I have tried serious injury cases for over forty years. Years ago, I saw terribly low verdicts for catastrophic harm. More recently, we have seen eight-figure verdicts that would have shocked judges when I was a puppy lawyer. What changed?

Insurance defense folks in their seminars have used phrases like “nuclear verdicts.” That makes it sound reckless or irrational. But in my experience, most juries take their job seriously. They discuss seriously the facts of the case and legal principles on which the judge instructs them.

They also bring into the jury room their experience in the world in which we live.

Here are ten reasons verdicts have grown.

1. Big Numbers Don’t Shock People Like They Used To

Inflation has reshaped expectations. The U.S. Bureau of Labor Statistics tracks the steady rise in consumer prices through the Consumer Price Index. Citizens who wind up on juries see that in real time every time they buy groceries, gas, or homes.

They hear news reports of tycoons and even some politicians reaping billions on wild-sounding deals in technology, crytocurrency, etc. The “b word” (billion) seems little more fanciful than the “m word” (million) did 50 years ago.

When an economist projects $6 or $8 million over a lifetime of care, it no longer sounds imaginary. It sounds expensive but credible.

2. Medicine Keeps People Alive But At a Cost

When I was growing up, the ambulance arriving at a wreck scene was often operated by the funeral home.  The after-school and weekend job of one of my high school classmates was to drive the “meat wagon.” There was no first responder training and no paramedic on the scene to stabilize a catastrophically injured person. Too often, they just went straight to the funeral home. 

Many catastrophic injuries were fatal. Today, emergency medicine and advanced trauma care and rehabilitation save lives. But survival comes at a price. Often, it requires decades of structured support. Life care planners build detailed projections based on medical research and standards published through sources like the National Institutes of Health.

Jurors understand that survival without resources can mean suffering. They award money to fund stability.

3. Corporate Trust Has Eroded

Public trust in major institutions has declined over the years since Watergate. Surveys from the Pew Research Center  egularly document this trend.

When  internal documents and emails show ignored safety complaints or cost-cutting decisions, jurors can easily connect it to a broader narrative about profit over people. That matters in the jury room with rules-oriented jurors who distrust institutions.

In planning mock jury focus groups, we have often deliberately limited the group to the most politically and socially conservative people. They have surprised us by coming up with numbers much higher than a mock jury that represented a broader cross-section of the population.

4. Safety Rules Are Clear and Public

In trucking, aviation, medicine, and manufacturing, safety standards are spelled out in black and white. For example, commercial motor carriers operate under federal rules issued by the Federal Motor Carrier Safety Administration, which are simply explained in the Commercial Drivers License Manual. Commercial truck drivers and safety managers have no credible way to deny those are the industry standards they are supposed to follow.

Clear rules make liability feel concrete. When a company violates a clear safety rule, jurors see it not as just an accident but a deliberate and unsafe choice.

5. Social Media Changed the Background Noise

Years ago, corporate misconduct stayed local. Today, bad news travels fast. Anything that makes news anywhere seems local and immediate. Jurors have watched stories about defective products, data breaches, and regulatory failures. That background shapes how they interpret evidence. Jurors do not enter the courtroom empty-headed.

6. Trial Lawyers Tell the Story Differently Now

Modern trial strategy focuses on safety and preventability. Lawyers talk not about sympathy but about common sense safety  rules and how small decisions cascade into harm.

7. Anchoring Influences Damage Awards

When a lawyer suggests a specific figure for pain and suffering, that number becomes a reference point. Jurors may reduce it, but they rarely ignore it. Anchoring is not just  manipulation. It is human cognition at work. Psychologists have long studied how framing affects judgment. The concept of cognitive “anchoring” is well established, including in research summarized by the American Psychological Association.

The Georgia legislature in its latest “tort reform” tried to stop anchoring by enacting OCGA § 9-10-184, which provides, “ In the trial of a civil action for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury; provided, however, that any such argument shall conform to the evidence or reasonable deductions from the evidence in the case.”

In legislative debate, politicians talked about stopping lawyers from analogizing to the price of paintings and race horses. However, an experienced trial lawyer has no need to talk about such crudely irrelevant distractions. A good advocate can easily suggest to jurors a way to calculate value based on the evidence and reasonable deductions. Nearly two decades ago, I gave jurors a methodology tied to the evidence and linked to reality in their rural county through which they calculated a verdict a million dollars more than I asked for.

8. Younger Jurors View Institutions Differently

Now on the senior end of the generation gap, I have seen several times how generational shifts are real. Many younger jurors grew up during the financial crisis, corporate scandals, and rising inequality. They carry student debt. They have seen layoffs. They question concentrated power more readily.

This does not mean they are anti-business. It means they may weigh accountability differently than their parents or grandparents.

9. Transparency About Corporate Wealth

Public companies disclose executive compensation and financial performance through filings with the U.S. Securities and Exchange Commission. We all see news reports about individuals making billions on crypto or a tech tycoon closing in on a trillion dollars net worth, it registers. Even billboards for the lottery touting jackpots over a billion dollars feeds the idea that it could happen to them. At some level, all that registers. When jurors see astronomical CEO bonuses alongside safety violations, they calibrate verdicts accordingly.

A verdict that once seemed massive may now feel proportional.

10. Preventable Harm Sparks Moral Reaction

The most significant driver of large verdicts is not sympathy but preventability.

An impaired or fatigued trucker. A manufacturer that ignored a recall warning. A hospital that brushed aside red flags. When jurors conclude, “This did not have to happen,” damages climb. Moral judgment is powerful. It always has been but now it carries a bigger price tag.

Large verdicts do not come from thin air. They usually arise from clear liability and serious, permanent harm. Venue still matters. Facts matter more. I have seen conservative rural counties return modest verdicts in serious cases and urban juries surprise plaintiffs with restraint. But I have also seen the opposite, surprisingly adequate verdicts in the most conservative venues.

Money is the only remedy our civil system offers. Jurors know that. They cannot undo a spinal cord injury or restore a dead child. They can only assign responsibility in dollars.

After decades in the courtroom, I recognize that modern verdicts reflect modern expectations about safety, accountability, and dignity. When people on a jury believe a company or individual chose risk over safety, they are not afraid to respond firmly.

Ken Shigley, senior counsel at Johnson & Ward, Atlanta’s oldest personal injury specialty law firm, is a former president of the State Bar of Georgia. He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy: Truck Accident Law, Civil Trial Practice, and Civil Pretrial Practice. He was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice, and received the Traditions of Excellence Award from the State Bar of Georgia General Practice and Trial Section. B.A., Furman University; J.D., Emory University Law School; Certificates in mediation and negotiation, Harvard Law School. He began his career as an Assistant District Attorney, then worked a decade in an insurance defense law firm before entering plaintiffs’ practice.

In our law practice over several decades , we have represented numerous SCI survivors. Most had benefited from rehabilitation services at Shepherd Center or Emory Rehabilitation Hospital, both of which are near us in Atlanta. All of these clients were injured in motor vehicle crashes or falls. One client who had been a high-powered government executive before an accident made him  quadriplegic initially  wanted to just turn his face to the wall and die, but after rehab he used funds from his settlement to equip himself to write books and begin a second career in college teaching. Another was a young woman in college who went on to teach elementary school in a wheelchair, participate in adaptive sports, move west on her own, and become Ms. Wheelchair California. 

Spinal cord injuries (SCI)

are among the most devastating physical injuries one can suffer. We have had SCI clients whose first reaction was to wish for death rather than life with paralysis.

Spinal cord injury paralysis occurs when there is damage to the spinal cord, which is a long, thin, tubular bundle of nerves that runs from the base of the brain down to the lower back. The spinal cord is responsible for transmitting messages between the brain and the rest of the body, and damage to the spinal cord can result in a loss of neurological function.

The degree of neurological function loss depends on the location and severity of the spinal cord injury. In general, spinal cord injury paralysis can result in a range of symptoms, including loss of sensation, loss of movement, loss of bowel or bladder control, sexual dysfunction, and breathing difficulties.

The location of the spinal cord injury determines which parts of the body are affected. A spinal cord injury that occurs in the cervical (neck) region will typically result in tetraplegia (also known as quadriplegia), which is paralysis of all four limbs and the torso. A spinal cord injury that occurs in the thoracic (chest) region or below will typically result in paraplegia, which is paralysis of the lower limbs and the lower half of the body. Symptoms include loss of sensation,  loss if movement, loss of bowel or bladder control, sexual  dysfunction, and breathing difficulties.

Diagnosis of SCI usually begins with paramedics at an accident scene or with emergency physicians and nurses in a hospital emergency department. Neurological screening in the triage process usually picks up on severe SCI pretty quickly. However, sometimes a developing SCI is initially subtle in the context of other injuries sustained in a crash. The diagnosis of spinal cord injury (SCI) typically involves a combination of medical history, physical examination, and diagnostic tests. Along with triage, stabilizing the patient, the medical team  will perform a thorough physical examination to assess the patient’s neurological function, including muscle strength, sensation, and reflexes. This may include a rectal exam to check for any loss of bowel or bladder control, which can be indicative of SCI.

Diagnostic tests may include:

– X-rays: X-rays can help identify fractures or dislocations in the spine.

– CT scan: A CT scan can provide detailed images of the spine and help identify any damage to the spinal cord.

– MRI: An MRI can provide even more detailed images of the spinal cord and surrounding tissues, and can help identify the location and extent of the injury.

– Electromyography (EMG): EMG can help evaluate the electrical activity of muscles and nerve cells in the limbs, and may be used to assess the extent of nerve damage.

Family members of SCI victims often must be advocates for the patient, firmly but respectfully pressing medical personnel and insurance companies to approve transfer to a top SCI rehabilitation center such as Shepherd or Emory in Atlanta. Such transfers may depend upon bed availability and meeting medical criteria of stabilization for admission.

Once SCI victims are admitted to a rehabilitation facility, family members may be included in treatment team meetings. As your attorneys, we are available to accompany you, with permission, to begin coordinating with the treatment team in evaluating the patient’s longterm financial needs and how we may assist in meeting those needs. This is the beginning of development of a life care plan that we may present in litigation. We listen first, build rapport, and then ask questions about points we need to effectively advocate for the SCI victim.

Medical treatment for spinal cord injuries may include  medication, surgery, physical therapy, occupational therapy, and  assistive devices such as wheelchairs, braces, etc.

Medication

Medications can play an important role in the treatment of spinal cord injuries by managing pain, reducing inflammation, preventing infections, and improving neurological function. The specific medications used will depend on the individual patient’s needs and the specifics of their injury.

Pain management is a critical aspect of treating spinal cord injuries, and medications such as opioids, nonsteroidal anti-inflammatory drugs (NSAIDs), and muscle relaxants may be prescribed to manage pain. However, the use of opioids must be carefully monitored due to the risk of addiction and other side effects.

Corticosteroids such as methylprednisolone may be used to reduce inflammation and swelling around the spinal cord, which can help preserve neurological function. These medications are typically administered within the first 8 hours after injury and may be continued for several days.

Antibiotics may be prescribed to prevent or treat infections, which can be a serious complication of spinal cord injuries. Bladder and bowel dysfunction are common after spinal cord injuries, and antibiotics may be used to prevent urinary tract infections and other infections that can occur due to the inability to empty the bladder properly.

Medications such as baclofen and tizanidine may be used to manage spasticity, which is a common complication of spinal cord injuries. These medications help to relax the muscles and reduce spasms.

In some cases, experimental medications may be used to promote nerve regeneration and improve neurological function. These medications may include growth factors, stem cells, or other drugs that have been shown to promote nerve growth and repair.

Surgery for spinal cord injuries can be divided into two main categories: decompression surgery and stabilization surgery.

Decompression surgery involves removing any material that is putting pressure on the spinal cord, such as bone fragments, herniated disks, or tumors. This type of surgery is aimed at preventing further damage to the spinal cord and potentially improving neurological function.

Stabilization surgery is used to stabilize the spine and prevent further damage. This may involve fusing two or more vertebrae together, using metal plates, screws, or rods to hold the spine in place. This type of surgery can also be used to correct spinal deformities that have resulted from the injury.

In some cases, a combination of decompression and stabilization surgery may be necessary. The goal of surgery is to prevent further damage to the spinal cord and potentially improve neurological function. However, the outcome of surgery is highly dependent on the severity of the injury and the individual patient’s response to treatment. Rehabilitation is often necessary after surgery to help the patient recover and regain as much function as possible.

If you or a loved one have suffered a spinal cord injury in an accident that was someone else’s fault, submit our inquiry form or call us now at 404-253-7862.

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Johnson & Ward 

 Johnson & Ward, established in 1949, was the first and best personal injury specialty law firm in Georgia. Founders of the firm were among the founders of the Georgia Trial Lawyers Association. The firm was built upon traditional, word-of-mouth referrals from other lawyers, so it has never needed to advertise on TV or billboards. Firm alumni have served as judges of trial and appellate courts, and current partners include former  presidents of the Atlanta Bar Association and State Bar of Georgia.

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Ken Shigley, a partner at Johnson & Ward, started in 1949, is a former president of the State Bar of Georgia. Mr. Shigley wrote eleven annual editions of a book about Georgia’s civil trial practice. He was the first Georgia lawyer to earn three national board certifications from the National Board of Trial Advocacy in trial practice and truck accident law. In 2019, he received the “Tradition of Excellence Award” for lifetime achievement in the legal profession. He graduated from Furman University and Emory University Law School. He also completed certificate programs in negotiation and mediation at Harvard Law School. Mr. Shigley is a widower. His son is a golf fitness trainer in Atlanta and his daughter works with terminally ill people in hospice in New Hampshire. 

Among the worst injuries a person may suffer is a “broken neck,” a fracture in the cervical vertebra. It may result in irreversible paralysis or death.

The C1 and C2 vertebrae are the top two of seven vertebrae in the cervical spine. Depending upon their severity, these types of spinal cord injury are categorized as complete or incomplete.  Injuries at this top level of the spine can block nerve impulses to the rest of the body below that point, often leading to death or complete paralysis.

The C1 vertebra is also called the Atlas vertebra, named after the mythical ancient Greek hero who bore the weight of the world. The C2 vertebra is also called the Axis because it provides the ability for the head to rotate. The fracture of the C2 vertebra is often called a “Hangman’s fracture.”  The combination of C1 and C2 supports the skull, protects the spinal cords, and enables the head to rotate and swivel.

Injuries at the C1-C2 level are less common than at lower levels of the cervical spine. The most frequent causes of fractures at the C1 and C2 levels are diving, motor vehicle collisions, and falls that impact the head.

Symptoms of fractures at C1-C2 include:

• Loss of ability to breathe without help from a ventilator
• Loss of ability to speak
• Loss of feeling or sensation below the level of injury
• Paralysis of arms, hands, torso, and legs
• Limited neck and head movement

That is why a , a C1-C2 fracture spinal cord injury is among the worst injuries a person can have. Fortunately, near our office is one of the top spinal cord injury rehabilitation facilities in the United States, the Shepherd Center. Over the years, families of Shepherd Center patients have often asked us to meet with them at the hospital. Prospects for the degree of recovery from such injuries include considerations of:

The outlook of a person’s recovery from a cervical vertebra injury depends on a variety of factors, including:

• Health and fitness at the time of injury.
• Speed of response in getting appropriate treatment and stabilizing the injury, initially with a hard collar and then typically with external fixation devices.
• The completeness or incompleteness of  injury.
• Prompt use of anti-inflammatory and steroid medications to relieve swelling and pressure on the spinal cord.
• Prompt access to therapies and treatments at a specialized spinal cord rehabilitation facility such as the Shepherd Center.
• Ability of the patient, family, friends, and caregivers to adhere to a consistent care plan.

Therefore, a C1-C2 fracture spinal cord injury is among the worst injuries a person can have.

Legal representation of a person with such an injury due to someone else’s negligence generally involves identification of all at-fault parties and insurance coverages,  coordination with the medical team and development of the life care plan, understanding of the many medical and rehabilitation issues, empathy is working with a family in severe crisis, and settlement planning to coordinate insurance and governmental benefits through a special need trust.

If you or a loved one has a cervical fracture and spinal cord injury caused by another’s negligence, call us at 404-253-7862.

Johnson & Ward has been a leading personal injury and wrongful death specialty law firm in Atlanta since 1949.

A fracture of a vertebra in the low back (lumbar) region causes back pain, often severe, that is aggravated by movement. When low back fracture injuries involve teh spinal cord or nerves, there may also be bowel/bladder dysfunction, numbness, tingling, or weakness in the limbs.

When low back fractrue injuries are caused by high-energy trauma, the patient may also have a brain injury and lose consciousness. There may also be other injuries—called distracting injuries—that cause pain that overwhelms the back pain. In these cases, a vertebral fracture is likely.

These can take many forms including vertebral fractures, ruptured or bulging discs, and damage to nerves, ligaments, tendons, and muscles. A single injury can have aspects of any or all of these components.

There are several varieties of low back vertebral fractures:

Compression fractures

Compression fractures are small breaks in the vertebrae that reduce the height of the vertebra. The people most vulnerable to compression fractures of spinal vertebra are post-menopausal women with reduced bone density associated with osteoporosis. With tiny cracks in soft bone, one is more vulnerable to trauma causing collapse of the vertebra. Smokers are somewhat more at risk than non-smokers. Although this can happen without a major incident, an accident such as being rear-ended by another vehicle can suddenly change the condition from merely vulnerable to acutely painful and debilitating. A common form of compression fracture involves the collapse of the front side of the vertebra. That is called a wedge fracture.   Such compression fractures can lead to chronic pain, height loss, disfigurement, impaired activities of daily living, increased risk of pressure sores, and the depression and psychological distress that commonly accompany chronic pain and loss of quality of life.

Burst low back fracture injuries

A more severe form of compression fracture is the burst fracture, which occurs when a vertebral body spread out in all directions. The increased severity is due to a couple of factors. First, bony fragments spread out in all directions bruising the spinal cord, potentially causing paralysis or other neurologic injuries. Second, when the entire margin of the vertebral body is crushed the spine is much less stable than in a wedge-type compression fracture. Burst fractures, especially in older people with brittle bones in whom it is difficult to attach plates and screws to bone, are often treated with vertebroplasty. That involves injection of bone cement into the damaged vertebra for stability and support of the spine. We have seen this most often in older women rear-ended by large trucks.

 Chance fractures / flexion-extension seat belt fractures

Named after the British radiologist who first defined it in 1948, a Chance fracture is an unstable spine fracture, usually at T10-L2, the thoracolumbar junction. About half of all spinal injuries outside of the cervical spine are this part of the spine. It is a type of flexion-extension fracture because the upper body is thrown forward, typically in a head-on collision,  while the pelvis is stabilized only  by a lap seat belt.  It is also called a  “seatbelt fracture” because it often occurs when, upon sudden deceleration, the spine forcefully bends over the lap seat belt which serves as a fulcrum, resulting in the separation of the middle and posterior elements of the spine. This was seen more often before shoulder harnesses became common.

CT and MRI scans are essential in the diagnosis and are called for when there is seatbelt bruising after a motor vehicle crash. This is a horizontal fracture extending from posterior to anterior through the spinous process, pedicles, and vertebral body. A Chance fracture is an unstable horizontal fracture extending from posterior to anterior through the spinous process, pedicles, and vertebral body. However, in about half of Chance fractures there are also concurrent intraabdominal injuries, especially spleen, bowel and bladder ruptures. Early recognition of this injury is critical as a delay in diagnosis significantly impacts clinical outcomes, but unfortunately, emergency physicians can easily overlook Chance fractures on clinical exam because patients may present without initial neurological deficits. Treatment often involves stabilization with a brace or cast, though more severe cases with neurological symptoms may are stabilized surgically.

Rotation low back fracture injuries

This less common fracture results from rotation of the low back  or extreme sideways (lateral) bending. With rotation fracture-dislocation, both bone and soft tissue around a vertebra are injured, often resulting in spinal cord compression. Treatment involves surgery to stabilize the spine, generally with places, screws, rods or cages.

Permanent Impairments after Low Back Fracture Injuries

Most lumbar spine fracture injuries involve an impairment rating under the American Medical Association Guides to Evaluation of Permanent Impairment.   Physical impairment as rated under this system is not the same thing as occupational disability. A person with a relatively low impairment rating may be completely disabled from a physically demanding occupation. But a person with the same physical impairment rating may be fully capable of doing an office job. We may also consider evaluation by a vocational rehabilitation expert to evaluate real-world disability.

If you or a loved one have suffer ed a low back fracture injury, call us at 404-253-7862.

Johnson & Ward has been a leading personal injury and wrongful death specialty law firm in Atlanta since 1949.

senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was lead author of  eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School.

A car crash can be one of the most traumatic events most people are likely to experience. It is an unexpected event that can be instantly life-changing for you and your family. There are 10 very important things that you need to do after a wreck in order to protect you, your family, and the compensation relief that you deserve.

1)                     Stay at the scene – The shock and trauma of being in an accident can cause you to not think clearly. However, it is very important that you stay at the scene of the accident and that you do NOT leave the scene. If you do leave the scene of the accident then it could imply guilt as well as result in criminal charges against you. Stay at the scene and wait for the police to arrive.

2)                     Call 911 and report the crash– It is very important that you call 911 and report the accident. Especially if you or the other party are injured. As soon as you can, call 911 and report the accident. If you call 911 first, then you will be able to explain what has happened and the events surrounding the scent better than anyone else can at that time. So call 911 and report the accident.

3)                     Do not admit fault or apologize – DO NOT say “I’m sorry” or apologize at the scene of the accident. Your judgment can be flawed in the emotions of the moment. Fault can be sorted out later. An impulsive statement can be used as an admission of guilt against you. It is very important to make sure that the police officer does not put your apology in their police report as well. So DO NOT apologize or say “I’m Sorry”.

4)                   Limit your conversation about the accident with the other party – After the crash, seek to exchange insurance information but do not get into further conversation. The other party may try to talk with you about what happened and why you did what you did or why they did what they did. It is very important that you do not engage in this type of conversation with the other party. Be polite and exchange information. If the other party tries to talk about what happened, politely refrain from such conversation until the police arrive.

5)                   Get photos and videos of the vehicles and the scene – Everyone these days has a smartphone so it is very important to remember to take pictures and videos of the scene. Try to take pictures and videos of the cars in the accident and the damage to both cars from all angles. Video the surrounding areas such as street intersections and weather conditions. Pictures and video of the surrounding area can be valuable information to your case. If the other driver was in a business vehicle, get clear photos of all writing on it. If it is a large truck get pictures of the truck door and all permit stickers.

6)                     If Injured, don’t move around – After the accident, the most common injury is a neck or back injury. This injury can be magnified or even cause permanent damage if you move around after the accident. If you feel like there is significant damage to your neck, back, or any body part then don’t move or get out of your car. Wait for the ambulance and first responders to arrive and check you out first. You may need to be carried out on a stretcher into the ambulance.

7)                     Go to the hospital if you have any injuries – At the time of the accident it is very important to take a moment and do a self-assessment of how your body is feeling. The adrenaline will be rushing through your body after an accident, so it will be difficult to feel certain pain until the adrenaline leaves your body. Take a minute and assess how you are physically feeling. Neck and back injuries will begin to hurt after the adrenaline is gone, so if there are any injuries, let the ambulance take you to the hospital to be checked out immediately.

8)                     Do not talk to the other party’s insurance company – After the accident, the other party’s insurance company will try to call you and get a statement from you of the events of the accident. They will do this over a recorded line. Other than giving the name of an attorney you have actually hired, do not talk to them or give any statements to them about the crash. The insurance company is not on your side and they are going to try and ask you questions that imply that you are guilty and responsible for the accident. Do Not speak to them.

9)                     Call our team AtlantaInjuryLawyer team at Johnson & Ward – After a motor vehicle crash,  you need advice and a road map on how to handle this traumatic experience. We have helped thousands of clients in your same situation navigate the legal process and battle the insurance companies. His experience will help you get fairly compensated and reimbursed for the injuries that you suffered. Call us at (404)253-7862.

10)                   Let your Attorney be your Advocate to the Insurance Company – The insurance company is not your advocate or your friend. Even your own insurance company does not have your best interest in mind. The insurance company works for the best interest of the insurance company. Their primary goal is to not pay out any money and then their second goal is to pay out the least amount of money possible. Let the AtlantaInjuryLawyer team at Johnson & Ward be your voice.

Ed Stone is a trial attorney specializing in personal injury law, including truck accidents, auto accidents, wrongful death, workers’ compensation, premises liability claims, dangerous or defective products,00 medical malpractice, and related Plaintiff’s tort litigation. He was born in Miami, Florida. He graduated from Kennesaw State University where he received a B.B.A. in Finance and Economics. After a first career in banking, he earned his J.D. degree from Atlanta John Marshall Law School in Atlanta, Georgia.

Member: Mr. Stone holds membership in the State Bar of Georgia and the Georgia Trial Lawyers Association. He is admitted to practice before all Georgia Superior, State, Probate, and Magistrate Courts. He is a member of Kennesaw Lodge No. 33, F & A. M., and a member of Pi Kappa Phi fraternity. Mr. Stone sits on the Board of Directors for the non-profit children’s charity, Lekotek of Georgia, founded in 1983, which has been helping families of all incomes and ethnicities whose children have physical and/or cognitive disabilities.

Some idiot who wasn’t paying attention slammed into your car. You had what you first thought was “just a whiplash.” That hurt, but you thought you could just laugh it off and your neck injury would be ok in a few days.

But over time it just hurt worse. Pain, numbness and tingling radiated down one or both shoulders and arms.

Eventually, a doctor had you slide into a long, noisy metal tube for an MRI (magnetic resonance imaging) scan. Now your doctor says you have something called a herniated disc that will require a lot more treatment than you ever imagined.

What do you need to know?

1. Know your cervical spine anatomy.

Your spine is a stack of 33 interlocking bones called vertebra, processes, and coccyx (tailbone). Your spinal cord runs from your brain down the middle of this stack of vertebrae to nerves that branch off to your arms, legs, and various body parts.

Your neck (cervical spine) supports your head, which weighs about 10 pounds, regardless of the amount of knowledge the brain does or does not hold. As your head rotates, the cervical spine has the most range of motion of any part of the spine.

The cervical spine includes seven vertebrae numbered C1 to C7. The first vertebra (C1) is ring-shaped and connects directly to the skull. This joint allows for the nodding (“yes” motion) of the head. The second vertebra (C2) is a peg-shaped axis, with a projection called the odontoid, around which the atlas pivots. This joint enables you to make the side-to-side or “no” motion of your head.

2. Know your vertebral anatomy.

Every vertebra in the spine has three main parts: a drum-shaped bone designed to bear weight and withstand compression, an arch-shaped bone that protects the spinal cord, and star-shaped processes that serve as outriggers for muscle attachments.

Between the bony vertebrae are spongy cushions called intervertebral discs that serve as shock absorbers, keeping the bones from rubbing together. Discs are often compared to a radial car tire. An outer ring called the annulus contains crisscrossing fibrous bands sort of like the tire tread. Inside each disc is a gel-filled center called the nucleus sort of like tire tube.

Another popular analogy is to compare a disc to a jelly donut, with the annulus compared to the bread and the nucleus to the jelly.

On the back of each vertebra are projections of bone that form the vertebral arch, which consists of two supporting bones called pedicles and two layers of tissue called laminae. Within the spinal canal are the spinal cord, ligaments, fat, and blood vessels. Beneath each pedicle, a pair of spinal nerves exit emerge from the spinal cord and go through openings called foramen to branch out through your body.

Connecting vertebrae are facet joints that allow movement of the spine. Each vertebra has four facet joints, two attaching to the vertebra above (superior facets), and two that connect to the vertebra below (inferior facets.)

Wiring all this together are ligaments, tough bands that connect the vertebrae, protect the discs, and stabilize the spine. The three principal ligaments of the spine are the anterior longitudinal ligament (ALL), ligamentum flavum, and posterior longitudinal ligament (PLL).

3. Know the anatomy of your spinal cord and spinal nerves.

The spinal cord is the thickness of your thumb and runs about 18 inches from the brainstem to the first lumbar vertebra protected within the spinal canal. Any damage to the spinal cord can cause paralysis and loss of sensation below the level of injury.  A spinal cord injury in the cervical spine (neck) may cause quadriplegia (also called tetraplegia), total or partial loss of both motor and sensory in the arms and legs. A spinal cord injury to the thoracic or lumbar area may cause paraplegia, the loss of motor and sensory function in the legs and trunk.

Branching off the spinal cord are 31 pairs of spinal nerves. These act as “telephone lines” carrying messages back and forth between various body parts and the spinal cord, and thence to the brain, to control sensation and movement. The front (ventral) root carries motor impulses from the brain and the back (dorsal) root carries sensory impulses to the brain. The spinal nerves go down the spinal canal alongside the spinal cord, until reaching the intervertebral foramen from which is exits to communicate with the appropriate body parts.

Once a spinal nerve passes through the intervertebral foramen, it forms two branches. The smaller branch (posterior primary ramus) turns toward the back to supply the skin and muscles of the back of the body. The larger branch (anterior primary ramus) turns the opposite direction to the skin and muscles of the front of your body. The spinal nerves are numbered by the vertebrae above which they exit the spinal canal. The eight cervical spinal nerves are numbered C1 through C8.

The spinal nerves communicate sensory and motor messages with specific areas that form a striped pattern across the body called dermatomes. Doctors use dermatome patterns to diagnose the location of a spinal problem based on the area of pain or muscle weakness.

4. Know about disc bulges and herniations.

As we age, the annulus in all those intervertebral discs begins to dry out and become less flexible. That natural degeneration happens to everyone, often without causing any pain. Many senior athletes have spines that would look like forty miles of bad road in an MRI image but can run marathons and triathlons just fine.

With age and reduced flexibility, we become more vulnerable to disc injuries with any sort of trauma. It can be as simple as lifting something heavy or sudden twists and turns.

Often, however, people go along in life just fine despite silent degeneration in the spine until a trauma, such as is common in a motor vehicle collision involving sudden kinetic forces greater than encountered in daily life.

The mechanism of injury in a rear-end collision “whiplash” includes head acceleration backward and forward, pressure on nerve root ganglia, stretching of facet capsules, or damage to facet articular cartilage. Studies of the biomechanics of kinetic forces demonstrate four mechanisms of injury in rear-impact collisions. These include vertebral intersegmental rotations, facet capsule shearing, facet pinching, and rapid increase of pressure around the cervical nerve roots. All these occur suddenly and simultaneously. The angle of head rotation at the time of impact can surprisingly decrease the extent of the injury. The neck’s response to whiplash-type impacts is modified by impact awareness, muscles studied, and direction of impact. The peak bending moment of the lower neck and the peak angular acceleration of the head are predictors for the risk of neck injury in a rear-end collision.

The kinetic forces in any form of auto collision – rear end, sideswipe, t-bone or head-on – can injury intervertebral discs.  Many factors in collisions affect the extent of the injury, including the direction of impact, impact velocity, change in velocity (i.e. delta-v), restraint use or misuse, and the presence or absence of airbags. Cervical (neck) disc injuries are most common in rear-end and sideswipe collisions.

When collision forces cause damage to the annulus of a disc, the nucleus can push out, creating a disc bulge that presses on a spinal nerve serving a specific area of the body. When the nucleus oozes out the annulus, like jelly squirting out of a jelly donut, it can compress on one or more nerves can cause radiculopathy — severe pain, numbness, tingling, and even loss of motor function. This is a herniated disc, also known as a “slipped disc.”

Cervical radiculopathy occurs when a herniated disc in your neck compresses or irritates a nerve in your neck that emerges from your spinal cord. This nerve compression can cause pain that radiates into your shoulder, and muscle weakness and numbness radiating down through your arm and hand.

When a herniated disc pinches the spinal cord, this may lead to symptoms referred to as myelopathy. Symptoms of cervical myelopathy include neck and arm pain, tingling and numbness, and problems with your fine motor functions such as threading a needle, buttoning a shirt, or writing.  When a herniated disc compresses both exiting nerves and the spinal cord that is referred to as myeloradiculopathy. Cervical myelopathy can cause an unsteady gait, loss of body consciousness of whether your hands and feet are, and in severe cases weakness of arms and legs and loss of bladder and bowel control.

5. Know about non-surgical treatments for cervical disc herniations.

Surgery is not the first option unless there is an emergency, such as a disc pinching the spinal cord causing weakness. Because conservative, non-surgical treatments can take a long time and involve a lot of pain in the interim, people who require immediate surgery sometimes consider themselves fortunate by comparison.

Conservative, non-surgical treatments for cervical disc injuries include:

• Medications:
  • Anti-inflammatory medications (NSAIDs). Ibuprofen medications such as Advil and Motrin and COX-2 inhibitors  such as Celebrex help reduce pain due to
  • Drugs such as Depo-Medrol (methylprednisolone) may be taken as pills to reduce inflammation over the course of a week.
  • Muscle relaxants. Muscle spasm in the area of a disc herniation can cause pain, so muscle relaxers help to alleviate that.
  • Anti-depressants. Tricyclic antidepressants, known by several brand names, can reduce nerve pain and aid sleep.
  • Medications intended primarily to control seizures may also alleviate nerve pain caused by a herniated cervical disc.
  • Opioids. These heavy-duty pain medications are sued for severe pain from a herniated disc, but as addictive drugs must be used only for limited times and with select patients.
• Physical therapy and other conservative treatments.
  • Physical therapy.  Exercises to stretch your neck muscles may help reduce the pain of a herniated disc.
  • Limitation of painful activity.  When you have a herniated cervical disc, your doctor or physical therapist may advise you to avoid heavy lifting, overhead reaching, and neck rotation which may exacerbate pain in the period following a disc herniation.
  • Neck braces. While often lampooned in jokes about “phony” whiplash injuries, a cervical brace or soft cervical collar provide some rest for the cervical spine.
• Epidural Steroid Injection involves the injection of an anti-inflammatory steroid space next to discs. An epidural steroid injection can treat pain at several levels in the spine. The purpose is to decrease inflammation directly around the affected nerve roots and behind the discs. Often medical and insurance company protocols require a series of two or three epidural steroid injections before scheduling surgery.
• Nerve Root Block involves the injection of an anesthetic to relieve pain and pinpoint the location of the irritated nerve for diagnostic purposes.

For a person who is accustomed to an active lifestyle, the long journey of these conservative treatments can be a maddening diminution of the overall quality of life.

6. Know about your cervical disc surgical options.

When and if all else fails, physicians will discuss with you surgical options for treatment of your herniated cervical disc.

• Cervical nerve root rhizotomy is a percutaneous neural destructive technique that uses radiofrequency pulses to numb sensory nerve tissues that come from the muscles and enter the spinal cord to reduce neck pain. Once inactivated, the nerves cannot conduct pain sensations to the brain, thus decreasing or eliminating the pain completely. A cervical dorsal root rhizotomy may be used as pinched nerve treatment or to help relieve cervical neck pain. This is a minimally invasive procedure that provides symptomatic pain relief for many patients but is not the ultimate answer for a fully herniated disc.
• ACDF: Anterior Cervical Discectomy and Fusion is perhaps the most common form of neck surgery for herniated cervical discs. It involves removal of the damaged disc, relieving pressure on the spinal cord or nerve root pressure. By taking away that pressure on the nerve, it and reduce re;ated pain, weakness, numbness, and tingling. You will sleep through this surgery under general anesthesia. Your surgeon will make a horizontal incision two or three inches long in the front of your neck, and work through that opening.

ACDF surgery has two parts:

• Anterior cervical discectomy. Going in from the anterior, or front, of the cervical spine (neck), the surgeon removes the disc from between two vertebrae.
• Fusion. A fusion of vertebrae is done at the same time as the discectomy to stabilize that portion of the cervical spine.  Fusion involves placing bone graft or implants where the disc originally was to provide stability and strength to the area. ACDF may at one or more levels of the cervical spine.

Traditionally, the fusion was done with a plug of bone taken from the patient’s pelvis, called autograft bone. Patients often complained that pain at the donor site in the hip was much worse than pain in the neck.

The most common ACDF procedure today is the use of allograft bone from a bone bank, harvested from a cadaver. Because there is no living tissue in the allograft bone graft, so there is little chance of graft rejection, like with an organ transplant. The speed of healing may be slower with allograft bone, particularly if there are multiple levels of vertebrae to be fused, and there is a very slight risk of disease transmission, roughly 1 in 200,000 to 1 in one million.

There are also manufactured bone graft substitutes that have no potential for disease transmission but do carry risks of inflammatory reactions.

With any of these fusion methods, doctors often secure the vertebra with metal plates and screws.

Cervical fusion and fixation eliminate flexion in that part of the cervical spine. As a result, the levels above and below the fusion encounter more significant stress over time, potentially accelerating degeneration of the discs above and below the fusion, also known as adjacent level disease.

Cervical disc replacement surgery involves implantation of a manufactured artificial disc.   Artificial discs are made of very hard plastic and metal, are attached to e adjacent vertebrae, and can mimic the normal motion of the intervertebral discs.In comparison to spinal fusion surgery, the potential benefits of artificial disc technology include more spine mobility after surgery and less stress on adjacent discs. Artificial discs are especially popular with younger and more athletic patients who look forward to  many active years.

Several artificial discs are currently being used in Europe. As these gain approval from the U.S. Food and Drug Administration, options for disc replacement surgery are continually increasing.

While artificial cervical discs can preserve motion at the operated segment in most patients, their durability over a patient’s life expectancy and effectiveness in reducing the rate of deterioration adjacent cervical levels are not yet entirely clear.

7. Know about permanent impairment ratings.

Even after your entirely successful treatment for a herniated cervical disc, you will have some degree of permanent impairment as measured by the American Medical Association Guides to Evaluation of Permanent Impairment. The AMA Guides provide an objective framework for quantifying permanent impairment in patients who have an injury resulting in long-term loss of a body part or body function.

An impairment rating is not the same thing as a disability. A person may have a reasonably high impairment rating but still enjoy a full, active, productive life. Conversely, one may have ongoing pain and functional limitations that impede the quality of life but do not translate into a comparable impairment rating.

Impairment ratings are more significant in determining settlements in workers compensation claims than in car crash liability cases. However, even a small percentage of impairment rating may be presented to a jury as validation of a “thorn in the flesh” in assessing pain and suffering.

In cases of herniated cervical discs, there is a range of potential impairment ratings, briefly and incompletely summarized as follows:

• 5% to 8% impairment of the whole person. Cervical disc herniation with radiculopathy improved after non-operative treatment.
• 15% to 18% impairment of the whole person. Cervical disc herniation with radiculopathy improved after surgery.
• 25% to 28% impairment of the whole person. Loss of segmental integrity or loss motion after an attempt at surgical repair.
• 35% to 38% impairment of the whole person. Significant upper extremity impairment requiring the use of external functional or adaptive devices, due to total neurological loss at a single level or severe, multilevel neurologic dysfunction.

 We have decades of experience litigating cases involving neck and back injuries, including herniated cervical discs, cervical fusion surgeries, and impairment ratings. If you or a loved one have a herniated cervical disc due to someone else’s negligence, call us at 404-253-7862.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West.

His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation, and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994).

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower, father of two adult children, and an elder in his church. When time permits, he enjoys travel, backpacking, and scuba diving.

You are a great lawyer in your area of practice. You are also smart enough to know when a big case may require prompt action outside your comfort zone.

Just as a trial lawyer may not feel comfortable handling a complex real estate, divorce or estate planning matter, a great lawyer in those fields may not want to risk a client’s rights by trying to figure out how to handle a catastrophic truck crash case.

When you get a call from a friend or client that a family member has been killed or seriously injured in a crash with a tractor trailer in Georgia, one common reaction is be to defer the trouble and expense of serious investigation, assuming you can settle quickly for the known policy limits.  You may get the “low hanging fruit” that way but miss millions of dollars in potential recovery for your client that is not immediately obvious on the surface. If that happens, you may miss a reporting deadline with your E&O carrier before you recognize the mistake.

It is common for trucking insurance companies to tender a first layer of insurance coverage and make soothing conversation while concealing additional layers of coverage. We had a case in which an excess insurance company denied in writing that it insured the trucking company. But we kept digging. A year later that insurer paid out $3 million for the trucking company it had denied insuring.

While victims and their family attorneys wait for the insurance company to “do the right thing,” trucking companies and their insurers may busy burying incriminating evidence. Standard operating procedure for trucking companies and insurers is to send a rapid response team to the crash scene before the vehicles are removed, often before an ambulance can remove a victim. A rapid response team generally includes a defense lawyer, investigator and accident reconstruction expert. They work under the cloak of trial preparation under the supervision of legal counsel in an effort to keep at least part of their work secret.

When a victim’s traumatized family is in a hospital vigil or planning a funeral, the trucking company’s insurer has that rapid response team combing over the evidence. They may bring in investigators who are retired state troopers to coax less experienced law enforcement officers to the the defense point of view. At the same time, they may be quietly deleting electronic data that would be damning.

By the time the victim’s family decides to aggressively push the case and gets a lawyer experienced in litigation of serious truck accident cases, the most important evidence may have disappeared. We have had cases where critical evidence was “lost” at the scene while State Troopers were focused on directing traffic and removing debris from the highway and a rapid response team combed over the truck.

A recent case in our office illustrates the importance of striking hard and fast to preserve evidence. While a truck crash victim was in ICU at the local hospital lingering in a coma before death, a relative reached out to a lawyer in another practice area he happened to know. That lawyer, whom I have known all his life, then immediately called me.

While the undamaged truck  was still in police impound, we immediately filed a petition in the Superior Court of the county where the crash occurred for a detailed temporary restraining order to lock down evidence. With the help of our expert, we recovered telematic data that proved the truck was going 10 MPH over the speed limit, still accelerating until it crashed into a line of cars stopped at a red light.

We also recovered from the truck dashcam and driver view video. It dramatically showed in split screen the truck speeding into the line of stopped cars without slowing or braking while the truck driver idly gazed around with bleary eyes. That video concluded with our victim’s car exploding into the truck’s windshield. It was a powerful exhibit.

If we had not acted quickly to obtain a court order in order to preserve evidence, the truck would have been put back in service  and much of that critically important data may have been “lost.” We would never have seen the video or the telematic data.

There was a discovery fight about access to the truck driver’s cell phone for a forensic download. Coincidentally, the solicitor general in the county where the crash occurred issued a search warrant to obtain the cell phone for forensic evaluation. Cell phone data showed that the truck driver had been texting on his phone rather than sleeping all but three hours the night before.

Further investigation revealed that a medical examiner had signed a document stating the driver was disqualified due to non-compliant obstructive sleep apnea, though the trucking company denied that it had received that report.

We also found that the company was on notice of a prior incident in which the truck driver rear-ended another car stopped at a stop light. Despite knowing of the incident, the company failed to obtain a copy of that accident report which would have revealed the driver lied about what happened.

I really wanted to try that case before a jury. Our two focus groups valued the case in “eight figures.” But the clients chose to accept a confidential settlement in the “high seven figures” rather than go through the emotional ordeal of trial. I cannot dispute the family’s preference for quiet closure.

While a good lawyer in an unrelated area of practice, the family’s attorney readily recognized that he did not have expertise in trucking litigation. By associating a trucking lawyer, he made over one million dollars for helping with client relations and serving as “second chair” without investing his own funds in the substantial case expenses.  Choosing to annuitize that fee seven figure fee, he now has a financial plan substantially improving the quality of the rest of his life.

Georgia Rule of Professional Conduct 1.5(e) recognizes that clients are best served when lawyers can bring in other attorneys with needed areas of expertise, and still share in the responsibility and the fees. It provides:

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;

(2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and

(3) the total fee is reasonable.

Fully complying with this rule and documenting the client’s consent to an appropriate allocation of fees and responsibility between counsel, we generously share fees with c0-counsel who bring cases to us. Thus,  attorneys in Georgia and across North America who are preeminent in bankruptcy, real estate, securities, probate or corporate law readily acknowledge when they need to refer a client to a lawyer who specializes in tort law. Similarly, we refer matters outside the scope of practice to experts in those specialties.

We work closely with referring lawyers, who may have as much or as little involvement as they wish. A lawyer who practices in another state or another area of law may net a greater fee than if they had done all the work themselves. But the main thing is that a referring lawyer can know that the client is in good hands.

When associated by attorneys in neighboring states, we have been admitted pro hac vice for individual cases.

If a client has a claim for a catastrophic truck crash anywhere in the Southeast, call us at (404)253-7863.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

In 2015, the Supreme Court of Georgia recognized that Georgia law of negligent entrustment follows the Restatement (Second) of Torts § 390, without reservation or exception. Restatement § 390 provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Zaldivar v. Prickett, 297 Ga. 589, 602-03, 774 S.E.2d 688, 697 (2015), et cit. (Majority opinion by Justice Blackwell, dissent by Justice Benham on apportionment issue only).

A 1997 Court of Appeals decision said that the Georgia rule on negligent entrustment is narrower than the Restatement rule, requiring actual rather constructive knowledge. Carolina Cable Contractors, Inc. v. Hattaway, 226 Ga.App. 413, 416 (4), 487 S.E.2d 53 (1997)(Smith, J.) (physical precedent only). However, because that decision is “physical precedent only” it is not binding on lower courts.

Moreover, circumstantial evidence can be used to prove actual knowledge. Carolina Cable, 226 Ga. App. at 416-17.  The direct evidence of degrees of actual knowledge is circumstantial evidence from which jurors may reasonably infer a greater degree of actual knowledge than that to which a trucking company admits.

The Federal Motor Carrier Safety Regulations, 49 CFR § 391.23, requires interstate motor carriers to investigate the driving background of driver applicants. “The investigation may consist of personal interviews, telephone interviews, letters, or any other method for investigating that the carrier deems appropriate.” 49 CFR § 391.23 (c)(2). The minimum required includes requests for information to prior employers and checking state motor vehicle records.

However, that is only the “minimum” required. 49 CFR § 391.23(d). “By the regulations’ own terms, employers may investigate driver employment histories and driving records beyond the minimum standards established by the regulations themselves. The trucking industry’s needs and concerns involving drivers extend to a range of past accidents, incidents, mishaps, occurrences and events well beyond those encompassed by § 390.5.” Cassara v. DAC Services, Inc., 276 F.3d 1210, 1225 (10^th Cir., 2002) It is a floor not a ceiling, for checking driver backgrounds. If a motor carrier has actual knowledge of a collision within the previous three years that is not revealed in those records, a duty arises to check the accuracy of the driver applicant’s self-serving description of the incident.

A Plaintiff may get to a jury “by showing that an employer had actual knowledge of numerous and serious violations on its driver’s record, or, at the very least, when the employer has flouted a legal duty to check a record showing such violations.” Mastec North America, Inc. v. Wilson, 325 Ga.App. 863, 755 S.E.2d 257, 259-60 (2014); Western Indus. v. Poole, 280 Ga.App. 378, 380(1), 634 S.E.2d 118 (2006); Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 829–830(3), 435 S.E.2d 54 (1993).

Circumstantial evidence of knowledge of such factors of incompetency is sufficient to create a question of fact for jury determination on the issue of negligent entrustment. It is sufficient to show knowledge on the part of the entruster by presenting facts from which it could reasonably be inferred that the entruster knew of the driver’s poor driving habits or skills. CGL Facility Management, LLC v. Wiley, 328 Ga. App. 727, 732-33 (2), 760 S.E.2d 251 (2014) (allowing the claim to go to the jury because there was a question of fact where the employer could have had knowledge of the driver’s incompetence based on prior incidents); Dougherty Equipment Co., 327 Ga.App. 434, 439(2), 757 S.E.2d 885 (2014); Ed Sherwood Chevrolet v. McAuley, 164 Ga.App. 798, 802(1), 298 S.E.2d 565 (1982). Cf., Gill Plumbing Co., Inc. v. Macon, 187 Ga.App. 481, 483 (2) 370 S.E.2d 657, 659 (1988)(sufficient to show facts from which knowledge of driver’s poor driving habits or skills could be inferred).

Even if any one of these factors standing alone might be enough to create a jury question on negligent entrustment, the overlapping combination of several pertinent factors may be sufficient to authorize jurors to rationally conclude that a trucking company was aware that it was unsafe to entrust an employee to operate a large truck, at least without further training or in some instances evaluation of sleep disorders.

Such claims are extremely fact-sensitive and must be evaluated in light of the specific combination of facts in each case.

If you have questions about a serious injury or wrongful death case in Georgia, contact us at 404-253-7862.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Lawyers and paralegals who had previously worked at personal injury firms that advertise heavily on television, billboards and bus placards have told me many tales about the business model of those firms.

They have told me how lawyers may be responsible for 600 cases at a time, with 100 or more in litigation.

They have told me how young lawyers in some of those firms are paid only for work on cases they settle before suit, so they have an extreme vested interest in taking whatever an insurance adjuster is willing to offer at that early stage, selling the client’s interest short. They have told me how in some firms non-attorneys employees actually negotiate with claims adjusters with no substantial attorney involvement. They have told me how those firms threaten clients that if they do not accept the insurance company’s pre-suit offer, they may be required to pay the other side’s attorney fees, long before suit is filed or the defense invokes the “offer of judgment” rule that would make that even theoretically possible.

That is a business model but not the practice of law as I know it. Every time I have accepted a case after a client left one the the big advertising firms, I have found that with moderate amount of real lawyer work, I have been able to increase the recovery 8 to 10 times beyond what a lawyer or paralegal at the prior firm had been pressuring the client to accept. It appeared that the case handling strategy at those firms was “sign ’em and flip ’em.”

“Run-of-the-Mill Justice” by Stanford Law professor Nora Freeman Engstrom, published in Georgetown Journal of Legal Ethics in 2009, analyzed the practices of “settlement mill” law firms — those that “advertise aggressively, sign a higher percentage of callers to contract, delegate more duties to non-lawyers, file fewer lawsuits, and take far fewer cases to trial” than legitimate law firms and attorneys.

Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process  tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.

These settlement mills differ from conventional law practices because they settle everything, and do so without the negotiator having the benefit of “(1) first-hand information about verdicts obtained in comparable cases, (2) detailed information about the intricacies of the particular claim, and (3) the proven willingness and ability to take the claim to court.”

Settling all cases  — including the catastrophic cases —  cheaply in relation to the value the cases would have at trial, the settlement mills lack the ability to credibly move cases to jury trial, but offer insurance companies quick, cheap settlements.

Attorneys at settlement mills handle an extraordinarily high number of cases, necessarily treating them in “cookie cutter” fashion. Consequently, they spend “little time engaged in legal research, investigating claims, and preparing pleadings.” The article reports that “one Georgia settlement mill attorney reports that she personally settled approximately 600 to 700 claims in a thirteen-month span.” That is absolutely consistent with what I have been told by a number of lawyers who had left such firms.

Client screening and even settlement negotiations are delegated to non-lawyers. Cases may go from intake to settlement without any attorney contact. That is consistent with what paralegals who once worked at such firms have told me.

Many of these settlement mills seldom file suit or investigate cases, and almost never take a case to trial or refer to a firm that is capable of doing so.

Negotiations with insurance adjusters may take no more than ten minutes, and then clients are pressured to take whatever it offered. (Thus the slogan “one call that’s all” may be literally true — one call to the insurance company is all you get.)

Such settlement mills prey upon uneducated and unsophisticated people who don’t know any better than to respond to heavy TV advertising. Since TV advertising lawyers are stigmatized among lawyers and judges, the attorneys in those firms no longer feel bound by a need to maintain good reputations in the profession. Thus, there is no need to do good work for clients in order to maintain a strong reputation among other attorneys. If a lawyer relies solely upon heavy advertising to produce clients, reputation and relationships do not matter. All they need is a heavy advertising budget and a steady flow of unsophisticated, unsuspecting clients to sell down the river.

They negotiate claims on the basis of formulas that have little to do with the value of cases if they were taken to trial.

The article concludes that insurance companies like settlement mills because they settle quickly and cheaply, even in catastrophic cases, without litigation.

Bar organizations can do little about law firms that operate in this manner because federal courts bar tough regulation of legal advertising. Their operations operate “under the radar” because most of them almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

Ken Shigley is a past president of the State Bar of Georgia (2011-12) and past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section (2015-16).  He is one of only 18 Georgia lawyers with double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010 – present).    Mr. Shigley has extensive experience representing parties in trucking and bus accidents,   products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

No matter how many years a lawyer has practiced, there is no end to the need for exposure to bright new ideas from the best lawyers around the United States.

Over the past year, I had the opportunity to serve as chair of the Motor Vehicle Collision, Highway and Premises Liability Section of the American Association for Justice (AAJ). The largest section of AAJ, it encompasses the work of most “meat and potatoes” personal injury and wrongful death lawyers in America.

The section includes over 2,500 trial lawyers in all 50 states and specialized litigation groups on trucking litigation, bus litigation, traumatic brain injury (TBI), spinal cord injury (SCI), motorcycle litigation, bicycle litigation, resorts torts litigation and inadequate security litigation. The section and its litigation groups have active listservs for exchange of bright ideas.

Having worked for decades in all of these areas of personal injury litigation, chairing the section for a year was like a year of graduate school in my practice area.

After I became chair last year in Montreal, we sponsored national continuing legal education programs in New Orleans and Los Angeles, and I was moderator of an advocacy seminar at Boca Raton.  Presentations in our programs in the past year in seminars at Montreal, Boca Raton, New Orleans and Los Angeles included:

• Accident Investigation and Reconstruction in Motor Vehicle Cases
• Bus Cases Are Different From Auto Cases: Investigation and Evidence
• Cross-Examination of A Defense Medical Examiner, With Rules Of The Road™
• Daubert Motions In Motor Vehicle And Premises Cases
• Industry Standards: Evidence of Negligence in Premises Liability Cases
• Investigation and Discovery in a Sexual Assault Case
• Liability and Causation Defenses in the Typical Auto Case
• Rules Of The Road for Security and Violent Crime Cases
• Trying Better, Faster, And Cheaper!
• Twenty-Minute Auto Wreck Case Voir Dire
• Why I Handle Negligent Security Cases
• Greyhound’s “Most Precious Cargo”
• Making Small Cases Big Cases
• Eliminating the Soft Tissue Myth: Spine Injuries Are Serious
• Deposition
• Practicing In Multiple States
• Using Social Network Sites in Trucking and Motor Carrier Cases
• Trying High-Profile Motor Vehicle and Premises Cases
• Self-Driving Cars and Crash Avoidance Systems: The Future of Car Crashes
• Truck Crash Litigation For The Car Crash Lawyer
• Safe Or Scary: Negligent Security In Schools, Colleges, And Day Care
• Effects And Ethics Of Social Media In A Personal Injury Case
• Taking Down The Defense Medical Examiner
• How To Zealously Represent Victims Of Sexual Assaults While Protecting Your Client
• Auto Defect Cases: The Future Of Your Auto Practice

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

WON’T TAKE ME DOWN

What you see on the outside
Is not what’s inside
Crippled in pain that I feel I must hide

The pain unbearable
Beyond my control
Trying and fighting with my mind body and soul

To get up each day and try to fit in
To work and love and play
I must fight this from within

My mind is strong
My will power on drive
My pain ongoing and long
But deep inside I will strive to survive

I can’t hide my tears
In pain I must cry
My futher my aims my goals full of fear
But who do I talk too
Who will listen
Who will hear

As long as I can walk
And still have my pride
I am going to speak up and talk

You will not knock me down
You will not take my sole
I will fight this pain till I am once again whole

Wrote this for my beautiful courage little sister who battles a life full of pain…. my inspiration
I love you.

(Poem by Jackie Murphy in Ireland, for her sister and our client, Dee Fahy Mathewson. Published by permission)

Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

With over 2,500 members nationwide, the section includes specialized litigation practice groups on Trucking Litigation, Bus Litigation, Traumatic Brain Injury, Spinal Cord Injury, Motorcycle Litigation, Bicycle Litigation, Resort Torts Litigation and Inadequate Security Litigation.

A primary function of the section is to provide high quality national continuing legal education (CLE) programs. Shigley appointed lawyers to be in charge of developing programs for meetings in Boca Raton (February 2016), New Orleans (April 2016) and Los Angeles (July 2016). The section will also seek to increase its offerings of highly focused webinar programs. Shigley has been a frequent speakers at Georgia and national CLE programs for more than 20 years. He has served as chair of the board of trustees of the Institute for Continuing Legal Education in Georgia and as a trustee of the Institute for Continuing Judicial Education in Georgia.

Shigley also appointed people to be in charge of generating contributions to the existing document depository, the section’s email listserv, newsletter and participation in the AAJ Political Action Committee on a bipartisan basis. He is recruiting state liaisons for each of the 50 states and District of Columbia to assist with these functions as well as a study of inflation adjustments in minimum auto insurance requirements in the states.

Other officers of the section are:

Chair-Elect – Wade F. Suthard (Elizabeth, NJ) Responsible for planning and coordinating continuing legal education programs.  He will become section chair at the July 2016 convention in Los Angeles.

Vice Chair – Kenneth H. Levinson (Chicago, IL) Responsible for promoting and growing the Section’s Document Library and Listserv.

Secretary – Matthew A. Nace (Washington, DC) Responsible for long range planning, updating of bylaws as well as traditional Secretary duties.

Newsletter Editor – Jennifer Leonhardt Ojeda (Atlanta, GA) Responsible for soliciting articles and content for the Section’s quarterly newsletter.

Parliamentarian – Jason Studinski (Plover, WI) Membership Coordinator: Responsible for coordinating membership drives and recruitment efforts. Responsible, with the Section Chair and AAJ staff, for informing all Section members about Section meeting, education programs, and events as well as all other relevant event information. PAC Coordinate state liaisons

Immediate Past Chair – Robert L. Collins (Houston, TX) Liaison with AAJ and Other Sections. (in particular, with the Litigation Group and Section Oversight Committee and the New Lawyers Section).

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Ken Shigley is an Atlanta-based attorney whose practice focuses on serious personal injury and wrongful death cases. He is past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy and lead author of Georgia Law of Torts: Trial Practice and Preparation.

For several years I have seen articles about the use of stem cells to mend damaged spinal cords. One of the most promising ideas has been the use of olfactory nerve stem cells from the patient’s own nose.

Now there is a report of this idea moving from animal research to clinical implementation with a human patient. The effect on our representation of paralyzed clients is that we have a new item of potential medical expense to seek that provides hope from recovery.

A Polish paralyzed man is able to walk again after a new therapy that involved transplanting cells from his nasal cavity into his spinal cord.

Derek Fidyka, 40, was paralyzed from the chest down when he was stabbed repeatedly in the back in a knife attack in 2010. Thanks to a pioneering therapy, he can now walk using a frame. The treatment, a world first, was carried out by surgeons in Poland who worked with scientists in London.

He said walking with the support of a walker was “an incredible feeling”, adding: “When you can’t feel almost half your body you are helpless, but when it starts coming back it’s like you were born again.

Professor Geoff Raisman, chair of neural regeneration at University College London Institute of Neurology, led the London research team. He said what had been achieved was “more impressive than man walking on the moon.”

The treatment used olfactory ensheathing cells (OECs) that are specialist cells that form part of the sense of smell. OECs act as pathway cells that enable nerve fibers in the olfactory system to be continually renewed. In the first two operations, surgeons removed one of the patient’s olfactory bulbs and grew the cells in culture.

Two weeks later they transplanted the OECs into the spinal cord, which has been cut through in the knife attach apart from a thin strip of scar tissue on the right. They had just a drop of material to work with- about 500,000 cells.

About 100 micro-injections of OECs were made above and below the injury. Four thin strips of nerve tissue were taken from the patient’s ankle and placed across an 8mm (0.3 inch) gap on the left side of the cord.

The scientists believe the OECs provided a pathway to enable fibers above and below the injury to reconnect, using the nerve grafts to bridge the gap in the cord.

Before the treatment, Mr. Fidyka had been paralyzed for nearly two years and had shown no sign of recovery despite many months of intensive physiotherapy. He has also been going through an exercise program for five hours per day, five days a week. Fidyka first notices that the treatment had been successful after about three months when his left thigh began to put on muscle.

Six months after surgery, Fidyka was able to take his first tentative steps along parallel bars, using leg braces and the support of a physiotherapist. Two years after the treatment, he can now walk outside the rehabilitation center using a frame. He has also recovered some bladder and bowel sensation and sexual function.

Dr. Pawel Tabakow, consultant neurosurgeon at Wroclaw University Hospital, who led the Polish research team, said “It’s amazing to see how regeneration of the spinal cord, something that was though impossible for many years, is becoming a reality.”

This has not yet been approved by regulatory agencies in the US, but it is an advance that gives hope for the future.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy.

In the medical context, doctors and scientists have worked to implement custom-printed materials into the medical world for the past several years we have seen for a while 3D printing of artificial hands and other bony structures.

The first spinal procedure using a 3D-printed vertebra replaced the second vertebra in a 12 year old boy’s neck. The boy had cancer, which was discovered after a traumatic soccer injury. After the procedure, the patient’s head was framed with pins and will remain that way for three months. Dr. Liu Zhongjun, the surgeon who performed the procedure, said the customized 3D printing technology made the disc replacement stronger and more convenient than other procedureNow comes new of another big advancement has come in recent weeks. Surgeons in China performed the first spinal disc replacement implanting a three-dimensional printed vertebra, according to a CNTV report.

The 3D printing technology uses digital models of a patient’s anatomy to construct a “printed”, customizable implant made out of almost any material. While 3D printing isn’t exactly new, using 3D printing to create an orthopedic device could make these expensive items more readily available for the general public.

In June, French spine surgeon Vincent Fiere, MD, performed the first spine surgery using spine device company Medicrea’s customized spine cages created with a 3D printer. The company’s UniD ALIF customized cage is made with polyetherketoneketone and printed to reproduce the anatomical details of the patient’s vertebral plates. When the procedure was performed, the 3D printing technology and applications were still patent-pending.

It has been estimated that the 3D printing market for healthcare alone with generate more than $4 billion by 2018, according to Information Week.  The 3D printed medical costs models could also reduce surgical time, which is significant when average surgery costs $100 per minute.

Bigger medical device companies are also getting into the 3D printing game. Johnson & Johnson’s DePuy Synthes recently partnered with Tissue Regeneration Systems to develop 3D printing technologies as part of Johnson & Johnson’s long-term strategy to grow the company. The partners are working on implants for the large bone segmental defect treatment in trauma and orthopedic oncology. Johnson & Johnson is also putting more funding behind research and development collaborations after investing nearly $1.8 billion in research and development last year.

In a healthcare market that prizes quality outcomes for lower costs, technology such as computer navigation comes with a high price tag whereas 3D printing could become a relatively economical investment. However, it will still be awhile until we can expect hospitals across the nation to house something like a 3D printer capable of printing medical devices.

Most hospitals don’t currently have the technology or the staff to be able to implement this new type of technology. Even advancements with the most promising clinical outcomes take years to really become the standard of care.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. 

Maybe that is why most of my biking is on the Silver Comet Trail and other designated bike paths.

When we do ride on busy Atlanta streets, there are some practical bike safety tips we should keep in mind:

1. Protect yourself from head injuries.  One study reported that 97% of people killed in bicycle accidents were not wearing helmets. Wear a properly fitted bike helmet that has never sustained a crash.
2. Make yourself highly visible to drivers at all times. Never assume that just because you can see a car, the driver can see you.  Even if they are not talking on a cell phone or texting, they probably don’t see you unless you make yourself conspicuous. Assume the worst.  Any time you as a cyclist share streets with motorists, day or night, use powerful head and tail lamps, reflectors and light colored or reflective clothing.
3. Ride as far as possible to the right side of the road-with the traffic flow, not against it.
4. Obey traffic signs and signals just as if you were driving a car. Bikes must follow the same rules as  motorized vehicles. Obey all traffic signals and signs, and visually confirm an intersection is safe before entering it.
5. Use correct hand signals when making turns.  But visually confirm it is clear to make your turn, as too many drivers won’t notice the hand signal, won’t understand it or won’t care.
6. Use bike lanes where available — which is unfortunately rare in Atlanta.
7. Yield to Pedestrians and stay off the sidewalk (except for children). But I admit that when biking to the YMCA before dawn, I have sometimes chosen to go slowly on a deserted sidewalk rather than riding in a busy traffic lane with no paved shoulder or bike lane available.
8. Don’t weave in and out of traffic.
9. Don’t wear earphones while riding 
10. Know your own capabilities.  For example, until you are accustomed to clip-on pedals, be extra cautious about clipping in to your pedals when riding on a street with car traffic.

According to the Georgia Department of Transportation, 19 Georgians died in bike crashes  in 2012, compared with only 13 bicycle deaths in 2011.
While Georgia is behind some other states in promoting bike lanes, and Atlanta does not even make the list of the top 50 bike-friendly cities,  we are making progress.  We anchor one end of the Silver Comet and Chief Ladiga trails, a 95.5 mile paved path on a converted railroad bed linking Smyrna, GA, and Anniston, AL.  The PATH Foundation and Atlanta Bicycle Coalition are working to link together fragments of bike routes. In 2012 Atlanta made the Beltline Eastside Trail and 5th Street “green bike lane” open to cyclist wishing to escape the hub of traffic.

The importance of using bike paths and lanes is highlighted by the fact that none of the bike fatalities in 2012 occurred while the cyclist was in a bike lane that was separated from the road. These “cycle tracks” or “bike lanes” have been popping up all over the United States in big cities such as Chicago and New York.

Still, bike lanes practical for safe bike commuting are far too rare in Atlanta.  Over the past year, I have tried to find  a safe, practical way to commute by bike from my home in Sandy Springs to my office in Midtown Atlanta, other than just biking to the MARTA station nearest my home and then riding the train.  I found a convoluted route that would limit mixing with heavy traffic by roughly doubling the distance traveled. But there are just three places to cross Peachtree Creek, all on extremely busy streets without bike lanes. It’s just not worth it for me.

Looking forward, Georgia is looking into a project that would create safe bike lanes for cyclists. These lanes would be physically separated by planters or raised curbs and could dramatically affect the risk of bicycle injuries and deaths. The GDOT has adopted a “Complete Streets” Policy which calls for the construction teams to consider all modes of transportation a person might take including cycling and walking.

Along with planning for long-range changes to the road systems, Georgia has made progress over the past two years regarding bicycle safety laws.  In  2011 a “Better Biking Bill” was enacted by the General Assembly and signed by Governor Deal, including a requirement that states there must be at least three feet between a vehicle and a bicycle and increasing penalties for violations. Fines were raised to $250 for a first time violation, and a second violation gets a $500-$1,000 fine and 10 days to a year in jail.

But this brings to mind something my grandmother taught me: “He was right as rain as he sped along but he’s just as dead as if he had been wrong.”  It is good to have a law requiring drivers to give space to bikes, but it does not help the bicyclist who encounters a driver who ignores it.

There have been too many incidents of bicyclists with the right of way struck by cars and trucks – in Marietta in April 2013 , in Bartow County in November 2012 and others.

Rebecca Serna, executive director of the Atlanta Bicycle Coalition,  worries about the risks of hit and run accidents

“Hit-and-runs are more likely to result in the vulnerable user – the pedestrian or cyclist – becoming a fatality, because no one was there to call for help,” Serna said. “While crashes can happen to anyone, leaving the scene of a crash turns it into a crime. We are calling on all Georgians to drive or cycle with care and attention, and to always stop to render aid when they see someone in need.”

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

The short answer is that in handling personal injury and wrongful death cases for individuals and families, I do not require any money up front from clients whose cases I accept. I evaluate the merits of a case much like I would try to evaluate a stock before investing in it. If I take the case, I charge a percentage of what I recover for the client and advance the expenses. Both fees and expenses come out of the recovery from the other side. If we lose, I eat the time and expense invested in the case.

Fees in most personal injury cases are generally one-third of the amount of the recovery, with the percentage escalating if the case is tried, if there is an appeal, etc.  While we prepare every case on the assumption that it will go to trial, about 95% of cases that are well screened and well prepared do settle before trial.  We can’t work for free, and this is how I provide my family and save for retirement, but when necessary to make the numbers work out for a client, I do sometimes make courtesy discounts.

Occasionally, particularly in trucking cases, there is an opportunity to force the other side to pay the attorney fees and expenses. If we can do it, that goes directly to the client’s bottom line because I don’t charge the same fee twice.

Expenses in personal injury and wrongful death lawsuits include filing fees, process servers, expert witnesses, court reporters, medical records, depositions with both stenographic and video recording, fees to treating physicians for their depositions, exhibit preparation, travel expense, etc. Knowing that if we lose, I will eat the expense, I am somewhat conservative about spending money. Case expenses on the types of cases injury and death cases I accept generally run from $2,000 to $5,000 for a routine car wreck case with limited insurance coverage up to ten times that amount, or more, for a complex commercial trucking or premises liability case.

Products liability and medical malpractice cases can easily run up expenses well into six figures. Once I was co-counsel in an automotive products liability case in which an associated firm spent $500,000 on expenses. That’s pretty bold. Frankly, I figured that if frugal Ken had been running that show my expenses might have been closer to $100,000.

If a law firm advances case expenses out of pocket, that is treated as a loan and cannot be deducted from income for tax purposes until such time as the case is lost and the “loan” is written off. That can severely constrain the capacity of a firm to aggressively prosecute cases as they come along.

The U.S. Tax Court recently reasserted that case expenses advanced by a contingent-fee law firm on behalf of its clients are “in the nature of loans” rather than tax-deductible expenses for the law firm. (Humphrey, Farrington & McClain, P.C., v. Commissioner of Internal Revenue).  Like many rulings before it, this case upholds Private Letter Ruling 8246013 (6/30/1982, IRC Sec(s). 162) which states that a law firm “…may not deduct as ordinary and necessary business expenses the various litigation costs advanced for a client on a contingent-fee case…”.

Therefore, in order to free up capital and increase capacity to do what needs to be done to develop serious personal injury and wrongful death cases, I maintain a litigation line of credit with Advocate Capital, which funds most of our case expenses. When cases are settled, the expenses are reimbursed to us out of the recovery. I then pay off the portion of the line of credit allocated to that case, and pass along as a case expense the nominal amount of interest incurred on those expenses. The transaction is a straight pass-through with full transparency and no markups.  Because we and Advocate track every expense by case number, that is a very simple bookkeeping exercise.

The impact on my capacity to aggressively develop major cases is huge. If I need to hire a top national expert witness for a wrongful death or catastrophic injury case, I can do it without worrying about the effect on operating capital in office operation or the need to pay for my daughter’s upcoming wedding. If I need to fly around the country to take depositions in a major case, I can just do it without hesitation. Of course, being inherently frugal, I still buy the cheapest web-saver plane tickets rather than flying first class, and stay at an economy motel when traveling for clients rather than a 5 star hotel.

For example, recently I was hired on an interstate tractor trailer wrongful death case at a time when cash flow was slow. Because I had ready access to adequate capital for case expenses without dipping into savings, there was no delay in hiring the best investigators and experts. The trucking company and its insurer had a “rapid response team” at the accident scene almost before the ambulance arrived. But I was able to have my own “rapid response team” on the way almost immediately after the first call from the client’s family attorney.

This makes a world of difference between weakness and strength, between failure and success.

Of course, I am frugal and don’t spend money on cases needlessly. Expenses are scaled to the potential recovery in the case. Having come up the hard way having to do things cheaply, I still resist spending a dime I don’t have to spend. I still know how to hold case expenses under $1,000 when that is what the case needs, using stock drawings out of medical books rather than custom made medical illustrations, snapshots blown up at the drug store and glued to cardboard rather than professional photos professionally mounted, etc. It’s all a matter of what fits the case.

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Ken Shigley is immediate past president of the State Bar of Georgia, chair of the board of the Institute for Continuing Legal Education in Georgia, lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-13), and double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board for Legal Specialty Certification. His Atlanta-based trial practice is focused on catastrophic injury and wrongful death cases arising from commercial truck and bus accidents and unsafe conditions on commercial premises.

In the case of Goforth v. Wigley, 178 Ga. App. 558, 560 (2), 343 SE2d 788 (1986), the court ruled that “evidence as to the amount of a settlement or compromise in [an] earlier case is generally irrelevant and prejudicial and therefore inadmissible.”  Thus, the court in Goforth held that the trial court did not err in excluding evidence of amount of prior settlement where the plaintiff did not deny she had suffered injuries in earlier incident. See also,  Fred F. French Mgmt. Co. v. Long, 169 Ga. App. 702, 704 (2), 314 SE2d 666 (1983).

On November 7, 2012, in the case of Bolah v. Driskell, Case No. A12A1612, the Court of Appeals in an opinion by my friend Judge Chris McFadden, held that evidence of the $20,000 amount of the settlement for a prior injury was allowed for impeachment. The plaintiff has testified about a prior injury that “I got knocked off the bike. My left wrist, you know, I had abdomen stuff, a little bit of trauma, you know, knee’s feeling a little bit hurt.” He testified that he was able to go to work the next day and perform his job without difficulty, and that he did not have to return to the doctor for further treatment related to his injuries from the prior accident.

The court ruled that “the evidence that Bolah received a monetary settlement for his injuries in the prior motorcycle accident was relevant to the issue of impeachment, because a jury could find that the evidence contradicted Bolah’s testimony that his injuries were not serious enough to impair his job performance or require additional medical treatment.”

The exception in this Bolah case could swallow the general rule if plaintiffs’ lawyers are not careful.

First, in the initial  interview plaintiffs’ lawyers need to grill potential clients about prior injuries and settlements, and then follow up by seeking out medical records and settlement in order to guard against innocent discrepancies that would make a client’s testimony vulnerable to impeachment.

Second, counsel must be careful to have clients testify accurately about the extent of prior injuries, including the extent of medical treatment and impact on work and other activities, so as to avoid any basis for impeachment. The summary can be brief but it must be accurate. That has always been true, but lawyer should exercise some extra care now in light of the Bolah decision to make sure all bases are covered.

Third, plaintiffs’ lawyers should file a motion in limine to exclude evidence of prior settlements, taking care to substantiate that there is no discrepancy between the client’s testimony about the prior injury and any evidence of settlement of the prior case that the defense might seek to use for impeachment.

Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle).  In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.

Cruise ships are like floating cities with thousands of passengers on board. Usually a lot more fun than the typical workaday city, but probably no less likely to involve accidents and injuries.

Cruise ship lines cannot guarantee that no one will get hurt aboard, but they do have a responsibility to prevent dangerous conditions on board that can cause serious injury to its passengers. When a cruise ship accident occurs because of poor maintenance, incompetent or  improperly trained employees, inadequate safety equipment or emergency precautions, the cruise  line can be held accountable.

Cruise ship tickets typically have a provision that requires you to file your claim within one year in a specific state and in a particular county within that state. The ticket may also dictate that the case be filed in Federal Court.

People who are injured on cruise ships need a team of a hometown lawyer and a lawyer in the location where suit must be filed. The lawyer back home may handle the damages aspects of the case, such as video depositions of treating physicians and other damages witnesses.  The other half of the team is a maritime law specialist experienced in cruise ship litigation in the location where the ticket terms require a suit be filed.

If you are a Georgia resident seriously injured on a cruise ship, we can handle the “back home” part of of this and make a knowing selection of a maritime lawyer appropriate to handle the liability part of the case in the place where the terms of the ticket require that suit be filed.

A herniated cervical disc may result from any motor vehicle accident, including an automobile or car wreck or a truck, tractor trailer, semi or big rig accident. It is one of the injuries we see most often see as personal injury law practice.

The spine is a stack of bones called vertebra. The vertebra are separated by shock absorbers called intervertebral discs. The outer layer (the “bread” of the donut) is the annulus fibrosus, a tough tissue comprised of several layers of fibrocartilage.  This layer contains the nucleus pulposus (the “jelly” of the donut)  and distributes pressure evenly across the disc. The discs are often compared to a jelly donut.

Nerves run out from the spinal cord, which is in the middle of the spine, to all parts of the body.  If anything pinches a nerve coming out of the spine, that can cause pain, numbness, tingling or loss of function.

There are normally 23 discs in the hum your spine: 6 in the neck (cervical region), 12 in the middle back (thoracic region), and 5 in the lower back (lumbar region). They are called by letters and numbers according to location. For example, the disc between the fifth and sixth cervical vertabrae is designated “C5-6.”

When there is an injury to the disc, the bread of the donut weakens and cracks and the jelly begins to protrude outward. There may be a bulge in the disc so that it pinches nerves causing pain, numbness or tingling. When the jelly leaks out of the donut, it is called a herniation. Often a disc herniation causes disabling pain or loss of bodily function.

As we age, the annulus fibrosus gets dry, weakens  and begins to crack. The nucleus pulposus begins to dehydrate, which limits its ability to absorb shock.  These age related changes may not cause any symptoms for many decades until some event such as a car or truck collision causes trauma that aggravates or exacerbates the degenerative condition.

A person with age related degeneration in the spine may do just fine until trauma causes severe pain, numbness, tingling or loss of bodily functions, in insurance claims and injury litiation we  generally address such injuries as aggravations of preexisting conditions. The few exceptions are when post-accident x-rays, CT scans and MRI images show a fresh fracture of a vertebra. We embrace preexisting conditions that were previously asymptomatic and make them part of the client’s case.

We often see clients who have had cervical disc herniation injuries due to automobile or truck collisions. Typically, orthopedic surgeons and neurosurgeons prescribe conservative treatment with physical therapy a series of injections in the spine. If symptoms still persist, they will discuss with the patient surgical options. For cervical (neck) injuries, we most often see anterior cervical fusion surgery in which an incision is made in the front of the neck, the damaged disc is removed, replaced with bone tissue (from the patient’s own hip or donor bone tissue), and the vertebra secured with a metal plate and screws. Sometimes a newer model of flexible artificial disc is used. While results vary, we usually hear from clients that the surgery greatly improves their quality of life and ability to engage in normal activities without significant pain.

With long experience representing clients with intervertebral disc injuries, we are able to handle such cases efficiently and guide most such cases to optimal resolutions through pretrial settlement or jury verdicts.

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n Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Recently he moved his  law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862.

I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a friend or family member has a catastrophic injury or wrongful death case, would it be smarter to hire a lawyer based on a sleazy TV ad or to hire one who has recognized credentials and is known to decision makers?

Whether you choose me or someone else, by all means choose a serious lawyer for any serious case. Understand that the lawyers who spend millions on TV ads operate settlement mills, never take cases to trial, and insurance companies know they will generally settle for 10% of fair case value.