Articles Tagged with evidence

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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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The short answer is maybe.

One of the first questions many of my clients have after they have been in a car wreck is whether they can accept the insurance company’s pay-off for their totaled car.  Most people need the pay-off money to be able to buy substitute transportation as quickly as possible.  Some people accept the insurance company’s pay-off well before they even think about hiring a lawyer, and well before they have even spoken to a lawyer about representing them in a car wreck case. This is certainly understandable and normal human conduct when your car has been totaled in a wreck that isn’t your fault. But can there be a problem with accepting the insurance company’s pay-off for your car and, in return, releasing ownership of it to that insurance company for salvage value?

Typically, in a car wreck that has resulted in some personal injuries due to the negligence of the at-fault driver for say, running a stop sign, or rear-ending the car in front, the answer for at least 30 years has been no.  In the past, no insurance carrier ever really cared about preserving the car in a plain ordinary negligence car wreck case where there is no evidence of any mechanical failure of the car or any evidence that the car itself was, somehow, defective. In the last 5 years or so, however, that has changed. Now, in an increasingly scorched-earth tactic by defense lawyers, they often file a motion to dismiss even run-of-the-mill car wreck cases for the plaintiff’s failure to preserve or keep the car that was involved in the wreck, even if that car was totaled by the insurance carrier. This motion is referred to as a “spoliation motion” and they are becoming more and more popular as a “gotcha” tactic by defense attorneys who really have no defense for their insured’s actions in actually causing the wreck in the first place.  They have to admit their insured was negligent and caused the wreck, but maybe they can get out of the whole thing by arguing that without the car to be examined by an expert, hypothetically, we can never know whether something was wrong with the brakes or the windshield wipers (yes, I have really had that argued by defense counsel in a case) or the seat belts or any of a number of made-up potential problems, even if there exists no evidence that anything about the car caused or contributed to the wreck.  At a minimum it is frustrating…at the worst, it can cost a plaintiff her entire case.

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