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Articles Posted in right to jury trial

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Having spent several days at home for the Holidays, I was struck (and not in a good way) about how many commercials there are on TV for personal injury lawyers. It is NON-stop. And the same goes for social media, where plaintiff’s lawyer after plaintiff’s lawyer is shown in a video bragging about themselves. It’s sickening, and I don’t think these commercial appearances enhance our reputation at all.  Just the opposite. So I thought I would take a moment to list a few things that a person like you who has recently been injured due to someone else’s negligence should consider before hiring one.

  1. How many cases has the lawyer actually tried for a plaintiff in front of a jury?  I have seen some young lawyers bragging online about their one awesome verdict, which begs the question: How many cases have they actually tried?  Have they tried only one case and it came out well for the plaintiff?  Potential clients should ask this question. In 32 years of practicing law, I have tried over 75 jury trials to verdict, some lasting 2-3 weeks. This is critical information. Hopefully, as a plaintiff, this is the only case you will ever have in your life. If it were surgery, would you want a doctor who had performed only one surgery before yours?  Or would you want one who had done  100 of them?
  2. Is the lawyer on TV even licensed to practice law in Georgia? I am constantly amazed by the fact that some of the TV advertising lawyers are not even licensed to practice law in the State of Georgia. This means they haven’t studied and worked with the laws of our state and they certainly haven’t tried a case in a state court of Georgia. You have a right to know this and you can easily find this out by going to the website of the State Bar of Georgia at https://www.gabar.org/.  On the home page there is a search box titled “Member Directory.”  This is a resource available to the public and you can put a lawyer’s name in it and see whether they have a Georgia law license. You can also see where the lawyer went to law school and see what year he or she graduated from law school, which tells you how much real world experience the lawyer has. It also tells you whether there is any “discipline” on record for that particular lawyer, which means whether that lawyer was ever found to have violated the ethical or professional rules of conduct. This is crucial information everyone should have before hiring a plaintiff’s personal injury lawyer.

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Friends:

I am happy to share with you that I have recently begun co-hosting a podcast called “See You In Court.” “See You In Court” is a podcast sponsored by the Georgia Civil Justice Foundation, on which I sit as a Board Member.  My co-host is Lester Tate, partner and owner of the law firm Akin & Tate in Cartersville, Georgia.  Lester is also, as I am, a Past President of the State Bar of Georgia and is also a Board Member of the Georgia Civil Justice Foundation.

“See You In Court” podcast is a joint project of the Georgia Civil Justice Foundation and the Georgia Institute of Technology School of Literature, Media and Communication. The Georgia Civil Justice System is a nonprofit foundation whose mission is to educate the public about the Georgia Civil Justice System and its value to the public in enforcing rights and holding negligent actors accountable for injuries they have caused.  The Georgia Institute of Technology School of  Literature, Media and Communication defines new models of intellectual inquiry and practice that bring diverse humanistic perspectives to bear on technological invention and innovation.  The School’s mission is to lead the region, the nation, and the world in researching and teaching the ways the humanities shape and are shaped by science and technology. Understanding technologies in their cultural contexts is fundamental to invention and innovation. The School’s diverse faculty and students assess and inform technological and scientific change by creating, analyzing, and critiquing a broad range of media forms and cultural practices.

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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

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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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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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MY FIRST AND LAST MURDER TRIAL

It’s January 4, 2019 and I am in Division 5 of the DeKalb County Superior Court, otherwise known as Judge Gregory Adam’s courtroom. I let the Deputies know I am a lawyer representing an accused person in a case and am here for the motions calendar. They instruct me to sit in the jury box. I do. As soon as I step in the jury box, a friend of mine, Jan Hankins, a Georgia Public Defender, says “I know you. What are you doing here?”  She has that look on her face of seeing someone she knows but in the wrong setting. Things are out of context. She knows I am a plaintiff’s personal injury trial lawyer. She instantly computes that I have no Earthly business in a criminal motions hearing.  I explain that I will be trying a murder trial with Mike Maloof, Jr. because I have always wanted to try a criminal case and in my 30 years of practicing law, I have never handled a criminal case. A mutual friend put Mike and me together and Mike welcomed my help. Jan’s response: “If trying a murder case is on your bucket list, you need a new list.”

It is true that in 30 years of practicing law I have never handled a criminal matter. I watch a lot of criminal trial shows on TV, though. Shouldn’t that qualify me a little bit?  After all, I certainly know never to talk to the police or answer a single question they ask unless my lawyer is present. I know never to give the police consent to search my car. I know never to agree to take a sobriety test. I am armed with a lot of knowledge about the criminal justice system from this. So wouldn’t it be a neat chance to add to my plethora of TV criminal justice knowledge by trying a real murder case?

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Jury duty is often the last thing people want to do. It interferes with their jobs, their family schedules and essentially everything people do on a daily basis. No one has jury duty scheduled on their calendar.  So, it is often the case once citizens report for jury duty and are actually sitting in a courtroom going through jury selection, particularly in civil cases for money damages, that jurors want to know “Why is this case being tried?  Why am I here?” Some people might, wrongly, assume it is because the plaintiff is greedy. But that is almost never the case. Rather, so often, the answer is because the insurance company for the defendant, the party at fault, refuses to be reasonable and refuses to resolve the case before trial.  For some unknown reason, that seems to be more and more the answer to the jurors’ questions of “Why are we here?”

Several recent trials in Georgia demonstrate that completely. In a trial in Gwinnett County last month, a jury awarded $17.8 million to the widow of a man who plummeted three stories to his death after trying to close an improperly installed dormer window.  No offer of settlement by the insurance company who represented the company at fault was even made until six days before trial. Understand, the trial occurred only after years of depositions, hearings, document exchange…known as discovery. Yet the insurer didn’t even attempt to broach resolution until six days before trial. The plaintiff’s settlement demand had only been $1 Million. Now the insurer is looking at a judgment for $17.8 Million. The insurer could have saved $16.8 Million had it even attempted resolution.

In another case recently tried in Cobb County, the jury returned verdicts for two plaintiffs of $77,000.00 to one plaintiff and $80,000.00 to the other. They also awarded an additional $35,000.00 for property damage. Highest offers prior to trial were $4,000 and $5,000 respectively.  Yet the plaintiffs’ medical expenses alone, without even considering pain and suffering, were $12,000 and $9,000 respectively.  When an insurer offers half of a plaintiff’s medical expenses it is not really trying to reach a good faith resolution of the case.

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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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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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