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Articles Tagged with wrongful death

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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 am asked this question a lot:  “Can I sue ______?”  The short answer is always yes, you can sue anybody.   The real question is “If I sue _____, will I win?”  Because although you can file a lawsuit against anybody for practically anything, what matters is whether you would win the case, whether that type of cause of action is viable under Georgia Law, or whether that type of case would be thrown out long before you ever saw a jury.   As a plaintiff’s personal injury trial lawyer, I must take and pursue cases for clients that only have a very high chance of success.  My fee is entirely contingency based, meaning I don’t get paid, regardless of how much time and effort (blood, sweat and tears) I put into your case unless I win the case. Period. So when I hear these ridiculous claims that trial lawyers file “frivolous” lawsuits I get furious, because  good trial lawyer could not possibly afford to file “frivolous” lawsuits.  A lawyer who files “frivolous” lawsuits won’t be in business very long.

So today I am addressing the pretty often-asked question of whether I can sue the County.  Let’s say the County, or a County employee, has harmed or physically injured you in some way and you want to sue them for money damages. Piece of cake, right?  Not… so… fast!

Unlike the State and unlike most cities (municipalities) in Georgia, a Georgia County enjoys wide sovereign immunity. The State of Georgia has waived its sovereign immunity for personal injury claims by creating the Georgia Tort Claims Act. There are a million hoops you must go through under the GTCA first to be able to sue the state, but if you know how to go through those hoops and go through them all just the right way, you may have a successful personal injury claim against the State of Georgia. The same is true for cities in Georgia, although they fall under a different state statute that allows them to be sued for negligence.  But no so for the counties.  Which begs the question:  Why are counties so unique?

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