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

Articles Posted in Trial

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:

rfcgavel-224x300
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.

See-You-In-Court-1-1-300x300
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.

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

LadyJusticeImage-300x200
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.

Image result for trial judge
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.

Image result for contract
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.

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
Contact Information