) Georgia tied its highest reported daily deaths of 180 from Covid-19, so that hospitalizations may be going down but the death rate is not.

juryboxdrawing
We are now one year into the Covid-19 Pandemic. And I can’t even believe I just wrote that sentence.  One entire year. I confess that when we first went into lockdown back in March 2020 (remember that?) I foolishly thought maybe the entire thing would be over in a month or two. Boy, was I wrong! I have been able to adjust to virtual everything to keep my cases moving. Zoom depositions, Zoom hearings, Zoom mediations, Zoom podcast taping (See You In Court), Zoom everything but a Zoom jury trial. And that’s where I draw the line. The Chief Justice of the Georgia Supreme Court just extended (for the 11th time)  the suspension of jury trials (both civil and criminal) for another month by Declaration of Statewide Judicial Emergency. Many judges and lawyers haven been working to find a way forward to get out jury trials started back. The consensus is that backlogged criminal trials will be first in line, followed by civil jury trials. One of my friends and fellow trial lawyers makes a good point: why should criminal trials go ahead of civil trials as long as the accused person is out on bond awaiting trial? Justice for our civil case clients if just as important as Justice for crime victims and society. But I haven’t really heard anyone explain to me yet why criminal trials will go first once we get jury trials back up and running. Today I was in a meeting with a judge who said she didn’t think civil jury trials would be back until 2022.  That would be two whole years without civil jury trials. Fortunately, in many of my cases I have been able to move the ball forward, resolving numerous cases through Zoom mediations and some through just good old-fashioned settlement negotiations. But for those cases I cannot resolve, the only hope for resolution is a jury trial.

In that same conversation with a Fulton State Court judge, she mentioned there may come some point that parties will be ordered to conduct a trial before everyone is vaccinated and while we are still required to wear a mask and social distance. I haven’t seen that yet and, hopefully, won’t be faced with that, but, for now, if I am ordered by a trial judge to do so I would have to object. There are numerous reasons why that have convinced me it is not in my clients’ best interests to move forward with their one and only jury trial in their one and only case until the Pandemic is completely over, finished and done with. For good. I have been asked about this not only by other lawyers, but also by numerous non-lawyer friends (yes, I have some of those) as well. It seems to be an interesting conversation starter.

So why do I think it is not in my clients’ best interests to have a jury trial now during the Pandemic?  Without going into too much detail, here are just a few:

image0-225x300
We received some sad news this Thanksgiving weekend about a dear friend.  Justice George Carley had died.

Many tributes are now coming in about Justice Carley. One, from Judge William Ray, (U.S.D.C.,Northern District of Georgia) touched me and let me know we had similar relationships with Justice Carley. The Georgia Supreme Court, from which he retired, also paid tribute to him and I urge you to watch it.  These tributes reminded me of my relationship with Justice Carley that I now share with you in memory of him.

Justice Carley was a proud “Double Dawg,” meaning he graduated from both undergraduate school and law school at The University of Georgia, often referred to as just “The University,” as if there were no others.  He is the only person to have served as both Presiding Judge and Chief Judge of the Georgia Court of Appeals, and the Presiding Judge and Chief Judge of the Supreme Court of Georgia.

Mediation
The global pandemic has caused many state legal systems to declare a judicial state of emergency. The state of Georgia is currently under state of emergency protocols that are set to last through August 11, 2020.  When jury trials will restart in Georgia is any one’s guess. I just received a new Order from the Chief Judge of the Northern District of Georgia, Hon. Thomas Thrash, dated July 10, 2020, extending the Federal Judicial Order through August 30, 2020. In his Order, Chief Judge Thrash stated:

Data from the Georgia Department of Public Health reflects that the average number

of new COVID-19 cases per day in the State of Georgia has increased and remains higher

sars-cov-19-300x140
desktop-225x300
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.

juryboxdrawing
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.

Awards
American Association for Justice Badge
Georgia Trend Legal Elite Badge
State Bar of Georgia Badge
Georgia Trial Lawyers Association Badge
ABOTA Badge
LCA Badge
Top 50 Women attorneys in Georgia Badge
Super Lawyers Badge
Civil Justice Badge
International Society of Barristers Badge
Top 25 National Women Trial Lawyers Badge
Contact Information