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.

Physicians accustomed to dealing with musculoskeletal injuries such as fractures, disc herniations, and whiplash, often completely miss the diagnosis of these extremely painful and debilitating injuries. They may even accuse the patients of exaggeration or malingering.

Chiari malformation is a little-understood condition in which the lowest area of the brain, the cerebellar tonsil, is forced out of the normal place inside the skull. While generally a congenital preexisting condition, it may have been asymptomatic and undiagnosed until aggravated by trauma. This in turn may compress portions of the brainstem and upper spinal cord, causing severe headaches, dizziness, vertigo, clumsiness, vision problems, spastic movement of limbs, and numbness or weakness in arms and legs. It may lead to paralysis.

A woman was a brilliant, successful professional when she was involved in an apparently minor car wreck. Doctors viewed her debilitating pain with skepticism, accusing her of malingering. She was disabled from her successful business career and virtually bedridden for years, going to close to 100 doctors before finally finding one who understood the traumatic aggravation of a previously asymptomatic congenital Chiari malformation, and how to treat it. After finally finding a medical team that knew how to treat the traumatically aggravated Chiari malformation, she recovered a good quality of life and launched a successful new career.

Recently, our firm recovered insurance policy limits of almost a million dollars for a young woman with a preexisting congenital Chiari malformation whose condition had been dormant several years before a collision with a commercial truck. Doctors who first saw her after this collision had limited understanding of Chiari malformation. Fortunately, she found her way to a neurologist deeply experienced in treating this condition. With seasoned medical care, her symptoms improved. With lawyers who understood the long-term implications of Chiari malformation, she recovered the maximum amount of money available without having to go through years of litigation and trial.

Syringomyelia is a condition of the spinal cord more often than not closely related to Chiari malformation. It is characterized by a fluid-filled cavity or cyst known as a syrinx that forms within the spinal cord. A syrinx can expand over time compressing or destroying the surrounding nerve tissue. Frequently seen symptoms include pain in the shoulders and neck, muscle weakness, pain and stiffness in the legs, numbness or decreased sensation, especially to heat and cold, scoliosis (abnormal curvature of the spine), muscle contractions, and ataxia (uncoordinated movements). It may eventually lead to paralysis and death.

There are several congenital or idiopathic causes of syringomyelia, but it also may be caused or severely aggravated by trauma in an accident. Posttraumatic syringomyelia is the term used for cases that result from trauma. Such injuries often are initially diagnosed as a mere whiplash.

World famous golfer and prominent Atlanta lawyer Bobby Jones acquired traumatic syringomyelia in a freak accident in 1929. His symptoms gradually became noticeable before he was finally diagnosed in 1950. Over the years, he progressed from leg braces, a cane,  walker,  wheelchair, and finally was confined to bed.

We represented a woman with traumatic syringomyelia who was fortunate to get to a highly rated neurosurgeon who was able to relieve excess pressure from the syringe in her spinal cord. We were able to recover before trial the maximum of all insurance coverage available. She went on to become prominent in advocacy for people with syringomyelia while developing a successful real estate sales career.

If you or a loved one has received a diagnosis of Chiari malformation or syringomyelia after a truck crash or other traumatic injury, call us at 404-253-7862.

Johnson & Ward has been a leading personal injury specialty law firm in Atlanta since 1949.
Ken Shigley is a former president of the State Bar of Georgia (2011-12), triple board certified by the National Board of Trial Advocacy, recipient of the Traditions of Excellence Award for lifetime achievement, and was lead author of Georgia Law of Torts: Trial Preparation and Practice (2010-21). He graduated from Furman University and Emory University Law School.
John Adkins specializes in personal injury and wrongful death litigation. He is an honor graduate of Kennesaw State University and Thomas Jefferson School of Law in San Diego.
Ed Stone specializes in personal injury and wrongful death litigation. He is a graduate of Kennesaw State University and John Marshall Law School in Atlanta.

For decades, I have represented the victims of catastrophic car and truck crashes. The most seriously hurt among them, with brain and spinal cord injuries, owed their survival in the days and weeks after injury to treatment in trauma centers and Intensive Care Units (ICU). Only later were they even eligible to benefit from excellent rehabilitation programs such as those at Shepherd and Emory.

Now ICU capacity at Georgia hospitals is virtually exhausted due to treatment of Covid-19 patients, about 97% of whom are unvaccinated. Both the physical capacity of hospitals in terms of ICU bed space and the human capacity in terms of trained staff are at a breaking point.

Ambulances transporting injury victims are being diverted from hospitals that are over capacity with unvaccinated Covid patients. Both hospitals with  Level 5 trauma centers in metro Atlanta,   Grady Hospital, and Wellstar Atlanta Medical Center,  this week are on “total diversion,” as emergency and ICU rooms are full. A trauma victim who normally would go straight to one of these hospitals, may not get in. Piedmont, Northside, and Emory Midtown are also diverting emergency patients because they are over capacity with most-unvaccinated Covid patients. Even if a trauma victim is accepted in an ER, there may be severe delay of treatment due to saturation of hospital capacity.

A friend who was a long-time ICU nurse at a major Atlanta hospital spent her last several months before retirement in the “war zone” of the first wave of Covid-19.  Like many dedicated medical personnel, the demands of the pandemic drove her to the decision to retire for the protection of her health and the well-being of her family. Seasoned ICU nurses are not easily replaced.

If a loved one is badly injured in Georgia today, with life depending on access to the best medical care, such access may be delayed by the decisions of people who chose not to get a readily available vaccine.

If you are hesitant to be vaccinated against Covid-19, remember that it’s not all about you. If your decision to forego vaccination lands you in a crowded ICU, it could be fatal to some innocent person suffering an unrelated injury or other medical crisis.

Call us today at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.

A senior counsel in the firm of Johnson & Ward, 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 one of only three Georgia lawyers to earn board certification in Truck Accident Law. He has served as 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 eleventh 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. Mr. Shigley is a widower, father of two adult children, and an elder in his church. 

For decades I have  represented people with so-called “mild” traumatic brain injuries. A “mild” traumatic brain injury  (TBI) may be defined as one affecting someone else’s family, not your own.

These typically involve a concussion, with or without a loss of consciousness. Emergency medical personnel and emergency department physicians often focus primarily on more obvious physical injuries. If there are visible and immediately life threatening injuries, broken bones or internal bleeding, that is the focus.

Subtle but life altering brain injuries are easily overlooked. Unless there is a gross brain bleed readily visible on a CT scan of the brain, it may be missed. Microscopic level changes to the brain such as diffuse axonal shearing may not be visible for years, often not until autopsy after death. The dangers of post-concussion syndrome have gained great public attention through the class action for former professional football players whose concussions year ago led to complications such as cognitive impairments, depression, and increased vulnerability to subsequent concussions.

Until now, if there was no gross anatomical injury or brain bleed visible on a brain CT scan, the diagnosis of concussion was often subtle, subjective and easily missed. The standard diagnostic protocol has involved physical examination, a series of screening questions for cognitive and neurological symptoms, e.g., “who is the President,”  and often a CT scan to diagnose TBI.

But while CT scans are currently the  standard of care in checking for acute bleeding or swelling in the brain, nearly 30% of patients with a normal CT scan showed signs of TBI when when doctors follow up with an MRI scan. However, MRI is more expensive, slower to produce reports, and not available everywhere. Missing a diagnosis or waiting days for one could have significant consequences.

However, according to a study published this week in Lancet Neurology, many concussions may be detected quickly with a blood test. The study reports that many patients whose concussions are not detected on CT but are detected on MRI have an elevated level of the brain-specific protein glial fibrillary acidic (GFAP). Thus, elevated GFAP may be used as a biomarker to help physicians detect TBIs.

The study used i-STAT™ Alinity™ device from Abbott Laboratories. This is a handheld, portable blood analyzer that produces test results in minutes by measuring the patient’s GFAP protein level.  Such rapid diagnosis might be able to fill a significant gap in emergency departments, sport fields and battle fields.

The i-STAT Alinity device is available outside of the U.S. and is not yet commercially available in the U.S. If it works out as hoped, and is approved by the FDA, this new test could speed diagnosis and treatment of traumatic brain injuries, reducing the critically important time required for diagnosis and treatment of TBI.

 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.

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.

When my father’s generation came home from World War II, many of them carried psychological scars about which they kept quiet. My parents married young, at 21 and 18, the week he returned from combat in 1945. My mother said that dad fought the air war over Europe every night in his sleep for at least a decade. The longer-term ramifications of that played out in many ways throughout his life. As he lay dying over six decades later, he began to tell me for the first time the war experiences that had haunted him most through his life.

Recently, I was with a nurse practitioner and a community mental health counselor during their impromptu discussion of the ramifications of PTSD that they see regularly in dealing with people on the front lines of medicine and mental health. They rattled off numerous examples of what they almost daily among veterans of Vietnam, Iraq and Afghanistan, and survivors of a variety non-combat traumas.

When dad came home from WW2, there was no widely accepted medical name for this condition. The terms “shell shock” and “battle fatigue” were used, but were generally limited to debilitating short term reactions to battle in wartime rather than the chronic reactions that can stretch out over decades.

The term PTSD was not given a standard psychiatric definition until 1980 when the American Psychiatric Association (APA) added PTSD to the third edition of its Diagnostic and Statistical Manual of Mental Disorders (DSM-III) classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.

PTSD through history

From cave men attacked by saber tooth tigers to victims of twenty-first century terrorists, humans have always suffered similar psychological outcomes of violence. Over 400 years ago, Shakespeare in “Henry IV” presaged the modern diagnostic criteria for Posttraumatic Stress Disorder (PTSD), describing the post-battle condition of a character:

Tell me, sweet lord, what is ‘t that takes from thee
Thy stomach, pleasure, and thy golden sleep?
Why dost thou bend thine eyes upon the earth,
And start so often when thou sit’st alone?
Why hast thou lost the fresh blood in thy cheeks
And given my treasures and my rights of thee
To thick-eyed musing and curst melancholy?
In thy faint slumbers I by thee have watched,
And heard thee murmur tales of iron wars,
Speak terms of manage to thy bounding steed,
Cry “Courage! To the field!” And thou hast talk’d
Of sallies and retires, of trenches, tents,
Of palisadoes, frontiers, parapets,
Of basilisks, of cannon, culverin,
Of prisoners’ ransom and of soldiers slain,
And all the currents of a heady fight.
Thy spirit within thee hath been so at war
And thus hath so bestirred thee in thy sleep,
That beads of sweat have stood upon thy brow
Like bubbles in a late-disturbèd stream;
And in thy face strange motions have appeared,
Such as we see when men restrain their breath
On some great sudden hest. O, what portents are these?
Some heavy business hath my lord in hand,
And I must know it, else he loves me not.”
—Henry IV, Part 1 (2.3.39-67)

As a lawyer accustomed to dealing with clients who have been seriously injured or lost a loved one killed in a crash with a car or tractor trailer, the tendency is often to focus on the physical injuries – broken bones, back injuries, neck injuries, chronic pain, etc. It is easy to overlook the silent injury of Posttraumatic Stress Disorder (PTSD), or to confuse it with a traumatic brain injury.

What is PTSD?

PTSD is officially recognized as a mental health condition that some people develop after experiencing or witnessing a life-threatening event.  The diagnostic criteria are outlined in the Diagnostic and Statistical Manual of Mental Disorders, currently in the Fifth Edition, known as the DSM-5©.

In 2013, the American Psychiatric Association revised the PTSD diagnostic criteria and included PTSD in a new category Trauma- and Stressor-Related Conditions.  The diagnostic criterion for all of the conditions included in this new classification require exposure to a traumatic or stressful event.

The DSM-5 criteria for PTSD, ICD-9 309.81 or ICD-10 F43.10, for adults, adolescents and children over 6 years old are as follows (the DSM-5 has separate criteria for children 6 years and younger) 2:

Criterion A (one required) – the person was exposed to death or actual serious injury in the following way(s):

• Directly experiencing the traumatic event
• Witnessing the event as it occurred to others
• Learning the traumatic event occurred to a relative or close friend
• Indirect exposure to aversive details of the trauma

Criterion B (one required) – the traumatic event is persistently re-experienced in the following way(s):

• Unwanted upsetting memories
• Nightmares
• Flashbacks
• Emotional distress after exposure to traumatic reminders
• Physical reactivity after exposure to traumatic reminders

Criterion C (one required) – avoidance of trauma-related stimuli after the trauma in the following way(s):

• Trauma-related thoughts or feelings
• Trauma-related reminders

Criterion D (two required) – negative thoughts or feelings that began or worsened after the trauma in the following ways:

• Inability to recall key features of the trauma
• Overly negative thoughts and assumptions about oneself or the world
• Exaggerated blame of self or others for causing the trauma
• Negative affect
• Decreased interest in activities
• Feeling isolated
• Difficulty experiencing positive affect

Criterion E (two required) – trauma-related arousal and reactivity that began or worsened after the trauma in the following ways:

• Irritability or aggression
• Risky or destructive behavior
• Hypervigilance
• Heightened startled reaction
• Difficulty concentrating
• Difficulty sleeping

Criterion F (required) – symptoms last for more than 1 month

Criterion G (required) – symptoms create distress or functional impairment

Criterion H (required) – symptoms are not due to medication, substance abuse or other illness

When can PTSD appear after trauma?

Symptoms of PTSD usually begin within the first three months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. The DSM-5 refers to this as “delayed expression” with the recognition that while some symptoms typically appear immediately, others are often delayed.

Often a person’s reaction to trauma initially meets criteria for Acute Stress Disorder immediately after experiencing a traumatic event, but Acute Stress Disorder is distinguished from PTSD because the symptoms are restricted to a duration of three days to one month. The duration of PTSD symptoms varies with complete recovery within three months occurring in approximately 50% of adults. I had some of this after I was hurt in an explosion. For months, I looked away whenever there was an explosion on TV and was timid about lighting a gas grill. But that reaction passed.

However, some individuals remain symptomatic for more than 12 months and some for more than 50 years. There were times when an elderly neighbor stood in his driveway and openly wept about things he had experienced over sixty years earlier as a Marine on Peleliu and Iwo Jima.

Research indicates that PTSD is more prevalent in females and they experience PTSD for a longer duration on average than do males.   PTSD is associated with high levels of social, occupational and physical disability as well as considerable economic costs and high levels of medical utilization.

What are risk factors for PTSD in some people but not others?

Risk factors may increase a person’s chances of getting post-traumatic stress disorder (PTSD) compared to others who seem mentally unscarred by similar experiences Some of those risk factors include experiences of:

• Long-lasting, never-ending trauma
• Intense, severe trauma
• Situations that put one at greater risk for harm, such as first responders or those in the military
• History of substance, alcohol, or drug abuse
• A loss earlier in childhood, such as abuse or neglect.
• History of other mental health concerns or mental illness
• Few friends or close family members they can rely on for emotional support
• A history of mental illness within their family

How is PTSD involved after motor vehicle collisions?

Most people who are hurt in routine car and truck wrecks do not have PTSD. They may have some short term anxiety but nothing that rises to the level of PTSD. We have all had stressful conditions that we endured, sucked it up, and went on. When I was an insurance defense lawyer, I routinely sliced and diced psychologists who testified for exaggerated claims of PTSD that stretched beyond the diagnostic criteria.

However, there are vehicles crashes in which PTSD is a realistic issue. One study found that about 9% of motor vehicle crash survivors have symptoms of PTSD. Examples can include:

• A crash survivor who witnesses the death and sees the mangled corpse of a parent, spouse or child in the wreckage.
• A guy who was spun out of the line of impact when a tractor trailer ran over stopped traffic, so that he had minor physical injuries while everyone in the vehicle behind and in front of him was killed.
• A person trapped wide awake with the lifeless corpse of a family member until they are discovered, and as first responders labored to extract them.
• People who survived crashes in which they feared the immediate death of themselves or family members.

Any such experience in a car or truck crash is frightening, and it’s very common to experience a number of symptoms associated with PTSD, including:

• Feelings of anxiety and increased heart rate when you’re faced with reminders of the event.
• Hearing a horn honk or brakes screeching may automatically activate a fear response.
• Because of the anxiety that often follows an MVA, it’s natural that you may want to avoid some situations or experience hesitation at times, such as driving on the highway.
• Nervousness when driving or riding as a passenger, startling easily in traffic.
• Being more watchful. You’re more likely to scan your environment for potential sources of threats (for example, people driving too fast).

While we are careful to avoid exaggeration of on minor degrees of PTSD symptoms in auto and truck crash cases, we are alert to the need to have clients evaluated when appropriate for more serious and long-term PTSD symptoms. Whether mild or severe, credible PTSD symptoms can be presented as part of mental pain and suffering in car and truck crash cases.

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

 is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). 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. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.

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

_____________________

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.

Only a monstrous parent would intentionally leave a child in a hot car for hours to suffer and die. While that is the allegation in a pending murder case in Georgia, even if proven true it would be aberrational.

But every summer we hear of a rash of incidents in which a distracted, multitasking parents, usually functioning outside their normal routine, forgets a child sleeping in the back seat. The results are tragic — death or brain damage due to heat stroke. On average, 37 children die in this way in the US every year.

It can happen even to loving, caring, normally competent parents who thought this could never happen to them, but then become distracted.

Why has this become a common phenomenon in recent times? It is largely due to a string on unintended consequences. During the ‘90s that laws began requiring children ride in car seats, facing toward the rear, in the back seat, where they were safer but also more easily forgotten. About the same time, cell phones proliferated, providing another source of distraction for overstressed, multitasking parents.

There have been many suggestions in the media for parents to prevent such tragedies:

• Put something in the back seat –  handbag or briefcase, cellphone or employee badge.
• Keep a brightly colored stuffed animal in the car seat, and switch it to the front passenger seat when you put the child in the car seat.
• Ask someone to call you 10 minutes after your expected arrival time to make sure you didn’t forget the child.
• Always look in the back seat when you get out of the car, just in case.
• Rig up mirrors to always have the child in view.
• Development of auto or cell phone app technologies to back up parental memories.

None of these suggestions are foolproof. When I think of the times I left my cell phone or briefcase in the car, the times I intended to call my wife at a certain time, my own fallibility in remembering to look somewhere at a certain time, I realize how vulnerable busy parents are. While it has been a long time since I had small children, and they were out of child seats by about 1993 — before child seats had to be in rear-facing in the rear and before we all carried a smart phones in our pockets — I can easily imagine having a momentary but tragic lapse of mind.

So what do I suggest? Something simple, low tech, foolproof and easily made into a habit.

When you put a child in the car, take off one of your shoes, put your cell phone in that shoe, and place it next to the child seat. You will not leave the car without the shoe, and thus not without the child, and you will not be on the cell phone while driving.

Make it a habit, each and every time you put your child in the car, and while you are totally focused on the adorable child you love so much, lovingly take off one shoe. Lovingly put it on the floor or seat by the child. Lovingly put your cell phone in the shoe.

Then no matter how long the drive, how quietly the child sleeps or how distracted you may become in thoughts about the 4,736 things on your “to do” list, when you step out of the car with one shoe off and one shoe on, you will remember to get the child out of the car. Nobody is so distracted as to walk away with one shoe. On hot summer weekends, I often drive barefoot (perfectly legal in all states and safer than driving in flipflops), but I never forget my shoes when I reach my destination; if nothing else, hot asphalt reminds me.

While we still are looking forward to the possibility of grandchildren someday, we are prepared with the shoe in the back seat trick when the time comes.

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Ken Shigley, a double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is lead author ofGeorgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.    Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

Most of us today carry cell phones in our pockets with more processing power than the computers aboard the Apollo moon missions. Frequent news reports illustrate the dangers of thoughtless use of smartphones and social media. It has ensnared politicians and celebrities, sometimes crashing promising careers. This technology has created similar hazards for both plaintiffs and defendants in litigation who are careless about online social media privacy. While we are quick to look for the other side’s vulnerabilities, we must also play defense in protecting our clients from their own electronic blunders.

Many people today, especially younger ones, think nothing of sharing details of personal lives with the world through social networking sites. For this very reason, insurance companies, investigators, and defense attorneys may seek to compel access to social media accounts, computers, cell phones, and hard drives. Careless use of social media can be a kind of self-surveillance, a gift to the other side.

Information from such sources may be used to embarrass or discredit you when you are hurt. It may be used to falsely suggest that the your are exaggerating or that something else caused the injury. Even innocent joking between friends on social media might convince judges and juries that a plaintiff has been dishonest.

Here are ten precautions to avoid self-inflicted wounds through use of social media – Facebook, Twitter, Instagram, etc.

1. Archive the content of current accounts. Destruction of potential evidence may create bigger problems than the information itself. Therefore, it is important to preserve the current content of any social media accounts. Most social media sites include directions for archiving. We designate a staff person to help clients archive correctly.
2. Deactivate or discontinue using social media accounts. If you are going to be the plaintiff in a personal injury case, consider deactivating your Facebook profile and other social media accounts.  If you are not willing to completely deactivate an account you should—after archiving content —remove any information related to your injury or activities and avoid future posts.
3. Turn on the highest privacy setting. If you won’t discontinue use of social media, adjust privacy settings to the highest levels. This means making sure that only actual friends can see the information, rather than friends of friends or the general public. A useful tool is Facebook’s “View As” feature, which allows users to view their profile as it appears to someone else, whether a stranger or a Facebook friend. This might help you see exactly what is visible to the general public, something that isn’t always apparent from privacy settings. Be aware that Facebook publicly publishes “Interests,” even if accounts are otherwise private.
4. Beware of “friends.”  If social media use continues, it is important to edit “friend lists” so that only certain friends can see photo albums and status updates. Remove any “friends” you do not know well or at all, and accept only friend requests from people you know and trust.
5. Become invisible. You can remove yourself from Facebook search results by selecting “only friends” under the “search visibility” option in their profile settings. You can also remove your Facebook page from Google by unchecking the box for “Public Search Listing” in your Internet privacy settings. Make comparable changes to privacy settings in all other social media accounts.
6. Take down photos. After archiving current content,  remove and un-tag all photos of yourself that are not simple head shots.
7. Be cautious. Assume that anything you write on your social media accounts—including status updates, messages, and wall postings—will at some point be seen by defense lawyers, judges, and juries. Think about how such things might be perceived when viewed out of context.
8. Preserve all computers, tablets, or cell phones. If you lose or destroy an electronic communications device, opposing counsel could try to make it look like deliberate destruction of evidence. It is better to fight a battle over access to your devices than have a judge instruct a jury that it may assume the contents of the discarded or destroyed device would have been unfavorable to you.
9. Don’t send messages or information about the case. Do not send emails, text messages, or “private” social media messages about your claim, health, or activities to anyone except your lawyers. Careless emails and electronic messages can destroy a case.
10. Don’t post on websites or web chat groups. While you may find useful information in online support groups, you don’t own the information you post online. Such information you post is highly searchable. You should not enter any information on dating or insurance websites, post on message boards, participate in or comment on social media “private” groups or blogs, or use chat rooms.

This post is adapted from an article published in the January 2016 issue of Trial magazine by Ken Shigley, a double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken@shigleylaw.com.   Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

We have known for a long time that young survivors of even so-called “mild” traumatic brain injury (TBI) are more likely than others to develop problems with alcohol and drug abuse than people without TBI. They are also more likely to have problems with irritability or aggressiveness, including explosive outbursts, which can be set off by minimal provocation. This is consistent with research showing that 76% to 88% of prisoners have a history of traumatic brain injury.

That’s why many people define “mild” traumatic brain injury as an injury to anybody who is not in your family.

So it is not surprising to learn that a new study shows a significantly increased death rate for survivors of “mild” traumatic brain injury in the 15 years after injury.

Researchers at the University of Glasgow and the University of Edinburgh have published a study in the Journal of Neurology, NeuroSurgery and Psychiatry, which looked at the mortality and morbidity fifteen years after hospital admission for a large number of patients who sustained a mild traumatic brain injury.

The study included 2,428 adults with mild traumatic brain injury and an equal number of community controls who were case-matched for age, gender and social deprivation. The researchers also included a further control group admitted with non-brain injury that was also matched for duration of hospital admission. Any control member with a history of head injury prior to the study was excluded.

They found that age at injury was important as younger adults (15-54) with mild brain injury had a 4.2 greater risk of death than the control group. In adults age over 54 the risk of death was 1.4 times higher. Repeated brain injury was also a risk factor for death in the mild traumatic brain injury group.

The researchers concluded, “Adults hospitalized with [mild traumatic brain injuries] had a greater risk of death in the following fifteen years in matched controls. The extent to which lifestyle and potential chronic changes in neuro pathology explain these findings is unclear. Lifestyle factors do contribute to risk of death after MHI and this finding has implications for lifestyle management interventions.”

While the study does not include a deep analysis of specific causes of death, it is common sense that increased risky and antisocial behavior, along with alcohol and drug abuse, does increase the risk of bad outcomes including early death.

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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 the Institute 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.

While I can enjoy hanging out at the pool on a summer day as much as anyone, I can’t help thinking of the families I have helped after tragic swimming pools injuries.

The saddest story in my experience was the near drowning of a beautiful 19-month-old girl on a soft April afternoon in Atlanta.  While her mom was breast feeding a newborn sibling on the sheltered patio of their condo, the toddler quietly slipped away. Mom frantically searched in one direction, guessing that the child had gone toward a playmate’s home.

But the child toddled in the opposite direction, toward the condominium pool that had not yet opened for the season. Even at 19 months, she was able to reach and open the substandard latch on the “locked” pool gate. She fell in the uncovered pool, apparently reaching for a floating ball that may have been there all winter. A maintenance man later testified he had told the complex manager for months they needed to replace the latch with a child proof model.

Demonstrating how anoxia(oxygen deprivation) in a near drowning brain injury can be worse than death, she had catastrophic brain damage.  She had a feeding tube for the years she survived, her limbs drew up in contractures and although her beautiful blue eyes tracked people around the room, her neurologist swore that there was no cognitive activity in her brain. It was as if the lights were on but nobody was home.

No amount of money could heal her but we were able to win enough to provide for the 24/7 skilled home nursing care she required. And to some degree the case may have helped to raise the consciousness of property managers and insurers about the need for proper pool enclosures, preventing tragedies for other children.

That experience led me to leave a firm where I mostly defended cases for insurance companies and pursue my calling representing individuals and families.

Drowning ranks fifth among the leading causes of unintentional injury death in the United States. Every day, about ten people die from unintentional drowning. Of these, two are children aged 14 or younger. The U.S. Consumer Product Safety Commission (CPSC) reports that each year nearly 300 children under the age of five drown in a pool or spa and another 5,100 children under the age of 15 go to hospital emergency rooms for near-drowning injuries. Children between the ages of 1 and 3 and African American children between the ages of 5 and 19 are most at risk of drowning.  More than 200 young children drown in backyard swimming pools each year.

To help prevent these tragic deaths while at the pool this summer, people need to be aware of their surroundings. They also need to make sure there are proper safety precautions taken before setting foot inside a pool setting.

The CPSC’s “Pool Safely” Week begins July 28, 2013. Pool Safely Week is an opportunity for water parks, municipal swimming pools and other indoor or outdoor aquatic facilities to demonstrate their support of the national campaign and the life-saving message that “simple steps save lives.” By participating in Pool Safely Week 2013, communities – including subdivisions with neighborhood pools – may help reinforce the message that pool and spa safety is important all the time, but especially in summer when so many families spend time at swimming pools. 

 Here are  nine tips to help keep everyone safe at the pool this season:

 1.      Maintain an effective fence and gate enclosure around any swimming pool to prevent young children from wandering in without adult supervision.

 o       The fence must be at least four feet high, with no openings larger than four inches.

o       The gate must be self-closing and self-latching.

o       The latch on the gate must require one to reach over the gate and lift up, so that small children cannot open it.

o       All chairs, tables, large toys or other objects that would allow a child to climb up to reach the gate latch or enable the child to climb over the isolation fence should be removed or kept inside the fenced area.  

o       If your house serves as a fourth side of a fence around a pool, install and religiously use door alarms and install window guards on windows facing pools or spas.

o       Install pool and gate alarms to alert you when children manage to get past the first line of defense. Consider using a surface wave or underwater alarm.

 2.      Teach all children to swim  by age four.

 o       When my children were about that age, we sent them to a swimming teacher who had a great reputation for teaching young children the basics of swimming.  

o       Helicopter parents were banned from the pool while the swim teacher endured the tykes’ screams and tears. We took both of our kids to him and they came back ready to start daily practices with the neighborhood pool swim team.

3.      Make sure a responsible adult trained in CPR and first aid, or a lifeguard, or is present and attentive at all times when children are in the pool area.

o       If you have a home pool,  take Red Cross water safety, CPR and first aid courses.

o       If your neighborhood operates a pool, push to hire a qualified lifeguard if possible. 

o       Issue the adult supervisor an item such as a whistle, bracelet, etc. to reinforce which adult is in charge of the safety of the children.

4.      Remember that a person who is drowning will not look like the dramatic “drowning”you see in TV and movies.

o       More often, drowning victims are not flailing away and waving their arms around because instinct actually drives them to push themselves upward by moving their arms lateral and downward.

5.      Maintain constant, undistracted visual supervision of young children in and around the swimming pool.

o       Never leave a young child unattended in or near water but stay in arm’s reach of very young kids. Do not trust a child’s life to another child or even an unreliable, distracted adult. A child can drown in the time it takes to answer a cell phone call or respond to a text message.

o       Remove small children from the swimming pool for any distraction such as a telephone call, use of restroom, etc.

o       Make sure children who have not learned to swim wear a US Coast Guard-approved personal flotation device. 

Floaties, rafts and inflatable toys should never be substituted for adult supervision. 

o       Teach young children to ask permission before going near water and enforce that rule with meaningful discipline.

o       If a child is missing, check the water first– every second counts!

6.      Establish and enforce clear pool safety rules,such as

o       No diving

o       No swimming alone

o       No running in pool area

o       No riding toys or electronic devices near pool

o       Stay away from drains

o       Don’t just post the rules where easily ignored. Reinforce their importance and impose meaningful consequences for breaking the rules.

7.      Make sure your pool and spa drains, drain covers and pool and spa covers comply with federal safety requirements.

o       Older drains with uncontrolled suction posed a risk of drowning or disemboweling a child. Since 2007, federal law has to require anti-entrapment drain covers and other safety devices, as needed.

o       Under the law, all public pools and spas must have ANSI/ASME A112.19.8 performance standard, or the successor standard ANSI/APSP-16 2011 compliant drain covers installed and a second anti-entrapment system installed, when there is a single main drain other than an unblockable drain.

o       Maintain pool and spa covers in good working order.

o       If you do not know what kind of drains, drain covers and pool covers you have, ask your pool service provider whether yours meet these standards.

8.      Be prepared for emergencies. 

o       Make sure everyone in the home knows how to respond to water emergencies by having an emergency plan in place with your children  

o       Have appropriate equipment, such as reaching or throwing equipment, a cell phone, life jackets and a first aid kit, within a reach at poolside, not inside the house.

o       Make sure even very young children know how and when to call 911.

9.      Remember pool hygiene as well as safety.

o       Keep your pool clean and clear by maintaining proper chemical levels, circulation and filtration. I represented a child in a near drowning in which an apartment pool was so murky that emergency personnel had trouble finding a black child on the white bottom of the pool.

o       By keeping a pool clean and hygienic, you can see what is happening in the pool and minimize risks of earaches, rashes or diseases.

o             Protect your skin. Limit the amount of direct sunlight you receive between 10:00 a.m. and 4:00 p.m. and wear a carefully chosen sunscreen.

o       Stay hydrated: Drink plenty of water regularly, even if you’re not thirsty. Avoid drinks with alcohol or caffeine

May you and your children reach the end of the summer swimming pool season as you began it, safe and healthy, though more tan and fit.

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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.

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.

The idea is to prevent the jury from mixing sympathy for the plaintiff with determination of fault.

Over the years I have had mixed results in dealing with that issue, with both sides arguing on the basis of court decisions in other jurisdictions, as there has been no definitive Georgia law on point.

Now the Supreme Court of Georgia, in an opinion written by Justice David Nahmias, has resolved the issue. The case involved a child with spastic quadriplegia due to cerebral palsy, allegedly due to obstetrical malpractice at her birth. Kesterson v. Jarrett, — S.E.2d —-, 2012 WL 2203450, Ga., June 18, 2012 (NO. S11G0590).

It is a long and scholarly opinion to which I cannot easily do justice in a brief blog post, but here are a couple of brief excerpts:

Under the longstanding law of Georgia, the parts to a lawsuit have a fundamental right to be present in court during the trial of their case. The issue presented in this appeal is whether a party may be denied that right and excluded from the courtroom because her physical and mental condition may evoke undue sympathy from the jury and thereby improperly prejudice the other party. This appears to be a question of first impression for Georgia’s appellate courts, likely because exclusion of a party from trial for this reason is such an exceptional event in this State. . .

We conclude . . . that a party may not be excluded from her own trial simply because her physical and mental condition may evoke sympathy, even under these circumstances. Instead, trial courts can and should address the risk of undue sympathy using jury instructions and other common and time-tested means of ensuring that both parties receive a fair trial, without infringing on the parties’ right to be present. Accordingly, we reverse. …

Now that the right is established to have the mentally incompetent plaintiff in the courtroom at all phases of trial in Georgia state courts, the next question is what impact that will have on trial tactics of both plaintiff and defense lawyers.

In medical malpractice trials, where juror sympathy often aligns with the defendant doctors who win about 80% of the time, it might not make much difference. In the Kesterson case, the child was present at the beginning of jury selection and once during medical testimony in the liability phase. I can only speculate on whether the exclusion of the child for most of the liability phase of the bifurcated trial really made a difference in the outcome.

While the child’s appearances were brief, some plaintiffs’ trial consultants counsel limiting exposure of such a plaintiff to brief times in order to maintain the shock value and prevent jurors from becoming hardened to the plaintiff’s condition.

The “rules of the road” strategy widely promoted by trial consultants today requires focus on the safety rules and their violation by the defendant prior to talking much about damages. This is the reverse of the practice a generation ago in which plaintiff lawyers would start out with talk about how badly the plaintiff was injured. Only after establishing the importance of all the safety rules the defendant violated, according to this theory, does the plaintiff’s lawyer have psychological permission from the jury to go into discussion of damages.

The defense lawyer who moves for bifurcation of trial under these circumstances may lead even the less sophisticated plaintiff’s lawyer into inadvertently adopting the “rules of the road” strategy rather than blatantly pandering to sympathy from the beginning.

Perhaps some defense lawyers, knowing that they cannot exclude the catastrophically brain damaged plaintiff from the courtroom during the liability phase, will reconsider the strategy of moving to bifurcate liability and damage phases. In so doing, they might lure plaintiff lawyers into  alienating jurors though overt appeals to sympathy by keeping the plaintiff in the courtroom for the entire trial. Jurors are pretty smart cookies who can easily resent such pandering.

And perhaps some plaintiffs’ lawyers will voluntarily choose to bring in the catastrophically injured plaintiff only briefly in the early stages of trial, preserving the shock value for perhaps the explanation of a life care plan in support of a large damages number near the end of the trial.

Even though we can keep in the courtroom for the entire trial a spastic quadriplegic with no mental capacity to assist the lawyer, that does not mean we should.

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.

First, consider the lowly lab rat. The NYT article report a 2008 study in which rats forced to run wound up with significantly more new brain cells after eight weeks than those who ran when they chose, even though the latter animals ran faster.  Another experiment found that , mice that were required to exercise on treadmills subsequently performed better on cognitive tests than those given access to running wheels. (A lot of humans may feel like lab rats on treadmills in our jobs, but there are distinctions.)

That brings us to Dr. Jay L. Alberts, a brain injury rehabilitation researcher formerly at Emory but now at Cleveland Clinic.  He put Parkinson’s patient volunteers on tandem bikes where they would be forced to keep up with the furious pace set by the other rider. After eight weeks of hour-long sessions of forced riding, most of the patients in Dr. Alberts’s study showed significant lessening of their tremors and better body control, improvements that lingered for up to four weeks after they stopped riding. Functional M.R.I. scans showed that, compared to Parkinson’s patients who hadn’t ridden, the tandem cyclists’ brains were more active.The effects were significantly better than in unforced exercise where the patient set the pace.

Whether this research might lead to developments benefiting people who have had strokes,  traumatic brain injury (TBI) or even merely fuzzy brains remains an open question. But this graying geezer with undiagnosed ADHD may turn up the pace on the treadmill at the gym just in case it might do some good.

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Ken Shigley is president of the State Bar of Georgia, a Certified Civil Trial Advocates of the National Board of Trial Advocacy  (one of 20 in Georgia) and author of Georgia Law of Torts: Trial Preparation & Practice (West 2010). He represents individuals and families in cases involving serious physical injuries, including brain injury, neck and back injury, spinal cord injury, burn injury and wrongful death. Contact us for a free consultation.