Atlanta Injury Lawyer Blog

Cobb County District Attorney Makes the Right Call Not to Retry Ross Harris for Murder

May 31, 2023 | Robin Frazer Clark

I am happy to see that the Cobb County, Georgia District Attorney has now made the decision not to retry Ross Harris for the murder of his child when he left his child, Cooper, in a hot car. You may recall that the Georgia Supreme Court reversed the conviction in a strongly worded opinion. The Cobb County District Attorney’s office waited for almost a year before making the decision not to retry Harris for murder. Tip of the cap to Mr. Harris’s attorneys, Max Kilgore, Carlos Rodriguez and Bryan Lumpkin, who never gave up even after their client was convicted back in 2016. They have always maintained that Harris was a loving father and the boy’s death was a tragic accident.“Ross has always accepted the moral responsibility for Cooper’s death,” they said in a statement after the charges were dismissed. “But after all these years of investigation and review, this dismissal of charges confirms that Cooper’s death was unintentional and therefore not a crime.”

You may recall that I wrote a blog post back in June 2022 when the Georgia Supreme Court reversed the conviction of Ross Harris for killing his child by leaving him in a hot car. I thought then it was a prosecutorial overreach and that Mr. Harris never should have been tried on murder charges for the death of his son. My reasoning was based upon study after study showing how easy it is to forget you have a child in a car seat in the back seat, especially if your usual daily schedule is changed ever so slightly. Now, there are numerous cellphone applications (“apps”) that tell you to check the backseat and make sure you don’t leave your child there in the car. Waze Child Reminder and Kars for Kids are a couple of examples. Also, some newer model cars include such reminder to check the back seat and there are now child seat alarms that will alert you if you accidentally leave your child in his or her car seat. One low-tech suggestion is to leave a stuffed animal in the front seat to remind you your child is in the back seat. When my husband and I were raising our children, who are now adults, we didn’t have anything like that to help and it was a constant worry for us. In fact, there was a news report yesterday that an 11 month old baby girl died in a hot car when her parents left her in their car while they attended church.

At trial, the Cobb County prosecutors admitted a lot of evidence regarding Mr. Harris’s communications through the internet with women he wanted to have sex with. Some of these people turned out to be minors. It seemed as if the prosecution was trying to prove that Harris was not a nice guy. And they did that. But that evidence had nothing to do with leaving Cooper in a hot car in his car seat in the back. The Georgia Supreme Court upheld Harris’ convictions on three sex crimes committed against a 16-year-old girl that Harris had not appealed. He received a total of 12 years in prison for those crimes, and he will continue to serve that sentence, the district attorney’s office said.

Virginia Appellate Opinion on Drug Overdose Amnesty Shockingly Defeats the Whole Point of the Law

May 16, 2023 | Robin Frazer Clark

I don’t often write about appellate opinions from appellate courts of states other than Georgia, but as I was reading some recent appellate opinions, the Virginia case of Morris v. Commonwealth of Virginia, No. 1194-21-2 (VA Ct. App. May 9, 2023) and not for good reasons. Morris involves Virginia’s overdose reporting statute, Va. Code Ann. § 18.2-251.03(B)(2). Georgia has a similar statute but ours is arguably not as restrictive as Virginia’s and hopefully, our Georgia Appellate Courts won’t interpret it as strictly.

In Morris, Henrico, Virgina police officers observed a white Ford Edge trying to turn onto the road next to an emergency room. The vehicle nearly struck a curb in the turn lane and then stopped in the middle of the road, blocking through-traffic. The officers approached the vehicle, driven by Morris, and asked him to park the car. Morris said that “he was there to get help,” telling the officers that he had smoked crack cocaine. The officers thought he appeared to be under the influence of drugs and escorted Morris into the emergency room. As medical personnel drew a blood sample, Morris “made suicidal statements.” In response to law enforcement questioning, Morris said that he worked at Food Lion; he was high while at work and asked to sit in his boss’s car to call his mother; he had called his mother “because he was thinking about committing suicide”; and he had driven away from the Food Lion and had driven around awhile before heading to the Short Pump emergency room. When asked whether his mother had told him to “go to the ER,” Morris said he “chose to do so himself” because “he was thinking about suicide.” When an officer asked why he was considering suicide, Morris responded, “drugs.” Morris said that he used heroin, fentanyl, and cocaine, that he had smoked crack cocaine in his boss’s car, and that he “came to the ER to get help for the suicidal thoughts and his drug problem.” Morris alerted the officers to a crack pipe in the vehicle, which they found tucked in the crevice of the passenger seat. Morris v. Commonwealth, 1194-21-2, 2023 WL 3310315, at 1–2 (Va. Ct. App. May 9, 2023).

The Virginia overdose amnesty statute provides full immunity from “arrest or prosecution” for qualifying individuals (prior versions had characterized the immunity as an “affirmative defense”). It was amended to cover not only someone who helps another experiencing an overdose, but also the person who “is experiencing an overdose”—assuming other criteria in the statute are met. Before these expansions, we observed that the “clear purpose” of the law was to “encourage … prompt emergency medical treatment [for] those who have suffered an overdose as a result of ingesting a controlled substance.” Georgia’s drug overdose amnesty statute is similar. But the Virgina statute has a curious requirement that the statute does not apply unless the individual “remains at the scene of the overdose or at any alternative location to which he … has been transported until a law-enforcement officer responds to the report of an overdose.”

Who Can File a Wrongful Death Suit on Behalf of Their Loved One?

May 10, 2023 | Robin Frazer Clark

Families don’t look the same as they did 30 or even 10 years ago. Although traditional families still tend to be the norm, there is a greater emphasis and acceptance of a chosen-family. Sadly, Georgia law has not caught up with the new social norms which leaves many families unable to legally advocate for their loved ones in many situations. Wrongful deaths leave a wake of disaster that spreads beyond an individual’s life. This article will outline some of the most important information you need to know about the wrongful death statute in Georgia and who can file a suit to find justice for their loved one.

What is Wrongful Death?

People die by tragic accidents every day, but some (or most) accidents can be prevented. Wrongful death occurs as a direct result of negligent, reckless, intentional, or criminal behavior or acts of another person or entity. For example, if a company fails to recall a dangerous faulty product and someone dies as a result, this could be considered a wrongful death. The damages that are collected after a wrongful death vary depending on the impact that person’s death has on their loved ones. Although the financial restitution will never undo the life-altering trauma from a wrongful death, it can help lighten the economic burden and give room for loved ones to grieve.

Vicky Bostick: How the Bostick Family Has Channeled Grief into Good

May 8, 2023 | Robin Frazer Clark

I recently had the distinct honor of representing Damien and D.J. Bostick for the death of their wife/mother, Vicky Bostick, in a rear-end collision by a tractor-trailer. We have resolved part of the case and now continue to fight for Justice for the Bosticks in another, separate products liability lawsuit. Vicky was only 50 years old on the day she died, which also just happened to be her 25th Wedding Anniversary with her husband, Damien. “Tragic” is not a strong enough word to describe this tragedy. It is unspeakable.

I have had the pleasure of getting to know Damien and D.J. and their incredible family during this process. This is one of the many things I love about doing what I do. My clients become like family to me. I represent many families who have lost a loved one because of someone else’s negligence. A family never “gets over” the sudden, senseless death of their loved one. They have to find a way to live on without him or her. The deceased loved one is always with them. I have found that families who do something to memorialize their loved one’s life and time here on Earth, something tangible to remember their loved one by and honor their loved one, handle the overwhelming grief the best.

The Bosticks have joined iThink Credit Union and the iThink Community Foundation, where Vicky worked as a Mortgage Originations Manager at the time of her death, to establish a scholarship for a student from Marietta High School, D.J’s alma mater, in Vicky’s name. It it called “The Vicky Bostick Memorial Scholarship” and candidates for the scholarship must be graduates of the Mentoring for Leadership program. Here is what iThink said about Vicky:

How Are Damages Calculated in Personal Injury Cases? Part III

April 15, 2023 | Robin Frazer Clark

Many people inadvertently downplay their accidents for many reasons. It makes sense that no one wants to be perceived as a “victim,” but when it comes to injuries caused by negligence, the best option is to file a claim. In this blog series, we have examined several ways in which an accident can impact someone’s life, and how that affects the damages calculation. In part I, we examined physical injuries; in part II, we discussed medical bills and lost wages. In the final part of this series, we will take a look at how accidents can impact daily life, and what that means for your damages claim.

Disability

The main difference between being considered “disabled” and “abled” is access. A lifetime of dealing with a disability comes with physical and psychological challenges that can never be fully understood by those who have been abled their entire lives. Being suddenly and permanently disabled through an accident – especially through no fault of your own – has a tremendous impact on how you perceive the world, and how you move through it, in its own unique way.

DeKalb County DOT Creates Hazard and Then Just Leaves It

March 14, 2023 | Robin Frazer Clark

March 9, 2023

Michael L. Thurmond

CEO, DeKalb County

How Are Damages Calculated in Personal Injury Cases? Part II

March 1, 2023 | Robin Frazer Clark

An accident can impact someone’s life in ways that they never expected. In our last blog post in the series, we discussed damage calculation as it pertains to permanent or temporary injuries. In Part II of the series, we will discuss how medical bills and lost wages contribute to the damages calculation in personal injury cases.

Economic Damages

After an accident, the only thing you should be concerned about is getting better and returning life to normalcy as quickly as possible. An unfortunate reality for many individuals is that the fear of medical bills and loss of income quickly take precedence over recovery efforts. This is why personal injury lawyers work so diligently to educate and provide assistance to those affected by negligence. Economic damages are thankfully a tangible number that can be provided when filing a personal injury claim so those who are injured can obtain the medical care they need. Examples of economic damages include lost wages and medical bills.

Mother Honors Her Daughter’s Memory with Georgia State Law School Scholarship

February 15, 2023 | Robin Frazer Clark

Last month I had the distinct and unusual honor of being a guest of my client, Carelle Karimimanesh, at the Georgia State University Law School Scholarship Donor Luncheon, to recognize Carelle for creating a law school scholarship in memory of her daughter, Naiyareh “Nai” Karimimanesh, with proceeds she received as a result of a settlement of a case for the wrongful death of Nai, in which I represented her. The scholarship is named the Naiyareh Karimimanesh Memorial Scholarship. Carelle also endowed a moot courtroom at Georgia State University in honor and memory of Nai, who graduated from Georgia State Law School.

Naiyareh Karimimanesh was born on May 17, 1979 in San Francisco, California. Nai graduated from Emory University in Atlanta where she graduated with a BA in History and minors in Religion and Persian (Farsi) in 2001. Her life and education were enhanced by summer study in Israel and Jordan. Nai was also an active member of the Emory Baha’i Club. While at Emory, Nai was a Jimmy Carter Presidential Center Intern, a University Senator, and a Senior Resident Advisor. She was a leader in the Residence Life Community and was respected and admired by all of her residents and the administration at Emory University. Nai earned her Juris Doctorate from Georgia State University in

2005.

How Are Damages Calculated in Personal Injury Cases? Part I

February 15, 2023 | Robin Frazer Clark

After an injury, your mind is full of complicated emotions. While in recovery, the last thing you want to be concerned about is “How will I pay my bills after this?” Feelings can be especially bitter when your injury is caused by the negligence of another individual. Once everything is said and done, you’re likely entitled to a payout. One of the most common questions personal injury lawyers receive is: “How do you evaluate a case, and what are my injuries worth?” In this blog series, we’ll cover the specifics of several scenarios to give you a better picture.

Permanent Injury

An important marker of damage evaluation is the extent of the injuries. One of the worst outcomes of any injury is to be saddled with a permanent injury. Permanent injuries can range from a minor annoyance to completely life-altering. Regardless of how physically obvious an injury seems, if it brings pain and suffering, then it can be used as a qualifying factor.

The Key to the Courthouse Door: The Critical Role of Contingency Fees in Our Civil Justice System

January 25, 2023 | Robin Frazer Clark

Often, when there has been a string of trial victories for the plaintiff, the defense bar overreacts and calls for a wholesale change in our Civil Justice System. This often includes a feigned outrage over plaintiff’s attorneys’ contingency fees, as if how a plaintiff’s attorney is paid for their success is the root of all evil in the Civil Justice System (or even any business of the defense attorney or the Court). Some defense attorneys even go as far as calling for an end to all contingency fees for plaintiff’s attorneys, or at least that some very small percentage be used as a cap, as if the Legislature has some authority to intervene in a lawyer’s ability to contract with her client. We know that some of this mock outrage by defense attorneys is all for show for their clients. But it sure gets old. Just see the look on their faces when you suggest that defense lawyers only get paid if they are successful at trial. They will end that discussion pretty quickly.

The constant attack of plaintiff’s lawyers and the contingency fees by which plaintiff’s attorneys are paid makes me think of the critical role contingency fees play in our civil justice system. It is not a stretch to say that without contingency fees, most injured plaintiffs would never be able to bring a case to seek Justice for their injuries. What person who has been seriously injured in a car wreck, for example, who cannot return to work due to those injuries and has no income coming in even to pay for groceries, could possibly afford to hire an attorney and pay him/her an hourly fee to bring a civil case for his injuries? Add to that the fact that the average length of a civil lawsuit now is easily 3-5 years. No individual could possibly continue to pay an attorney an hourly fee for 3-5 years of work to bring a personal injury case for Justice, plus the necessary expenses to bring a case to trial. Enter the contingency fee. A contingency fee allows such an injured individual to hire a good trial lawyer who is willing to bear the risk and expenses of bringing such a personal injury case to trial for the individual. The client owes the attorney a fee only if and when the attorney is successful for the client. It works perfectly.

Yesterday, a Virginia Court pointed out this critical value of a contingency fee in a personal injury case. In determining that a plaintiff’s attorney’s contingency fee of 1/3 of the recovery was reasonable, the Virginia Court noted: “A contingent fee may permissibly be greater than what an hourly fee lawyer of similar qualifications would receive for the same representation.” Restatement (Third) of the Law Governing Lawyers, supra, § 35 cmt. c. That is so because “contingency fee agreements transfer a significant portion of the risk of loss to the attorneys taking a case.” Portsmouth 2175, 298 Va. at 334, 837 S.E.2d 504 (quoting In re Abrams, 605 F.3d 238, 246 (4th Cir. 2010)). “A lawyer might expend considerable effort” only to recover nothing. Id. Or “a lawyer may expend minimal time on a case and obtain a full recovery.” Id. Moncrieffe v. Deno, 0342-22-2, 2023 WL 362445, at 4 (Va. Ct. App. Jan. 24, 2023). The Moncrieffe Court took the opportunity to sing the virtue of contingency fees and their necessity in a fair and smoothly working civil justice system. See generally Restatement (Third) of the Law Governing Lawyers, supra, § 35: “Contingent-fee arrangements perform three valuable functions. First, they enable persons who could not otherwise afford counsel to assert their rights, paying their lawyers only if the assertion succeeds. Second, contingent fees give lawyers an additional incentive to seek their clients’ success and to encourage only those clients with claims having a substantial likelihood of succeeding. Third, such fees enable a client to share the risk of losing with a lawyer, who is usually better able to assess the risk and to bear it by undertaking similar arrangements in other cases (cf. Restatement Second, Agency § 445.” Moncrieffe v. Deno, 0342-22-2, 2023 WL 362445, at 4 (Va. Ct. App. Jan. 24, 2023).