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I read with interest the news today that Governor Andrew Cuomo announced the State of New York will no longer send 16 and 17 year olds to prison for criminal offenses. Instead, they will be sent to special newly created youth courts for felonies and to family court for misdemeanors. This new law is called “Raise the Age” initiative.   Kudos to New York. And kudos to the other states that have raised the age for incarceration in state prisons.  Since 2009, seven states have raised the age of adult proscecution to 18 and five more have tried during their 2015-16 legislative sessions.  Here in Georgia, Representative Mary Margaret Oliver, Representative from the 82nd District, filed proposed legislation that would raise the age of adult criminal prosecution to 18 and enlarge the jurisdiction of Georgia Juvenile Courts to include 17 year olds.  House Bill 53 was attempt by Oliver to treat juveniles under age 18 as just that…juveniles. “There are only six states that allow minors to be treated as adults for the criminal prosecution of all crimes,” said Rep. Oliver. “HB 53 is intended to bring Georgia into the mainstream so that 17-year-old minors will no longer be prosecuted as adults, but will be adjudicated in the juvenile court. Expanded juvenile court jurisdiction to include 17-years-old children is a needed reform.”  If passed, HB 53 would adjust the juvenile court’s jurisdiction to include children under the age of 18. This jurisdiction includes the investigation and examination of delinquent acts committed by minors. Under current law, only children under the age of 17 are included in the jurisdiction of the juvenile court.  HB 53 was read on the House Floor, but unfortunately, never received a vote. In fact, there was other legislation filed in the Georgia General Assembly that would lower the age for criminal prosecution for certain offenses rather than raise it.

Many advocate groups are joining in the fight to raise the age for criminal prosecution. For example, the Campaign for Youth Justice, based in Washington, D.C.,  is focused entirely on ending the practice of prosecuting, sentencing, and incarcerating youth under the age of 18 in the adult criminal justice system.  Statistics show that every year in the U.S., as many as 200,000 youth are put into the adult criminal justice system, most of them for non-violent offenses. In 22 states and the District of Columbia, children as young as seven can be prosecuted as adults. Each year 95,000 youth are held in adult jails and prisons.  Research shows that youth in adult jails and prisons are at a higher risk of physical, sexual, and emotional abuse than their peers in the juvenile justice system.   Advances in behavioral and brain science show that adolescent brains are different from adult brains.  Consequently, the judgment “exercised” by youths is different than that exercised by adults.  The American Bar Association recently reported on this in its February 2017 Journal.  The article interviews Dr. Judith Edersheim, co-director of the Center for Law, Brain and Behavior at the Massachusetts General Hospital. As Dr. Edersheim  explains it, “there are three widely agreed-upon differences between adult brains and adolescent brains. One is that during adolescence, kids actually lose “gray matter,” the brain cells that do all of the brain’s computation. This “pruning” of gray matter is especially concentrated in the frontal lobes, which are responsible for self-control, planning, decision-making and other executive functions.At the same time, Edersheim says, teenagers get more “white matter,” the cells that pass messages between parts of the brain, which increases processing speed. Scientists think these two changes make the brain more efficient, even though it also loses some computational ability. This process of brain maturation continues after the body matures; some scientists think it ends as late as age 25.  But perhaps the most conspicuous difference, Edersheim says, is that adolescent brains have more circulating dopamine—a neutrotransmitter that scientists believe governs rewards and learning—and more receptors in their brains to pick it up. Dopamine is released when a person receives many kinds of rewards, including new experiences, as well as things such as food and sex. This predisposes teenagers to seek out rewards and novelty. The thinking, Edersheim says, is that this helps push adolescents out of the nest and into the world. And what kids learn during this process, she says, helps determine what parts of the gray matter get pruned. That means a kid’s environment matters a lot, and adult prison isn’t the best environment.  “If you don’t provide an adolescent with an opportunity to develop a social competency or self-esteem, if you don’t put them in contact with pro-social peers, then you’re setting trajectories which actually might persist through adulthood,” Edersheim says. “Adolescents are really these neurologic sponges for their environment.””

One of the reasons I am interested in this legislation to raise the age is because I represent the mother of a young man who was incarcerated in adult state prison here in Georgia at the age of 16.  At the age of 17, he attempted to kill himself by hanging from his bedsheet. He now remains in  a constant minimally conscious state in a nursing home in South Georgia due to the brain damage he suffered during the suicide attempt. He is 19 years old.  I firmly believe that had he not been sent to an adult prison at age 16 he would be a healthy 19 year old now, looking forward to rehabilitation for the offense he committed. That will never happen now.  Solitary-Confinement-Canada-Prisons-SAN-300x210

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Two fairly interesting court opinions were issued this week, one by a trial court judge in a bench trial, and the other from the Georgia Court of Appeals, both of which place a dollar value on the life of someone and both of which are, strikingly, very close to each other in amounts. I thought it would be interesting to take a look at them, as the value of a life is something I ponder quite often as a trial lawyer, and it is something I often have to ask juries to do in wrongful death trials. I am currently gearing up for the trial involving the wrongful death of a 23 year old young woman who was a kindergarten teacher in Gwinnett County. The trial will be taking place in Fulton State Court. So the value of a life is at the forefront of my thought these days. Let’s take a look at the wrongful death cases from this week.

The first case involves the wrongful death of Bobbi Kristina Brown, daughter of Bobbi Brown and Whitney Houston.  I am sure you are familiar with the incident surrounding her death. It was a tragic case.  This week, Judge Jackson Bedford of the Superior Court of Fulton County, issued an award of $36 Million for the full value of the life of Bobbi Kristina. You may recall that, like her mother, Bobbi Kristina was found face down in a bathtub full of water. She survived on life support systems in a hospital for several months. The award was made against her life-partner, Nick Gordon.  Mr. Gordon was not present at the trial of this case and it appears he may have been in default in the civil suit, meaning he never filed an answer to the lawsuit which would entitle the plaintiff to a trial on damages only, which is, apparently, what occurred. The young woman’s family blamed Gordon, accusing him in the lawsuit of giving Brown a “toxic cocktail” before putting her face-down in the water. Gordon, an orphan three years older whom Houston had raised as her own, has not been charged with a crime. Brown had referred to Gordon as her husband. Investigators with the medical examiner’s office were unable to determine exactly how Brown had died. An autopsy showed she had morphine, cocaine, alcohol and prescription drugs in her body. But the medical examiner couldn’t determine if she killed herself, if someone else killed her or if her death was accidental. Regardless of the amount of the award, it is unlikely that the Brown Family will ever collect a penny of it from Mr. Gordon. It is my understanding that he has no personal assets and could always file bankruptcy against the award.  It is important, however, to note that a very seasoned trial judge, Judge Bedford, when faced with placing a dollar value on the life of a person, deemed $36 Million an appropriate number.   Judge Bedford has presided over many wrongful death trials and is well versed in the law of wrongful death and what factors go into that decision of what is the value of life from the deceased’s point of view.  Interestingly, under Georgia law, when determining the value of a life for wrongful death purposes, the jury is instructed they must value the life from the deceased’s point of view, meaning did the person who died value his or her life?  The only “tool” the jury is to use to help them with this endeavor is their “enlightened conscience.” What was his life worth to him? What was her life worth to her?  Judge Bedford decided $36 Million was the value of the life of Bobbi Kristini Bown.   That may seem like a lot of money, but ask yourself this:  If it was your daughter who had died, have they printed enough money to compensate for the loss of her? Name a dollar figure you believe adequately reflects the full value of the life of one of your children.  It’s hard to think about, isn’t it.  Now put yourself in the jurors’ shoes.

The second case this week involves the wrongful death of a little boy, Remington Walden, who burned to death in a fiery car crash  when he was a passenger in a 1999 Chrysler Jeep Grand Cherokee.  Two amazing trial lawyers, a father and son team, Jim Butler and his son, Jeb Butler, tried this wrongful death back in April 2015 in Decatur County (Bainbridge) Georgia.  The plaintiffs alleged the 1999 Chrysler Jeep was defective due to the placement of its fuel tank in the rear of the Jeep, making a fuel-fed fire highly likely in a rear-end collision, which is what happened in this case. Unlike the Bobbi Kristina trial, which was a trial in front of a judge who decided the case, this was a good old-fashioned jury trial. The Decatur County jury found for the plaintiffs in the amount of $120 Million.  That’s right…$120 Million.  The trial judge then reduced or “remitted” the verdict, which is a power the trial court has, in lieu of a new trial. The trial judge reduced the $120 Million verdict to $40 Million , which the plaintiffs’ accepted. Chrysler did not, however, and appealed even the reduced verdict to the Georgia Court of Appeals.  Well, the Georgia Court of Appeals this week affirmed the trial court, meaning it agreed with the trial court’s decision to reduce the verdict to $40 Million. Chrysler lost their appeal but has vowed to consider its options to appeal to the Georgia Supreme Court. I’ll be watching for that appeal.  There was evidence in the trial that Remy, the little boy, burned alive for 60 seconds.  It may seem that the jury thought $2 Million for every second of burning alive was appropriate. Who could argue with that? Who could even argue with $40 Million for that kind of death? Chrysler, I suppose. Chrysler still refuses to accept any responsibility for their defective product and refuses to accept any responsibility for the death of Remy Walden.   Contrary to the Bobbi Kristina verdict, the plaintiffs stand to collect every penny of this verdict, plus interest, assuming it is affirmed on appeal by the Georgia Supreme Court.

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In the 28 years I have practiced plaintiff’s personal injury law here in Georgia, I have handled hundreds of cases, each one with a unique set of facts. I am often asked by clients what affects the value of their case?  Many, many things, some reasonable and fair, some irrational and unpredictable, affect the value of a case.  But they all matter.  Below are just 10 such things that affect the value of a personal injury case, in no particular order.  And this list of 10 items is NOT exclusive.

  1.  Did you leave the scene by ambulance?  If you left the scene of a car wreck by ambulance, that suggests you knew right then you had suffered a severe injury, severe enough that you needed immediate medical treatment. If you did not leave the scene by ambulance, insurance adjusters and even jurors may tend to think perhaps your injuries were really not that bad. After all, you didn’t even need to go to the emergency room.
  2. Did you or anyone call 911?  See #1 above.  Calling 911 suggests it is a true emergency, someone (you) are really hurt and you really need help right away.

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The Georgia General Assembly enacted a law during the 2015 Legislative Session, known as “The Hidden Predator Act” that reopens the statute of limitations for bringing suit against a sexual molester.  This new law went into effect on July 1, 2015.  This unusual law essentially creates a new statute of limitations to sue sexual molesters if the abuse occurred when the victim was under 18 years of age and the lawsuit is filed within two years “from the date that the plaintiff knew or had reason to know of such abuse and that such abuse resulted in injury to the plaintiff.” O.C.G.A. Section 9-3-33.1 (b)(2)(A)(ii).  This is known as the “discovery” provision of the new law and allows a victim to sue the institutional for which the sexual predator worked or with which he was affiliated.  Interestingly, even if the “discovery” of the abuse occurred over two years ago, this new law reopens the statute of limitations for another two years solely against the individual sexual predator.  it states:  “For a period of two years following July 1, 2015, plaintiffs of any age who were time barred from filing a civil action for injuries resulting from childhood sexual abuse due to the expiration of the statute of limitations in effect on June 30, 2015, shall be permitted to file such actions against the individual alleged to have committed such abuse before July 1, 2017, thereby reviving those civil actions which had lapsed or technically expired under the law in effect on June 30, 2015.”  O.C.G.A. Section 9-3-33.1(d)(1).

To date there has apparently been one lawsuit filed using this new statute, in Camden County, against a karate instructor. Six men are plaintiffs in that lawsuit who all allege they were sexually abused by their karate instructor when they were teenagers.  We will be watching that lawsuit closely.

I call the new law unusual because it is the first time that I can remember that the Georgia General Assembly lengthened a statute of limitations to allow more time to sue and the first time I can remember that the Georgia General Assembly simply revived what were otherwise lost lawsuits. This is quite a milestone for the Georgia Legislature.

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Lawyers Club of Atlanta
Newsletter – February 2015
 
 From the President

Friends:

           I sat down at the bar at Lawyers Club the other night with my good friend and Past President Hal Daniel, the sole endeavor in mind being to enjoy a cup of cheer together following a long day at the office. After we ordered our “usuals” and eagerly awaited Kenny’s expert renditions, instead of the usual “How are you doing?, Hal asked me the following question: “What have you done today to make someone else’s life better?” Intriguing. What followed was a genuine reflection of my day and Hal’s to see if we could honestly lay claim to such a noble endeavor as making someone’s life better rather than just barely making it through a hard workday unscathed and still standing and breathing.

            The question brought to mind one of my favorite stories about one of my heroes, Justice Robert Benham. My service as President of the State Bar fortunately provided me many opportunities to spend time with Justice Benham and hear many wonderful stories about his life growing up in Bartow County. Before I share this wonderful story with you, let me give you a little background on the Honorable Robert Benham as a reminder and to set the stage.

            Justice Benham distinguished himself as the first African American to win statewide election in Georgia since Reconstruction. In 1989, Justice Benham was further distinguished as the first African American to serve on the Supreme Court of Georgia, following his appointment by Governor Harris.

            He also made history both as the first African-American to establish a law practice in his hometown of Cartersville. In what can only be described as something straight out of a movie, when Justice Benham would walk down the street in Cartersville to go to the Bartow County Courthouse, many fellow African Americans would come out of their homes and out of their places of work to follow him down the street. The shouts of “Attorney Benham’s going to court,” “Mr. Benham’s going to court” could be heard as they followed their hero, then “Attorney Benham”, to the courthouse, because they knew Attorney Benham was going there to stand up for the little guy, the underdog, which they, undoubtedly, felt they also were. Attorney Benham became for many African Americans the embodiment of justice, and although he was walking to court to represent one specific accused person, dozens of other citizens felt he was also representing them.

            Justice Benham’s first lesson of service to others probably came at the hands of his mother, who insisted that he shine shoes at the local barber shop. His mother had this view that if you ever plan to lead people that you must be willing to serve them first and there’s no more humbling experience than being down on your knees shining somebody’s shoes. As she said, “If you do that you won’t be full of yourself.”

          So Justice Benham as a little boy, with his brothers, shined shoes at Bob Cagle’s barber shop. As I have heard Justice Benham say, “the American Dream is that a black child from Cartersville who shined shoes in a barber shop can grow up and shine in the Halls of Justice.”

            Which brings me to the story that Hal’s question to me that night at Lawyers Club brought to mind. In the Kennesaw State University Department of History and Philosophy Summer Hill Oral History Project, Justice Benham described his family’s origins for insistence on service to others. “Family meals were not optional, they were required. A blessing was said at every meal and the children, my two brothers and I, were required to say a Bible verse. We could not say the same Bible verse anybody at the table said and we could not use the same Bible verse during that week, and that was required. There was no television on, and we were the only family in the neighborhood who had a television, but you did not watch TV while you were at the family meal and you engaged in discussion. Daddy would always ask, “Well, what are you going to do today?” And then we knew what was coming next, “What are you going to do today for somebody else?” That was at every breakfast.”

            “What are you going to do today for somebody else?” Quite a lesson that Justice Benham never forgot. Years later, Dr. Martin Luther King, Jr. would say that life’s most persistent question is “What are you doing for others.” Life’s most persistent question has been the hallmark of Justice Benham’s life.

            One of the hallmarks of the profession of law is a recognition that along with the privilege to practice law comes a duty to subordinate financial reward to social responsibility. We will celebrate many of our fellow lawyers who have done just that by offering themselves to public service through service on the bench at our cocktail meeting this month on Wednesday, February 18. Please come and thank our honored judiciary for their service. You won’t want to miss it.

           Hal’s question was a good one to ponder and so I ask it of you, my fellow Lawyers Club of Atlanta members: What have you done today to make someone else’s life better?’

            Let’s have a drink together soon at the club to discuss.

                                    Cheers,

                                    Robin Frazer Clark

Robin Frazer Clark 

President 2014-15  

The last two Fridays I have spent speaking at Continuing Legal Education Seminars sponsored by the Institute of Continuing Education. My topic:  Ethics and Professionalism.  In preparing for both presentations, I couldn’t help but think about a dear departed friend who was the embodiment of Ethics and Professionalism, Judge Ed Carriere.  I recall as one of the highest honors of my year serving as President of the State Bar of Georgia the day I accompanied Chief Justice Carol Hunstein to Judge Carriere’s home and with his wife, Jane, present, Chief Justice Hunstein published the resolution below. It gave me goose bumps then and it does now in the remembering of it. I wish everyone could have known Judge Carriere. Certainly, everyone who did was changed for the better. I share with you the Joint Resolution honoring Judge Carriere. Georgia Seal The Supreme Court of Georgia

Whereas: The Honorable Edward E. Carriere, Jr. has rendered more than four decades of service to the justice system and the legal profession in the State of Georgia; and

Whereas: Judge Carriere earned his law degree at Loyola University in California and was admitted to the State Bar of Georgia in 1971; and

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I have been thinking a lot about “justice” lately.  I have just finished a week long medical malpractice trial in DeKalb County in which I did not think justice was served for the family who lost their loved one (more on that in a minute) although I don’t criticize the jury in any way. That alone is probably a difficult concept for lay persons to accept, but it is the truth for trial lawyers.  I also can’t remember a time when the word “justice” has been thrown out more in the media, in social media, in sermons and in everyday conversations than it has in the last few weeks due to the events in Ferguson, MO.  That is extraordinary for the United States, a nation founded upon the very principles of justice. Try Googling “was justice served” and you’ll get a myriad (actually 1,920,000 ) of opinions regarding the Ferguson shooting, with about half of the articles responding in the affirmative and about half responding in the negative.  Maybe this rough split of 50/50 is proof in and of itself that the justice system usually gets it right.

I was also skimming through a book titled “Justice” recently which noted that most Americans don’t take any oath to support and uphold the Constitution or even the laws of the state in which they reside.  I find that interesting because I have done so several times, first when I was sworn in to practice law in the state courts of Georgia, then when I was sworn in the Georgia Court of Appeals, then when I was sworn in the Georgia Supreme Court,  then when I was sworn in in the United States District Court for the Northern District of Georgia, then when I was sworn in to the United States Supreme Court, and then as an officer of the State Bar of Georgia and then, most recently, when I took the office of President of the State Bar of Georgia. That’s a lot of swearing!!  But each time (at least 7, maybe more) I swore I would protect and defend the Constitution of the United States, the Constitution of the State of Georgia and the laws of the State of Georgia, “so help me God.”  I take that oath as seriously as any single person has ever taken it. Part of that sacred oath is to protect and defend our justice system, criminal and civil.  You will never hear me criticizing our justice system. There may be some things wrong with it, but it is still the greatest system ever devised by man for self-government.  As Winston Churchill said about Democracy:  “Democracy is the worst form of government except for all those others that have been tried.”

I say all of the above because after 27 years of practicing law in Georgia, I am on the verge of concluding that a victim of medical malpractice in this state cannot obtain justice.  Jurors here in Georgia will look for the smallest shred of doubt, will do almost anything, not to hold a physician liable for his negligence.   I can’t pinpoint one cause…there are probably many.  TV advertisers must shoulder a lot of the blame.  I am not a TV advertiser.  I am an actual trial lawyer.  When I stand in front of a jury to begin jury selection, those jurors are already suspicious of me because they know only of personal injury lawyers who advertise on TV with silly slogans or theme music, or has-been actors touting the lawyer’s legal acumen.  Although I have never advertised on TV or anywhere for that matter, I am lumped in with those who do because I am a personal injury lawyer. I am guilty by association.

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I have written before about my case against the Georgia Department of Transportation and the City of Atlanta about  a defective median installed in the middle of the City of Atlanta’s busiest street, Peachtree Street, in the heart of Buckhead at the intersection of Peachtree Street and Piedmont Road. This intersection may well be one of the busiest intersections in Buckhead, the city’s premiere retail, hotel and financial district. This median was installed in October 2007 and was opened for the motoring public without sufficient warning signage and without sufficient lighting. My clients’ daughter was killed in 2008  in a single car accident when the driver of her car hit the median, because it was not readily visible and was not appropriately marked. We filed suit in back in 2010 and are still fighting four years later. Various appeals have lengthened the litigation. We continue to fight. On November 12, 2014, we received a wonderful opinion from the Georgia Court of Appeals that will allow us to proceed with a jury trial against the City of Atlanta. Below if the opinion. We had already received a similar opinion regarding our claims of negligence against the Georgia Department of Transportation.  This puts us one more step toward justice for the family.

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 26 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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I have handled hundreds and hundreds of car wreck cases in Georgia.  Very often I hear this common theme from prospective clients:  “I Could Have Been Killed!”  And it is often very true…they could have been killed, but thankfully, they weren’t.  So do you have a case when you could have been killed but you weren’t?  Or better put, do you have a case when you could have been killed but you weren’t physically harmed at all?

I thought of this because this morning while perusing the headlines I came upon this story about a JetBlue plane that experienced a blown engine and made an emergency landing.  Smoke filled the cabin, oxygen masks magically came down, and flight attendants yelled “Brace!  Brace!  Brace!” as they landed, which fortunately, they did so safely without injury.  Watch the video and you will see that many people on board thought they were about to die.  And, in fact, they had a long time to think that as the plane, which was over water, had to turn around and go back to California to land. They all could have been killed, but they weren’t.

Therein lies the conundrum.