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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.

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